MBE QUESTIONS FOR FINAL

B. No, because the parties did not put their agreement in writing.

24. In a telephone conversation, a jewelry maker offered to buy 100 ounces of gold from a precious metals company if delivery could be made within 10 days. The jewelry maker did not specify a price, but the market price for 100 ounces of gold at the time of the conversation was approximately $65,000. Without otherwise responding, the company delivered the gold six days later. In the meantime, the project for which the jewelry maker planned to use the gold was canceled. The jewelry maker therefore refused to accept delivery of the gold or to pay the $65,000 demanded by the company. Is there an enforceable contract between the jewelry maker and the company? A. No, because the parties did not agree on a price term. B. No, because the parties did not put their agreement in writing. C. Yes, because the absence of a price term does not defeat the formation of a valid contract for the sale of goods where the parties otherwise intended to form a contract. D. Yes, because the company relied on an implied promise to pay when it delivered the gold.

B: The due process clause of the Fifth Amendment.

32. The United States government demonstrated that terrorist attacks involving commercial airliners were perpetrated exclusively by individuals of one particular race. In response, Congress enacted a statute imposing stringent new airport and airline security measures only on individuals of that race seeking to board airplanes in the United States. Which of the following provides the best ground for challenging the constitutionality of this statute? A: The commerce clause of Article I, Section 8. B: The due process clause of the Fifth Amendment. C: The privileges and immunities clause of Article IV. D: The privileges or immunities clause of the Fourteenth Amendment.

a. the privileges or immunities clause of the fourteenth amendment

33. A state requires licenses of persons "who are engaged in the trade of barbering." It will grant such licenses only to those who are graduates of barber schools located in the state, have resided in the state for two years, and are citizens of the United States. Which of the following is the strongest ground on which to challenge the requirement that candidates for barber licenses must have been residents of the state for at least 2 years? a. the privileges or immunities clause of the fourteenth amendment b. the due process clause of the fourteenth amendment c. the equal protection clause of the fourteenth amendment d. the obligation of contracts clause

A. for the purchaser, because he owns an undivided one half interest in the property

21. A parcel of property was devised to a husband and a wife "as joint tenants with right of survivorship" through the will of the husband's mother. After title had passed to them, the husband and the wife experienced marital difficulties and legally separated. Unbeknownst to the husband, the wife quitclaimed her interest in the property to a bona fide purchaser for value. Shortly thereafter, the husband and the wife reconciled. The next month, the wife was killed in an auto accident. The purchaser of the wife's interest filed a suit for partition of the property. The husband filed an appropriate counterclaim for quiet title, asserting that he was owner of the entire parcel by right of survivorship. How should the court rule? A. for the purchaser, because he owns an undivided one half interest in the property B. For the purchaser, because the husband and the wife are presumed to have taken title from the mother as tenants in common under modern law C. For the purchaser, because the husband and the wife were legally separated when he purchased his interest from the wife D. For the husband because he succeeded to the entire ownership when the wife died

c. the commerce clause

22. To encourage the development of local integrated circuit manufacturing operations, a state enacted legislation requiring that at least 50% of the units sold by electronic products retailers within the state incorporate locally manufactured microprocessors. The owner of a chain of computer stores in the state sells electronic devices manufactured entirely in other states. If the computer store owner attacks the state legislation on constitutional grounds, which of the following would provide the strongest support for his position? a. the equal protection clause of the fourteenth amendment b. the due process clause of the fourteenth amendment c. the commerce clause d. the privileges and immunities clause of article IV

a. deny the motion

23. A grand jury indicted the defendant on a charge of arson, and a valid warrant was issued for her arrest. A police officer arrested the defendant and informed her of what the warrant stated. However, hoping that the defendant might say something incriminating, he did not give her Miranda warnings. He placed her in the back seat of his patrol car and was driving her to the police station when she said, "Look, I didn't mean to burn the building; it was an accident. I was just burning some papers in a wastebasket." At the station, after being given Miranda warnings, the defendant stated that she wished to remain silent and made no other statements. The defendant moved to suppress the use of her statement to the police officer as evidence on two grounds: first, that the statement was acquired without giving Miranda warnings, and second, that the police officer had deliberately elicited her incriminating statement after she was in custody. As to the defendant's motion to suppress, the court should a. deny the motion b. grant the motion only on the basis of the first ground stated c. grant the motion only on the basis of the second ground stated d. grant the motion on either ground

D. Yes, because the offered evidence explains or supplements the agreement by usage of trade.

10. A farmer contracted to sell 100,000 bushels of wheat to a buyer. When the wheat arrived at the destination, the buyer discovered that the farmer had delivered only 96,000 bushels. The buyer sued the farmer for breach of contract. At the trial of the case, the court found that the written contract was intended as a complete and exclusive statement of the terms of the agreement. The farmer offered to prove that in the wheat business, a promise to deliver a specified quantity is considered to be satisfied if the delivered quantity is within 5% of the specified quantity. The buyer objected to the offered evidence. Is the court likely to admit the evidence offered by the farmer? A. No, because the offered evidence is inconsistent with the express language of the agreement. B. No, because the written contract was totally integrated. C. Yes, because the offered evidence demonstrates that the farmer substantially performed the contract. D. Yes, because the offered evidence explains or supplements the agreement by usage of trade.

C. not guilty, because he did not intend to hit the woman

12. Statutes in a jurisdiction define criminal assault as "an attempt to commit a criminal battery" and criminal battery as "causing an offensive touching." As a man was walking down the street, a gust of wind blew his hat off. The man reached out, trying to grab his hat, and narrowly missed striking a woman in the face with his hand. The woman, fearful of being struck by the man, pushed the man away. If charged with criminal battery, the woman should be found A. guilty, b/c he caused the woman to be in apprehension of an offensive touching B. guilty, b/c he should have realized he might strike someone by reaching out C. not guilty, because he did not intend to hit the woman D. not guilty, because he did not hit the woman

C. The fabric companies assignment was a breach of its contract with the clothing company but was nevertheless effective to transfer to the textile company the fabric company's rights against the clothing company

13. A new clothing company, about to commence the manufacture of a new clothing line, entered into a written agreement to purchase all of its monthly requirements of a certain elasticized fabric for a period of three years from a fabric company at a specified unit price and agreed upon delivery and payment terms. The agreement also provided that the parties covenant not to assign this contract.The fabric company promptly made an "assignment of the contract" to a textile company. The clothing company subsequently ordered, took delivery of, and paid the fabric company the agreed price ($5,000) for the requirement of the fabric for the first month of its operation. Which of the following accurately states the legal effect of the covenant not to assign the contract? A. The covenant made the assignment to the textile company ineffective B. The covenant had no legal effect C. The fabric companies assignment was a breach of its contract with the clothing company but was nevertheless effective to transfer to the textile company the fabric company's rights against the clothing company D. By normal interpretation, a covenant against assignment in a sale-of-goods agreement applies only to the buyer, not the seller

C. No, b/c a jury could find that the plaintiffs damages were caused by the negligent conduct of the defendant

14. While driving at a speed in excess of the statutory limit, the defendant negligently collided with another car, and the disabled vehicles blocked two of the highway's three northbound lanes. When the plaintiff approached the scene two minutes later, he slowed his car to see if he could help those involved in the collision. As he slowed, he was rear-ended by the driver of another vehicle. The plaintiff, who sustained damage to his car and was seriously injured, brought an action against the defendant to recover damages. The jurisdiction adheres to the traditional common law rules pertaining to contributory negligence. If the defendant moves to dismiss the action for failure to state a claim upon which relief may be granted, should the motion be granted? A. Yes, b/c it was the driver, not the defendant, who collided with the plaintiffs car and caused the plaintiffs injuries B. Yes, b/c the plaintiff could have safely passed the disabled vehicles in the traffic lane that remained open C. No, b/c a jury could find that the plaintiffs damages were caused by the negligent conduct of the defendant D. No, b/c the defendant was driving in excess of the statutory limit when he negligently caused the first accident

B. The statute denies minors one of their fundamental rights without due process.

17. A state statute flatly bans the sale or distribution of contraceptive devices to minors. A national retailer of drugs and related items is charged with violating the statute. Which of the following is the strongest constitutional argument, the retailer could make in defending itself against prosecution for violation of this statute? A. The statute constitutes an undue burden on interstate commerce. B. The statute denies minors one of their fundamental rights without due process. C. The statute denies the retailer a privilege or immunity of state citizenship. D. The statute violates the First Amendment right to freedom of religion because it regulates morals.

A. Murder

18. The defendant and his friend were fooling around with a pistol in the friend's den. The defendant aimed the pistol in the friend's direction and fired three shots slightly to the friend's right. One shot ricocheted off the wall and struck his friend in the back, killing him instantly. The most serious crime of which the defendant can be convicted is A. Murder B. Voluntary manslaughter C. Involuntary manslaughter D. Assault with a dangerous weapon

B: Yes, because the repairman's act was a breach of a nondelegable duty owed by the homeowner to the pedestrian.

19. While walking on a public sidewalk, a pedestrian was struck by a piece of lumber that fell from the roof of a homeowner's house. The homeowner had hired a repairman to make repairs to his roof, and the lumber fell through due to negligence on the repairman's part. Assume that the homeowner exercised reasonable care in hiring the repairman, that the repairman was an independent contractor, and that public policy made a homeowner's duty to keep the sidewalk safe for pedestrian a nondelegable duty. If the pedestrian brings an action against the homeowner to recover damages for the injury caused to him by the repairman's negligence, will the pedestrian prevail? A: Yes, under the res ipsa loquitur doctrine. B: Yes, because the repairman's act was a breach of a nondelegable duty owed by the homeowner to the pedestrian. C: No, because the repairman was an independent contractor rather than the homeowner's servant. D: No, because the homeowner exercised reasonable care in hiring the repairman to do the repair.

D. the miller because the flour wholesaler validly assigned his rights and delegated his duties under the original contract to the miller

20. A flour wholesaler contracted to deliver to a producer of fine baked goods her flour requirements for a one year period. Before delivery of the first scheduled installment, the flour wholesaler sold its business and "assigned" all of its sale contracts to a miller, another reputable and long-time flour wholesaler. The original flour wholesaler informed the baker of this transaction. Assume that the baked goods producer accepted miller's delivery of the first installment as set out in the original contract between the flour wholesaler and the baked goods producer. However, the baked goods producer paid the contract price for that installment to the flour wholesaler and refused to pay anything to the miller. In an action by the miller against the baked goods producer for the contractual amount of the first installment, who will most likely prevail? A. The baked goods producer b/c she had not expressly agreed to accept the miller as her flour supplier. B. The baked goods producer because the payment of the contractual installment to the flour wholesaler discharged her obligation. C. The miller because he is a third-party beneficiary with vested rights D. the miller because the flour wholesaler validly assigned his rights and delegated his duties under the original contract to the miller

(D) Yes, because the time limit is an additional term that does not contradict the partially integrated written contract.

25. A contractor agreed to remodel a homeowner's garage for $5,000. Just before the parties signed the one-page written contract, the homeowner called to the contractor's attention the fact that the contract did not specify a time of completion. The parties orally agreed but did not specify in the contract that the contractor would complete the work in 60 days, and then they both signed the contract. The contract did not contain a merger clause. The contractor failed to finish the work in 60 days. The homeowner has sued the contractor for breach of contract. Is the court likely to admit evidence concerning the parties' oral agreement that the work would be completed in 60 days? (A) No, because the court must ascertain the meaning of the agreement from the terms of the written contract. (B) No, because the oral agreement was merely part of the parties ' negotiations. (C) Yes, because the contract is ambiguous. (D) Yes, because the time limit is an additional term that does not contradict the partially integrated written contract.

(B) The buyer, because the seller received his acceptance before receiving notice of the buyer's rejection.

26. On March 1, a seller mailed a letter to a buyer offering to sell a specified quantity of shirts at list price. The buyer received the seller's offer on March 2. The next day the buyer mailed the seller a letter of rejection. The buyer then changed his mind and decided to accept the seller's offer. On March 5, the buyer mailed a letter of acceptance to the seller. On March 4, the seller sent the buyer a letter revoking his original March 1 offer. On March 6, the seller received the buyer's acceptance. On March 7, the buyer received the seller's letter of revocation. The following day, the seller received the buyer's rejection. The seller is now refusing to sell the shirts to the buyer, and the buyer has sued for breach of contract.Judgment should be for whom? A) The buyer, because he mailed his acceptance before receiving notice of the seller's revocation. (B) The buyer, because the seller received his acceptance before receiving notice of the buyer's rejection. (C) The seller, because the buyer mailed his rejection before depositing his acceptance. (D) The seller, because he mailed his revocation before receiving notice of the buyer's acceptance.

c. no b/c the singers telephone call did not constitute a repudiation

27. On January 1, a singer entered into a written contract with the owner of a nightclub to sing nightly at the nightclub for a period of two years at $54,000 per year, commencing February 1. On January 25, the singer phoned the nightclub owner and told him that he had not finished relocating from out of state and might not be ready to start singing until February 10. Furious, the nightclub owner located a substitute act for the month of February. Can the nightclub owner bring an immediate suit against the singer? a. yes b/c the singers telephone call was a repudiation b. yes b/c he changed his position in reliance on the singers telephone call c. no b/c the singers telephone call did not constitute a repudiation d. no b/c a repudiation must be in writing to be given effect

(D) The risk of loss passed to the buyer on the contract date under the doctrine of equitable conversion.

28. A seller owned a single-family house. A buyer gave the seller a signed handwritten offer to purchase the house. The offer was unconditional and sufficient to satisfy the statute of frauds, and when the seller signed an acceptance, an enforceable contract resulted. The house had been the seller's home, but he had moved to an apartment, so the house was vacant at all times relevant to the proposed transaction. Two weeks after the parties had entered into their contract, one week after the buyer had obtained a written mortgage lending commitment from a lender, and one week before the agreed-upon closing date, the house was struck by lightning and burned to the ground. The loss was not insured, because three years earlier, the seller had let his homeowner's insurance policy lapse after he had paid his mortgage debt in full. The handwritten contract was wholly silent as to matters of financing, risk of loss, and insurance. The buyer declared the contract voided by the fire, but the seller asserted a right to enforce the contract despite the loss. There is no applicable statute. If a court finds for the seller, what will be the likely reason? (A) The contract was construed against the buyer, who drafted it. (B) The lender's written commitment to make a mortgage loan to the buyer made the contract of sale fully binding on the buyer. (C) The risk of loss falls on the party in possession, and constructive possession passed to the buyer on the contract date. (D) The risk of loss passed to the buyer on the contract date under the doctrine of equitable conversion.

b. a possibility of reverter

29. A grantor conveyed a farm "to my daughter, her heirs and assigns, so long as the premises are used for residential and farm purposes, then to her son and his heirs and assigns." The jurisdiction in which the farm is located has adopted the common-law Rule Against Perpetuities unmodified by statute. As a consequence of the conveyance, the grantor's interest in the farm is a. nothing b. a possibility of reverter c. a right of entry for condition broken d. a reversion in fee simple absolute

B: The seller will be required to convey a marketable title.

30. A seller and a buyer entered into a written contract for the sale and purchase of land which was complete in all respects except that no reference was made to the quality of title to be conveyed. Which of the following will result? A: The contract will be unenforceable. B: The seller will be required to convey a marketable title. C: The seller will be required to convey only what he owned on the date of the contract. D: The seller will be required to convey only what he owned at the date of the contract plus whatever additional title rights he may acquire prior to the closing date

D: denies an alien the equal protection of the laws guaranteed by the Fourteenth Amendment.

31. The legislature of a particular state enacted a statute requiring that all law enforcement officers in that state be citizens of the United States. An alien, lawfully admitted to permanent residency five years before the enactment of this statute, sought employment as a forensic pathologist in the state coroner's office. He was denied such a job solely because he was not a citizen. The alien thereupon brought suit in federal district court against appropriate state officials seeking to invalidate this citizenship requirement on federal constitutional grounds. The strongest ground upon which to attack this citizenship requirement is that it A: constitutes an ex post facto law as to previously admitted aliens. B: deprives an alien of a fundamental right to employment without the due process of law guaranteed by the Fourteenth Amendment. C: denies an alien a right to employment in violation of the Privileges or Immunities Clause of the Fourteenth Amendment. D: denies an alien the equal protection of the laws guaranteed by the Fourteenth Amendment.

D. Yes, because the subcontractor's failure to provide assurance was not a repudiation since there were no reasonable grounds for the general contractor's insecurity.

5. On June 1, a general contractor and a subcontractor entered into a contract under which the subcontractor agreed to deliver all of the steel joists that the general contractor required in the construction of a hospital building. The contract provided that delivery of the steel joists would begin on September 1. Although the general contractor had no reason to doubt the subcontractor's ability to perform, the general contractor wanted to be sure that the subcontractor was on track for delivery in September. He therefore wrote a letter on July 1 to the subcontractor demanding that the subcontractor provide assurance of its ability to meet the September 1 deadline. The subcontractor refused to provide such assurance. The general contractor then immediately obtained the steel joists from another supplier. If the subcontractor sues the general contractor for breach of contract, is the subcontractor likely to prevail? A. No, because the subcontractor anticipatorily repudiated the contract when it failed to provide adequate assurance. B. No, because the contract failed to specify a definite quantity. C. Yes, because a demand for assurance constitutes a breach of contract when the contract does not expressly authorize a party to demand assurance. D. Yes, because the subcontractor's failure to provide assurance was not a repudiation since there were no reasonable grounds for the general contractor's insecurity.

C. Either the retail outlet or the computer service company, because since each has the right to enforce the banks performance of its contract with the retail outlet mutuality of remedy renders potentially liable for the defective performance

9. A computer retail outlet contracted to service a bank's computer equipment for one year at a fixed monthly fee under a contract that was silent as to assignment or delegation by either party. Three months later, the retail outlet sold the service portion of its business to an experienced and well-financed computer service company. The only provision in the agreement between the retail outlet and the computer service company relating to the outlet's contract with the bank stated that the outlet "hereby assigns all of its computer service contracts to [the computer service company]." The computer service company performed the monthly maintenance required under the service contract. Its performance was defective, however, and caused damage to the bank's operations. Whom can the bank sue for damages arising from the computer service company's defective performance? A. The retail outlet only because the computer service company made no promises to the bank B. Either the retail outlet or the computer service company because the bank has not released the outlet and the bank is an intended beneficiary of the outlets agreement with the computer service company C. Either the retail outlet or the computer service company, because since each has the right to enforce the banks performance of its contract with the retail outlet mutuality of remedy renders potentially liable for the defective performance D. The computer service company only, because it is qualified and a financially responsible supplier of computer services

D. The man must prove that the law serves no legitimate government interest or is not rationally related to any legitimate interest

A 55-year old man who has just been laid off seeks to apply for a job with a state-run nursing home. The man has been a psychologist for the past 30 years and he is very well-qualified for the position for which he has applied. However, the man is dismayed to learn that a state law prevents the nursing home from hiring any individual over the age of 50, regardless of the persons qualifications. The man brings an equal protection challenge against the states law. What standard of scrutiny applies to this case? A. The state must prove its classification is necessary to achieve a compelling government interest B. The man must prove that the classification is not substantially related to an important government interest C. The state must prove its classification is substantially related to an important government interest D. The man must prove that the law serves no legitimate government interest or is not rationally related to any legitimate interest

(A) No.

A common law jurisdiction defines first-degree murder as any murder that is (1) committed by means of poison or (2) premeditated. All other murder is second-degree murder, and manslaughter is defined as at common law. An employee was angry with her boss for denying her a raise. Intending to cause the boss discomfort, the employee secretly dropped into his coffee three over-the-counter laxative pills. The boss drank the coffee containing the pills. Although the pills would not have been dangerous to an ordinary person, because the boss was already taking other medication, he suffered a seizure and died. If the employee is charged with murder in the first degree, should she be convicted? (A) No. (B) Yes, only because she acted with. (C) Yes, only because she used poison. (D) Yes, both because she used poison and because she acted with premeditation.

B: deny the motion for acquittal, but instruct on manslaughter because there is evidence of adequate provocation.

A defendant and a sports fan were engaged in a heated discussion over the relative merits of their favorite professional football teams when the defendant said, "You have to be one of the dumbest people around." The sports fan slapped the defendant. The defendant drew a knife and stabbed the sports fan in the stomach. Other people then stepped in and stopped any further fighting. Despite the pleas of the other people, the sports fan refused to go to a hospital or to seek medical treatment. About two hours later, he died as the result of a loss of blood. The defendant was charged with the murder of the sports fan. At trial, medical evidence established that if the sports fan had been taken to a hospital, he would have survived. At the end of the case, the defendant moves for a judgment of acquittal or, in the alternative, for an instruction on the elements of voluntary manslaughter. The court should A: grant the motion for acquittal. B: deny the motion for acquittal, but instruct on manslaughter because there is evidence of adequate provocation. C: deny both motions, because the defendant failed to retreat. D: deny both motions, because malice may be proved by the intentional use of a deadly weapon on a vital part of the body.

B: For the injuries to his knee and shoulder, if the jury finds that the pedestrian's fall down a flight of stairs was a normal consequence of his original injury.

A driver negligently ran into a pedestrian who was walking along a road. The pedestrian sustained an injury to his knee, causing it to buckle from time to time. Several months later, the pedestrian sustained an injury to his shoulder when his knee buckled, causing him to fall down a flight of stairs. The pedestrian then brought an action against the driver for the injuries to his knee and shoulder. In his action against the driver, for which of his injuries may the pedestrian recover damages? A: For the injuries to his knee and shoulder, because the driver takes the victim as he finds him. B: For the injuries to his knee and shoulder, if the jury finds that the pedestrian's fall down a flight of stairs was a normal consequence of his original injury. C: For the injury to his knee only, because the injury to the pedestrian's shoulder is separable. D: For the injury to his knee only, if the jury finds that the driver could not have foreseen that his negligent driving would cause the pedestrian to fall down a flight of stairs.

A. no, because the danger of falling from a ladder is obvious

A homeowner was using a six-foot stepladder to clean the furnace in his home. The homeowner broke his arm when he slipped and fell from the ladder. The furnace had no warnings or instructions on how it was to be cleaned. In a suit by the homeowner against the manufacturer of the furnace to recover for his injury, is the homeowner likely to prevail? A. no, because the danger of falling from a ladder is obvious B. no, because the homeowner should have hired a professional to clean the furnace C. Yes, because the furnace die not have a ladder attached to it for cleaning purposes D. Yes, because the lack of warnings or instructions for how to clean the furnace made the furnace defective

A. Liability, because the hotel had a nondelegable duty to the guest to keep a safe premises.

A hotel employed a carefully selected independent contractor to rebuild its swimming pool. The hotel continued to operate while the pool was being rebuilt. The contract between the hotel and the contractor required the contractor to indemnify the hotel for any liability arising from the contractor's negligent acts. A guest of the hotel fell into the excavation, which the contractor had negligently left unguarded. In an action by the guest against the hotel to recover for his injuries, what would be the most likely outcome? A. Liability, because the hotel had a nondelegable duty to the guest to keep a safe premises. B. Liability, because the contract btwn the hotel and the contractor required the contractor to indemnify the hotel for any liability arising from the contractors negligent acts C. No liability, because the contractor was the actively negligent party D. No liability, because the hotel exercised reasonable care in employing the contractor

A. Burglary and larceny.

A man asked his girlfriend to lend him something he could use to break into his neighbor's padlocked storage shed in order to steal a lawn mower. She handed him a crowbar. He took the crowbar but then found a bolt cutter that the neighbor had left outside the shed. Using the bolt cutter, he cut the padlock on the shed and took the mower, which he then used to mow his girlfriend's lawn. She was surprised and pleased by this gesture. Burglary in the jurisdiction applies to any structure or building, and there is no nighttime element. The girlfriend has been charged as an accomplice to burglary and larceny. Of which crimes, if any, is she guilty? A. Burglary and larceny. B. Burglary, but not larceny, because she intended to assist only in the breaking. C. Larceny, but not burglary, because she provided no actual assistance to the breaking but received a benefit from the larceny. D. Neither burglary nor larceny, because she provided no actual assistance.

A. attempted robbery

A man had spent the evening drinking at a local bar and was weaving down the street on his way home, singing. Suddenly, a person wearing a cartoon character mask jumped out from an alley, pointed a gun at the man, and snarled, "This is loaded, buddy, and I don't mind using it. Hand over your cash pronto." The man was so drunk that he failed to understand what was going on and started to howl with laughter at the sight of the cartoon mask. Surprise and rattled by the man's reaction, the masked gunman fled. The man soon recovered his composure and staggered home safely. The crimes below are listed in descending order of seriousness. What is the most serious crime of which the masked gunman may properly be charged and convicted? A. attempted robbery B. attempted battery C. attempted larceny D. no crime

D. the man did not intend to commit a crime inside the house

A man who owned a business believed that one of his employees was stealing computer equipment from the business. He decided to break into the employee's house one night, when he knew that the employee and her family would be away, to try to find and retrieve the equipment. The man had brought a picklock to open the employee's back door, but when he tried the door, he found that it was unlocked, so he entered. As the man was looking around the house, he heard sounds outside and became afraid. He left the house but was arrested by police on neighborhood patrol. What is the man's strongest defense to a burglary charge? A. The back door to the house was unlocked B. the burglary was abandoned C. the house was not occupied at the time of his entry D. the man did not intend to commit a crime inside the house

D: Yes, because the mechanic's injury was a proximate consequence of the woman's negligent driving.

A man's car sustained moderate damage in a collision with a car driven by a woman. The accident was caused solely by the woman's negligence. The man's car was still drivable after the accident. Examining the car the next morning, the man could see that a rear fender had to be replaced. He also noticed that gasoline had dripped onto the garage floor. The collision had caused a small leak in the gasoline tank. The man then took the car to a mechanic, who owns and operates a body shop, and arranged with the mechanic to repair the damage. During their discussion the man neglected to mention the gasoline leakage. Thereafter, while the mechanic was loosening some of the damaged material with a hammer, he caused a spark, igniting vapor and gasoline that had leaked from the fuel tank. The mechanic was severely burned. The mechanic has brought an action to recover damages against the man and woman. The jurisdiction has adopted a pure comparative negligence rule in place of the traditional common law rule of contributory negligence. In this action, will the mechanic obtain a judgment against the woman? A: No, because there is no evidence that the woman was aware of the gasoline leak. B: No, because the mechanic would not have been harmed had the man warned him about the gasoline tank. C: Yes, because the mechanic was not negligent in failing to discover the gasoline leak himself. D: Yes, because the mechanic's injury was a proximate consequence of the woman's negligent driving.

C. the state employee assumed the risk of injury inherent in the job

A mining company that operated a copper mine in a remote location kept dynamite in a storage facility at the mine. The storage facility was designed and operated in conformity with state-of-the-art safety standards. In the jurisdiction, the storage of dynamite is deemed an abnormally dangerous activity. Dynamite that was stored in the mining company's storage facility and that had been manufactured by an explosives manufacturer exploded due to an unknown cause. The explosion injured a state employee who was at the mine performing a safety audit. The employee brought an action in strict liability against the mining company. What would be the mining company's best defense? A. The mine was in a remote location B. the mining company did not manufacture dynamite C. the state employee assumed the risk of injury inherent in the job D. the storage facility conformed to the state of the art safety standards

C: No, because there is no evidence that the hospital's personnel failed to take reasonable steps to anticipate and prevent the mother's injury.

A mother rushed her eight-year-old daughter to the emergency room at a local hospital after the child fell off her bicycle and hit her head on a sharp rock. The wound caused by the fall was extensive and bloody. The mother was permitted to remain in the treatment room, and held the child's hand while the emergency room physician cleaned and sutured the wound. During the procedure, the mother said that she was feeling faint and stood up to leave the room. While leaving the room, the mother fainted and, in falling, struck her head on a metal fixture that protruded from the emergency room wall. She sustained a serious injury as a consequence. If the mother sues the hospital to recover damages for her injury, will she prevail? A: Yes, because the mother was a public invitee of the hospital's. B: Yes, because the fixture was not an obvious, commonly used, and essential part of the hospital's equipment. C: No, because there is no evidence that the hospital's personnel failed to take reasonable steps to anticipate and prevent the mother's injury. D: No, because the hospital's personnel owed the mother no affirmative duty of care.

C. Deny the motion, because the jury could find that the motorist had no reason to believe that she would lapse into unconsciousness

A motorist lapsed into unconsciousness while driving. Her car crossed the center line, which was marked with a double yellow line. A statute made it illegal for any person operating a motor vehicle on highways of the state to cross a double yellow line. The motorist's car collided with another vehicle, and the driver of that vehicle was seriously injured. The driver sued the motorist for his injuries. At trial, the parties stipulated to the above facts. The motorist testified that she had not previously lapsed into unconsciousness while driving. At the close of the evidence, the driver moved for a directed verdict in his favor. How should the court rule? A. Grant the motion, b/c the motorists vehicle crossed into the drivers lane and caused the drivers injuries B. Grant the motion, b.c the driver was established negligence per se from the violation of an applicable statute that was intended to prevent the type of harm that occurred C. Deny the motion, because the jury could find that the motorist had no reason to believe that she would lapse into unconsciousness D. Deny the motion, b/c it was impossible for the motorist to comply with the statute

B. Yes, b/c the action of the university in discharging the professor is not attributable to the state for purposes of the Fourteenth Amendment

A private university is owned and operated by a religious organization. The university is accredited by the department of education of the state in which it is located. This accreditation certifies that the university meets prescribed educational standard. Because it is accredited, the university qualifies for state funding for certain of its operating expenses. Under this funding program, 25 % of the university's total operating budget comes from state funds. A professor at the university was a part-time columnist for the local newspaper. In one of her published columns, the professor argued that "religion has become a negative force in society." The university subsequently discharged the professor, giving as its sole reason for the dismissal her authorship and publication of this column. The professor sued the university, claiming only that her discharge violated her constitutional right to freedom of speech. The university moved to dismiss the professor's lawsuit on the grounds that the U.S. Constitution does not provide the professor with a cause of action in this case. Should the court grant the university's motion to dismiss? A. Yes, b/c the F and Fourteenth Amendments protect the right of the university to employ only individuals who share and communicate its views B. Yes, b/c the action of the university in discharging the professor is not attributable to the state for purposes of the Fourteenth Amendment C. No, b/c the accreditation and partial funding of the university by the state are sufficient to justify the conclusion that the state was an active participant in the discharge of the professor D. No, b/c the US Constitution provides a cause of action against any state-accredited institution that restricts freedom of speech as a condition of employment

A. The state must show that the law is necessary to serve a compelling government interest

A state law provides that a person who has been divorced may not marry again unless he or she is current on all child-support payments. A woman who was refused a marriage license pursuant to this law sued the appropriate state officials. What standard should the court apply in reviewing the constitutionality of this law? A. The state must show that the law is necessary to serve a compelling government interest B. The state must show that the law is substantially related to an important government interest C. The woman must show that the law serves no important public purpose D. The woman must show that the legislature did not have a rational basis for enacting the law

A. full compensation, b/c the engine was defective

Airco operates an aircraft maintenance and repair business serving the needs of owners of private airplanes. Flyer contracted with Airco to replace the engine in his plane with a more powerful engine of foreign manufacture. Airco purchased the replacement engine through a representative of the manufacturer and installed it in Flyer's plane. A short time after it was put into use, the new engine failed, and the plane crashed into a warehouse owned by ​Landers, destroying the warehouse and its contents. Airco was guilty of no negligence in the procurement, inspection, or installation of the engine. The failure of the engine was caused by a defect that would not be disclosed by inspection and testing procedures available to an installer. There was no negligence on the part of Flyer, who escaped the disabled plane by parachute. ​Landers recovered a judgment for damages from Flyer for the destruction of his warehouse and its contents, and Flyer has asserted a claim against Airco to recover compensation on account of that liability. ​ In that action, Flyer will recover A. full compensation, b/c the engine was defective B. no compensation, b/c Airco was not negligent C. contribution only, b/c Airco and Flyer were equally innocent D. no compensation, b/c Landers judgment established Flyers responsibility to Landers

B. $90,000

An elderly neighbor hired a 17-year-old boy with a reputation for reckless driving to drive the neighbor on errands once a week. One day the teenager, driving the neighbor's car, took the neighbor to the grocery store. While the neighbor was in the store, the teenager drove out of the parking lot and headed for a party on the other side of town. While on his way to the party, the teenager negligently turned in front of a moving car and caused a collision. The other driver was injured in the collision. The injured driver has brought an action for damages against the neighbor, based on negligent entrustment, and against the teenager. The jury has found that the injured driver's damages were $100,000, that the injured driver was 10% at fault, that the teenager was 60% at fault, and that the neighbor was 30% at fault for entrusting his car to the teenager. Based on these damage and responsibility amounts, what is the maximum that the injured driver could recover from the neighbor? A. $100,000 B. $90,000 C. $60,000 D. $30,000

C. larceny but not burglary

An executive of an accounting firm was fired and told to immediately leave the building where she worked. The executive went home, but she returned that night to retrieve personal items from her office. When she discovered that her key no longer opened a door to the building, she forced the door open and went to her former office. To avoid attracting attention, she did not turn on any lights. In the dark, she knew that she was taking some items that were not hers; she planned to sort these out later and return them. Upon arriving home, she found that she had taken a record and some financial papers that belonged to the firm. After thinking it over and becoming angrier over being fired, she burned book and papers in her fireplace. The jurisdiction has expanded the crime of burglary to include all buildings. What crime(s) has the executive committed? A. burglary and larceny B. burglary, but not larceny C. larceny but not burglary D. neither larceny nor burglary

B. The power to tax and spend for the general welfare

Congress enacted a statute that provided for direct money grants to the various states to be distributed by them to police agencies within their jurisdictions for the purpose of purchasing gas-efficient patrol vehicles. One of the objectives of the statute was to help reduce the dependency of the US on imported oil Which of the following would provide the best constitutional justification for the statute? A. The commerce clause B. The power to tax and spend for the general welfare C. the necessary and proper clause D. The power to conduct the foreign relations of the US

B. No b/c it infringes on the Presidents authority as Commander in chief of the armed forces

During a nationwide trucker's strike, striking drivers committed repeated acts of violence against independent truckers and railroad shipments that had replaced truck transportation. This prompted Congress to enact an emergency measure directing the President to dispatch United States Army troops to specified cities and rail and highway locations to preserve order and ensure the continued flow of commerce. Is this enactment constitutional? A. No b/c it infringes on the Presidents authority to faithfully execute the laws of the US B. No b/c it infringes on the Presidents authority as Commander in chief of the armed forces C. Yes, under Congress's power to regulate commerce D. Yes, under Congress's power to raise and support the armed forces

C. The commerce clause.

In an effort to relieve serious and persistent unemployment in the industrialized state, its legislature enacted a statute requiring every business with annual sales of over one million dollars to purchase goods and/or services in the state equal in value to at least half of the annual sales in the state of the business. Which of the following constitutional provisions is the strongest basis on which to attack this statute? A. The due process clause of the Fourteenth Amendment. B. The equal protection clause. C. The commerce clause. D. The privileges and immunities clause of the Fourteenth Amendment.

A. constitutional, because Congress has broad discretion in choosing the subjects of its taxation and may impose taxes on subjects that have no relation to the purpose for which those tax funds will be expended.

In order to provide funds for a system of new major airports near the ten largest cities in the United States, Congress levies a tax of $25 on each airline ticket issued in the United States. The tax applies to every airline ticket, even those for travel that does not originate in, terminate at, or pass through any of those ten large cities. As applied to the issuance in the United States of an airline ticket for travel between two cities that will not be served by any of the new airports, this tax is A. constitutional, because Congress has broad discretion in choosing the subjects of its taxation and may impose taxes on subjects that have no relation to the purpose for which those tax funds will be expended. B. unconstitutional, because the tax adversely affects the fundamental right to travel. C. constitutional, because an exemption for the issuance of tickets for travel between cities that will not be served by the new airports would deny the purchasers of all other tickets the equal protection of the laws. D. unconstitutional, because the burden of the tax outweighs its benefits for passengers whose travel does not originate in, terminate at, or pass through any of the ten largest cities.

(b) no, because he man lacked the requisite intent

a man was angry at a coworker who had received a promotion. the man believed that the coworker had taken credit for the man's work and had bad-mouthed him to their boss. One day, as the man was leaving the company parking lot in his car, he saw the coworker walking through the lot. On a sudden impulse, the man pushed the accelerator pedal hard and veered toward the coworker with the intention of scaring him. The coworker tried to jump out of the way but slipped and fell and was run over. Although the coworker suffered life-threatening injuries, he survived. In a jurisdiction that follows the common law of homicide, could the man properly be convicted of attempted murder? (a) no, because the coworker's slip and fall broke the chain of proximate causation (b) no, because he man lacked the requisite intent (c) yes, because the coworker suffered life-threatening injuries (d) yes, because the man acted with reckless disregard for human life

B. Imposes an unreasonable burden on interstate commerce

Small retailers located in a particular state are concerned about the loss of business to certain large retailers located nearby in bordering states. In an effort to deal with this concern, the legislature of the state enacted a statute requiring all manufacturers and wholesalers who sell goods to retailers in the state to do so at prices that are no higher than the lowest prices at which they sell them to retailers in any of the states that border that state. Several manufacturers and wholesalers who are located in states bordering the state and who sell their goods to retailers in those states and in the state bring an action in Federal court to challenge the constitutionality of this statute. Which of the following arguments offered by these plaintiffs is likely to be most persuasive in light of applicable precedent? The state statute... A. deprives them of their property or liberty without due process of law B. Imposes an unreasonable burden on interstate commerce. C. deprives them of a privilege or immmunity of national citizenship D. denies them the equal protection of the laws

(d) the Commission lacks authority to enforce its standards because not all of its members were appointed by the President.

The Federal Automobile Safety Act established certain safety and performance standards for all automobiles manufactured in the United States. The Act creates a five member "Automobile Commission" to investigate automotive safety, to make recommendations to Congress for new laws, to make further rules establishing safety and performance standards, and to prosecute violations of the act.The chairman is appointed by the President, two members are appointed by the President pro tempore of the Senate, and two members are appointed by the Speaker of the House.A minor U.S. car manufacturer seeks to enjoin enforcement of the Commission's rules.The best argument that the car manufacturer can make is that (a) legislative power may not be delegated by Congress to an agency in the absence of clear guidelines; (b) The Commerce Power does not extend to the manufacture of automobiles not used in interstate commerce; (c) the car manufacturer is denied due process because it is not represented on the Commission; (d) the Commission lacks authority to enforce its standards because not all of its members were appointed by the President.

D: No, because the prevention of traffic accidents was not a purpose of the ordinance.

The defendant parked her car in violation of a city ordinance that prohibits parking within 10 feet of a fire hydrant. The city ordinance was enacted solely to allow firefighters quick access to the hydrants in the case of an emergency. Because a man was driving negligently, his car sideswiped the defendant's parked car. The plaintiff, a passenger in the man's car, was injured in the collision. The plaintiff would not have been injured if the defendant was not parked by the fire hydrant. If the plaintiff asserts a claim against the defendant to recover damages for his injuries, basing his claim on the defendant's violation of the parking ordinance, will the plaintiff prevail? A: Yes, because the defendant was guilty of negligence per see. B: Yes, because the plaintiff would not have been injured had the defendant's car not been parked where it was. C: No, because the defendant's parked car was not an active or efficient cause of the plaintiff's injury. D: No, because the prevention of traffic accidents was not a purpose of the ordinance.

C. No, because the state has, without adequate justification, placed an undue burden on the fundamental right of a woman to reproductive choice prior to fetal viability.

The legislature of a state enacts a statute that it believes reconciles the state's interest in the preservation of human life with a woman's right to reproductive choice. The statute permits a woman to have an abortion on demand during the first trimester of pregnancy but prohibits a woman from having an abortion after that time unless her physician determines that the abortion is necessary to protect the woman's life or health. If challenged on constitutional grounds in an appropriate court, is the statute likely to be upheld? A. Yes, because the state has made a rational policy choice that creates an equitable balance between the compelling state interest in protecting fetal life and the fundamental right of a woman to reproductive choice. B. Yes, because recent rulings by the United States Supreme Court indicate that after the first trimester, a fetus may be characterized as a person whose right to life is protected by the Due Process Clause of the Fourteenth Amendment. C. No, because the state has, without adequate justification, placed an undue burden on the fundamental right of a woman to reproductive choice prior to fetal viability. D. No, because a statute unqualifiedly permitting abortion at one stage of pregnancy, and denying it at another with only minor exceptions, establishes an arbitrary classification in violation of the Equal Protection Clause of the Fourteenth Amendment.

A. The ordinance is narrowly tailored to serve a substantial government interest, and does not unreasonably limit alternative avenues of expression

The open-air amphitheater in the city park of a town has been utilized for concerts and other entertainment programs. Until this year, each of the groups performing in that city facility was allowed to make its own arrangements for sound equipment and sound technicians. After recurring complaints from occupants of residential buildings adjacent to the city park about intrusive noise from some performances held in the amphitheater, the town's city council passed an ordinance establishing city control over all sound amplification at all programs held there. The ordinance provided that the town's Department of Parks would be the sole provider in the amphitheater of sound amplification equipment and of the technicians to operate the equipment "to ensure a proper balance between the quality of the sound at such performances and respect for the privacy of nearby residential neighbors." Which of the following standards should a court use to determine the constitutionality on its face of this content neutral ordinance? A. The ordinance is narrowly tailored to serve a substantial government interest, and does not unreasonably limit alternative avenues of expression B. the ordinance is rationally related to a legitimate government interest, and does not unreasonably limit alternative avenues of expression C. the ordinance is rationally related to a legitimate government interest and does not restrict the expressive rights involved any more than is reasonable under the circumstances D. the ordinance is substantially related to a legitimate governmental interest and does not restrict the expressive rights involved any more than is reasonable in light of the surrounding circumstances

C: not prevail, because the noise did not constitute a substantial and unreasonable disturbance to persons of normal sensibilities.

The plaintiffs, a retired couple, had lived in their home in a residential neighborhood for 20 years when the defendants, a family of six, moved into the house next door and built a swimming pool in the back yard. The family's four young children frequently played in the pool after school. They often were joined by other neighborhood children. The plaintiffs were in the habit of reading and listening to classical music in the afternoons. Sometimes they took naps. The boisterous sounds of the children playing in the pool disturbed the plaintiffs' customary enjoyment of quiet afternoons. In the plaintiffs' nuisance action for damages against the defendants, the plaintiffs should A: prevail, because the children's noise constituted a substantial interference with the plaintiffs' use and enjoyment of their home. B: prevail, because the the plaintiffs' interest in the quiet enjoyment of their home takes precedence in time over the defendants' interests. C: not prevail, because the noise did not constitute a substantial and unreasonable disturbance to persons of normal sensibilities. D: not prevail, because the children's interest in healthy play has priority over the plaintiffs' interest in peace and quiet

(a) no, because the evidence was sufficient to support a verdict of depraved-heart murder

a man allowed his friend to borrow a debit card to buy a computer. When the friend refused to return the card during a later conversation in a bar, the man pointed a handgun at the friend, held his finger on the trigger, and said, "Give it back!" A bystander screamed and threw a beer bottle at the man. The bottle struck the man's hand and caused the gun to discharge, killing the friend instantly. The man was convicted of murder in a jurisdiction that follows the common law of homicide. On appeal, he argues that the evidence, which essentially set out the facts above, was insufficient to support a verdict of murder. Should the man's conviction be reversed? (a) no, because the evidence was sufficient to support a verdict of depraved-heart murder (b) no, because the evidence was sufficient to support a verdict of felony murder (c) yes, because the evidence showed that the man did not intentionally pull the trigger (d) yes, because the evidence showed that the man's intent was not to kill the friend, but to take property from him under a claim of right.

C. unconstitutional, because strict scrutiny governs judicial review of such state classifications based on alienage, and Axbridge cannot demonstrate that this classification is necessary to advance a compelling state interest.

To encourage the growth of its population, the state of Axbridge established a program that awarded $1,000 to the parents of each child born within the state, provided that at the time of the child's birth the mother and father of the newborn were citizens of the United States. The Lills are aliens who are permanent residents of the United States and have resided in Axbridge for three years. When their first child was born two months ago, they applied for and were denied the $1,000 award by Axbridge officials on the sole ground that they are not citizens of the United States. The Lills filed suit in federal court contending that their exclusion from the award program was unconstitutional. Assume no federal statute addresses this question. In this case, the court should hold that the exclusion of aliens from the Axbridge award program is A. constitutional, because the Tenth Amendment reserves to the states plenary authority over the spending of state funds. B. constitutional, because Axbridge has a legitimate interest in encouraging the growth of its population, and a rational legislature could believe that families in which both parents are United States citizens are more likely to stay in Axbridge and contribute to its future prosperity than those in which one or both of the parents are aliens. C. unconstitutional, because strict scrutiny governs judicial review of such state classifications based on alienage, and Axbridge cannot demonstrate that this classification is necessary to advance a compelling state interest. D. unconstitutional, because state classifications based on alienage are impermissible unless explicitly authorized by an act of Congress.

(C) dismiss the complaint, because this action is not ripe for decision

a state legislature recently enacted a statute forbidding public utilities regulated by the states public Service Commission to increase their rates more than once every two years. A power company, a public utility regulated by that commission, has just obtained approval of the commission for a general rate increase. The power company has routinely filed for a rate increase every ten to 14 months during the last 20 years. Because of uncertainties about future fuel prices, the power company cannot ascertain with any certainty the date when it will need a further rate increase; but it thinks it may need such an increase sometime within the next 18 months. The power company files an action in the federal district court in the state requesting a declaratory judgment that this new state statute forbidding public utility rate increases more often than once every two years is unconstitutional. Assume no federal statute is relevant. In this case, the court should (A) hold the statute unconstitutional, because such a moratorium on rate increases deprives utilities of their property without due process of law. (B) hold the statute constitutional, because the judgment of a legislature on a matter involving economic regulation is entitled to great deference. (C) dismiss the complaint, because this action is not ripe for decision (D) dismiss the complaint, because controversies over state-regulated utility rates are outside of the jurisdiction conferred on federal courts by Article III of the Constitution.

C. both an actual and a legal cause of the mans injuries

a trucker was making a delivery to a market that is located on the northeast corner of the intersection of Pine and Maple, both one-way streets. Traffic runs northbound on Maple and eastbound on Pine. Both streets have 2 stoplights each for oncoming traffic. At the time of delivery, there was insufficient space for the truck and its enclosed trailer in front of the market, so the trucker parked in such a way that the trailer extended entirely across the crosswalk on the north side of the intersection, obscuring the northeast traffic light that controlled oncoming eastbound traffic on Pine. Unknown to the trucker, the traffic light on the southeast corner of Pine had been knocked to the ground. A woman, driving east towards the intersection, could not see the red traffic light for eastbound traffic because the trucks trailer was blocking it. A man driving north entered the intersection without looking both ways and struck the woman's car. The man received personal injuries and the womans car was damaged severely as a result of the impact. State statutes in place make it a misdemeanor to park a motor vehicle so taht any part projects into a crosswalk, and to enter an intersection contrary to a traffic signal. If the man asserts a claim against the trucker and establishes that the trucker was negligent, the likely result is that the truckers negligence was: A. a legal but not an actual cause of the mans injuries B. an actual but not a legal cause of the mans injuries C. both an actual and a legal cause of the mans injuries D. neither an actual nor a legal cause of the mans injuries