Practice MBE - AM

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A farm was conveyed to a man and a woman by a deed that, in the jurisdiction in which the farm is situated, created a cotenancy in equal shares and with the right of survivorship. The jurisdiction has no state directly applicable to any of the problems posed. The woman, by deed, conveyed "my undivided on-half interest" in the farm to a purchaser. The woman has since died. In an appropriate action between the purchaser and the man in which title to the farm is at issue, the man will A. prevail because he is the sole owner of the farm B. prevail if, but only if, the cotenancy created on the man and the woman was a tenancy by the entirety C. not prevail if he had knowledge of conveyance prior to the woman's death. D. not prevail, because the purchaser and the man own the farm as tenants in common.

A defendant is tried for armed robbery of a bank. The prosecution, in its case in chief, offers evidence that when the defendant was arrested one day after the crime, he had a quantity of heroin and a hypodermic needle in his possession. This evidence should be (A) admitted to prove the defendant's motive to commit the crime. (B) admitted to prove the defendant's propensity to commit crimes. (C) excluded, because its probative value is substantially outweighed by the danger of unfair prejudice. (D) excluded, because such evidence may be offered only to rebut evidence of good character offered by the defendant.

At the 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 self-incrimination. If the defendant now seeks to impeach the credibility of the gang member, which of the following is the court most likely to admit? (A) Evidence that the gang member had three misdemeanor convictions for assault. (B) Testimony by a psychologist that persons with the gang or member's background have a tendency to fabricate. (C) Testimony by a witness that at the time the gang member testified, he was challenging the defendant's leadership role in the gang. (D) Testimony by a witness that the gang member is a cocaine dealer.

While negligently driving his father's uninsured automobile, a 25-year-old student crashed into an automobile driven by a woman. Both the student and the woman were injured. The student's father, erroneously believing that he was liable because he owned the automobile, said to the woman: ''I will see to it that you are reimbursed for any losses you incur as a result of the accident." In an action by the woman against the student's father for wages lost while she was incapacitated as a result of the accident, which of the following would be the father's best defense? (A) Lack of consideration (B) Mistake of fact as to basic assumption (C) Statute of Frauds (D) Indefiniteness of father's promise

In which of the following situations is the defendant most likely to be not guilty of the charge made? A. The police arrested thief and recovered goods he had stolen. At the direction of the police the thief took the goods to the defendant. The defendant, believing the goods to be stolen, purchased them. The defendant is charged with attempting to receive stolen property. B. The defendant misrepresented his identity to secure a loan from a bank. The banker was not deceived and refused to grant the loan. The defendant is charged with attempting to obtain property by false pretenses. C. Believing that state law made it a crime to purchase codeine without a prescription, the defendant purchased, without a prescription, cough syrup containing codeine. Unknown to the defendant, the statute had had been repealed and codeine could be legally purchased without prescription. The defendant is charged with attempting to purchase codeine without a prescription. D. The defendant, intending to kill a woman, shot at the woman. Unknown to the defendant, the woman had died of a heart attack minutes before the defendant shot at her. The defendant is charged with attempted murder.

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? (A) No, because the debtor made no promise not to plead the statute of limitations as a defense. (B) No, because there was no consideration for the debtor's promise. (C) Yes, because the debtor's promise provided a benefit to the lender. (D) Yes, because the debtor's promise to pay part of the barred antecedent debt is enforceable.

A victim was held up at the point of a gun, an unusual revolver with a red-painted barrel, while she was clerking in a neighborhood grocery store. The defendant is charged with armed robbery of the victim. The prosecutor calls a witness to testify that, a week after the robbery of the victim, he was robbed by the defendant with a pistol that had red paint on the barrel. The witness's testimony is: (A) admissible as establishing an identifying circumstance. (B) admissible as showing that the defendant was willing to commit robbery. (C) inadmissible, because it is improper character evidence. (D) inadmissible, because its probative value is substantially outweighed by the danger of unfair prejudice.

A woman offered to pay her friend one-third of the stolen proceeds if the friend would drive the getaway car to be used in a bank robbery. The friend agreed but made the woman promise not to hurt anyone during the robbery. The woman then drove to a sporting goods store, where she explained to the store owner that she needed a small firearm for use in a bank robbery. The store owner responded that he would charge extra because the woman was so unwise as to confide her unlawful plans for using the weapon, and he sold her a handgun at four times the regular price. During the robbery, the woman used the gun to threaten a bank teller into handing over the money. The gun discharged by accident and killed a bank customer. At common law, who in addition to the woman could properly be convicted of murder in the death of the customer? (A) Both the friend and the store owner. (B) Neither the friend nor the store owner. (C) Only the friend. (D) Only the store owner.

A report released by a Senate investigating committee named three U.S. citizens as helping to organize support for terrorist activities. All three were employed by the U.S> government as park rangers. Congress enacted a statute naming the three individuals identified in the report and providing that they could not hold any position of employment with the federal government. Which of the following constitutional provision provides the best means for challenging the constitutionality of the statute? (A) The Bill of Attainder Clause (B) The Due Process Clause (C) The Ex Post Facto Clause (D) The Takings Clause

A defendants 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 testified in her own behalf that the tag must have been switched by someone else. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud in the defrauding of a retailer by the same means of switching the price tag on a fur-trimmed coat. Is the question about the convictions for the earlier crimes proper? (A) It is not proper either to Impeach the defendant or to prove that the defendant committed the crime. (B) It is proper both to prove that the defendant committed the crime and to impeach the defendant. (C) It is proper to impeach the defendant, but not to prove that the defendant committed the crime, (D) It is proper to prove the defendant committed the crime, put not to impeach the defendant.

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? (A) No, because the federal government may not impose any direct taxes on citizens of the United States. (B) No, because this statute takes without just compensation the property of persons who hold patents or copyrights on computer software. (C) Yes, because it is a reasonable exercise of the power of Congress to tax and spend for the general welfare. (D) Yes, because the patent power authorizes Congress to impose reasonable charges on the sale of technology and to spend the proceeds of those charges to advance the use of technology in the United States.

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? (A) No, because it is hearsay not within any exception. (B) No, because the victim was not asked about the statement. (C) Yes, as a statement under belief of impending death, even though the victim did not die. (D) Yes, as an excited utterance.

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 she was licensed. On rebuttal, the plaintiff offers 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 was no record of a license issuance admissible? (A) No, because it is hearsay not within any exception. (B) No, because the writing was not properly authenticated. (C) Yes, for the limited purpose of impeaching the defendant. (D) Yes, to prove the nonexistence of a public record.

A man owned a much-loved cat, worth about $25, that frequently trespassed on a neighbor's property. The neighbor repeatedly asked the man to keep the cat on his own property, but the trespasses did not diminish. Aware of the man's attachment to the cat, the neighbor killed the cat with a shotgun in full view of the man. As a consequence, the man suffered great emotional distress. In an action by the man against the neighbor, which of the following claims would be likely to result in the greatest monetary recovery? (A) Battery (B) Intentional infliction of mental suffering, (C) Trespass to chattel (D) Conversion

A man contacted his lawyer regarding his right to use a path on his neighbor's vacant land. Fifteen years ago, after a part of the path located on his land and connecting his cabin to the public highway washed out, the man cleared a small part of his neighbor's land and rerouted a'section of the path through the neighbor's land. Twelve years ago, the neighbor leased her land to some hunters. For the next 12 years, the hunters and the man who had rerouted the path used the path for access to the highway. A month ago, the neighbor discovered that part of the path was on her land. The neighbor told the man that she had not given him permission to cross her land and that she would be closing the rerouted path after 90 days. The man's land and the neighbor's land have never been in common ownership. The period of time necessary to acquire rights by prescription in

A defendant became intoxicated at a bar. He got into his car and drove away. Within a few blocks, craving another drink, he stopped his car in the middle of the street, picked up a brick, and broke the display window of a liquor store. As he was reaching for a bottle, the night watchman arrived. Startled, the defendant turned, and struck the watchman on the head with the bottle, killing him. Only vaguely aware of what was happening, the defendant returned to his car, consumed more liquor, and then drove off at a high speed. Relevant statutes define burglary to include "breaking and entering a building now used as a dwelling with the intent to commit a crime therein." Manslaughter is defined as the "killing of a human being in a criminally reckless manner." Criminal recklessness is "consciously disregarding substantial and unjustifiable risk resulting from the actor's conduct." Murder is defined as "the premeditated and intentional killing of another or the killing of another in the commission of committing rape, robbery, burglary, or arson." Another statute provides that intoxication is not a defense to crime unless it negates an element of the offense. The defendant was charged with the murder of the watchman and manslaughter in the death of the pedestrian. Assume that he is tried separately on each charge. At a defendant's trial for the murder of the watchman, the court should in substance charge the jury on the issue of the defense of intoxication that (A) intoxication is a defense to the underlying crime of burglary if the defendant, due to drunkenness, did not form an intent to commit a crime within the building, in which case there can be no conviction for murder uniess the defendant intentionally and with premeditation killed the watchman, (B) voluntary intoxication is not a defense to the crime of murder. (C) the defendant is guilty of murder despite his intoxication only if the state proves beyond a reasonable doubt that the killing of the watchman was premeditated and intentional. (D) voluntary intoxication is a defense to the crime of murder if the defendant would not have killed the watchman but for his, intoxication.

A defendant was charged with assault and battery in a jurisdiction that followed 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 deferidant 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? (A) No, because he had no obligation to retreat before resorting to non-deadly force. (B) No, because there is no obligation to retreat when one is in an occupied structure. (C) Yes, because he failed to retreat even though there was an opportunity available. (D) Yes, because the husband did not threaten to use deadly force against him.

A developer, the owner of a large, undeveloped parcel of land, prepared a development plan creating 200 house lots in the development with the necessary streets and public areas. The plan was fully approved by all necessary governmental agencies and duly recorded. However, construction of the streets, utilities, and other aspects of the development of the parcel has not yet begun, and none of the streets can be opened as public ways until they are completed in accordance with the applicable ordinances in the municipality in which the parcel is located. One of the streets laid out as part of the development plan is a border road that abuts an adjacent one-acre parcel owned by a widower. The widower's land has no access to any public way except an old, poorly developed road, which is inconvenient and cannot be used without great expense. The widower sold his plot to a buyer. The description used in the deed from the widower to the buyer was the same as that used in prior deeds except that the portion of the description that formerly said, 'thence by land of the developer, north-easterly a distance of 200 feet, more or less," was changed to "thence by the border road as laid out on the development plan North 46 degrees East 201.6 feet," with full reference to the plan and its recording data. The buyer now seeks a building permit that will show that he intends to use the border road for access to his land. The developer objects to the granting of a building permit on the grounds that he has never granted any right to the widower or the buyer to use the border

A hospital patient had a heart ailment so serious that his doctors had concluded that only a heart transplant could save his life. They therefore arranged to have him flown to a bigger hospital to have the operation performed. The patient's nephew, who stood to inherit from him, poisoned him. The poison produced a reaction that required postponing the journey. The plane on which the patient was to have flown crashed, and all aboard were Killed. By the following day, the patient's heart was so weakened by the effects of the poison that he suffered a heart attack and died. If charged with criminal homicide, the nephew should be found (A) guilty. (B) not guilty, because his act did not hasten the deceased's death, but instead prolonged it by one day. (C) not guilty, because the deceased was already suffering from a fatal illness. (D) not guilty, because the poison was not the sole cause of death.

A manufacturing plant located near a busy highway uses and stores highly volatile explosives. The owner of the plant has imposed strict safety measures to prevent an explosion at the plant. During an unusually heavy windstorm, a large tile was blown off the roof of the plant and crashed into the windshield of a passing car, damaging it The driver of the car brought a strict liability action against the owner of the plant to recover for the damage to the car's windshield. Is the driver likely to prevail? (A) No, because the damage to the windshield did not result from the abnormally dangerous aspect of the plant's activity. (B) No, because the severity of the windstorm was unusual. (C) Yes, because the plant's activity was abnormally dangerous. (D) Yes, because the plant's location near a busy highway was abnormally dangerous.

A mother, whose adult son was a law school graduate, contracted with a tutor to give the son a bar examination 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 is $6,000. Before the instruction was to begin, the tutor repudiated the contract. Although the mother or son reasonably could have employed, for $6,000, an equally qualified instructor to replace the tutor, neither did so. The son failed the bar exa, and the law firm refused to employ him. It can be shown that had the son received the instruction, he would have passed the bar exam. If the mother and the son join as parties plaintiff and sue the tutor for breach of contract, how much, if anything, are they entitled to recover? (A) $1,000, because all other damages could have been avoided by employing another equally qualified instructor. (B) $55,000, because damages of that amount were within the contemplation of the parties at the time they contracted. (C) Nominal damages only, because the mother was not injured by the breach and the tutor made no promise to the son. (D) Nothing, because neither the mother nor the son took steps to avoid the consequences of the tutor's breach.

A plaintiff sued a defendant for injuries allegedly suffered when he slipped and fell on the defendant's business property. Without asking that the defendant's property manager be declared a hostile witness, the plaintiff called him solely to establish that the defendant was the owner of the property where the plaintiff fell. On cross-examination of the manager, the defendant's attorney sought to establish that the defendant had taken reasonable precautions to make the property safe for business invitees. Should the defendant's cross-examination of the manager be permitted over the plaintiff's objection? (A) No, because cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. (B) No, because the court has not declared the manager hostile, (C) Yes, because the cross-examiner is entitled to explore matters relevant to any issue in the case, including credibility. (D) Yes, because the manager is the agent of a party, as to whom the scope of cross-examination is unlimited

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 physician 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? (A) No, because it is hearsay not within any exception. (B) No, because the plaintiff's physician is not shown to be unavailable. (C) Yes, because it was relied upon by the plaintiff's medical expert. (D) Yes, under the business records exception to the hearsay rule.

A seller, the owner of a tract of land, entered into an enforceable written agreement with a buyer providing that the seller wold sell the tract to the buyer for an agreed price. At the place and time designated for closing, the seller tendered an appropriate deed, but the buyer responded that he had discovered a mortgage on the tract and would not complete the transaction, because the seller's title was not free of encumbrances, as the contract required. The seller said that it was his intent to pay the mortgage from the proceeds of the sale, and that he offered to put the proceeds in escrow for that purpose with any agreeable, responsible escrow. The balance due on the mortgage was substantially less than the contract purchase price. The buyer refused the seller's proposal. The seller began an appropriate legal action against the buyer for specific performance. There is no applicable statute in the jurisdiction where the tract is located. The seller's best legal argumeitt in support of his claim for relief is that (A) as the seller of real estate, he had an implied right to use the contract proceeds to clear the title being conveyed. (B) the lien of the mortgage shifts from the tract to the contract proceeds (C) under the doctrine of equitable conversion, title has already passed to the buyer and the only issue is how the purchase price is to be allocated. (D) no provision of the contract has been breached by the seller.

Husband, Wife, and Child, all citizens of State A, ate a can of soup that turned out to be contaminated. Each suffered food poisoning that resulted in permanent neurological damage. Defendant, a food company in State B, processed and distributed the can of soup. Husband, Wife, and Child sued Defendant in a federal district court in State A. Defendant has moved to dismiss the complaint for lack of subject-matter jurisdiction. He concedes that the parties are citizens of diverse states, but argues that the complaint does not meet the amount-in-controversy test. Assume that all allegations in the choices below regarding the amount of plaintiffs' damages are made in good faith, and that itis not "legally certain" that any plaintiff has suffered smaller damages than he or she alleges. Assume also that as to each choice, there are no allegations regarding the amount of damages other than those mentioned in the choice. How should the court resolve the motion? (A) The court should grant the motion if the complaint alleges that: (i) Husband suffered $60,000 in personal damages; (ii) Wife suffered $50,000 in personal damages; and (iii) Child suffered $40,000 in personal damage. (B) The court should deny the motion if the complaint alleges that each family member suffered $40,000 in personal damages, because supplementary jurisdiction applies (C) The court should grant the motion if the complaint alleges that (I) Husband suffered $40,000 in personal damages and $40,000 for loss of consortium; and (ii) Wife and Child each suffered $40,000 in personal damages. (D) The court should deny the motion if the complaint alleges that Husband and Wife each suffered $40,000 in personal damages, because their claims are based on a common and undivided interest.

In a civil action, the plaintiff sued a decedent's estate to recover damages for the 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 swerved across the median of the highway, where it collided with an oncoming car driven by the plaintiff. The decedent's estate introduced undisputed evidence that, prior to the car's crossing the median, the decedent suffered a fatal heart attack, which she had no reason to foresee, and that, 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, for whom should the court render judgment? (A) The decedent's estate, because its evidence is undisputed. (B) The decedent's estate, because the plaintiff has not established a prima facie case of liability. (C) The plaintiff, because the accident was of a type that does not ordinarily happen in the absence of negligence on the actor's part. (D) The plaintiff, because the decedent crossed the median in violation of the statute.

In a civil trial arising from a car accident at an intersection, the plaintiff testified on direct examination that he came to a full stop at the intersection. On cross-examination, the defendant's lawyer asked whether the plaintiff claimed that he was exercising due care at the time, and the plaintiff replied that he was driving carefully. At a sidebar conference, the defendant's lawyer sought permission to ask the plaintiff about two prior intersection accidents in the last 12 months where he received traffic citations for failing to stop at stop signs. The plaintiff's lawyer objected. Should the court allow defense counsel to ask the plaintiff about the two prior incidents? (A) No, because improperly failing to stop on the recent occasions does not bear on the plaintiff's veracity and does not contradict his testimony in this case. (B) No, because there is no indication that failing to stop on the recent occasions led to convictions. (C) Yes, because improperly failing to stop on the recent occasions bears on the plaintiff's credibility, since he claims to have stopped in this case. (D) Yes, because improperly failing to stop on the recent occasions tends to contradict the plaintiff's claim that he was driving carefully at the time he collided with the defendant.

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 on 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? (A) No, because the jury may consider only passages read to it by counsel or witness (B) No, because the plaintiff's expert in testifying did not rely on the treatise but on his own experience, (C) Yes, because an expert has testified that the treatise is reliable. (D) Yes, because the jury is the judge of the weight and credibility to be accorded both written and oral evidence.

In order to combat terrorism, Congress enacted a statute authorizing the President to construct surveillance facilities on privately owned property if the President determined that the construction of such facilities was "necessary to guard the security of the United States." The statute provided no compensation for the owner of the land on such facilities were constructed and provided that the surveillance facilities were to be owned and operated by US. government. Pursuant to this statute, the President has determined that the construction of a surveillance facility on a small, unused portion of an owner's large tract of land necessary to safeguard the security of the United States. The construction and operation of the facility will not affect any of the uses that the owner is currently making of entire tract of land. The owner has filed suit to challenge the constitutionality of the construction of a surveillance facility on the of land at issue without compensation. How should the court rule? (A) It would be a taking of the owner's property for which the owner must be compensated. (B) It would single out the owner for adverse treatment in violation of the equal protection component of the Fifth Amendment (C) It would not interfere with any use the owner is currently making of the entire tract of land and, therefore, would not entitle the owner to any compensation. (D) It would be valid without any compensation, because it has been determined to be necessary to protect a compelling government interest in national security.

Nine 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 eight, 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 eared 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 snitch. He told no one about is 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 eight other gang members watched and did nothing while the informant slowly bled to death. The jury found the eight gang members guilty of murder and they appealed. Should the appellate court uphold the convictions? (A) No, because mere presence at the scene of a crime is insufficient to make one an accomplice. (B) No, because murder is a specific intent crime, and there is insufficient evidence to show that they intended to kill. (C) Yes, because the gang members made no effort to save the informant after he had been stabbed. (D) Yes, because voluntary intoxication does not negate criminal responsibility.

Plaintiff is a construction company. Plaintiff is incorporated in State A and operates in that state as well as in State B. Defendant is an Internet-based company that is incorporated in State C. Plaintiff's complaint alleged that Defendant defrauded Plaintiff in violation of a federal statute called the Internet Commercial Fraud Act (ICFA). Section 1 of the ICFA creates a federal private right of action for anyone defrauded in a commercial transaction conducted over the Internet. Section 2 of the statute authorizes suit to be brought in the federal court located anywhere in plaintiff's state of principal residence (which in the case of a corporate plaintiff includes the plaintiff's state of incorporation); Section 3 allows service in an ICFA. action "on the defendant in any U.S. state in which the defendant may be found"; and Section 4 says that in ICFA suits the court will be deemed to have personal jurisdiction over the defendant regardless of the nature of the defendant's contacts with the plaintiff's state of principal residence. Plaintiff's complaint, filed in federal district court in State A, asserted that an employee of Plaintiff working out of Plaintiff's 'State A office purchased a computer online from Defendant; that Defendant knew the order came from that State A office; that Defendant knew the computer was defective; and that Defendant shipped the computer as requested to Plaintiff's State B office. The State B long-arm statute allows nationwide service of process upon, and personal jurisdiction over, any defendant who "voluntarily and knowingly 'ships any item of tangible personal property into this state." After Plaintiff filed the suit, Plaintiff's sole effort to make service on the Defendant was to have the summons and complaint handed to the CEO of Defendant while the CEO was visiting State D to attend a technology conference. Defendant has never sold a computer to a State D resident. Has Plaintiff established personal jurisdiction over Defendant for purposes of this ICFA claim? (A) Yes, because the ICFA statute and the Federal Rules of Civil Procedure, taken together, authorize the service that occurred here, and the State A federal court's exercise of jurisdiction would not offend due process. (B) Yes, because service in federal-question suits may be made anywhere in the United States where the defendant may be found, and in this case the Defendant could be found wherever the CEO was at the moment of service. (C) Yes, because a federal court will exercise personal jurisdiction where service and personal jurisdiction would be allowed by the long-arm of the state where the federal court sits, and the State B long-arm would apply to these facts. (D) No, because the Defendant does not have minimum contacts with State A and the exercise of personal jurisdiction over the Defendant in the State A federal courts would therefore violate the Defendant's due process rights.

Plaintiff is an individual who lives in State A. While on holiday in State B, he bought an antique map from Defendant, a corporation that deals in art, and whose principal place of business is in State B. The map turned out to be a counterfeit, and the Plaintiff filed a a diversity suit against Defendant in federal district court for the Northern District of State A. The action alleged breach of contract, misrepresentation, and fraud, and sought $100,000 in damages. Before filing suit, Plaintiff learned from the Internet that Defendant advertised the fact that "We frequently visit the West Coast, including State A, to show our inventory." Plaintiff also learned that Defendant owned a storage facility in State A valued at $95,000. A State A long-arm statute ("Statute 1") authorizes service in a State A state court action by registered mail to any person found in the U.S. outside of State A, if such service would be consistent with the Due Process Clause of the Fourteenth Amendment. Another State A statute ("Statute 2") provides: "The courts of this state have authority, consistent with the Due Process Clause of the Fourteenth Amendment, to exercise quasi in rem jurisdiction based on attachment of the defendant's tangible or intangible property located within this state.' No federal statute bears on the use of quasi in rem jurisdiction on facts such as those resented in Plaintiff's suit. Plaintiff did not attempt to obtain personal jurisdiction over Defendant by using Statute 1, because he was not aware of that statue's existence. Instead, he served Defendant by attaching the storage facility, and asserting quasi in rem jurisdiction under authority of Statute 2. (He was willing to take the risk that he might get a judgment for the full $100,000 sought, but be able to realize only $95,000 by having the storage facility seized and sold to satisfy the judgment). Defendant has now moved to dismiss the action for lack of personal jurisdiction over it. How should the district court resolve the motion? (A) The court should grant the motion because Plaintiff has not made reasonable efforts to use the service-by-registered-mail provisions of Statute 1 to establish in personam jurisdiction. (B) The court should deny the motion because Plaintiff was entitled to use Statute 2 to establish quasi in rem jurisdiction and met the requirements of that statute. (C) The court should grant the motion because no federal statute or rule authorizes quasi in rem jurisdiction in lawsuits filed in federal court. (D) The court should grant the motion because the attached assets are not related to Plaintiff's claim against Defendant.

The Rapido is a sports car manufactured by a car company. The Rapido has an excellent reputation for mechanical reliability with one exception: the motor may stall if the engine has not had an extended warm-up. The plaintiff had just begun to drive her Rapido in city traffic without a warm-up when the engine suddenly stalled. A car driven by a truck driver rear-ended the plaintiff's car. The plaintiff suffered no external physical injuries as a result of the collision. However, the shock of the crash caused her to suffer a severe heart attack The plaintiff brought an action against the car company based on strict liability in tort. During the trial, the plaintiff presented evidence of an alternative engine design of equal cost that would eliminate the stalling problem without impairing the functions of the engine in any way. The car company moves for a directed verdict atthe close of the evidence. This motion should be (A) denied, because the jury could find that an unreasonably dangerous defect in the engine was a proximate cause of the collision, (B) denied, if the jury could find that the Rapido was not crashworthy. (C) granted, because the truck driver's failure to stop within an assured clear distance was a superseding cause of the collision. (D) granted, if a person of normal sensitivity would not have suffered a heart attack under these circumstances.

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 antiques collector to acquire items owned by residents of the city during the 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 percent commission. Purchases by antiques collectors are ordinarily subject to the sales tax of the state in which the city is located. The collector files suit in state court to enjoin collection of the tax on these purchases, claiming that the sales tax is unconstitutional as applied to them. Should the state court issue the injunction? (A) No, because as the purchaser of these antiques, the collector, rather than the federal government is liable for the tax. (B) No, because the suit is within the exclusive jurisdiction of the federal courts. (C) Yes, because the federal government is contractually obligated to pay the amount of the sales tax when it covers the collector's cost of these antiques. (D) Yes, because under the Supremacy Clause, the federal program to acquire these antiques preempts the state sales tax on the purchase of these items.

A cigarette maker created and published a magazine advertisement that featured a model dressed as a race-car driver standing in front of a distinctive race car. In fact, the car looked almost exactly like the very unusually marked on driven by a famous and popular driver. The driver in the ad was not identified, and his face was not shown in the advertisement. The cigarette maker published the advertisement without obtaining the famous driver's permission. The race-car driver dues the cigarette maker for economic loss only, based on common-law misappropriation of the right of publicity. The cigarette maker moved to dismiss the complaint. Will the cigarette maker's motion to dismiss the complaint be granted? A. No, because there are sufficient indicia of the driver's identity to support a verdict of liability B. Yes, because the driver is a public figure C. Yes, because there was no mention of the driver's name in the ad. D. Yes, because the driver did not claim any emotional or dignitary loss

A. This is the best answer because the ad leaves little doubt that the ad is intended to depict a specific celebrity who has not consented to the use of his identity. The plaintiff can sue if his name or picture has been appropriated by the defendant for the defendant's own financial benefit. A common law right of publicity can be violated when an advertisement causes the reader to think that the celeb is being referred to for the advertisement's benefit.

A man was the illegitimate, unacknowledged child of his father, who died intestate, leaving neither spouse nor any child other than the man. The state's law of intestate succession provides that an unacknowledged illegitimate child may not inherit his farther's property. The spouse, all other blood relations, and the sate are preferred as heirs over the unacknowledged illegitimate child. The man filed suit in an appropriate court alleging that the state statute barring an illegitimate child from sharing in a parent's estate is invalid, and that he should be declared lawful heir to his father's estate. In challenging the validity of the state statute, the man's strongest argument would be that A. there is no rational basis for preferring as heirs collateral relatives and even the state over unacknowledged children, and, therefore, the law violates the Equal Protection Clause. B. he has been deprived of property without due process because his fundamental right to inherit has been compromised without a compelling state need. C. it violates the Privileges and Immunities Clause of the Fourteenth Amendment D. It iis a denial of procedural due process because it does not give the unacknowledged illegitimate child an opportunity to prove paternity

A. This answer correctly identifies the problem here as being one of equal protection, and it applies the correct standard to it. Where a classification is involved that determines people's rights, the issue is most likely one of equal protection. Here there is a classification: legitimate v. illegitimate children. The test to apply in determining whether the statute is valid depends on the basis of the classification. Here, the law must be substantially related to an important state interest in order to be valid. Therefore, if the man could prove that this substantial relation does not exist, he will have a valid equal protection claim.

Plaintiff, a black woman, has long worked as a data-entry clerk for Defendant, a sizable corporation with many small corporate offices spread throughout the United States When Plaintiff applied for a promotion and was denied it, she concluded that she had been passed over based on a combination of her gender and race, and that such discrimination against black women was widespread throughout the company. She filed a class action lawsuit in federal court for the district of State A, in which her particular office of Defendant was located. The suit alleged that Defendant's hiring and promotion policies violated Title I of a federal anti-employment-discrimination statute. Title I prohibits an employer from disfavoring an applicant in the hiring or promotion process, as a matter of intentional corporate policy, on account of the applicant's gender or race. The suit defined the class as consisting of every black woman who was denied an initial clerical job or a promotion to such a job, on account of her gender and race, by Defendant, over a ten-year period. The suit alleged that Defendant, at any given time, has nearly 100 low-level managers (few of whom are black women), that each such manager is given substantial discretion in hiring or promoting clerks who would report to that manager, and that many of the managers have intentionally discriminated against black women. Plaintiff framed the suit as a Rule 23(b)(3) class action and sought compensatory and back pay for each of what she estimated as 100 class members. The suit listed Plaintiff as the sole named class member. The suit estimated that the individual class members' claims would each have a value ranging from $40,000 to $200,000 and would in the aggregate total at least $4 Million in value. Discovery has been completed, and Defendant now wishes to oppose certification of the class. Each of the following choices represents a legal objection that Defendant is considering making to class certification, based upon a factual assertion. For each objection, assume that the federal judge concludes that the factual assertion on which the objection is based is true. Which of the objections is most likely to lead the court to grant Defendant's motion to deny the requested class certification? A. The class as defined includes only 100 clerical workers or applicants, a number so small that a class action is not clearly superior to individual actions. B. Because the mental states of nearly 100 managers who made individual hiring and promotion decisions are in issue, there are no questions of law or fact common to all class members that predominate over questions involving only individual class members. C. The overall amount claimed to be in controversy does not exceed $5 million. D. Nearly all of the 100 putative class members other than Plaintiff live outside State A, the state in which the federal court hearing the dispute is located, causing the court to lack personal jurisdiction over these absent class members.

A homeowner and a purchaser entered into a valid, enforceable, written contract by which the homeowner agreed to sell and the purchaser agreed to purchase the homeowner's residence. One of the contract provisions was that after closing, the homeowner had the right to remain in the residence for up to 30 days before delivering, possession to the purchaser. The closing took place as scheduled. Title passed to the purchaser and the homeowner remained in possession. Within a few days after the closing, the new house next door, which was being constructed for the homeowner, burned to the ground, and at the end of the 30-day period after closing the homeowner refused to move out of his old house; instead, the homeowner proposed to pay the purchaser a monthly rental payment in excess of its fair rental value. The purchaser rejected the proposal and that day brought an appropriate action to gain immediate possession of the residence. The contract was silent as to the consequences of the homeowner's failure to give up possession within the 30-day period, and the jurisdiction in which the property is located has no statute dealing directly with this situation, although the landlord-tenant law of the jurisdiction requires a landlord to give a tenant 30 days' notice before a tenant may be evicted. The purchaser did not give the homeowner any such 30-day statutory notice. The purchaser's best legal argument in support of his action to gain immediate possession is that the homeowner is a (A) trespasser ab initio. (B) licensee. (C) tenant at sufferance. (D) tenant from month to month.

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 in exchange for prompt payment. The custom of the grain trade is to allow a 2 percent discount from the invoice price for payment within ten 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 percent from the invoice price. The same delivery procedure and invoice were used in the present contract as had been used previously. The present contract called for a single delivery of wheat at a price of $300,000. 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 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? (A) The custom of the trade controls, and the buyer is entitled to take 2 percent discount if he pays within ten days. (B) The parties' course of dealing controls, and the buyer is entitled to take a 5 percent discount if he pays within 15 days. (C) The seller's retraction of his prior waiver controls, and the buyer is entitled to no discount. (D) The written contract controls, and the buyer is entitled to no discount because of the parol evidence rule.

An act of Congress provides that ''no federal court shall order the implementation of a public school desegregation plan that would require the transportation of any student to a school other than the school closest or next closest to his place of residence." Which of the following is the strongest argument for the constitutionality of the act? (A) The Fourteenth Amendment authorizes Congress to define governmental conduct that violates the Equal Protection Clause. (B) Under Article III, Congress may restrict the jurisdiction of the federal courts. (C) Transportation of students is subject to regulation by Congress because commerce is involved. (D) Congress provides partial support for public education and is therefore entitled to establish conditions upon the expenditure of federal grants,

Five homeowners who took out mortgage loans from a large bank filed a putative class action in federal court against the bank in which the five served as named plaintiffs. Each of the five was either black or Hispanic, and they claimed that the bank had engaged in a pattern of charging black and Hispanic mortgage borrowers higher fees than Caucasian borrowers, in violation of a federal statute prohibiting such discrimination. The suit sought certification of a plaintiff class consisting of many thousands of black and Hispanic homeowners, who had taken out mortgages from the bank. In response to the bank's objection to certification of this class, the district court denied certification, ruling that the proposed class action did not satisfy FRCP 23(a)(2)'s requirement that there be "questions of law or fact common to the class." The judge indicated that she was, however, willing to allow the five named members to proceed to trial on their individual claims. Because the plaintiffs' lawyer took the case only on the assumption that certification of a class would permit the lawyer to receive adequate fees upon success, the lawyer is unwilling to go forward with the individual claims without a large retainer, which the five named claimants are unable or unwilling to advance. The five, and their lawyer, would like to make an immediate appeal of the district court's denial of certification. Which of the following best describes the named plaintiffs' right to make such an immediate appeal? (A) The court of appeals does not have jurisdiction to hear the immediate appeal, so the denial cannot be appealed until a final judgment has been entered on the individual plaintiffs' claims after a trial. (B) The court of appeals has discretion whether to allow the immediate appeal, provided that promptly following the trial court's denial of certification, the named plaintiffs file a petition for permission to appeal. (C) The named plaintiffs have a right to take the immediate appeal, provided that promptly after the trial court's denial of Certification, they file a notice of appeal. (D) The district court has discretion to allow the immediate appeal if the judge believes that without such an appeal, the denial of certification will effectively sound the "death-knell" of the suit because the small size of the five individual claims would make a non-class trial financially unfeasible.

In one state, certain kinds of advanced diagnostic medical technology were located only in hospitals, where they provided a major source of revenue. In many other states, such technology was also available at "diagnostic centers" that were not affiliated with hospitals. A group of physicians announced its plan to immediately open in the state a diagnostic center that would not be affiliated with a hospital. The state hospital association argued to the state legislature that only hospitals could reliably handle advanced medical technologies. The legislature then enacted a law prohibiting the operation in the state of diagnostic centers that were not affiliated with hospitals. The group of physicians filed suit challenging the constitutionality of the state law. What action should the court take? (A) Uphold the law, because the provision of medical services is traditionally a matter of legitimate local concern that states have unreviewable authority to regulate. (B) Uphold the law, because the legislature could rationally believe that diagnostic centers not affiliated with hospitals would be less reliable than hospitals. (C) Invalidate the law, because it imposes an undue burden on access to medical services in the state. (D) Dismiss the suit without reaching the merits, because the suit is not ripe.

On March 1, a mechanic contracted to repair a textile manufacture's knitting machine and to complete the job by March 6.On March 2, the manufacturer contracted to produce and deliver on March 15 specified cloth to a clothing designer. The manufacturer knew that it would have to use the machine then under repair to perform this contract. Because the designer's order was for a rush job, the designer and the manufacturer included in their contract a liquidated damages clause, providing that the manufacturer would pay $5,000 for each day's delay in delivery after March 15. The mechanic was inexcusably five days late in repairing the machine, and, as a result, the manufacturer was five days late in delivering the cloth to the designer. The manufacturer paid $25,000 to the designer as liquidated damages and now sues the mechanic for $25,000. Both the mechanic and the manufacturer knew when making their contract on March 1 that under ordinary circumstances the manufacturer would sustain little or no damages of any kind as a result of a five-day delay in the machine repair. Assuming that the $5,000 liquidated damages clause in the designer-manutacturer contract is valid, which of the following arguments will serve as the mechanic's best defense to the manufacturer's action? (A) Time was not of the essence in the mechanic-manufacturer contract. (B) The mechanic had no reason to foresee on March 1 that the designer would suffer consequential damages in the amount of $25,000. (C) By entering into the contract with the designer while knowing that its knitting machine was being repaired, the manufacturer assumed the risk of any delay loss to the designer. (D) In all probability, the liquidated damages paid by the manufacturer to the designer are not the same amount as the actual damages sustained by the designer in consequence of the manufacturer's late delivery of the cloth.

Residents of a city complained that brightly colored signs detracted from the character of the city's historic district and distracted motorists trying to navigate its narrow streets. In response, the city council enacted an ordinance requiring any "sign or visual display" visible on the streets of the historic district to be black and white and to be no more than four feet long or wide. A political party wanted to hang a six-foot-long, red, white, and blue political banner in front of a building in the historic district. The party filed suit to challenge the constitutionality of the sign ordinance as applied to the display of its banner. Which of the following would be the most useful argument for the political party? (A) The ordinance is not the least restrictive means of promoting a compelling government interest. (B) The ordinance is not narrowly tailored to an important government interest, nor does it leave open alternative channels of communication. (C) The ordinance imposes a prior restraint on political expression. (D) The ordinance effectively favors some categories of speech over others.

Section 1 of the Vehicle Code of a state makes it illegal to cross a street in a central business district other than at a designated crosswalk. Section 2 of the Code prohibits parking any motor vehicle so that it blocks any part of a designated crosswalk. A pedestrian wanted to cross Main Street in the central business district of a city, located in the state at issue, but a truck parked by a trucker was blocking the designated crosswalk. The pedestrian stepped out into Main Street and carefully walked around the back of the truck. The pedestrian was struck by a motor vehicle negligently operated by a driver. If the pedestrian asserts a claim against the driver, the pedestrian's failure to be in the crosswalk will have which of the following effects? (A) It is not relevant in determining the right of the pedestrian. (B) It may be considered by the trier of facts on the issue of the driver's liability. (C) It will bar the pedestrian's recovery unless the driver saw the pedestrian in time to avoid the impact. (D) It will bar the pedestrians recovery as a matter of law.

Twenty-five years ago, a man who owned a 45-acre tract of land conveyed 40 of the 45 acres to a developer by warranty deed. The man retained the rear five-acre portion of the land and continues to live there in a large farmhouse. The deed to the 40-acre tract was promptly and properly recorded. It contained the following language: "It is a term and condition of this deed, which shall be a covenant running with the land and binding on all owners,their heirs and assigns, that no use shall be made of the 40-acre tract of land except for residential purposes." Subsequently, the developer fully developed the 40-acre tract into a residential subdivision consisting of 40 lots with a single-family residence on each lot. Although there have been multiple transfers of ownership of each of the 40 lots within the subdivision, none of them included a reference to the quoted provision in the deed from the man to the developer, nor did any deed to a Subdivision lot create any new covenants restricting use. Last year, a major new medical center was constructed adjacent to the subdivision. A doctor who owns a house in the subdivision wishes to relocate her medical offices to her house. For the first time, the doctor learned of the restrictive covenant in the deed from the man to the developer. The applicable zoning ordinance permits the doctor's intended use. The man, as owner of the five-acre tract, however, objects to the doctor's proposed use of her property. There are no governing statutes other than the zoning code. The common-law Rule Against Perpetuities is unmodified in the jurisdiction. Can the doctor convert her house in the subdivision into a medical office? (A) No, because the owners of lots in the subdivision own property benefitted by the original residential covenant and have the sole right to enforce it. (B) No, because the man owns property benefitted by the original restrictive covenant and has a right to enforce it. (C) Yes, because the original restrictive covenant violates the Rule Against Perpetuities. (D) Yes, because the zoning ordinance allows the doctor's proposed use and preempts the restrictive covenant.

The owner of a three-acre tract of land with a small residence rented it to a tenant at a monthly rental of $200. After the tenant had been in possession of the tract of land for several years, the tenant and the owner orally agreed that the tenant would purchase the tract from the owner for the sum of $24,000, payable at the rate of $200 a month for ten years and also would pay the real estate taxes and the expenses of insuring and maintaining the tract. The owner agreed to give the tenant a deed to the tract after five years had passed and $12,000 had been paid on the account and to accept from the tenant a note secured by a mortgage for the balance. The tenant continued in possession of the tract and performed his obligations as orally agreed. The tenant, without consulting the owner, made improvements for which he paid $1,000. When the tenant had paid $12,000, he tendered a proper note and mortgage to the owner and demanded a delivery of the deed as agreed. The owner did not deny the oral agreement but told the tenant that she had changed her mind, and she refused to complete the transaction. The tenant the brought an action for specific performance. The owner pleaded the Statute of Frauds as her defense. If the owner wins, it will be because: A. nothing the tenant could have done would have overcome the original absence of a written agreement. B. The actions and payments of the tenant are as consistent with his being tenant as with an oral contract. C. the tenant did not score the owner's approval for the improvements that he mad. D. the owner has not received any unconscionable benefit, and, therefore, the tenant is not entitled to equitable relief.

B. This is the best response because it identifies the central issue under tests facts and resolves it in the owner's favor. This was an oral agreement for the sale of an interest in land. Such a contact falls within the Statute of Frauds, and thus must be in writing to be enforceable. However, there are exceptions to the writing requirement, including the one involved here - partial performance. In a K for the sale of land, if the buyer pays all or part of the purchase price AND performs some act explainable only by the K's existence, the K will be enforceable even without writing. Here, the owner would have to explain away the tenant's $1,000 in improvements in order to prevail. B would explain this away.

A buyer entered into a written contract to purchase from a seller 1,000 sets of specially manufactured ball bearings of a non-standard 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 requiring use of 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 sued the buyer for damages. What damages should the court award to the seller? (A) $2 per set, representing the difference between the cost of production and the price the buyer agreed to pay. (B) $6 per set, representing the difference between the cost of manufacture and the salvage price. (C) $8 per set, representing the lost profits plus the unrecovered cost of production. (D) Nominal damages, as the seller failed to resell the goods by public auction.

A car owner washed her car while it was parked on a public street, in violation of a statute that prohibits the washing of vehicles on public streets during rush hours. The statute was enacted only to expedite the flow of automobile traffic. Due to a sudden and unexpected cold snap, the car owner's waste water formed a puddle that froze. 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 statute. At the conclusion of the proofs, both parties moved for a directed verdict. How should the trial judge proceed? (A) Deny both motions and submit the case to the jury, because, on the facts, the jury may infer that the car owner was negligent. (B) Deny both motions and submit the case tot he jury, because the jury may consider the statutory violation as evidence that the car owner was negligent. (C) Grant the car owner's motion, because the pedestrian has failed to offer adequate evidence that the car owner was negligent. (D) Grant the pedestrian's motion, because of the car owner's admitted statutory violation

A car dealer owed a bank $10,000, due on June 1. The car dealer subsequently sold an automobile to a buyer at a price of $10,000, payable at $1,000 per month beginning on June 1. The car dealer then asked the bank whether the bank would accept payments of $1,000 per month for ten months beginning June 1, without interest, in payment of the debt. The bank agreed to that arrangement and the car dealer then directed the buyer to make the payments 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 car dealer. On June 2, the bank demanded that the car dealer pay the debt in full immediately. The car dealer refused to pay and the bank sued the car dealer to recover the $10,000. In this suit, which of the following arguments best supports the bank's claim for immediate payment? (A) The agreement to extend the time for payment was not in writing. (B) The car dealer could not delegate its duty to pay to the buyer (C) The car dealer gave no consideration for the agreement to extend the time of payment. (D) The car dealer's conduct was an attempted novation that the bank could reject.

A city owned and operated a municipal bus system. The city sold space on its buses for the posting of placards. Decisions on the type of placards that could be posted on the buses were left wholly to the discretion of the administrator of the bus system. Although most of the placards that appeared on city buses were commercial advertisements, the administrator had often sold space on the buses for placards promoting various political, charitable, and religious causes. A circus bought space on the city buses for placards advertising its forthcoming performances. An animal rights organization asked the administrator to sell it space for a placard with photographs showing the mistreatment of animals in circus shows. The administrator denied the organization's request. She said that the display of this placard would be offensive to the circus, which had paid a substantial sum to place its placards on the buses, and that she had been told by a circus employee that none of the photographs on the organization's placard depicted an animal belonging to this particular circus. Under the relevant city ordinance, the administrator's decision was final. The organization sued the administrator in an appropriate court for a declaration that she could not, consistent with the First Amendment as made applicable to the states by the Fourteenth Amendment, refuse to sell the organization space for its placard for the reasons she gave Will the organization prevail? (A) No, because the administrator's denial of space to the organization was a reasonable time, manner, and place restriction of speech. (B) No, because a public official may not allow the use of public facilities for the propagation of a message that he or she believes may create a false or misleading impression. (C) Yes, because a public oficial may not refuse co permit the dissemination of a message in a public forum wholly on the basis of its content unless that denial is necessary to serve a compelling government interest. (D) Yes, because a public official may not refuse to allow the use of any public facility to publish a message dealing with an issue of public concern.

A developer was the owner of a large subdivision. A buyer became interested in purchasing a lot but could not decide between Lot 40 and Lot 41. The price and fair market value of each of these two lots was $5,000. The buyer paid the developer $5,000, which the developer accepted, and the developer delivered to the buyer a deed that was properly executed, complete, and ready for recording in every detail except that the space in the deed for the lot number was left blank. The developer told the buyer to fill in either Lot 40 or Lot 41 according to his decision and then record the deed. The buyer visited the development the next day and completely changed his mind, selecting Lot 25. He filed in Lot 25 and duly recorded the deed. The price of Lot 25 and its fair market value was $7,500. Immediately upon learning what the buyer had done, the developer brought an appropriate action against the buyer to rescind the transaction. If the developer loses, the most likely basis for the judgment is that (A) the developer's casual business practices created his loss. (B) the need for certainty in land title records controls. (C) the agency implied to complete the deed cannot be restricted by the oral understanding. (D) the recording of the deed precludes any questioning of its provisions in its recorded form.

A farmer borrowed $100,000 from a bank and gave the bank a promissory note secured by a mortgage on the farm that she owned. The bank promptly and properly recorded the mortgage. which contained a due-on-sale provision. A few years later, the farmer borrowed $5,000 from a second bank and gave it a promissory note secured by a mortgage on her farm. The bank promptly and properly recorded the mortgage. Subsequently, the farmer defaulted on her obligation to the first bank, which then validly accelerated the debt and_ instituted nonjudicial foreclosure proceedings as permitted by the jurisdiction. The second bank received notice of the foreclosure sale but did not send a representative to the sale. At the foreclosure sale, a buyer who was not acting in collusion with the farmer outbid all other bidders and received a deed to the farm. Several months later, the original farmer repurchased her farm from the buyer, who executed a warranty deed transferring the farm to her. After the farmer promptly and properly recorded that deed, the second bank commenced foreclosure proceedings on the farm. The farmer denied the validity of the second bank's mortgage. Does the second bank continue to have a valid mortgage on the farm? (A) Yes, because of the doctrine of estoppel by deed. (B) Yes, because the original owner reacquired title to the farm. (C) No, because the purchase at the foreclosure sale by the buyer under these facts eliminated the second bank's junior mortgage lien. (D) No, because of the due-on-sale provision in the farmer's mortgage to the first bank.

A jogger was stopped by a police officer, who thought the jogger matched the description of a burglar being sought by the police. The officer arrested the jogger, handcuffed her, and brought her to the police station, where the charges were dismissed as a case of mistaken identity. The jogger, a citizen of State A, brought a civil suit against the officer (also a citizen of State A) in State A federal court. The suit contained two claims: (1) a common-law claim for false arrest based on State A tort law; and (2) a claim that the officer's stop of the jogger and his excessive force against her was a denial of her federal civil rights made under color of law, thereby entitling her to recover damages under a federal statute known as "§1983." The State A statute of limitation for the false-arrest claim is two years from the arrest; the federal statute of limitations on the §1983 claim is four years. The officer asserted various defenses, one of which (asserted solely in response to the §1983 claim) was the defense of qualified immunity. By the time the parties completed discovery, nearly three years had elapsed since the arrest. At the close of discovery, the officer moved for summary judgment on the §1983 claim based on his immunity defense. The judge granted the motion, and therefore dismissed the §1983 claim with prejudice. The officer then moved to have the false-arrest claim dismissed on the grounds that the court now lacked subject-matter jurisdiction over that claim due to the dismissal of the §1983 claim. The jogger opposed the dismissal, pointing out (correctly) that discovery was complete, and that the court and litigants had devoted significant time to the issues raised by the false-arrest claim. The jogger also expressed the fear that if the court dismissed the claim, she might be time-barred from refiling it in State A court. Which of the following best summarizes how the federal court should rule on the officer's motion to dismiss the false-arrest claim? (A) The court must dismiss the false-arrest claim regardless of whether the claim could be refiled in State A, because the court's dismissal of the §1983 claim deprived that court of subject-matter jurisdiction to hear the false-arrest claim. (B) The court must try the false-arrest claim, because supplemental jurisdiction applies to that claim, and the court does not have discretion to decline to exercise that jurisdiction, (C) The court has discretion whether to dismiss the false-arrest claim or try it, and if it dismisses, federal law guarantees the jogger 30 days to refile the claim in State A court. (D) The court must dismiss the false-arrest claim, but federal law guarantees the jogger 30 days to re-file the claim in State A court.

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? (A) The daughter, because the death of the landowner deprived the subsequent recordation of any effect (B) The daughter, because the friend was dishonest in reporting that he had destroyed the deed. (C) The friend, because the deed was delivered to him. (D) The friend, because the deed was recorded by him.

A landowner owned a vacant lot. He entered into a written contract with a contractor to build a house of stated specifications on the lot and to sell the house and lot to the contractor. The contract provided for an "inside date" of April 1, 2010, and an "outside date" of May 1, 2010, for completion of the house and delivery of a deed. Neither party tendered performance on the dates stated. On May 3, 2010, the contractor notified the landowner in writing of the contractor's election to cancel the contract because of the landowner's failure to deliver title by May 1. On May 12, the landowner notified the contractor that some unanticipated construction difficulties had been encountered but that the landowner was entitled to a reasonable time to complete in any event. The notification also included a promise that the landowner would be ready to perform by May 29 and that he was setting that date as an adjourned closing date. The landowner obtained a certificate of occupancy and appropriate documents of title, and he tendered performance on May 29. The contractor refused. The landowner brought an action to recover damages for breach of contract. The decision in the case will most likely be determined by whether (A) the landowner acted with due diligence in completing the house. (B) the contractor can prove actual "undue hardship" caused by the delay. (C) the expressions "inside date" and "outside date" are construed to make time of the essence. (D) there is a showing of good faith in the contractor's efforts to terminate the contract.

A recently established law school constructed its building in a quiet residential neighborhood. The law school had obtained all of the necessary municipal permits for the construction of the building, which included a large clock tower whose clock chimed every hour. The chimes disturbed only one homeowner in the neighborhood, who had purchased her house prior to the construction of the building. The homeowner was abnormally sensitive to ringing sounds, such as bells and sirens, and found the chimes to be extremely annoying. In a nuisance action by the homeowner against the law school, will the homeowner prevail? (A) Yes, because the chimes interfere with the homeowner's use and enjoyment of her property. (B) Yes, because the homeowner purchased her house prior to the construction of the building. (C) No, because the chimes do not disturb the other residents of the neighborhood. (D) No, because the law school had the requisite municipal permits to erect the clock tower.

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 committing the robbery. The employee was charged in state court with the robbery. He moved to suppress the recording on the grounds that the method of obtaining it violated his constitutional rights under both the state and federal constitutions. Assume that a clear precedent from the state supreme court holds that the conduct of the police in making the recording violated the employee's rights under the state constitution, and that the exclusionary rule is the proper remedy for this violation. Should the court grant the employee's motion? (A) No, because the employee's federal constitutional rights were not violated, and this circumstance overrides any state constitutional provisions. (B) No, because the police were acting in the good-faith belief that their actions were permitted by the federal Constitution. (C) Yes, because the making of the recording violated the state constitution. (D) Yes, because use of the recording would violate the neighbor's federal constitutional rights.

An accountant and a bookkeeper, as part of a contract dissolving their accounting business, agreed that each would contribute $100,000 to fund an annuity for a clerk who was a longtime employee of the business. The clerk's. position would be terminated due to the dissolution, and he did not have a retirement plan. The accountant and the bookkeeper informed the clerk of their plan to fund an annuity for him. The clerk, confident about his financial future because of the promised annuity, purchased a retirement home. The accountant later contributed his $100,000 to fund the annuity, but the bookkeeper stated that he could afford to contribute only $50,000. The accountant agreed that the bookkeeper should contribute only $50,000. Does the clerk have a valid basis for an action against the bookkeeper for the unpaid $50,000? (A) No, because the clerk was bound by the modification of the agreement made by the accountant and the bookkeeper. (B) No, because the clerk was only a donee beneficiary of the agreement between the accountant and the bookkeeper, and had no vested rights. (C) Yes, because the clerk's reliance on the promised retirement fund prevented the parties from changing the terms. (D) Yes, because the promises to establish the the funds were made binding by consideration from the clerk's many years of employment.

An insurer is incorporated in State A, and has had its principal place of business there for many years. Ten years ago, the insurer sold a disability insurance policy to a surgeon. At the time the surgeon purchased the policy, the surgeon was a resident of State A, and all communications and activities regarding the purchase occurred in State A. Last year, the surgeon moved to State B. The insurer has had for some time a small office in State B, from which it markets insurance policies to State B residents; these policies account for about 10 percent of the insurer's worldwide revenues. When the insurer's website (run from State A) receives an inquiry from a State B resident, the insurer refers the inquiry to the company's State B office. The surgeon now claims that for the last six months he has been disabled and is entitled to disability benefits from the insurer. The insurer has refused to pay, on the grounds that the policy lapsed eight months ago for non-payment. Prior to the surgeon's demand for disability payments, the insurer took no actions in State B concerning the policy, except to send the surgeon bills for premiums at his new State B address once it received a change-of-address notice from him. Last month, the surgeon filed suit against the insurer in State B court, alleging that the insurer's failure to make the disability payments was a breach of their contract. Under the State B long-arm statute, a State B resident bringing a contract action in the State B courts may make service on an out-of-state corporate defendant by causing a summons and complaint to be personally served upon the CEO or other officer of the defendant wherever in the United States that officer can be found. (The State B courts will exercise personal jurisdiction over an out-of-state corporate defendant in such a suit brought so long as such jurisdiction would not violate the U.S. Constitution.) The process server hired by the surgeon handed the summons and complaint to the insurer's CEO at the CEO's home in State A; the suit named only the insurer, not the CEO. One week after the insurer's CEO received the summons on behalf of the insurer, the CEO happened to travel to State B for a one-day conference on an unrelated matter. While he was in State B, he was handed a summons and complaint in a divorce action brought against him in the State B courts by his long-estranged wife. The two had been married decades ago in State A, and the wife had moved to State B a few years ago. Until the one-day conference, the CEO had not visited — or done any activity connected to — State B at any time in the last ten years. By coincidence, the divorce suit was assigned to the same State B judge as the surgeon's suit against the insurer. The CEO and the insurer, in their respective suits, have each made timely motions in State B court to have the suit against each dismissed for lack of personal jurisdiction; each defendant argues that the court's exercise of such jurisdiction over that defendant would violate the Due Process Clause of the Fourteenth Amendment. How should the court rule on the two motions? (A) Grant the motion as to both suits. (B) Deny the motion as to both suits. (C) Grant the motion as to the suit against the insurer, but deny the motion as to the suit against the CEO. (D) Grant the motion as to the suit against the CEO, but grant the motion as to the suit against the insurer.

An investor offered a landowner $200 for a 30-day option to buy the landowner's land for $10,000. As the landowner knew, the investor, if granted the option, intended to resell the land at a profit. The landowner declined, believing that she could find a desirable purchaser herself. The investor thereupon said to the landowner, "Make me a written, 30-day offer, revocable at your pleasure, to sell me your land at a sale price of $10,000, and tomorrow I will pay you $200 for so doing." The landowner agreed and gave the investor the following signed document: "For 30 days I offer my land to the investor for $10,000, this offer to be revocable at my pleasure at any time before acceptance" Which of the following would best describe the basis of any duty or duties created by the investor's oral promise and the landowner's writing? (A) Firm option (B) Pre contractual liability by promissory estoppel (C) Unilateral contract (D) Quasi-contractual liability

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? (A) The nephew, because at the time of the deed to the woman, the uncle was the owner of record. (B) The nephew, because the woman did not conduct a title search. (C) The woman, because of the doctrine of estoppel by deed. (D) The woman, because she recorded her deed prior to the uncle's death.

By a valid written contract, a seller agreed to sell land to a buyer. The Contract stated, "The Parties agree that closing will occur on next May 1 at 10 a.m." There was no other reference to closing. The contract was silent as to quality of title. On April 27, the seller notified the buyer that she had discovered that the land was subject to a longstanding easement in favor of a corporation for a towpath for a canal, should the corporation ever want to build a canal. The buyer thought it so unlikely that a canal would be built that the closing should occur notwithstanding this outstanding easement. Therefore, the buyer notified the seller on April 28 that he would expect to close on May 1. When the seller refused to close, the buyer sued for specific performance. Will the buyer prevail? (A) No, because the easement renders the seller's title unmarketable. (B) No, because rights of third parties are unresolved. (C) Yes, because the decision to terminate the contract for title not being marketable belongs only to the buyer. (D) Yes, because the seller did not give notice of the easemant a reasonable time before the closing date.

Driving down a dark road, a defendant accidentally ran over a man. The defendant stopped and found that the victim was dead. The defendant, fearing that he might be held responsible, took the victim's wallet, which contained a substantial amount of money. He removed the identification papers and put the wallet and money back into the victim's pocket. The defendant is not guilty of (A) larceny, because he took the papers only to prevent identification and not for his own use. (B) larceny, because he did not take anything from a living victim. (C) robbery, because he did not take the papers by means of force or putting in fear. (D) robbery, because he did not take anything of monetary value.

Plaintiff owns and resides in a house in State 4 and has no plans to move. He ordered a garden hose for $100 by telephone from a catalogue distributed by Defendant, a garden-supply company that is incorporated in State A and has its principal place of business there. The garden hose turned out to have a defective nozzle, and while Plaintiff was watering his garden a flood developed, ruining his garden, Plaintiff was angry, and therefore posted disparaging comments about Defendant on an online discussion board. Plaintiff also sued Defendant in State A state court on a breach-of-warranty theory to recover the purchase price plus consequential damages for his lost garden, for a total of $5,000. Defendant filed a counterclaim alleging violation of a federal 'statute entitled the "Federal Trade Libel Law" (the FTLL), which provides: "Any false or disparaging online statement made about a business that conducts online sales or sales by mail shall be per se actionable in state or federal court, and the disparaged business shall be entitled to recover from the maker of the statement, without proof of pecuniary harm, statutory damages of $10,000 for each day in which said statement is publicly accessible online." Defendant's counterclaim alleged that Plaintiff's disparaging statement appeared online for ten days, and the company therefore sought $100,000 in damages. Defendant then removed the action to federal court for the district of State A. Plaintiff now seeks to have the case remanded to State A state court. Should the federal district court remand the action or any part of it? (A) No, because the federal court has power to hear Defendant's counterclaim. (B) No, because the federal court may exercise federal-question jurisdiction over the counterclaim, and supplemental jurisdiction extends to cover Plaintiff's claim. (C) Yes as to the entire action, because the removal was not proper. (D) Yes as to Plaintiff's state-law claim, but the court may and should retain jurisdiction over Defendant's federal counterclaim.

Plaintiff, a State A corporation, has sued Defendant, an individual, in State B state court. Defendant was served at his home in State B. The suit, based on State E law, sought money damages. The suit contended that Defendant breached a contract to convey a piece of Sate E real estate to Plaintiff, thereby depriving Plaintiff of the benefit of his bargain. The terms of the contract were negotiated face-to-face in State C by Plaintiff's CEO and by Defendant; the next day, after a final document had been created, the document was signed by defendant while he was in State D. No activated connected with the contract occurred in State B. Defendant has timely moved to dismiss the suit for lack of personal jurisdiction over him. State B's statute governing jurisdiction permits the exercise of jurisdiction "to the full extent allowed under the United Sates Constitution." Should the State B court grant Defendant's motion? A. Yes, because the cause of action does not arise out of or relate to Defendant's contacts within State B. the forum state. B. Yes, because when a claim arises out of breach of a contract to convey real estate, only the state in which the real estate is located has jurisdiction. C. No, because the state in which a defendant resides may exercise general jurisdiction regardless of the nature of the cause of action. D. No, because the plaintiff and defendant are citizens of different states, permitting the court to exercise diversity jurisdiction over the suit.

Plaintiff, a citizen of State A, purchased a used car from Defendant, a corporation that is a citizen of State B, in a transaction that occurred in State B. At the time of the sale, Plaintiff did not know that the car had defective brakes. While driving the car in State A, Plaintiff crashed into a taxi, owned and driven by Taxi Driver (a citizen of State B), which was going faster than the speed limit. Plaintiff brought a diversity action against Defendant in federal district court for the Eastern District of State B for personal injuries and property damage suffered by Plaintiff in the crash; Plaintiff's theory was that Defendant committed fraud on her (as defined under State B common-law principles) by knowingly concealing the brakes, and that the fraud was the proximate cause of Plaintiff's damages. A jury awarded Plaintiff the full $100,000 she sought, but Plaintiff was unable to collect because Defendant went bankrupt. Plaintiff then sued Taxi Driver in a separate diversity action in federal district court for the Southern District of State A, again for $100,000, for the same personal injury and property damage sustained by Plaintiff in the crash. Taxi Driver raised the affirmative defense of claim preclusion, arguing that any claim Plaintiff might have had against Taxi Driver should have been asserted as part of the State B action since Plaintiff's claim against Defendant and her claim against Taxi Driver arose out of a single episode. Since Plaintiff failed to assert the claim against Taxi Driver, Taxi Driver argued, that claim became merged into Plaintiff's successful judgment against Defendant, and may no longer be asserted. Taxi Driver has therefore moved for summary judgment on the basis of this claim-preclusion theory. Which statement provides the best explanation of how the State A federal court should resolve Taxi Driver's motion? (A) The federal court should grant the motion because once Plaintiff chose to bring any suit in State B concerning the accident, Plaintiff was required to sue all parties involved in the accident in that first action. (B) The federal court should grant the motion under the transactional test for claim preclusion. (C) The court should deny the motion because Taxi Driver was not a party to the State B action. (D) The court should deny the motion because the judgment of the State B court will not be final until all appeals have been concluded.

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

Suspecting that students in a dormitory were using narcotics, the president of a private college arranged for local police to place. Concealed microphones in several suites of the dormitory. Using these microphones, the college security officers recorded a conversation in which a student offered to sell marijuana to a school employee. The tape was turned over to the local police, who played it for a local judge. The judge issued a warrant to search the student's room. The room was searched by police, and marijuana was discovered. The student is charged with unlawful possession of narcotics. At trial, the student's motion to prevent the introduction of marijuana into evidence will most probably be (A) denied, because the college president , in loco parentis, had the responsibility of preventing unlawful activity by students under the president's supervision. (B) denied, because there was probable cause to make the search and police obtained a warrant before commencing the search. (C) granted, because the student's privacy was unreasonably invaded. (D) granted, because the electronic surveillance was "fundamentally unfair"

Under the Federal Tort Claims Act, with certain exceptions not relevant here, the federal government is liable only for negligence. A federally owned and operated nuclear reactor emitted substantial quantities of radioactive matter that settled on a nearby dairy farm, killing the dairy herd and contaminating the soil. At the trial of an action brought against the federal government by the farm's owner, the trier of fact found that the nuclear plant had a sound design, but that a valve made by the Acme Engineering Company had malfunctioned and allowed the radioactive matter to escape, that Acme Engineering Company is universally regarded as a quality manufacturer of components for nuclear plants, and that there was no way the federal government could have anticipated or prevented the emission of the radioactive matter. If there is no other applicable statute, for whom should the trial judge enter judgment? (A) The plaintiff, on the ground that the doctrine of res ipsa loquitur applies. (B) The plaintiff, on the ground that one who allows dangerous material to escape to the property of another is liable for the damage done. (C) The defendant, on the ground that a case under the Federal Tort Claims Act has not been proved. (D) The defendant, on the ground that the Acme Engineering Company is the proximate cause of the owner's damage.

With the advice and consent of the Senate, the President entered into a a self-executing treaty with a foreign country. The treaty provided that citizens of both nations were required to pay whatever torts damages were awarded against them by a court of either nation. A man and a woman who were U.S. citizens and residents of the same state were traveling separately in the foreign country when their cars collided. The foreign court awarded the woman a judgment for $500,000 in damages for her injuries from the accident. In federal district court in their home state, the woman filed suit against the man to enforce the judgment. The man filed a motion to dismiss for lack of jurisdiction. Should the court grant the motion to dismiss? (A) Yes, because the citizenship of the parties is not diverse. (B) Yes, because the traffic accident was a noncommercial transaction outside interstate commerce. (C) No, because the case falls within the federal question jurisdiction of the court. (D) No, because the treaty power is plenary and not subject to judicial review.

During 2010, a series of arsons occurred in a city. In early 2011, the city council adopted this resolution: The city will pay $10,000 for the arrest and conviction of anyone guilty of an of the 2010 arsons committed here. The foregoing was telecast by the city's sole television station once daily for one week. In which of the following ways could the dirt's reward offer be effectively accepted? A. Only by an offeree's return promise to make a reasonable effort to bring about the arrest and conviction of an arsonist within the scope of the offer B. Only by an offeree's making the arrest and assisting in the successful conviction of an arsonist within the scope of the offer. C. By an offer's supplying information leading to arrest and conviction of an arsonist within the scope of the offer. D. By an offer's communication of assent through the same medium (television) used by the city in making its offer

C. This answer identifies the correct means of accepting the offer, and also the appropriate interpretation of the performance requested. A reward offer is just an offer. The city wants action, not someone to just promise to find the arsonist. Therefore, only performance would constitute acceptance. This offer is clearly asking for information leading to the arrest and conviction of the arsonist, otherwise the offer would be limited to police if it required the person to arrest the arsonist.

Plaintiff owns and operates a restaurant located in State A. Defendant, a citizen of State B, works as a freelance restaurant reviewer for a website. After eating at Plaintiff's restaurant, Defendant published a highly critical online review of it. On July 1, Plaintiff filed an action for libel in federal district court for State C (the state in which Plaintiff resides) based on diversity jurisdiction. On August 1, Defendant served an answer, in which he made a general denial. On October 1,Defendant suddenly realized the State C district court was not a proper venue for the action under the appropriate federal statute. Which of the following choices describes Defendant's best opportunity to raise the venue objection on October 2 and the court's appropriate response to that objection? (A) Defendant can move to amend his answer to include the venue defense, at which point the court will have discretion whether to dismiss the action if the court agrees that venue was improper. (B) Defendant can make a motion to dismiss based on the venue objection, at which point the court will have discretion whether to dismiss the action if the court agrees that venue was improper. (C) Defendant can make a motion to dismiss based on the venue objection, at which point the court must as a jurisdictional matter dismiss the action if the court agrees that venue was improper. (D) Defendant can make a motion to dismiss based on the venue objection, at which point the court must as a jurisdictional matter dismiss the action if the court agrees that venue was improper.

A customer wanted to purchase a used motor vehicle. The used car company's lot, in a remote section away from town, was enclosed by a ten-foot chain link fence. While the Customer and a sales representative, an employee of the used car company, were in the used car lot looking at Cars, a security guard locked the gate at 1:30 p.m., because it was Saturday and the lot was supposed to be closed after 1:00 p.m. Saturday until Monday morning. At 1:45 p.m., the customer and the sales representative discovered they were locked in. There was no traffic in the vicinity and no way in which help could be summoned. After two hours, the customer began to panic at the prospect of remaining undiscovered and without food and water until Monday morning. The sales representative decided to wait in a car until help came. The customer tried to climb over the fence and, in doing so, fell, and was injured. The customer asserts a claim against the used car company for damages for his injuries. If the customer's claim is based on false imprisonment, will the customer prevail? (A) Yes, because he was confined against his will. (B) Yes, because he was harmed as a result of his confinement. (C) No, unless the security guard was negligent in locking the gate. (D) No, unless the security guard knew that someone was in the lot at the time the guard locked the gate.

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 price of the first structure? (A) No, because substantial performance is a constructive condition to the landowner's duty to pay at the contract rate. (B) No, because the builder's cessation of performance without legal excuse is a willful breach of the contract. (C) Yes, because the contract is divisible, and the landowner will be required to bring a separate claim for the builder's failure to complete the other two structures. (D) 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.

A pedestrian, while crossing the street, was seriously injured when she was hit by a car driven by a messenger. The day after the accident, she started a lengthy period of medical treatment. Shortly after the accident, she sued the messenger for negligence in a federal diversity action in State A. As a part of automatic disclosure, the pedestrian provided the name and contact information of both the doctor who examined her in the emergency room and of the physician who treated her during her long period of recuperation. During discovery, the messenger requested that the pedestrian produce all medical records kept by any doctor or hospital relating to any injuries allegedly suffered by the pedestrian as a consequence of the accident. The pedestrian's counsel produced certain records, but these did not include any handwritten notes taken by the treating physician over the 18-month treatment period. At trial, the treating physician was called as part of the pedestrian's direct case; the pedestrian's lawyer authenticated 70 pages of handwritten notes he had made during the various treatment sessions, and the lawyer offered these into evidence under an appropriate exception to the hearsay rule. The messenger's lawyer then objected to the admission of the notes; the lawyer pointed out that detailed analysis of the notes would be needed for the lawyer to adequately cross-examine the physician and argued that the court should exclude the notes from evidence because they were not produced during discovery. In a sidebar conference, the pedestrian testified in response that she had not learned of the existence of the treatment notes until the prior week. The trial judge will most likely (A) rule that the notes may not be excluded without the defendant's first making a motion for sanctions. (B) rule that the notes should not be excluded unless the messenger shows that his case will be prejudiced if the pedestrian is permitted to use the notes as evidence without her having made timely disclosure of them. (C) rule that the notes should not be excluded if the judge believes that the pedestrian had learned about the notes only the prior week, since in that event the failure to produce the notes would be substantially justified. (D) rule that the notes must be excluded unless the judge believes that the failure to produce them is now harmless.

A producer engaged an inexperienced actress to do a small role in a new Broadway play for a period of six months at a salary of $200 a week. The actress turned down another role in order to accept this engagement. On the third day of the run, the actress was hospitalized with influenza and a replacement was hired to do the part. A week later, the actress recovered, but the producer refused to accept her services for the remainder of the contract period. The actress then brought an action against the producer for breach of contract. Which of the following is the actress's best legal theory? (A) Her acting contract with the producer was legally severable into weekly units. (B) Her performance of the literal terms of the contract was physically impossible. (C) Her reliance on the engagement with the producer by declining another acting role created an estoppel against the producer. (D) Her failure to perform for one week was not a material failure so as to discharge the producer's duty to perform.

A professor, in a lecture in her psychology course at a private university, described an experiment in which a group of college students in a neighboring city rushed out and washed cars stopped at traffic lights during the rush hour. She described how people reacted differently —with shack, joy, and surprise. At the conclusion of her report, she said, "You understand, of course, that you ate not to undertake this or any other experiment unless you first clear it with me." Four of the professor's students decided to try the same experiment but did not clear it with the professor. One motorist who was a subject of their experiment said, "I was shocked. There were two people on each side of the car, At first I thought negatively. I thought they were going to attack me and thought of driving away. Then I quieted down and decided there were too many dirty cars in the city anyway." Charitable immunity has been abolished in the jurisdiction, If the motorist has a valid claim against the students,will he also prevail against the university? (A) Yes, if the students would not have performed the experiment but for the professors lecture. (B) Yes, if the motorist's claim against the students is based on negligence. (C) No, because the students were not the professor's employees. (D) No, because the professor did not authorize the car washing experiment as a class project.

A storekeeper of a large hardware store sells power saws for both personal and commercial use. He often takes old power saws as trade-ins on new ones. The old power saws are then completely disassembled and rebuilt with new bearings by the storekeepers employees and sold by the storekeeper as "reconditioned saws." A purchaser, the owner and operator of a cabinetmaking shop, informed the shopkeeper that he wanted to buy a reconditioned circular saw for use in his cabinetmaking business. However, the blade that was on the saw he picked out had very coarse teeth for cutting rough lumber. The purchaser told the storekeeper that he wanted a saw blade that could cut plywood. The storekeeper exchanged the coarse blade for a new one with finer teeth that would cut plywood smoothly. The new blade was manufactured by a saw-blade company and contained defects. The reconditioned saw had been manufactured by a power-saw company. The week after the saw was purchased, the employee, who works for the purchaser in the purchaser's cabinetmaking shop, was injured while using the saw. The employee's arm was severely cut. As a result, the cabinetmaking shop was shut down for a week until replacement for the employee could be found. The jurisdiction has adopted a pure comparative fault rule in strict liability cases. If the employee was injured while cutting plywood when the shaft holding the saw blade came loose when a bearing gave way and the shaft and blade flew off the saw, and if the employee asserts a claim based on strict liability in tort against the power saw company, the employee will probably A. recover if the shaft that came loose was a part of the saw when it was new. B. recover, because the power saw company was in business of manufacturing dangerous machines. C. not recover, because the employee was not the buyer of the power saw. D. not recover, because the saw had been rebuilt by the storekeeper.

A woman told a man to go into her friend's unlocked barn and retrieve an expensive black saddle that she said she had loaned to the friend. The man went to the friend's barn, opened the door, found a black saddle, and took it back to the woman's house. The friend had in fact not borrowed a saddle from the woman, and when the friends discovered her saddle was missing, she suspected that the woman was the thief. The friend used a screwdriver to break into the woman's house to find the saddle. Upon discovering the saddle on the woman's table, the friend took it back and called the police. The jurisdiction follows the common law, except that burglary covers structures in addition to dwellings and nighttime element has been eliminated. Which, if any, of these individuals is guilty of burglary? A. All of them. B. Only the friend C. Only the man D. Only the woman.

Al and Bill are identical twins. Al, angry at his neighbor, said, "You'd better stay out of my way. The next time I find you around here, I'll beat you up." Two days later, while in the neighborhood, the neighbor saw Bill coming toward him. As Bill came up to the neighbor, Bill raised his hand. Thinking Bill was Al and fearing bodily harm, the neighbor struck Bill. If Bill asserts a claim against the neighbor and the neighbor relies on the privilege of self-defense, the neighbor will (A) not prevail, because Bill was not an aggressor. (B) not prevail unless Bill intended his gesture as a threat, (C) prevail if the neighbor honestly believed that Bill would attack him. (D) prevail only if a reasonable person under the circumstances would have believed that Bill would attack him.

FBI agents, without a warrant and without permission of Mexican law enforcement or judicial officers, entered Mexico, kidnapped an American citizen wanted in the United States for drug smuggling violations, and forcibly drove him back to Texas. Thereafter, the agents, again without a warrant, broke into the Texas home of the accomplice of the kidnapped citizen, and arrested her. The kidnapped citizen and his accomplice were both indicted for narcotics violations. Both moved to dismiss the indictment on the ground that their arrests violated the Fourth Amendment. The court should: (A) grant the motions of both the kidnapped citizen and his accomplice. (B) grant the motion of the kidnapped citizen and deny the motion of his accomplice. (C) grant the motion of the accomplice and deny the motion of the Kidnapped citizen. (D) deny the motions of both the kidnapped citizen and his accomplice.

In response to the need for additional toxic waste landfills in a state, the state's legislature enacted a law authorizing a state agency to establish five new state-owned and state-operated toxic waste landfills. The law provided that the agency would decide the locations and sizes of the landfills after an investigation of all potential sites and a determination that the particular sites chosen would not endanger public health and would be consistent with the public welfare. A community in the state was scheduled for inspection by the agency as a potential toxic waste landfill. site. Because the community's residents obtained most of their drinking water from an aquifer that ran under the entire community, a citizens' group, made up of residents of that community, sued the appropriate officials of the agency in federal court. The group sought a declaratory judgment that the selection of the community as the site of a toxic waste landfill would be unconstitutional and an injunction preventing the agency from selecting the community as a site for such a landfill. The agency officials moved to dismiss. Which of the following is the most appropriate basis for the court to dismiss this suit? (A) The case presents a non-justiciable political question. (B) The interest of the state in obtaining suitable sites for toxic waste landfills is sufficiently compelling to justify the selection of the community as a location for such a facility. (C) The Eleventh Amendment bars suits of this kind in the federal courts. (D) The case is not ripe for a decision on the merits.

On January 5, a creditor lent $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. 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? (A) No, because a contract modification is not binding on an assignee who had no knowledge of the modification. (B) No, because although the creditor waived the condition of payment on the first of the month, the bank reinstated it. (C) Yes, because although the creditor waived the condition of payment on the first of the month, the creditor could not assign to the bank his right to reinstate that condition. (D) Yes, because the creditor could assign to the bank only those rights the creditor had in the contract at the time of the assignment.

On March 1, an excavator entered into a contract with a contractor to. perform excavation work on a large project. The contract expressly required that the excavator begin work on June 1 to enable other subcontractors to install utilities. On May 15, the excavator requested a 30-day delay in the start date for the excavation work because he was seriously behind schedule on another project. When the contractor refused to grant the delay, the excavator stated that he would try to begin the work for the contractor on June 1 Does the contractor have valid legal grounds to cancel the contract with the excavator and hire a replacement? (A) Yes, because the excavator committed an anticipatory repudiation of the contract by causing the contractor to feel insecure about the performance. (B) Yes, because the excavator breached the implied covenant of good faith and fair dealing. (C) No, because the excavator would be entitled to specific performance of the contract if he could begin by June 1 (D) No, because the excavator did not state unequivocally that he would delay the beginning of his work.

On a foggy night, a victim was clubbed from behind by a man wielding a blackjack. The defendant was arrested in the vicinity shortly thereafter. As they were booking the defendant, the police took his photograph. They promptly showed that photograph, along with the photographs of seven people who had the same general features as the defendant, to the victim. The victim identified the defendant as the culprit. At trial, the defendant objects to the introduction into evidence of his out-of-court identification. His objection should be (A) sustained, because the victim did not have a good opportunity to observe the culprit. (B) sustained, because the defendant was not represented by counsel at the showing of the photographs to the victim. (C) sustained, because the action of the police in showing the photographs to the victim was unnecessarily suggestive. (D) denied.

Plaintiff, a corporation incorporated and headquartered in State A that manufactures office supplies, purchased wood pulp from Defendant, a corporation incorporated in State B and headquartered in State C. The sales contract required Defendant to deliver the pulp to Plaintiff's factory in State A on or before May 1 and was silent about which state's law should govern in case of a dispute between the parties Defendant delivered the pulp 45 days late, after which Plaintiff sued Defendant in federal district court in State B, invoking diversity jurisdiction, The complaint alleged breach of contract and sought damages in excess of $75,000. Defendant moved to dismiss the complaint for failure to state a claim. Defendant argued that the judge was required to apply State B law to the case and pointed out (correctly) that a State 2 statute, the Grace Period for Deliveries Act (GPDA), provides that "Every supply contract is deemed to permit the vendor to deliver goods up to 60 days after the date specified the contract." Plaintiff opposed the motion and argued that the court should apply generally federal common-law principles. Assume that federal common law principles — such as those applicable to contracts involving the federal government — do not provide for a grace period analogous to that of the GPDA. Is the federal district court required to apply the GPDA to the dispute? (A) No, because a federal court sitting in diversity is required to apply federal common-law principles to this dispute. (B) Yes, because State B is the state of Defendant's incorporation, so its law governs the interpretation of any contract to which the company is a party. (C) Yes, so long as the highest court of State B has held that the GPDA applies to a supply contract of the sort involved in this, dispute. (D) Yes, so long as a State B state court would apply the GPDA to this contract dispute if the case were being heard in that court.

Plaintiff, an environmental activist in State A, was concerned that extensive lakeshore development would destroy vegetation that fish need in order to spawn. Defendant was a wealthy individual who owned a 3-acre parcel of undeveloped shoreline in State A, which she had started to develop into a single-family residence for herself. The plans Defendant filed with the local municipality showed that she intended to plant a lawn to a point within five feet of the shoreline. A federal statute, the Fish Protection Act (or "FPA"), provides, Because overdeveloped shorelines are harmful to fish, owners of shoreline property are strongly encouraged to maintain a 30-foot strip of natural vegetation between the shoreline and the part of their grass or lawn nearest the shoreline." Plaintiff sued Defendant in federal court for State A on a claim based on the FPA; the lawsuit asked the court to permanently enjoin Defendant from planting a lawn within the 30 feet of her property nearest the shoreline. Plaintiff also made a motion for a preliminary injunction against such planting until the case could be tried on the merits. Defendant has now opposed the motion for preliminary injunction. Which statement best expresses how the federal court should decide Plaintiff's motion? (A) The court should grant the motion, because damages will never be able to repair the injury that the environment will suffer if the fish cannot spawn due to Defendant's illegal development of her roper (B) The court should grant the motion, because otherwise Defendant will develop the land without the necessary buffer and the public interest will be hurt (C) The court should deny the motion, because money damages will be sulficient to remedy a violation of the Fish Protection Act. (D) The court should deny the motion because Plaintiff is unlikely to succeed on the merits.

Ten years ago, a labor leader divorced his wife. Both he and his first wife have since married other persons. Recently, a newspaper in another city ran a feature article on improper influences it asserted had been used by labor officials to secure favorable rulings from government officials. The story said that in 1980 the labor leader's first wife, with his knowledge and concurrence, gave sexual favors to the mayor of the labor leader's hometown and then persuaded the mayor to grant concessions to the labor leader's union. That story named the labor leader and identified his first wife by her former and current surnames. The reporter of the newspaper believed the story to be true, since it had been related to him by two very reliable sources. The labor leader's first wife suffered emotional distress and became very depressed. If she assets a claim based on defamation again the newspaper, she will (A) prevail, because the story concerned her personal, private life. (B) prevail if the story was false (C) not prevail, because the newspaper did not print the story with knowledge of its falsity or with reckless disregard for its truth or falsity. (D) not prevail if the newspaper exercised ordinary care in determining

The Federal Automobile Safety Act establishes certain safety and performance standards for all automobiles manufactured in the United States. The Act creates a. five-member "Automobile Commission" to investigate automobile 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 selected by the president pro tempore of the Senate, and two by the speaker of the House of Representatives. A minor U.S. car manufacturer seeks to enjoin enforcement of the Commission's rules. The best argument that the 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 manufacturer is denied due process of law because it is not represented on the Commission, (D) the Commission lacks authority to enforce its standards because not all ofits members were appointed by the President of the United States.

The owner in fee simple of a small farm consisting of 30 acres of land improved with a house and several outbuildings, leased the same to a farmer for a ten-year period. After two years had expired, the government condemned 20 acres of the property and allocated the compensation award to the owner and the farmer according to their respective interest so taken. It so happened, however, that the 20 acres taken embraced all of the farm's tillable land, leaving only the house, outbuildings, and a small wooded lot. There is no applicable statute in the jurisdiction where the property is located nor any provision in the lease relating to condemnation. The farmer quit possession, and the owner brought suit against him to recover rent. The owner will (A) lose, because there has been a frustration of purpose that excuses the farmer from further performance of his contract to pay rent. (B) lose, because there has been a breach of the implied covenant of quiet enjoyment by the owner's inability to provide the farmer with possession of the whole of the property for the entire term. (C) win, because of the implied warranty on the part of the tenant to return the demised premises in the same condition at the end of the term as they were at the beginning. (D) win, because the relationship of landlord and a was unaffected by the condemnation, thus leaving the farmer still obligated to pay rent.

A defendant was arrested moments after a forcible rape and was prosecuted for it. The victim testified she tore the assailant's shirt. The defendant did not testify. In the jury argument, the defendant's counsel urged that the state's failure to offer in evidence the shirt the defendant was wearing when arrested indicated that the evidence would be unfavorable to the state's case. In his closing argument, the prosecutor said, "If the defense had thought the clothing would show anything, they could have brought it in as evidence themselves." The prosecutor's argument is (A) proper as rebuttal to the inference that the evidence would be unfavorable to the prosecution. (B) proper as a comment on the defendant' failure to testify. (C) improper as an argument going beyond the evidence in the case. (D) improper as a comment on the defendant' failure to testify.

In which of the following situations is the defendant most likely to be guilty of common-law murder? (A) Angered because his neighbor is having a noisy party, the defendant fires a rifle into the neighbor's house. The bullet strikes and kills a guest at the party. (B) During an argument, the defendant's cousin slaps the defendant. Angered, the defendant responds by shooting and killing his cousin (C) The defendant drives his car through a red light and strikes and kills a pedestrian who is crossing the street. (D) Using his fist, the defendant punches a victim in the face. As a result of the blow, the victim falls and hits his head on a concrete curb, suffers a concussion, and dies.

A man who had become very drunk left a bar and started to walk home. Another patron of the bar, who had observed the man's condition, followed him. The patron saw the man stumble and fall to the ground near an alley. The patron then began to pull out a gun but saw that the man had passed out asleep in the gutter. The patron reached into the man's pocket, grabbed his wallet, and started to walk away. When the patron heard police officers approaching, he dropped the wallet and ran off. The crimes below are listed in descending order of seriousness. What is the most serious crime for which the patron properly could be convicted? (A) Robbery (B) Larceny (C) Attempted robbery (D) Atempted larceny

On a parcel of land immediately adjacent to a woman's 50-acre farm, public school district built a large consolidated high school that included a 5,000-seat lighted athletic stadium. The woman had objected to the districts plans forthe stadium and was particularly upset about nighttime athletic events that attracted large crowds and that, at times, resulted in significant noise and light intensity levels On nights of athletic events, the woman and her family members wore earplugs and could not sleep or enjoy a quiet evening until after 10 p.m. In addition, light from the stadium on those nights was bright enough to allow reading a newspaper in the woman's yard. Which of the following doctrines would best support the woman's claim for damages? (A) Constructive eviction (B) Private nuisance (C) Public nuisance (D) Waste

Re-direct examination of a witness must be permitted in which of the following circumstances? (A) To reply to any matter raised in cross-examination. (B) Only to reply to significant new matter raised in cross- examination. (C) Only to reiterate the essential elements of the case. (D) Only to supply significant information inadvertently omitted on direct examination.

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, but to the plaintiff's surprise the witness testified that the defendant was not involved, and denied making any statement to the contrary. The Plaintiff now calls 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? (A) No, because a party cannot impeach the party's own witness. (B) No, because it is hearsay not within any exception. (C) Yes, but only to impeach the first witness. (D) Yes, to impeach the first witness and to prove the defendant's involvement.

A defendant decided to kill his neighbor. He set out for his neighbor's house. Before he got there, he saw his neighbors brother, who resembled the defendant's neighbor. Thinking the neighbor's brother was the neighbor, the defendant shot at the neighbor's brother. The shot missed the neighbors brother but wounded a bystander, who was some distance away. The defendant had not seen the bystander. In a prosecution under a statute that proscribes attempt to commit murder, the district attorney should indicate that the intended victim(s) was (were) (A) the neighbor only. (B) the neighbor's brother only. (C) the bystander only. (D) the neighbor and the neighbor's brother.

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 havesaid that he is a thief." Is the testimony concerning the plaintiff's reputation in the community admissible? (A) No, because character is an essential element of the defense, and proof must be made by specific instances of conduct. (B) Yes, to prove that the plaintiff is a thief, and to reduce or refute the damages claimed. (C) Yes, to prove that the plaintiff is a thief, but not on the issue of damages. (D) Yes, to reduce or refute the damages claimed, but not to prove that the plaintiff is a thief.

An insurance company issued an insurance policy to a homeowner. The policy failed to contain certain coverage terms required by a state insurance statute. When the homeowner suffered a loss due to a theft that was within the policy's terms, the insurance company refused to pay, claiming that the contract was unenforceable because it violated the statute, Will the homeowner succeed in an action against the insurance company to recover for the loss? (A) No, because the insurance policy is not a divisible contract. (B) No, because the insurance policy violated the statute. (C) Yes, because the homeowner belongs to the class of persons intended to be protected by the statute. (D) Yes, because the insurance policy would be strictly construed against the insurance company as the drafter.

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