Bar Skills Final Exam

A woman owned a house on a lot abutting a public street. Six months ago, the city validly revised its zoning ordinances and placed the woman's lot and the surrounding lots abutting the public street from the north in a zone limited to residential use; the lots abutting the public street on the south side were zoned for both residential and light business use. The woman asked the city's zoning appeals board to approve her proposal to operate a court-reporting service from her house. This type of use would be permitted on the south side of the public street and, in fact, one such business has existed there for several years. The board approved the woman's proposal. Why? (A)A variance was granted. (B)The doctrine of amortization applied. (C)The doctrine of change of circumstances applied. (D)The woman's use of her house was a nonconforming use.

(A), because a variance is the appropriate means of allowing a proposed use that is inconsistent with a parcel's zoning.

While on their way home from a ball game, a driver and his passenger stopped at an all-night gas station. The passenger offered to pay for the gas. While the passenger pumped gas, he was surprised to see the driver enter the station, take money from the unattended cash drawer, and get back in the car. The passenger paid the attendant for the gas, and the driver drove off. The driver offered to reimburse the passenger for the gas, but the passenger declined. After discovering the missing cash, the gas station attendant called the police, and the driver was later stopped. The driver escaped with the stolen money, however, and was never prosecuted. If the passenger is prosecuted for theft as an accomplice, should he be convicted? (A)No, because he had no intent to promote the commission of the offense. (B)No, because the driver, the principal, was never prosecuted. (C)Yes, because he facilitated commission of the offense by failing to make any effort to stop it. (D)Yes, because he paid the attendant while he knew the driver was holding the stolen money.

(A), because it correctly applies the mental-state requirements for accomplice liability.

The following facts concern a tract of land in a state that follows general U.S. law. Each instrument is in proper form, recorded, marital property rights were waived when necessary, and each person named was adult and competent at the time of the named transaction. 1.In 1970, the owner of a tract conveyed his interest in fee simple to his "two brothers, their heirs and assigns as joint tenants with right of survivorship." 2.In 1980, the older brother died, devising his interest to his only child "for life, and then to his grandson for life, and then to his grandson's children, their heirs and assigns." 3.In 2000, the younger brother died, devising his interest to "his friend, his heirs and assigns." 4.In 2002, the friend conveyed his quitclaim deed to a purchaser, "his heirs and assigns whatever right, title and interest I own." The purchaser has never married and has contracted to convey marketable record title in the land. Can the purchaser do so? (A)Yes, without joinder of any other person in the conveyance. (B)Yes, if the older brother's son, his grandson, and his grandson's only child (age 25) will join in the conveyance. (C)No, regardless of who joins in the conveyance, because the older brother's grandson may have additional children whose interests cannot be defeated. (D)No, regardless of who joins in the conveyance, because a title acquired by quitclaim deed is impliedly unmerchantable.

(A), because it correctly identifies that the purchaser is the owner in fee simple absolute of the land.

An elderly widower lived alone on a small farm, which he owned. Except for the farm, including the house and its furnishings, and the usual items of personal clothing and similar things, the widower owned substantially no property. Under proper management, the farm was capable of producing an adequate family income. Because of the usual deterioration accompanying old age, the widower was unable to do farm work or even to provide for his own personal needs. The widower entered into an oral contract with his nephew by which the widower agreed to convey the farm to his nephew and his nephew agreed to move into the house with the widower, operate the farm, and take care of the widower for the rest of his life. The oral contract was silent as to when the land was to be conveyed. The nephew, who lived about 50 miles away where he was operating a small business of his own, terminated his business and moved in with the widower. With the assistance of his wife, the nephew gave the widower excellent care until the widower died intestate about five years after the date of the contract. In his final years the widower was confined to his bed and required much personal service of an intimate and arduous sort. The widower was survived by his only son, who was also the widower's sole heir and next of kin. The son resided in a distant city and gave his father no attention in his father's final years. The son showed up for the widower's funeral and demanded that the nephew vacate the farm immediately. Upon the nephew's refusal to do so, the widower's son brought an appropriate action for possession. The nephew answered by way of a counterclaim to establish his right to possession and title to the farm. If the court's decision is in favor of the nephew, it will be because (A)the land is located in a state where the Statute of Frauds will not be applied if there has been such part performance as will result in an irreparable hardship if the contract is not performed. (B)the land is located in a state where the Statute of Frauds will not be applied if there has been such part performance that is by its very nature unequivocally referable to the contract. (C)the brother is precluded by the "clean hands" doctrine from enforcing his claim against the nephew. (D)the blood relationship of uncle-nephew is sufficient to remove the necessity for any writing to satisfy the Statute of Frauds.

(A), because it provides a sound basis for enforcing the oral contract.

A man and his friend were watching a televised football game at the man's home. Upset by a penalty called by the referee, the friend threw a bottle of beer at the man's television, breaking the screen. Enraged, the man picked up a nearby hammer and hit the friend on the head with it. The friend died from the blow. The crimes below are listed in descending order of seriousness. In a jurisdiction that follows common law principles, what is the most serious crime of which the man could properly be convicted? (A)Murder. (B)Voluntary manslaughter. (C)Involuntary manslaughter. (D)Assault.

(A), because one of the mental states that suffices for murder is an intent to do serious bodily harm.

A woman sued her former employer in state court, asserting age and sex discrimination claims under both state and federal law. The woman's attorney had recently been embarrassed in court by the judge to whom the case was assigned. Wishing to avoid difficulties with the judge, the woman's attorney promptly removed the case to federal court on the basis of federal-question jurisdiction. The employer's attorney has timely moved to remand. How is the federal court likely to proceed? (A)Remand the entire case. (B)Remand the state claims but keep the federal claims. (C)Retain the case to avoid the risk of bias and impropriety in having it proceed before a judge who has shown clear hostility toward the woman's attorney. (D)Retain the case, because it was timely removed and the woman alleges federal claims.

(A), because only a defendant may remove a case to federal court.

A borrower owed a lender $50,000 due on March 1. On January 10, the lender telephoned the borrower and said that he would discharge the debt if the borrower would promise to pay the lender $45,000 by January 15. The borrower responded, "I will attempt to get the money together." On January 11, the lender again telephoned the borrower and said that he had changed his mind and would expect the borrower to make full payment on March 1. On January 15, the borrower tendered $45,000 as full payment, which the lender refused to accept. On March 1, the borrower refused the lender's demand for $50,000, and the lender sued for that amount. Which of the following statements best supports the lender's position? (A)The borrower's January 10 statement was not a return promise, and therefore the lender effectively revoked his offer on January 11. (B)The January 10 telephone conversation between the lender and the borrower created an executory accord and therefore did not operate as a discharge of the $50,000 debt. (C)The lender's offer to discharge the debt was a gift promise and therefore was not binding on the lender. (D)The lender's promise to discharge the $50,000 debt was not enforceable because it was not in writing.

(A), because the borrower's response was too equivocal to constitute an acceptance.

A seller owns a 400-acre tract of land with 5,000 feet of frontage on a county highway. The seller and a buyer entered into a written agreement for the sale of a portion of the tract identified only as "a parcel of land, containing not less than 100 acres and having not less than 1,000 feet of frontage on the county highway, whose exact location and dimensions are to be determined by the parties hereto, at a price of $8,000 per acre." Shortly after the execution of the agreement, the parties met to stake out the parcel of land to be sold, but they could not agree. The disagreement intensified, and the seller repudiated the contract. The buyer has sued the seller for specific performance. The seller has asserted all available defenses. Is the buyer entitled to specific performance of the contract? (A)No, because a contract for the sale of real property that requires further agreement on an essential element cannot be specifically enforced. (B)No, because the purchase price was not fixed by, nor determinable under, the contract terms. (C)Yes, because the contract bound the parties to act in good faith and to agree upon the specific land to be conveyed. (D)Yes, because the equity powers of the court enable the court to appoint a master, or to take other appropriate action, to identify the land to be conveyed.

(A), because the contract did not adequately identify the land to be conveyed.

In a single writing, a painter contracted with a farmer to paint three identical barns on her rural estate for $2,000 each. The contract provided for the farmer's payment of $6,000 upon the painter's completion of the work on all three barns. The painter did not ask for any payment when the first barn was completely painted, but she demanded $4,000 after painting the second barn. Is the farmer obligated to make the $4,000 payment? (A)No, because the farmer has no duty under the contract to pay anything to the painter until all three barns have been painted. (B)No, because the painter waived her right, if any, to payment on a per-barn basis by failing to demand $2,000 upon completion of the first barn. (C)Yes, because the contract is divisible. (D)Yes, because the painter has substantially performed the entire contract.

(A), because the contract did not alter the default rule that where one performance takes time and the other doesn't, the former must be completed before the latter.

A computer analyst admired his co-worker's wristwatch and frequently said how much he wished he had one like it. The co-worker decided to give the computer analyst the watch for his birthday the following week. On the weekend before the computer analyst's birthday, the computer analyst and the co-worker attended a company picnic. The co-worker took his watch off and left it on a blanket when he went off to join in a touch football game. The computer analyst strolled by, saw the watch on the blanket, and decided to steal it. He bent over and picked up the watch. Before he could pocket it, however, the coworker returned. When he saw the computer analyst holding the watch, he said, "I know how much you like that watch. I was planning to give it to you for your birthday. Go ahead and take it now." The computer analyst kept the watch. The computer analyst has committed (A)larceny. (B)attempted larceny. (C)embezzlement. (D)no crime.

(A), because the crime of larceny was complete when the computer analyst picked up the watch with an intent to steal it.

A barber is licensed in a state where the state barber licensing statute provides that the Barber Licensing Board may revoke a barber license if it finds that a licensee has used his or her business premises for an illegal purpose. The barber was arrested by federal narcotics enforcement agents on a charge of selling cocaine in his barbershop in violation of federal laws. However, the local U.S. attorney declined to prosecute and the charges were dropped. Nevertheless, the Barber Licensing Board commenced a proceeding against the barber to revoke his license on the ground that he used his business premises for illegal sales of cocaine. At a subsequent hearing before the board, the only evidence against the barber was affidavits by unnamed informants, who were not present or available for cross-examination. Their affidavits stated that they purchased cocaine from the barber in his barbershop. Based solely on this evidence, the board found that the barber used his business premises for an illegal purpose and ordered his license revoked. In a suit by the barber to have this revocation set aside, his best constitutional argument is that (A)the barber's inability to cross-examine his accusers denied him a fair hearing and caused him to be deprived of his barber license without due process of law. (B)the administrative license revocation proceeding was invalid, because it denied full faith and credit to the dismissal of the criminal charges by the U.S. attorney. (C)Article III requires a penalty of the kind imposed on him to be imposed by a court rather than an administrative agency. (D)the existence of federal laws penalizing the illegal sale of cocaine preempts state action relating to drug trafficking of the kind involved in this case.

(A), because the defendant's barber license was "property," which the state could not take away from him without due process.

An employee decided to kill his boss, after she told him that he would be fired if his work did not improve. The employee knew his boss was scheduled to go on a business trip on Monday morning. On Sunday morning, the employee went to the company parking garage and put a bomb in the company car that his boss usually drove. The bomb was wired to go off when the car engine started. The employee then left town. At 5 a.m. Monday, the employee, after driving all night, was overcome with remorse and had a change of heart. He called the security officer on duty at the company and told him about the bomb. The security officer said he would take care of the matter. An hour later, the officer put a note on the boss' desk telling her of the message. He then looked at the car but could not see any signs of a bomb. He printed a sign saying "DO NOT USE THIS CAR," put it on the windshield, and went to call the police. Before the police arrived, a company vice-president (not the boss) got into the car and started the engine. The bomb went off, killing her. The jurisdiction defines murder in the first degree as any homicide committed with premeditation and deliberation or any murder in the commission of a common-law felony. Second-degree murder is defined as all other murder at common law. Manslaughter is defined by the common law. The employee is guilty of (A)murder in the first degree, because, with premeditation and deliberation, he killed whoever would start the car. (B)murder in the second degree, because he had no intention of killing the company vice-president. (C)manslaughter, because at the time of the explosion, he had no intent to kill, and the death of the company vice-president was in part the fault of the security officer. (D)only attempted murder of the boss, because the death of the company vice-president was the result of the security officer's negligence.

(A), because the employee acted with the intent to kill whoever started the car, and then killed that person.

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

(A), because the girlfriend encouraged both the burglary and larceny.

A state criminal law prohibits the publication of any description of the details of the execution of any prisoner who is sentenced to death by the courts of the state. Although the law allows a specified number of reporters to observe an execution, only the prison warden's official statement that the prisoner was "executed as provided by law" at a certain time and date may be published. The purpose of the law is to protect the public, particularly children, from the details of executions. After a particular execution was mishandled, causing the prisoner to suffer, a newspaper in the state published a story describing the event in detail. The story was written by the newspaper's reporter, who was permitted to observe the execution but did not promise prison officials that he would report only the warden's official statement. A prosecutor subsequently filed charges against the newspaper for publishing the details of the execution in violation of the state law. Is this prosecution constitutional? (A)No, because the prosecution seeks to punish the publication of lawfully obtained, truthful information about a matter of public significance, without adequate justification. (B)No, because the reporter did not promise prison officials that he would report only the warden's official statement about the execution. (C)Yes, because publication of the details of such events might cause psychological damage to some children. (D)Yes, because the newspaper should have brought an action to test the validity of the law before publishing the reporter's story.

(A), because the newspaper's First Amendment rights protect it from being punished for publishing this lawfully-obtained truthful information about a matter of public significance unless the state shows a "need of the highest order," which the state has not done.

A large privately owned and operated shopping mall is open to the public and includes small shops, major department stores, and restaurants that are located around a pedestrian area. It also has several movie theaters, an ice-skating rink, a small amusement park, and a branch of the local public library. The mall is advertised as "a small town with a big-town feel." During shopping hours, a group of 10 protesters gathered in the pedestrian area near the entrance to a department store to denounce the sale of animal fur products in that store. The protesters were peaceful and did not interfere with traffic into or out of the store, but they carried signs and vocally communicated their message to people walking in the area. Mall management quickly broke up the protest and required the protesters to leave the mall. The protesters have sued the mall, claiming that their right to freedom of speech guaranteed by the First and Fourteenth Amendments was violated. Should the protesters prevail? (A)No, because the mall is private property, and there was no state action to which the freedom of speech guarantees of the First and Fourteenth Amendments apply. (B)No, because the prohibition of protests adjacent to the entrance of a department store during shopping hours is a constitutionally proper limitation on the time, place, and manner of speech. (C)Yes, because the mall is functionally equivalent to a town and, therefore, its actions are subject to the Constitution's guarantees of freedom of speech and assembly. (D)Yes, because the mall's restriction on the protesters' speech was broader than necessary to ensure proper access to the department store.

(A), because the requirement of "state action" means that the First Amendment only protects against infringements on free speech imposed by government, and the "public function" exception to the state action doctrine does not apply to shopping centers.

A landlord leased a commercial building to a tenant for five years. Rent was payable on the first day of each month, and the landlord retained the right to terminate the lease if the tenant defaulted. The lease term ended 18 months ago. However, the tenant has stayed in possession of the building and has continued to pay the rent on time. The landlord has continued to accept the rent. The fair rental value of the building is now substantially more than what the tenant has been paying, and the landlord recently found a third party who will pay the higher rent. When the tenant paid the rent six weeks ago, the landlord accepted the rent but told the tenant in writing that she had to vacate at the end of the month. The tenant, who is still in possession of the building, has informed the landlord that she does not want to move and is willing to pay the current fair rental value. The landlord has asked his lawyer for advice regarding the right to possession. Who should the lawyer say is entitled to possession? (A)The landlord, because he gave proper notice to terminate the tenancy. (B)The landlord, because he retained the right to reenter. (C)The tenant, because she has stated that she is willing to pay the current fair rental value. (D)The tenant, because the landlord has not shown good cause to terminate the tenancy.

(A), because the tenancy was month-to-month, so six weeks' notice sufficed to terminate it.

A patient domiciled in State A sued a surgeon domiciled in State B in a federal court in State A, alleging claims for malpractice. The surgeon moved to dismiss the action for lack of personal jurisdiction. The court denied the motion and set discovery cutoff and trial dates. The surgeon has appealed the denial of the motion. Should the appellate court hear the merits of the surgeon's appeal? (A)No, because the appellate court lacks jurisdiction over the appeal. (B)No, because the district court's decision on jurisdiction is final. (C)Yes, because a contrary appellate decision could terminate the action. (D)Yes, because the surgeon's personal-jurisdiction challenge raises a constitutional question.

(A), because there has not been a final judgment entered in the case.

A seller contracted to sell land to a buyer for $300,000. The contract provided that the closing would be 60 days after the contract was signed and that the seller would convey to the buyer a "marketable title" by a quitclaim deed at closing. The contract contained no other provisions regarding the title to be delivered to the buyer. A title search revealed that the land was subject to an unsatisfied $50,000 mortgage and a right-of-way easement over a portion of the land. The buyer now claims that the title is unmarketable and has refused to close. Is the buyer correct? (A)No, because nothing under these facts renders title unmarketable. (B)No, because the buyer agreed to accept a quitclaim deed. (C)Yes, because the right-of-way easement makes the title unmarketable. (D)Yes, because the unsatisfied mortgage makes the title unmarketable.

(A), because: (1) the right-of-way easement would have been visible at the time of the contract; and (2) the unsatisfied mortgage can be paid off by the seller at the closing out of the sale proceeds.

A retailer brought a federal diversity action against a wholesaler, alleging breach of contract and fraudulent misrepresentation. After the parties presented their evidence at trial, the court instructed the jury on the law. Neither party filed a motion for judgment as a matter of law before the case went to the jury. The jury found for the retailer on both claims. After the court entered judgment on the verdict, the wholesaler moved for a new trial and for judgment as a matter of law, arguing that the evidence was insufficient to support the jury verdict on either claim. The court acknowledged that there had been problems with some of the evidence, but it denied the motions. The wholesaler appealed, challenging the sufficiency of the evidence. Should the appellate court consider the wholesaler's challenge? (A)No, because a determination of the sufficiency of the evidence is solely within the jury's province. (B)No, because the wholesaler did not raise the sufficiency-of-the-evidence issue in a motion for judgment as a matter of law before the case went to the jury. (C)Yes, because the challenge was raised and ruled on by the trial court before the wholesaler filed the appeal. (D)Yes, because, as the trial court acknowledged, the wholesaler has strong arguments on the challenge.

(B), because a motion for judgment as a matter of law must be made before the case goes to the jury.

A homeowner resented the fact that joggers and walkers would sometimes come onto his property just beside the sidewalk in order to enjoy the feel of walking or running on grass. He put up a "No Trespassing" sign, but it did not stop the practice. He then put up a "Beware of Skunk" sign and bought a young skunk. He took the skunk to a vet to have its scent gland removed. Unfortunately, the vet did not perform the operation properly, and the scent gland was not removed. The homeowner was unaware that it had not been removed. One day a walker was out for a stroll. When she came to the homeowner's property, she walked on the grass alongside the sidewalk on the homeowner's property. The skunk came up behind the walker and sprayed her with its scent. The smell was overpowering, and she fainted. She struck her head on the sidewalk and suffered serious injuries. The probable result of the walker's claim against the homeowner is that she will (A)recover, because the skunk was a private nuisance. (B)recover, because the skunk was not a domesticated animal. (C)not recover, because the walker was a trespasser. (D)not recover, because the vet was the cause of the injury.

(B), because it identifies the key reason the homeowner will be liable.

A defendant watched a liquor store furtively for some time, planning to hold it up. He bought a realistic-looking toy gun for the job. One night, just before the store's closing time, he drove to the store, opened the front door and entered. He reached in his pocket for the toy gun, but he became frightened and began to move back toward the front door. However, the shopkeeper had seen the butt of the gun. Fearing a holdup, the shopkeeper produced a gun from under the counter, pointed it at the defendant, and yelled, "Stop!" The defendant ran to the door and the toy gun fell from his pocket. The shopkeeper fired. The shot missed the defendant, but struck and killed a passerby outside the store. A statute in the jurisdiction defines burglary as "breaking and entering any building or structure with the intent to commit a felony or to steal therein." On a charge of burglary, the defendant's best defense would be that (A)the intent required was not present. (B)the liquor store was open to the public. (C)he had a change of heart and withdrew before committing any crime inside the store. (D)he was unsuccessful, and so at most could only be guilty of attempted burglary.

(B), because it is plausible under these facts, and negates one of the elements of burglary.

A federal statute provides states with funds for child welfare programs, subject to the condition that such programs be administered in accordance with federal standards. The United States sued a state in federal court for injunctive relief, arguing that the state's child welfare programs, which were funded in part by federal funds disbursed under this statute, failed to comply with federal standards. The state has moved to dismiss the action. Is the court likely to dismiss the action? (A)No, because Congress can place any condition on the receipt of federal funds. (B)No, because the Eleventh Amendment does not bar actions brought by the United States. (C)Yes, because the Eleventh Amendment bars actions against a state in federal court. (D)Yes, because the protection of child welfare is reserved to the states.

(B), because the Eleventh Amendment only bars federal-court suits against a state brought by private citizens, not federal-court suits brought against a state by the federal government.

A lawn service company agreed in writing to purchase from a supplier all of its requirements for lawn care products during the next calendar year. In the writing, the supplier agreed to fulfill those requirements and to give the company a 10 percent discount off its published prices, but it reserved the right to increase the published prices during the year. After the parties had performed under the agreement for three months, the supplier notified the company that it would no longer give the company the 10 percent discount off the published prices. Does the company have a viable claim against the supplier for breach of contract? (A)Yes, because part performance of the agreement by both parties made it enforceable for the full year. (B)Yes, because the company's agreement to buy all of its lawn care products from the supplier made the agreement enforceable. (C)No, because the supplier could, and did, revoke its offer with respect to future deliveries. (D)No, because the absence of a minimum quantity term rendered the company's promise illusory.

(B), because the contract qualifies as an enforceable requirements contract under the UCC.

A consumer was driving a car late at night when the headlights went out, causing the consumer to run off the road and hit a tree, injuring him badly. The consumer brought a product liability suit in diversity against the car's manufacturer, a large publicly-traded corporation. The suit alleged that the headlight system failed on account of a defective design. The consumer demanded a jury trial. During voir dire, one prospective juror testified that he owned $100 of publicly-traded stock in the defendant manufacturer. Under questioning by the judge, the prospective juror said that she was confident that her stock ownership would not interfere with her ability to be impartial in the case. The consumer's lawyer has challenged the prospective juror for cause. Should the judge dismiss the juror for cause? (A)No, because the juror's financial stake is sufficiently small that it would not affect the ability of an average juror to be impartial. (B)Yes, because there is a presumption that any direct financial relationship between a juror and a party will impair the juror's ability to be impartial. (C)Yes, so long as there is at least one other potential juror in the pool who would not be challengeable for cause. (D)No, so long as the judge believes the juror's testimony that she can be impartial.

(B), because the federal courts presume that a direct financial relationship between a juror and a party will interfere with the juror's ability to be impartial.

A woman owned land in fee simple absolute. The woman conveyed the land to a friend "for life," and when the friend died the land was to go to the woman's neighbor "and her heirs." The neighbor died and in her duly probated will devised her entire estate to a local charity. If she had died intestate, her daughter would have been her only heir. One year after the neighbor died, her daughter executed a quitclaim deed conveying any interest she might have in the land to the woman's friend. The common-law Rule Against Perpetuities is unmodified in the jurisdiction. There are no other applicable statutes. Who has what interest in the land? (A)The friend has a fee simple absolute, because his life estate merged with the remainder conveyed to him by the daughter. (B)The friend has a life estate and the charity has a vested remainder, because the neighbor's interest was devisable. (C)The friend has a life estate and the daughter has a vested remainder, because the deed from the woman created an interest in the neighbor's heirs. (D)The friend has a life estate and the woman has a reversion, because the neighbor's remainder was void under the Rule Against Perpetuities.

(B), because the neighbor received a vested remainder in fee simple (following the friend's life estate), and vested remainders are capable of being left by will (devised).

A hiker sustained a head injury when he was struck by a limb that fell from a tree. At the time of his injury, the hiker was walking through a forest on private property without the property owner's knowledge or permission. It was determined that the limb fell because the tree was infested with termites. In an action by the hiker against the property owner to recover for his head injury, will the hiker prevail? (A)No, because the property owner could not foresee that anyone would be injured. (B)No, because the property owner breached no duty to the hiker, who was a trespasser. (C)Yes, because the property owner had a duty to prevent the trees on his property from becoming dangerous. (D)Yes, because the property owner is liable for hidden dangers on his property.

(B), because the trespasser was owed no duty.

Under the terms of his duly probated will, a testator devised his house to his "grandchildren in fee simple" and the residue of his estate to his brother. The testator had had two children, a son and a daughter, but only the daughter survived the testator. At the time of the testator's death, the daughter was 30 years old and had two minor children (grandchildren of the testator) who also survived the testator. A third grandchild of the testator, who was the child of the testator's predeceased son, had been alive when the testator executed the will, but had predeceased the testator. Under the applicable intestate succession laws, the deceased grandchild's sole heir was his mother. A statute of the jurisdiction provides as follows: "If a devisee, including a devisee of a class gift, who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will or fails to survive the testator, the issue of such deceased devisee shall take the deceased's share under the will, unless the will expressly provides that this statute shall not apply. For this purpose, words of survivorship, such as 'if he survives me,' are a sufficient expression that the statute shall not apply." Who now owns the house? (A)The testator's brother. (B)The testator's two surviving grandchildren. (C)The testator's two surviving grandchildren and all other grandchildren who are born to the testator's daughter. (D)The testator's two surviving grandchildren and the deceased grandchild's mother.

(B), because the two surviving grandchildren were covered by the class gift, and the deceased grandchild was not survived by any issue.

A defendant, while eating in a restaurant, noticed that a departing customer at the next table had left a five-dollar bill as a tip for the waitress. The defendant reached over, picked up the five-dollar bill, and put it in his pocket. As he stood up to leave, another customer who had seen him take the money ran over to him and hit him in the face with her umbrella. Enraged, the defendant choked the customer to death. The defendant is charged with murder. He requests the court to charge the jury that they can find him guilty of voluntary manslaughter rather than murder. The defendant's request should be (A)granted, because the jury could find that the defendant acted recklessly and not with the intent to cause death or serious bodily harm. (B)granted, because the jury could find that being hit in the face with an umbrella constitutes adequate provocation. (C)denied, because the evidence shows that the defendant intended to kill or to cause serious bodily harm. (D)denied, because the evidence shows that the defendant provoked the assault on himself by his criminal misconduct.

(B), for three principal reasons: (1) it arrives at the correct result; (2) it ascribes to the jury its correct role as finder of facts; and (3) it offers reasoning that would, indeed, result in a manslaughter conviction instead of murder.

A plaintiff sued a defendant in federal court for injuries arising out of an accident involving the parties. The plaintiff alleged and presented evidence at trial demonstrating that her injuries had left her legs permanently paralyzed. The jury found in favor of the plaintiff and awarded her $5 million in damages. Two months after the court entered judgment, the defendant was given a videotape made that day showing the plaintiff jogging with her doctor. What is the best way for the defendant to seek relief from the judgment? (A)Move for a new trial or in the alternative for remittitur to reduce the award in light of the shortened duration of the plaintiff's injuries. (B)Move for relief from the judgment on the ground that the judgment was based on the jury's mistaken belief that the plaintiff's injuries would be permanent. (C)Move for relief from the judgment on the ground that the plaintiff committed a fraud in obtaining damages for permanent injuries. (D)Move for relief from the judgment on the ground that there is newly discovered evidence that the plaintiff's injuries were not permanent.

(C), because Rule 60(b)(3) expressly allows the court to order relief from a final judgment that was procured by fraud.

A plaintiff filed a tort action in state court but then failed to prosecute the action. The defendant moved to dismiss the action, and the court granted the motion in an order that stated: "The defendant's motion to dismiss is granted, and this action is dismissed with prejudice." The court accordingly entered judgment for the defendant. The plaintiff then filed the same claim against the defendant in federal court, invoking diversity jurisdiction. The defendant has asserted the defense of res judicata (claim preclusion) in its answer. Should the federal court give preclusive effect to the state court judgment? (A)No, because the judgment was entered by a state court, not a federal court. (B)No, because the state court did not rule on the merits in its dismissal. (C)Yes, because a dismissal with prejudice operates as a judgment on the merits. (D)Yes, because a judgment for failure to prosecute operates as a judgment on the merits under the Federal Rules of Civil Procedure.

(C), because a federal statute requires the federal court to give the judgment the same preclusive effect that the courts of the state that rendered the judgment would give to it.

A landscaper who was a citizen of State A bought a lawn mower produced in State B by a manufacturer incorporated and headquartered in State B. While the landscaper was doing a job in State C, he was badly injured when the mower rolled over his foot. The landscaper brought a $1 million strict product liability action in diversity against the manufacturer in State C federal court, based on the allegedly defective design of the mower. States A, B, and C all impose slightly different tests for determining whether a product's design should be deemed defective. Which of the three states' substantive test for determining whether a design is defective should the federal court apply? (A)The design-defect test used by the State C courts in cases involving only State C's tort laws, because State C is where the federal court sits. (B)The design-defect test developed by the federal courts for use in claims arising under federal statutes. (C)The design-defect test of the state whose design-defect law the State C courts would apply if the suit had been filed in the State C court system. (D)The design-defect test developed by whichever of the three states the federal court believes has the strongest interest in having its own substantive laws apply to this controversy.

(C), because in a diversity action, the federal court must follow the conflict-of-laws principles of the state in which the federal court sits.

A thief was in the act of siphoning gasoline from his neighbor's car in the neighbor's garage and without his consent when the gasoline exploded and a fire followed. A rescuer, seeing the fire, grabbed a fire extinguisher from his car and put out the fire, saving the thief's life and the neighbor's car and garage. In doing so, the rescuer was badly burned. If the rescuer asserts a claim against the neighbor for personal injuries, the rescuer will (A)prevail, because he saved the neighbor's property. (B)prevail, because he acted reasonably in an emergency. (C)not prevail, because the neighbor was not at fault. (D)not prevail, because the rescuer knowingly assumed the risk.

(C), because it addresses the central issue here and resolves it: The neighbor won't be liable because he wasn't negligent.

A vendor and a purchaser each signed a memorandum which stated that the vendor agreed to sell and the purchaser agreed to purchase a tract of land and that the contract should be closed and conveyance made and accepted "by tender of general warranty deed conveying a good and marketable title" on a date specified. The memorandum signed by the parties contains all of the elements deemed essential and necessary to satisfy the Statute of Frauds applicable to the transaction except that there was omission of a recitation of the agreed-upon purchase price. The vendor has refused to perform the contract, and in action by the purchaser for specific performance, the vendor relies upon the Statute of Frauds as a defense. If the purchaser offers evidence, in addition to the written memorandum, that the parties discussed and agreed upon a purchase price of $35,000 just prior to signing, the purchaser should (A)succeed, because the vendor is estopped to deny that such agreed-upon price is a fair and equitable one, which will be implied by law as a term of the written memorandum. (B)succeed, because the law implies that the parties contracted for the reasonable market value of the land, although the price paid may not necessarily be that orally agreed upon. (C)fail, because the price agreed upon is an essential element of the contract and must be in writing. (D)fail, because the evidence does not show that the agreed-upon price is in fact the reasonable market value of the land.

(C), because it correctly identifies that the missing price term will render the agreement unenforceable.

A fifty-year-old uncle wrote to his adult, unemployed niece and said: "If you come and live with me and take care of me and my farm for the rest of my life, I will leave the farm to you in my will." The niece immediately moved in with her uncle and took care of him and the farm until the uncle was killed instantly in an automobile accident two weeks later. By his will, the uncle left his entire estate, including the farm, to his unmarried sister. The farm was reasonably worth $75,000. Which of the following best states the rights of the niece and the uncle's estate (or sister)? (A)The niece is entitled to receive the reasonable value of her two weeks services only, because two weeks service would be inadequate consideration for the conveyance of the farm. (B)The niece is entitled to receive the reasonable value of her two weeks services only, because the uncle's letter was an invalid promise to make a will. (C)The niece is entitled to receive a conveyance of the farm, because the letter and her services created a valid contract between her and her uncle. (D)The estate (or sister) has the right to rescind the contract, if any, because the uncle's death within two weeks after the agreement was a circumstance apparently unforeseen by the parties at the time they entered into the agreement.

(C), because it correctly identifies that the niece will be entitled to the farm due to a valid, enforceable contract with her uncle.

A lender met a borrower on the street, demanded that the borrower pay a debt owed to the lender, and threatened to punch the borrower in the nose. A fight ensued between them. A passerby came upon the scene just as the lender was about to kick the borrower in the head. Noting that the lender was getting the better of the fight, the passerby pointed a gun at the lender and said, "Stop, or I'll shoot." If the lender asserts a claim against the passerby based on assault, will the lender prevail? (A)Yes, because the passerby threatened to use deadly force. (B)Yes, unless the passerby was related to the borrower. (C)No, if it was apparent that the lender was about to inflict serious bodily harm upon the borrower. (D)No, because the lender was the original aggressor by threatening the borrower with a battery.

(C), because it correctly identifies the central issue that will determine the passerby's liability.

The attorney for a plaintiff in an action filed in federal district court served the defendant with the summons, the complaint, and 25 interrogatories asking questions about the defendant's contentions in the case. The interrogatories stated that they were to be answered within 30 days after service. The defendant is likely to succeed in obtaining a protective order on which of the following rounds? (A)Interrogatories are only proper to discover facts, not contentions. (B)Interrogatories may not be served until an answer to the complaint is filed. (C)Interrogatories may not be served until the parties have conferred to arrange for initial disclosures and prepare a discovery plan. (D)The interrogatories exceed the number permitted without permission from the court or an agreement between the parties.

(C), because no discovery may happen until the parties have conferred in the manner this choice describes.

Congress enacted a statute prohibiting discrimination in the rental of residential property anywhere in the United States on the basis of sexual orientation or preference by any person or entity, public or private. Which of the following provisions provides the strongest basis for Congress's authority to enact this statute? (A)The Enforcement Clause of the Fourteenth Amendment. (B) The Privileges and Immunities Clause of Article IV. (C) The Commerce Clause of Article I, Section 8. (D) The General Welfare Clause of Article I, Section 8.

(C), because rental activities have a substantial effect on interstate commerce.

A defendant is on trial for the murder of his father. The defendant's defense is that he shot his father accidentally. The prosecutor calls a police officer as a witness to testify that on two occasions in the year prior to this incident, he had been called to the defendant's home because of complaints of loud arguments between the defendant and his father, and had found it necessary to stop the defendant from beating his father. The evidence is (A)inadmissible, because it is improper character evidence. (B)inadmissible, because the officer lacks firsthand knowledge of who started the quarrels. (C)admissible to show that the defendant killed his father intentionally. (D)admissible to show that the defendant is a violent person.

(C), because the beatings would tend to prove that the killing was not accidental.

A defendant was tried for armed robbery. The state introduced evidence that a man, identified by witnesses as the defendant, entered a convenience store at 11 p.m. on March 5, threatened the clerk with a gun, and took $75 from the cash register. The defendant did not testify, but his sister did. She testified that on March 5, at the time of the robbery, the defendant was with her in a city 300 miles away. On cross-examination, the sister admitted having given a statement to the police in which she had said that the defendant was not with her on March 5, but she claimed that the earlier statement was mistaken. The court instructed the jury that in order to convict the defendant, they had to find all of the elements of the crime beyond a reasonable doubt. As to the defendant's claim of alibi, which of the following additional instructions would be proper? (A)Alibi is a matter of defense and so must be established by the defendant; however, the burden of persuasion is by a preponderance of the evidence, not beyond a reasonable doubt. (B)Before you may consider the defendant's claim of alibi, you must decide whether he has produced sufficient evidence to raise the issue. (C)If you have a reasonable doubt as to whether the defendant was present at the convenience store at about 11 p.m. on March 5, you must find him not guilty. (D)If the defendant's evidence has caused you to have a reasonable doubt as to whether he was the robber, you must find him not guilty.

(C), because the defendant's presence at that time and place was an element of the crime charged, as to which the prosecution bore the burden of proof beyond a reasonable doubt.

An experienced rancher contracted to harvest his neighbor's wheat crop for $1,000 "when the crop [was] ripe." In early September, the neighbor told the rancher that the crop was ripe. The rancher delayed because he had other customers to attend to. The neighbor was concerned that the delay might cause the crop to be lost, for hailstorms were common in that part of the country in the fall. In fact, in early October, before the crop was harvested, it was destroyed by a hailstorm. Is the rancher liable for the loss? (A)No, because no time for performance was established in the contract. (B)No, because the neighbor failed to tell the rancher that the crop might be destroyed by a hailstorm. (C)Yes, because at the time the contract was made, the rancher had reason to foresee the loss as a probable result of his breach. (D)Yes, because a party who undertakes a contractual obligation is liable for all the consequences that flow from his breach.

(C), because the foreseeability of the loss is what makes the loss recoverable.

A consumer has sued the manufacturer of a microwave oven for burn injuries allegedly caused by the manufacturer's negligent failure to warn purchasers of the dangers of heating foods in certain types of containers. The consumer has offered into evidence three letters, all received by the manufacturer before the oven was shipped to the consumer, in which customers had complained of serious burns under circumstances similar to those in the consumer's case. The manufacturer has objected to the letters on the grounds of hearsay and, in the alternative, has asked for a limiting instruction directing that the letters be considered not for the truth of the assertions contained in them but only regarding the issue of notice. How should the court respond? (A)The court should sustain the objection and treat the request for a limiting instruction as moot. (B)The court should overrule the objection and deny the request for a limiting instruction. (C)The court should overrule the objection and give the limiting instruction. (D)The court should overrule the objection but allow only that the letters be read to the jury, not received as exhibits.

(C), because the letters are not hearsay if used for the limited purpose of showing that the manufacturer knew of the possible dangers prior to manufacturing the plaintiff's unit.

A defendant was charged with possession of marijuana with intent to distribute. On direct examination, the defendant testified that he worked with disadvantaged children as a drug counselor, that he hated drugs, that he would "never possess or distribute drugs," and that he had never used drugs and would not touch them. The government offered as a rebuttal witness a police officer who would testify that, three years earlier, he saw the defendant buy cocaine from a street dealer. The defendant objected. Is the testimony of the police officer about the prior drug transaction admissible to impeach the defendant? (A)No, because the bad act of buying drugs is not sufficiently probative of a witness's character for truthfulness. (B)No, because it is contradiction on a collateral matter. (C)Yes, because it is proper contradiction. (D)Yes, because the bad act shows a disregard for the law and makes it less likely that the defendant would respect the oath of truthfulness.

(C), because the officer's testimony directly contradicts the defendant's testimony on a material issue, and is therefore a proper form of impeachment.

A plaintiff, who had been injured in an automobile collision with the defendant, sued the defendant for damages. The defendant denied negligence and denied that the plaintiff's injuries were severe. At trial, the plaintiff has offered in evidence a color photograph of himself made from a videotape taken by a television news crew at the scene of the collision. The plaintiff has demonstrated that the videotape has since been routinely reused by the television station and that the footage of the plaintiff was erased. The photograph shows the plaintiff moments after the collision, with his bloodied head protruding at a grotesque angle through the broken windshield of his car. Should the photograph be admitted over the defendant's objection? (A)No, because the plaintiff has failed to establish that a duplicate could not be found. (B)No, because the plaintiff has failed to produce the original videotape or a duplicate. (C)Yes, because it tends to prove a controverted fact. (D)Yes, because a photograph that establishes a disputed fact cannot be excluded as prejudicial.

(C), because the photograph is relevant, and its admission would not violate the Best Evidence Rule or any other prohibition.

A police officer was employed on a city's police force for 10 years. When the officer accepted the job, the city's employee benefit plan provided a death benefit to the spouse of any employee who died as a result of any job-related injury. Last year, the city amended its employee benefit plan to deny its death benefit in cases where the death "was caused by the employee's refusal to accept, for any reason other than its excessive risk to life or health, reasonably available medical care prescribed by a physician." After this amendment took effect, the officer was shot while on duty. Because of a sincerely held religious belief, the officer refused to allow a prescribed blood transfusion and, as a result, died from loss of blood. When the officer's spouse applied for the death benefit, the city denied the application on the basis of the amendment to the employee benefit plan. The officer's spouse has challenged the amendment, claiming that, as applied to the officer, it violated the officer's constitutional right to the free exercise of religion. Is the court likely to find the amendment to the employee benefit plan constitutional as applied to the officer? (A)No, because it effectively discriminates against a religious practice. (B)No, because it violates the vested contractual rights of city employees who were hired before the amendment took effect. (C)Yes, because it does not single out religious reasons for the denial of benefits and is a reasonable limitation on the award of such benefits. (D)Yes, because it imposes a condition only on the award of a government benefit and does not impose a penalty on an individual's conduct.

(C), because the right to free exercise of religion does not relieve a person of the obligation to comply with a valid and neutral law of general applicability, even if the law requires conduct that the person's religion forbids.

A plaintiff sued for injuries arising from a car accident, claiming a back injury. At trial, she wishes to testify that prior to the accident she had never had any problems with her back. Is the plaintiff's proposed testimony admissible? (A)No, because the plaintiff has not been qualified as an expert. (B)No, because the plaintiff's pain could have been caused by factors arising after the accident, such as an injury at work. (C)Yes, because it is probative evidence of the plaintiff's injury. (D)Yes, because the testimony of parties is not subject to the lay opinion rule.

(C), because the testimony makes it more likely than it would otherwise be that the back injury was caused by the accident, and the testimony does not run afoul of the lay opinion rule.

A woman sued her friend for injuries she received as a passenger in the friend's car. On direct examination, the woman testified that the friend had been speeding and ran a red light. On cross-examination, the woman was asked whether she was under the influence of drugs at the time of the accident. The woman invoked the privilege against self-incrimination. How should the court treat the woman's claim of privilege? (A)Deny it, because the woman waived the privilege by voluntarily testifying. (B)Deny it, because evidence of the woman's drug intoxication is essential to assessing the accuracy of her observations. (C)Uphold it, because the privilege applies in both civil and criminal cases. (D)Uphold it, because the woman's credibility cannot be impeached by a crime for which she has not been convicted.

(C), because the woman had a reasonable fear that answering might cause her to incriminate herself.

A janitorial service contracted in writing with a hospital for a one-year term. Under the terms of the contract, the janitorial service agreed to clean the hospital daily in accordance with the hygiene standards of the city's health code. Because the janitorial service did not clean a patient's room in accordance with the required hygiene standards, the patient contracted an infection that required continued hospitalization. In addition to suing the hospital, the patient sued the janitorial service for breach of contract. Which of the following statements is most accurate with respect to the breach of contract claim against the janitorial service? (A)The janitorial service is liable to the patient as a matter of public policy, because it violated the city's health code. (B)The patient is an intended third-party beneficiary under the contract, because the janitorial service's promise was intended to benefit all hospital patients. (C)The patient has no claim for breach of contract against the janitorial service, because she is an incidental beneficiary. (D)The patient cannot sue on the contract, because she was not named in the contract.

(C), because there is no affirmative evidence that the hospital intended the contract to benefit hospital patients.

A man borrowed $500,000 from a bank, securing the loan with a mortgage on a commercial building he owned. The mortgage provided as follows: "No prepayment may be made on this loan during the first two years after the date of this mortgage. Thereafter, prepayment may be made in any amount at any time but only if accompanied by a prepayment fee of 5% of the amount prepaid." One year later, the man received an unexpected cash gift of $1 million and wished to pay off the $495,000 principal balance still owed on the loan. Concerned that the bank might refuse prepayment, despite a rise in market interest rates in the year since the loan was made, or at least insist on the 5% prepayment fee, the man consulted an attorney concerning the enforceability of the above-quoted clause. There is no applicable statute. What is the attorney likely to say? (A)The entire clause is unenforceable, because it violates a public policy favoring the prompt and early repayment of debt. (B)The entire clause is unenforceable, because the rise in interest rates will allow the bank to reloan the funds without loss. (C)The two-year prepayment prohibition and the prepayment fee provision are both valid and enforceable. (D)The two-year prepayment prohibition is unenforceable, but the prepayment fee provision is enforceable.

(C), because there is no public policy, and no common-law rule, against either provision.

A buyer and a seller entered into a written contract for the sale of land. The contract satisfied the requirements of the statute of frauds. Because the buyer needed time to obtain financing, the buyer and the seller did not agree upon a closing date, and the written contract did not contain a stated closing date. Ten days after signing the contract, the buyer and the seller orally agreed to rescind the contract. The next day, the seller sold the land to a third party. Two days after that sale, the original buyer told the seller that she had changed her mind and wanted to complete their contract. When the seller told her that he had sold the land to a third party, she sued him for breach of the written contract. For whom will the court find? (A)For the buyer, because she informed the seller within a reasonable time that she desired to close the transaction. (B)For the buyer, because the agreement to rescind the contract was not in a writing signed by the buyer and the seller. (C)For the seller, because the contract failed to contain a stated closing date. (D)For the seller, because the oral rescission was valid.

(D), because even though the original contract was (and needed to be) in writing on account of the statute of frauds, the rescission was effective despite being oral.

In a trial of a defendant for armed bank robbery, the prosecutor presented overwhelming evidence of guilt. Three tellers identified the defendant as the robber, a latent fingerprint found on the bank counter linked the defendant to the scene, and bank money had been found in the defendant's car. The police had arrested the defendant immediately after the robbery, as the defendant was driving away from the bank. When the prosecution rested its case, the judge directed the jury to return a verdict of guilty. The defense attorney did not object at the time. The jury withdrew, discussed the case, and agreed to a guilty verdict. The jury returned to the courtroom and announced the guilty verdict. The defense attorney then voiced an objection to the judge's having directed the verdict. The court overruled the objection and sentenced the defendant to 20 years in prison. On appeal, what should the appellate court do? (A)Affirm the conviction, because the defense attorney failed to timely object to the judge's action. (B)Affirm the conviction, because the prosecution presented both circumstantial and direct evidence conclusively establishing the defendant's guilt. (C)Reverse the conviction, because the defense attorney's failure to timely object to the judge's action constituted ineffective assistance of counsel. (D)Reverse the conviction, because the judge's action in directing the verdict denied the defendant his constitutional right to a trial by jury.

(D), because for a criminal verdict in a jury trial to be constitutional, the jury, not the judge, must find that all elements of the crime were proved beyond a reasonable doubt.

A thief and his friend planned to hold up a bank. They drove to the bank in the thief's car. The thief entered while the friend remained as lookout in the car. After a few moments, the friend panicked and drove off. The thief looked over the various tellers, approached one and whispered nervously, "Just hand over the cash. Don't look around, don't make a false move — or it's your life." The teller looked at the fidgeting thief, laughed, flipped him a dollar bill and said, "Go on, beat it." Flustered, the thief grabbed the dollar and left. Soon after leaving the scene, the friend was stopped by the police for speeding. Noting his nervous condition, the police asked the friend if they might search the car. The friend agreed. The search turned up heroin concealed in the lid of the trunk. The friend's best defense to a charge of robbery would be that (A)the thief alone entered the bank. (B)the friend withdrew before commission of the crime when he fled the scene. (C)the friend had no knowledge of what the thief whispered to the teller. (D)the teller was not placed in fear by the thief.

(D), because it addresses the fact that is most likely to exonerate the friend from culpability for robbery: No robbery took place.

A plaintiff domiciled in State A brought a wrongful death action in a federal court in State A against a State B parent corporation and one of its foreign subsidiaries. The plaintiff alleged that a tire manufactured by the subsidiary in Europe had caused his wife's death in an automobile accident in Europe. The parent corporation does significant business throughout the United States, including in State A. The subsidiary conducts no business and has no employees or bank accounts in State A. The subsidiary manufactures its tires for the European market, but 2% of its tires are distributed in State A by the parent corporation. The subsidiary has moved to dismiss for lack of personal jurisdiction. Should the court grant the subsidiary's motion? (A)No, because 2% of the subsidiary's tires entered State A through the stream of commerce. (B)No, because of the general personal jurisdiction established over the parent corporation. (C)Yes, because the accident did not occur in the United States. (D)Yes, because the subsidiary lacks continuous, systematic, and substantial contacts with State A.

(D), because it correctly states and applies the standard for determining when an out-of-the-forum-state corporation has sufficient contacts with the forum state to support general, rather than merely specific, jurisdiction.

In a contract suit between a plaintiff and a defendant, the defendant testifies that he recalls having his first conversation with the plaintiff on January 3. When asked how he remembers the date, he answers, "In the conversation, the plaintiff referred to a story in that day's newspaper announcing my daughter's engagement." The plaintiff's counsel moves to strike the reference to the newspaper story. The judge should (A)grant the motion on the ground that the best evidence rule requires production of the newspaper itself. (B)grant the motion, because the reference to the newspaper story does not fit within any established exception to the hearsay rule. (C)deny the motion on the ground that the court may take judicial notice of local newspapers and their contents. (D)deny the motion on the ground that a witness may refer to collateral documents without providing the documents themselves.

(D), because it correctly states that a witness may refer to collateral documents without having to produce the documents themselves.

A purchaser ordered some merchandise from a store. When the merchandise was delivered, the purchaser decided that it was not what he had ordered, and he returned it for credit. The store refused to credit the purchaser's account, continued to bill him, and, after 90 days, turned the account over to a bill collector for collection. The bill collector arrived at the purchaser's house at 7 p.m. on a summer evening while many of the purchaser's neighbors were seated on their porches. When the purchaser opened the door, the bill collector, who was standing just outside the door, raised an electrically amplified bullhorn to his mouth. In a voice that could be heard a block away, the bill collector called the purchaser a "deadbeat" and asked him when he intended to pay his bill to the store. If the purchaser asserts a claim based on defamation against the bill collector, will the purchaser prevail? (A)Yes, if the bill collector's remarks were heard by any of the purchaser's neighbors. (B)Yes, because the bill collector's conduct was extreme and outrageous. (C)No, unless the bill collector knew that the purchaser owed no money to the store. (D)No, unless the purchaser suffered some special damage.

(D), because it identifies the central issue.

Congress enacted a statute authorizing the denial of all federal funding to public school districts in which a specified percentage of the students enrolled in the public schools fail to pass a national achievement test. According to the terms of the federal statute, the first national achievement test was scheduled for administration five years from the effective date of the statute. After reviewing then-current levels of public school student performance, the officials of a state became concerned that several of its public school districts would lose their federal funding after the administration of the first national achievement test. Then-current levels of private school student performance were substantially higher. In order to improve the chances of those school districts retaining their federal funding, the state recently enacted a law that requires all children of elementary and secondary school age to attend the schools operated by their respective local public school districts. The law is to take effect at the beginning of the next school year. Parents of children enrolled in private schools within the state have filed suit to challenge the constitutionality of this state law. Should the court uphold the law? (A)Yes, because it is rationally related to a legitimate state interest. (B)Yes, because it is necessary to further a compelling state interest. (C)No, because it is not rationally related to a legitimate state interest. (D)No, because it is not necessary to further a compelling state interest.

(D), because strict scrutiny would apply, and the statute would not survive that scrutiny.

Because of a sudden and unanticipated severe shortage of heating fuel, the President has ordered all offices of federal executive agencies to be open only four days per week. The President's order allows an exception to the extent that emergency circumstances require different hours of operation (as in the case of federal hospitals). When Congress enacted the appropriations statute for operating all federal executive agencies, its members assumed that the offices of those agencies would be open five days per week, but Congress did not include such a requirement in its appropriations statute or in any other statute. Is the President's order constitutional? (A)No, because the heads of the various executive agencies have final responsibility for the operation of those agencies' offices. (B)No, because when they passed the statute appropriating monies for the operation of executive agencies, members of Congress assumed that those agencies' offices would be open five days per week. (C)Yes, because the Constitution vests the President with plenary authority to direct the administration of all federal agencies in any manner the President deems expedient. (D)Yes, because the order relates to the management of the executive branch and is not prohibited by any statute.

(D), because the Constitution gives the President authority to manage the executive branch, and that authority is at its maximum where, as here, the President is acting pursuant to Congress's implied authorization of his action.

To improve the quality of rental housing within its boundaries, a city proposed an ordinance requiring all new and existing rental housing units to provide at least one full bathroom for each bedroom, plumbing and electrical hookups for a washer and dryer, and a covered parking space. A majority of the owners of existing rental housing in the city opposed the ordinance. They argued that it would dramatically decrease the number of low-income rental housing units because owners would be unable to raise rents enough to recoup the investment required to comply. Without denying these contentions, the city enacted the ordinance. A plaintiff who owns low-income rental housing has sued the city, claiming only that the ordinance is unconstitutional on its face. Which of the following best states the burden of persuasion in this action? (A)The city must demonstrate that the ordinance is necessary to serve a compelling state interest, because it adversely affects the fundamental right of rental housing owners to use their property in the manner they deem most economically efficient. (B)The city must demonstrate that the ordinance is necessary to serve a compelling state interest, because it will have a substantial and disproportionate negative impact on low-income persons. (C)The plaintiff must demonstrate that the ordinance is not substantially related to an important state interest, because it requires some owners of rental housing to invest money that they will not be able to recoup from increased rents. (D)The plaintiff must demonstrate that there is no rational relationship between the ordinance and any legitimate state interest, because the ordinance regulates economic activity of a type normally presumed to be within state regulatory authority.

(D), because the Supreme Court uses rational-relation review when it evaluates state regulations in the social and economic-welfare sphere that neither classify based on suspect or semi-suspect categories nor impair fundamental rights.

A seller entered into a contract to sell to a buyer a house for a price of $150,000. The contract contained the following clause: "This contract is conditional on the buyer's securing bank financing at an interest rate of 7% or below." The buyer did not make an application for bank financing and therefore did not secure it, and refused to proceed with the purchase. The seller sued the buyer for breach of contract. Is the seller likely to prevail? (A)No, because the buyer did not secure bank financing. (B)No, because the contract did not expressly impose on the buyer any obligation to apply for bank financing. (C)Yes, because a court will excuse the condition to avoid a disproportionate forfeiture. (D)Yes, because a court will imply a term imposing on the buyer a duty to use reasonable efforts to secure bank financing.

(D), because the buyer lost the right to rely on non-occurrence of the condition due to his failure to make reasonable efforts to obtain the financing.

A federal statute required a federal agency to establish minimum quality standards for all beer sold in the United States. The statute also provided that public proceedings must precede adoption of the standards, and that once they were adopted, the standards would be subject to judicial review. No standards have yet been adopted. Several officials of the agency have indicated their personal preference for beer produced by a special brewing process commonly referred to as pasteurization. However, these officials have not indicated whether they intend to include a requirement for pasteurization in the minimum beer quality standards to be adopted by the agency. A brewery that produces an unpasteurized beer believes that its brewing process is as safe as pasteurization. The brewery is concerned that, after the appropriate proceedings, the agency may adopt quality standards that will prohibit the sale of any unpasteurized beer. As a result, the brewery sued in federal district court to enjoin the agency from adopting any standards that would prohibit the sale of unpasteurized beer in this country. How should the district court dispose of the suit? (A)Determine whether the agency could reasonably believe that pasteurization is the safest process by which to brew beer, and if the agency could reasonably believe that, refuse to issue the injunction against the agency. (B)Determine whether the process used by the brewery is as safe as pasteurization and, if it is, issue the injunction against the agency. (C)Refuse to adjudicate the merits of the suit at this time and stay the action until the agency has actually issued beer quality standards. (D)Refuse to adjudicate the merits of the suit, because it does not involve a justiciable case or controversy.

(D), because the case is not ripe for adjudication.

A plaintiff sued a defendant for personal injuries arising out of an automobile accident. Which of the following would be an error? (A)The judge allows the defendant's attorney to ask the defendant questions on cross-examination that go well beyond the scope of direct examination by the plaintiff, who has called the defendant as an adverse witness. (B)The judge refuses to allow the defendant's attorney to cross-examine the defendant by leading questions. (C)The judge allows cross-examination about the credibility of a witness even though no question relating to credibility has been asked on direct examination. (D)The judge, despite the defendant's request for exclusion of witnesses, allows the plaintiff's eyewitness to remain in the courtroom after testifying, even though the eyewitness is expected to be recalled for further cross-examination.

(D), because the court shall exclude witnesses at the request of a party.

A plaintiff sued a defendant, alleging that she was seriously injured when the defendant ran a red light and struck her while she was walking in a crosswalk. During the defendant's case, a witness testified that the plaintiff had told him that she was "barely touched" by the defendant's car. On cross-examination, should the court allow the plaintiff to elicit from the witness the fact that he is an adjuster for the defendant's insurance company? (A)No, because testimony about liability insurance is barred by the rules of evidence. (B)No, because the reference to insurance raises a collateral issue. (C)Yes, for both substantive and impeachment purposes. (D)Yes, for impeachment purposes only

(D), because the evidence may be offered to show bias but not to show that the defendant was insured.

A seller and a buyer entered into a contract obligating the seller to convey title to a parcel of land to the buyer for $100,000. The agreement provided that the buyer's obligation to purchase the parcel was expressly conditioned upon the buyer's obtaining a loan at an interest rate no higher than ten percent. The buyer was unable to do so, but did obtain a loan at an interest rate of 10.5 percent and timely tendered the purchase price. Because the value of the land had increased since the time of contracting, the seller refused to perform. The buyer sued the seller. Will the buyer prevail? (A)No, because an express condition will only be excused to avoid forfeiture. (B)No, because the contract called for a loan at an interest rate not to exceed ten percent and it could not be modified without the consent of the seller. (C)Yes, because the buyer detrimentally changed position in reliance on the seller's promise to convey. (D)Yes, because the buyer's obtaining a loan at an interest rate no higher than ten percent was not a condition to the seller's duty to perform.

(D), because the interest rate condition was intended to only benefit the buyer.

A landowner and a contractor entered into a written contract under which the contractor agreed to build a building and pave an adjacent sidewalk for the landowner at a price of $200,000. Later, while construction was proceeding, the landowner and the contractor entered into an oral modification under which the contractor was not obligated to pave the sidewalk, but still would be entitled to $200,000 upon completion. The contractor completed the building. The landowner, after discussions with his landscaper, demanded that the contractor pave the adjacent sidewalk. The contractor refused. Has the contractor breached the contract? (A)No, because the oral modification was in good faith and therefore enforceable. (B)Yes, because a discharge of a contractual obligation must be in writing. (C)Yes, because the parol evidence rule bars proof of the oral modification. (D)Yes, because there was no consideration for the discharge of the contractor's duty to pave the sidewalk.

(D), because the modification is ineffective.

A woman died, devising land that she owned in another state to her daughter, who was then 17 years old. A neighbor who owned the property immediately adjacent to the land wrongfully began to possess the land at that time. For 24 of the next 25 years, the neighbor planted and harvested crops on the land, hunted on it, and parked cars on it. However, in the sixth year after he first took possession of the land, the neighbor neither planted crops nor hunted nor parked cars on the land because he spent that entire year living in Europe. The neighbor built a small gardening shed on the land, but he never built a residence on it. When the daughter was 28, she was declared mentally incompetent and had a conservator appointed to oversee her affairs. Since then, she has continuously resided in a care facility. The applicable statute of limitations provides as follows: "An ejectment action shall be brought within 21 years after the cause of action accrues, but if the person entitled to bring the cause of action is under age 18 or mentally incompetent at the time the cause of action accrues, it may be brought by such person within 10 years after attaining age 18 or after the person becomes competent." If the daughter's conservator wins an ejectment action against the neighbor, what will be the most likely explanation? (A)The daughter was age 17 when the neighbor first took possession of the land. (B)Because the daughter is mentally incompetent, the statute of limitations has been tolled. (C)The neighbor never built a residence on the land. (D)The neighbor was not in continuous possession of the land for 21 years.

(D), because the neighbor's year in Europe prevented there from ever being 21 years of continuous adverse possession by him.

A smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker's table was in the smoking section, and the nonsmoker's table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker's request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke. The nonsmoker brought a battery action against the smoker. Which of the following questions will NOT be an issue in the battery action? (A)Did the smoker intend to cause the nonsmoker's contact with the cigarette smoke? (B)Does smoke have the physical properties necessary for making the kind of contact required for battery? (C)Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron? (D)Was the smoker's conduct unreasonable under the circumstances?

(D), because the reasonableness of the defendant's conduct is irrelevant.

A chemical company's plant was located in a residential community. The manufacturing process used at the plant generated a toxic chemical as a byproduct. The chemical was stored in a state-of-the-art tank on the site before being moved to an off-site disposal facility. The on-site storage arrangement conformed to the requirements of reasonable care and to the applicable government regulations. However, the storage of the toxic chemical created a foreseeable and highly significant risk of physical harm even when reasonable care was exercised. Despite the chemical company's proper use and care of the storage tank, toxic fumes escaped from the tank and made residents of the area seriously ill. No state or federal statutes address the issue of the company's liability. In an action by one of the affected residents against the chemical company, will the resident be likely to prevail? (A)No, because the chemical company conformed to the requirements of reasonable care and to the applicable government regulations. (B)No, because the chemical company used a state-of-the-art storage tank. (C)Yes, because the chemical company is strictly liable in tort for any harm caused by the toxic chemicals it produced. (D)Yes, because the storage of toxic chemicals in a residential community created a highly significant risk of physical harm even when "reasonable care was exercised.

(D), because the storage activity here was an abnormally dangerous activity, triggering strict liability.

A plaintiff sued a defendant under an age discrimination statute, alleging that the defendant refused to hire the plaintiff because she was over age 65. The defendant's defense was that he refused to employ the plaintiff because he reasonably believed that she would be unable to perform the job. The defendant seeks to testify that the plaintiff's former employer advised him not to hire the plaintiff because she was unable to perform productively for more than four hours a day. The testimony of the defendant is (A)inadmissible, because the defendant's opinion of the plaintiff's abilities is not based on personal knowledge. (B)inadmissible, because plaintiff's former employer's statement is hearsay not within any exception. (C)admissible as evidence that the plaintiff would be unable to work longer than four hours per day. (D)admissible as evidence of the defendant's reason for refusing to hire the plaintiff.

(D), because the testimony is not hearsay, in that it is not offered for the truth of the matter asserted, but rather to show the listener's response to the assertion.

A manufacturer sued a buyer in federal court for failing to make timely payments under the parties' sales contract. The case was tried to the court solely on documentary evidence. Immediately after the close of the evidence, the judge announced from the bench, "Judgment shall be entered for the manufacturer," and judgment was so entered. The buyer has appealed the judgment. What is the buyer's best argument for persuading the appellate court to reverse the judgment? (A)The judgment is clearly erroneous because it was based solely on documentary evidence. (B)The manufacturer was required to file proposed findings and conclusions before the trial court ruled. (C)The trial court erred because it announced the judgment without giving the parties an opportunity to submit proposed findings and conclusions. (D)The trial court erred by not providing findings and conclusions.

(D), because the trial court is required to make findings and conclusions even if the case is tried solely on documentary evidence.

A hot-air balloon touring company operated near a golf course. The company's property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloons landing. A golfer on the golf course hit an errant shot onto the company's property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company's balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her. The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity. In an action by the golfer against the company, does the company have any affirmative defenses? (A)No, because the balloon was out of control when it struck the golfer. (B)No, because the company was engaged in an abnormally dangerous activity. (C)Yes, because the balloon landed to avoid crashing. (D)Yes, because the golfer assumed the risk by coming onto the company's property.

(D), because voluntary and knowing assumption of risk is a complete defense to a claim based on the conducting of an abnormally dangerous activity.

A pedestrian was injured when hit by a chair that was thrown from an upper-story hotel window. The pedestrian sued the occupants of all the rooms from which the chair might have been thrown. At trial, the pedestrian has been unable to offer any evidence as to the exact room from which the chair was thrown. The defendants have filed a motion for a directed verdict. Should the court grant the motion? (A)No, because it is unreasonable to expect the pedestrian to prove which of the defendants caused the harm. (B)No, because of the doctrine of alternative liability. (C)Yes, because a plaintiff always has the burden to prove that a particular defendant's conduct was the factual cause of the plaintiff's physical harm. (D)Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct.

(D), because, in the absence of proof of which defendant(s) threw the chair, the factfinder could not reasonably find any defendant(s) liable unless the plaintiff showed that all defendants acted tortiously and in concert with each other.

6th Ed #47

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6th Ed #50

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6th Ed #55

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6th Ed #60

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6th Ed #62

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