MBE Flash Cards

MBE - tax payer standing

frequently tested and frequently the wrong answer. tax payers have standing to challenge a specific legislation made under the taxing and spending clause if there is a violation of the establishment cause.

MBE - (Review) Procedural Due Process as applied

general considerations are - is it a life, liberty, property or fundamental right? - was there notification of charges or proceedings - was there a hearing or change to be heard before deprivation - was there a chance to appeal form the deprivation - was there a neutral decision maker - was there intentional conduct: clause addresses injury that results form intentional gov. act. mere negligent acts do not trigger DPR. what is protected: physical freedom, association, cognizable legitimate claim of entitlement by virtue of statute, contract or custom, Public employment if contract and clear understanding of fired only for cause, public education (state recognized), pubic employees with k and fired for cause, government benefits, court access to indigents on appeal of criminal case.

What standard of review is applicable for zoning that effects business, tax, or lifestyle require?

government infringement upon a non-fundamental right only requires rational relationship between the law and a legitimate government interest.

When does Ex Post Facto and ills of Attainder apply?

Ex post Facto law is confines to a retroactive change to a criminal or penal law. Constitutional prohibition of Bills of Attainder apples to criminal or penal measures A law that is civil is treated as criminal only if its punitive effect clearly overrides the civil purpose.

MBE- (Review) Fundamental rights fact triggers

- Withholding residency requirements for one year as a condition to an indigent's receiving of medicare. (travel) - Division of state royalties form minerals and oil based on length of state residency. (travel) - major privation of voting rights 15 month residency requirement. property ownership requirement, poll tax. (Voting) - right to marriage, contraceptives, private sexual conduct, abortion (different test), obscene material (Privacy) - Right to extended family living together. - right to refuse medical treatment

Focus of the 11th Amendment?

11th Amendment prohibits an action in Federal Court by citizen of a state against another state when the basis of for violation of state law, not for other suits.

A had Mortgage 1, then later attached Mortgage 2 Purchase Money Mortgage and after that Mortgage 3. What is the priority of mortgages?

2,1,3 because purchase money mortgages have priority over loans, even if other loans was first in time.

Privileges and Immunities of the 4th and the 14th

4th - Prevents state discrimination against nonresidents. "comity clause" does not include corporations or aliens, and protects fundamental rights or essential activities such as pursuit of employment, transfer or property access to state courts and engaging in the political process. (commercial vs recreational)----might raise DCC or CC clause if prohibits resources outside of the state. 14th - prevents state form citizens form infringement by the states upon the privileges or immunities of National Citizenship. This includes the right to travel, petition congress, vote, enter public lands. Normally not successful when invoked

A defendant wants to introduce a relevant criminal acquittal in a subsequent case, is there a hearsay exception for the acquittal?

A Criminal acquittal judgment being introduced in a subsequent legal process to prove the defendant did not commit the criminal act is hearsay without an exception, there is an exception for criminal convictions.

who has the assumption of risk in a annuity contract?

A buyer of an annuity contract assumes the risk that the person on whose like the annuity is based will die before the price paid for the price paid for the annuity is recouped, the issuer of the annuity assumes the risk that the person will lice beyond the recoupement date. This assumption of risk is inherited in annuity contracts.

How will laws that discriminate on the basis of alienage be reviews if by a state and if by congress?

A classification based on alienage is subject to a different standard depends on whether state or federal law. - State law discriminating against alienage and will be reviewed under strict scrutiny. - Congress has plenary power over aliens and largely immune, federal alienage classification is likely valid unless it is deemed arbitrary and unreasonable.

Intent for Assaut

A defendant must intent to place a person in the imminent apprehension of a battery or harmful or offensive touching.

Restraints on Alienation

A direct restraint on alienation is a restriction on transferring property and may be void as against public policy. A restraint is also void if it is unreasonable. A restraint is unreasonable if it is for an unspecified time period and for unspecified type of alienation. If the restraint is void, then the restraint is rejected and the property can be alienated in violation of the void restraint and will be stricken form the transfer document. If the restraint is valid, then any attempt to alienate the property in violation of the restraint is null and void. A restraint is valid if it is limited in time and purpose and reasonable.

If a good faith purchaser of goods buys from a merchant and later it is revealed that the merchant never had title, who has title to the good? A. Subsequent Purchaser B. Original Owner C. Merchant.

A good faith purchase of goods in the ordinary course of business form a merchant takes title to good if the goods have been entrusted by the other owner to the merchant and the merchant deals in goods of the kind.

Where can a foreign corporation be sued?

A nonresident of the U.S. may be sued in any jurisdiction.

how long does a party have to amend a pleading as of right when served with a motion to dismiss?

A party may amend a pleading once as of right if a responsive pleading is required, within 21 days of service of the responsive pleading, or within 21 days of being served with a motion to dismiss under Rule 12(b), whichever is earlier. In this case, the plaintiff sought to amend his pleading within 21 days of being served with a 12(b) motion to dismiss and was thus entitled to amend.

When must a judge recuse themself to ensure due process is not violated?

A judge must recuse themself when there is a direct, personal, or substantial pecuniary interest in the case or if there is a serious risk of actual loss. Reviewable based on violation of due process to ensure a fair trial.

what is the requirement for a jury to sentence a defendant to death regarding aggravating circumstances?

A jury must find at least one aggravating circumstances.

A mother was in the hospital with a terminal illness. One of her daughters went to visit her, and they became engaged in a conversation about the mother's engagement ring, which the daughter and her sisters had long admired. The mother told her daughter that she planned to leave the ring to the daughter's sister. Angered by her mother's decision, the daughter took the ring from her mother's bedside table that night after her mother fell asleep. As soon as she got to her car, however, the daughter had a change of heart and returned the ring to her mother's table. Later that day, the mother died. Contrary to her statement, she left the ring to the daughter in her will. Could the daughter be convicted of any of the following crimes? A. Attempted larceny only. B. Larceny only. C. Larceny and attempted larceny. D. The daughter may not be convicted of any theft crime.

A mother was in the hospital with a terminal illness. One of her daughters went to visit her, and they became engaged in a conversation about the mother's engagement ring, which the daughter and her sisters had long admired. The mother told her daughter that she planned to leave the ring to the daughter's sister. Angered by her mother's decision, the daughter took the ring from her mother's bedside table that night after her mother fell asleep. As soon as she got to her car, however, the daughter had a change of heart and returned the ring to her mother's table. Later that day, the mother died. Contrary to her statement, she left the ring to the daughter in her will. Could the daughter be convicted of any of the following crimes? Attempted larceny only. Larceny only. Larceny and attempted larceny. The daughter may not be convicted of any theft crime.

What damages can a Plaintiff seek in a negligence action?

A plaintiff who suffers only economic loss without any related personal injury or property damage cannot recover such loss through a negligence action.

If P files an original complaint on July 1 and before the response by D P files and served an amended complaint on July 13. The judge orders the D to file and answer before July 23. When does the defendant need to answer? (assume no holidays) A. Before July 23rd as the judge ordered B. Before July 27th as D has 14 days to respond from the amended pleading. C. D had to respond by July 14th because he had 14 days from the original complaint D. D can respond by June 1 as the D has 14 days to respond without counting weekends from the amended complaint,

A. Before July 23rd because the judge ordered it. Rule: Unless the court orders otherwise, a defendant must respond in 14 days after the amended pleading or time remaining from the original Pleading.

Can Congress subjecting the state to the Impose Federal Bankruptcy Statute, why or why not?

Although Congress, acting pursuant its Article I powers, generally cannot abrogate state immunity, the Bankruptcy Clause gives Congress the power to subject states to its provisions. While the Eleventh Amendment generally immunizes the state from suits in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state, it does not bar the actions of a bankruptcy court that impacts state finances.

What is a defense to strict liability?

Although the pest control company, by engaging in an abnormally dangerous activity, is strictly liable for harm that results from the conduct of that activity, assumption of the risk is a defense to strict liability.

When does an implied in fact contract exists?

An implied-in-fact contract exists when a person's assent to an offer is inferred from the person's conduct and the person has reason to know his conduct may be construed as assent, an implied-in-fact contract exists.

The owner of a mansion with extensive landscaped grounds installed a life-size marble statue of his late mother affixed to a granite pedestal on the premises. The statue, a fixture, was specially commissioned by the owner from a well-known sculptor. Several years later, the owner entered into a contract to sell the mansion and its grounds. The contract made no mention of the statue. Prior to closing, the buyer learned that the owner planned to remove the statue before delivering the deed to the property. The buyer has objected, arguing that the statue must stay on the premises. Can the owner remove the statue? A. No, because the statue has value as a work of art apart from its sentimental value to the owner. B. No, because the statue is a fixture. C. Yes, because the statue of the owner's mother has a personal, noneconomic value to the owner. D. Yes, because the contract does not mention the statue.

Answer B is correct because the general rule is that in the absents of an agreement to the contract, ownership of a fixture attached to real property passes to the buyer of the related real property. Since the statue is a fixture and the contract for the sale does not mention that the owner will taking, the owner cannot remove it.

An accountant was the sole owner of a small firm that kept the books and financial records for small business owners and their businesses. The police properly obtained and served a warrant and seized the accountant's records for his own firm. Based on evidence discovered in the accountant's records, the accountant was charged with theft of internet services from a local internet service provider. The accountant challenged the admissibility of the evidence seized by police as a violation of his Fifth Amendment privilege against self-incrimination. How should the court rule on this challenge? A. Deny it, because the Fifth Amendment privilege against self-incrimination does not protect an individual from seizure of incriminating documents pursuant to a warrant. B. Deny it, because the Fifth Amendment privilege against self-incrimination does not protect an individual who is acting as a sole proprietor of a business. C. Uphold it, because the accountant's records constitute testimonial evidence. D. Uphold it, because the records are not evidence of the physical characteristics of the accountant, such as blood, urine, or voice samples.

Answer Choice A is correct. The Fifth Amendment privilege against self incriminating does not prevent law enforcement officials, pursuant to a valid warrant, form searching for and seizing documents that would incriminate a person, even when those documents were prepared by the person. This privilege only protects against the compelled disclosure of incriminating testimonial evidence. . Answer choice B is incorrect. Although the Fifth Amendment privilege against self-incrimination does not protect legal entities, such as corporations, it does protect an individual, even when the individual's criminal conduct stems from his operation of a business as a sole proprietorship. Answer choice C is incorrect. Although the business records seized by police were testimonial evidence, the Fifth Amendment privilege against self-incrimination does not apply because the accountant was not compelled to disclose this information. Answer choice D is incorrect. Evidence of the physical characteristics of a person do not constitute testimonial evidence for the purposes of the Fifth Amendment privilege. On the other hand, records of a business generally do constitute testimonial evidence. However, the privilege generally does not apply to an individual's voluntarily prepared business papers, even those records required by law to be kept, unless the act of producing the records constitutes self-incriminating testimony.

A state legislator filed a complaint in a state court of general jurisdiction, alleging defamation by a media company incorporated in the state. The following year, the media company moved to dismiss the action for lack of prosecution. The court granted the motion, dismissing the complaint with prejudice and entering a judgment for the media company. Subsequently, the legislator filed a complaint based on diversity jurisdiction in the federal court, alleging the same defamation claim. In its answer, the media company raised the defense of claim preclusion (res judicata). Can the media company successfully plead the defense of claim preclusion (res judicata) based on the prior judgment? A. Yes, because the federal rules of civil procedure treat a dismissal for lack of prosecution as a final judgment. B. Yes, because a federal statute requires the federal court to give the state court judgment full faith and credit. C. No, because the Full Faith and Credit Clause of the U.S. Constitution only applies to the enforcement of the judgment of one state court by the courts of another state. D. No, because the issue of the media company's liability was not actually litigated.

Answer Choice B is Correct. In order for Claim Precision to apply with respect to a prior courts decision the decision must have been a valid final judgment on the merits and the prior action and the current must involve sufficiently identical parties and cause of action. Here, the state court judgment was a valid final judgment on the merits despite being a dismissal for lack of prosecution because the dismissal was with prejudice, and the parties and cause of action in the state court are identical in the Federal action. By Federal statute, a federal court must give full faith and credit to a state court judgment. Since the state court rendered a judgment for the media company, the federal district court is required to give this judgment the state courts judgment full faith and credit.

A man knew that his brother's most prized possession was his favorite hunting rifle. The man, who was very competitive with his brother, believed he would achieve more hunting success with a rifle as nice as his brother's. One day when the brother was at work, the man went to the brother's house and borrowed the rifle. The man took it hunting, fired one shot, and shot an eight-point buck. He returned the rifle to the brother's house before the brother returned home from work. Later that night, the man told his brother that he had proved his theory about the rifle, and explained what he had done. The brother was furious, and sued the man for trespass to chattels. At trial, the brother testified that he was upset about the man's use of his rifle. He did not provide other evidence of damages. Is the brother likely to prevail on his claim? A. No, because the brother cannot show that the man's interference caused him damages. B. No, because the man returned the rifle to the brother. C. Yes, because the man used or intermeddled with the brother's chattel. D. Yes, because the brother need not prove actual damages.

Answer choice A is correct. A defendant is liable for trespass to chattels if he intentionally interferes with the plaintiff's right of possession by either dispossessing the plaintiff of the chattel or using or intermeddling with the plaintiff's chattel. In the case of dispossession, a plaintiff must prove damages by either the actual damages caused by the interference or the loss of use. In the case of use or intermeddling, the plaintiff must show actual damages. In this case, the brother cannot prove he suffered any damages. Accordingly, his claim will likely fail.

A plaintiff filed an action against a defendant for private nuisance. The defendant's operation of a factory adjacent to the plaintiff's property had allegedly caused significant health problems for the plaintiff's young children. At trial, the plaintiff sought to introduce a certified copy of a report created by an investigating agent of the local board of health. The report contained the factual findings of the agent's investigation of the factory, which was undertaken pursuant to the agent's statutory duty. It also contained the investigating agent's conclusion that the defendant's failure to comply with required safety protocols resulted in the plaintiff's injury. Is the certified copy of the investigating agent's report admissible? A. Yes, under the public records exception to the hearsay rule. B. No, because the authenticity of the report was not established. C. No, because the investigating agent did not testify at trial. D. No, because the conclusion of the investigating agent is inadmissible.

Answer choice A is correct. A hearsay exception applies to a record or statement of a public office or agency that sets out an observation of a person under a duty to report the observation or factual findings of a legal investigation. In addition to factual findings, opinions, evaluations, and conclusions contained in an investigative report that are based on factual findings are included in the public records exception. In this case, the agent of the board of health conducted an investigation of the defendant's factory pursuant to his statutory duty. Therefore, the agent's factual findings, as well as his conclusion, are admissible under the public records exception to the hearsay rule. Accordingly, answer choice D is incorrect. Answer choice B is incorrect. The facts indicate that the plaintiff sought to introduce a certified copy of the agent's report. Certified copies of public records, such as the agent's report here, are self-authenticating and do not require extrinsic evidence of authenticity to be admitted. Answer choice C is incorrect because the public records exception to the hearsay rule does not require the person who made the report to testify, or be available to testify, at trial.

The spouse of a deceased properly brought a wrongful death action in federal district court based on diversity jurisdiction. The defendant then properly impleaded a third party, alleging that the negligence of the third party was the cause of the deceased's death and therefore the third party must indemnify the defendant if the defendant were found liable to the spouse. The spouse sought leave to amend her complaint to include a negligence claim against the third party. The third party, noting that both the spouse and the third party are citizens of the same state, has challenged the amendment on grounds of lack of subject matter jurisdiction. How should the court respond to the third party's challenge? A. The court must deny the spouse leave to amend because the court lacks both diversity and supplemental jurisdiction over the claim against the third party. B. The court may exercise its supplemental jurisdiction and permit the spouse to amend her complaint. C. The court must permit the spouse to amend her complaint because the original complaint was properly brought in federal district court. D. The court must permit the spouse to amend her complaint because the defendant properly impleaded the third party.

Answer choice A is correct. A plaintiff may assert related claims against an impleaded party when the claim falls under the court's jurisdiction. Here, subject matter jurisdiction does not exist with respect to the spouse's claim against the third party based on diversity jurisdiction because both the spouse and the third party are citizens of the same state. In addition, in a federal court action based solely on diversity jurisdiction, supplemental jurisdiction is precluded with respect to a claim by an existing plaintiff against a person who is made a party to the action through impleader. Here, the defendant properly added the third party to this action through impleader. Consequently, the court cannot exercise supplemental jurisdiction with regard to the spouse's claim against the third party. Answer choice B is incorrect because the court lacks supplemental jurisdiction over the spouse's claim against the impleaded third party. Answer choice C is incorrect because, even though the original complaint was properly filed in federal court, the court must have subject matter jurisdiction over the additional claim that the plaintiff seeks to assert. Answer choice D is incorrect. Even though the defendant properly impleaded the third party, the court must have subject matter jurisdiction over the additional claim that the plaintiff seeks to assert against the third party.

What liability to neighbors have to one another for damage to a structure for subjacent support?

Strict liability for any structure for subjacent support.

A physician employed by a public hospital refused to provide an abortion to a woman who had come to the hospital seeking an abortion. The woman, who was not indigent, was in her first trimester of pregnancy. She did not want to have the child for personal rather than medical reasons. The physician suggested that she obtain an abortion from a nearby private clinic. The physician was medically certified to perform abortions and personally willing to do so. However, the physician was adhering to a state law that prohibited abortions at hospitals operated by the state unless necessary for the life or health of the mother. Does the woman have a constitutional right to obtain an injunction to compel the physician to perform the procedure at the public hospital? A. No, because a state may choose not to provide abortions at state operated hospitals. B. No, because, as the woman was not indigent, the state was not required to fund her abortion. C. Yes, because the state is interfering with the woman's fundamental right to have an abortion. D. Yes, because the woman was in her first trimester of pregnancy.

Answer choice A is correct. A state may prohibit all use of public facilities and public employees in performing abortions. Although a woman has a constitutional right to have an abortion, the state is not constitutionally required to permit abortions at a state owned or operated facility.

An artist who had designed a sculpture to be made out of steel went to the website of a merchant that sold specialized tools. Using the chat feature, the artist explained to an employee of the merchant that the artist wanted to purchase a tool that could cut through steel. The employee suggested that the artist purchase a particular saw. The employee, pointing out that the website's description of the saw indicated that it could cut through most metals, added that the saw "should cut through steel with no problem." The artist purchased the saw from the merchant's website for a total cost of $450. Conspicuously appearing on the page where the artist had to indicate his consent in order to purchase the saw was the following: "There are no implied warranties provided with this product other than the general warranty of merchantability." The tool failed to cut through the steel that the artist intended to use for his sculpture. The artist sued the merchant for damages attributable to breach of the implied warranty of fitness for a particular purpose. Which party is likely to prevail? A.The merchant, because the merchant disclaimed the warranty of fitness for a particular purpose. B. The merchant, because warranties do not apply to goods valued under $500. C. The artist, because the merchant's employee knew that the artist wanted a saw that would cut steel and relied on his judgment that the saw would do so. D. The artist, because the implied warranty of fitness for a particular purpose cannot be disclaimed by a merchant.

Answer choice A is correct. A warranty that the goods are fit for a particular purpose may be disclaimed by a conspicuous writing. Such a writing need not refer to this warranty by name. Answer choice B is incorrect because unlike the applicability of the Statute of Frauds to the sale of goods, there is no dollar threshold that a warranty related to goods must exceed in order to be effective. Answer choice C is incorrect because, although a warranty of fitness for a particular purpose was made under these facts, the merchant effectively disclaimed this warranty. Answer choice D is incorrect because any seller may provide a warranty of fitness for a particular purpose and any seller may disclaim such a warranty.

Twenty years ago, a federal district court found that a city school district, but not surrounding suburban school districts, had violated the Constitution; the district court issued a complex desegregation order. At the time integration efforts began, the city school district was 70 percent white. The city school district is now only 25 percent white. This decline was largely due to white families either moving to surrounding suburbs outside of the city school district or sending their children to private schools within the school district. To attract those white students back into the district schools, and to limit any further movement of white students from the district, the court orders the city school district to build five expensive, state-of-the-art magnet schools. For which of the following purposes is this order unconstitutional? A. Attracting white students from the surrounding suburban school districts into the district's schools. B. Attracting white students out of private schools located within the city school district. C. Limiting any further withdrawal of white students from the city school district. D. Forcing a state to spend public funds in a particular way that the state would not otherwise wish to do so.

Answer choice A is correct. Because discrimination must be intentional in order to violate the Constitution, only intentional (de jure) segregation in schools violates the Equal Protection Clause. A court cannot impose a remedy that involves multiple school districts unless there is evidence of intentional segregation in each district. If there is no such evidence, a federal district court can only remedy constitutional violations (i.e., race discrimination) that occurred within a particular school district. Hence, the court can issue orders that aim to keep white students in the district schools or to attract white students in private schools within the district to its public schools. However, the court cannot seek to attract white students from surrounding suburbs into the district without evidence of discrimination in the suburbs. For this reason, answer choice B is incorrect because it would be constitutional to implement a remedy within a particular school district, whether between private and public schools or not. Answer choice C is incorrect because the court is not involving multiple school districts. Answer choice D is incorrect because a federal court, in fashioning a remedy for a constitutional violation, may compel a state to expend public funds in a way that the state would not otherwise wish to do so.

A wealthy individual was charged with a non-capital federal felony. His bail was set at $10 million, an amount reasonably calculated to ensure his presence at trial. The individual has the resources to secure his release. Does this amount violate the Eighth Amendment Excessive Bail Clause? A. No, because it is an amount calculated to ensure his presence at trial. B. No, because the individual has the resources to secure his release. C. Yes, because the individual has been charged with a non-capital offense. D. Yes, because the amount in absolute terms is excessive.

Answer choice A is correct. While there is no explicit constitutional right to bail, the Eighth Amendment Excessive Bail Clause requires that, when bail is set, it cannot be excessive, i.e., set higher than an amount reasonably calculated to ensure the defendant's presence at trial. Since the amount of the bail in this instance is reasonably calculated to ensure the defendant's presence at trial, it does not violate this clause.

In a civil action brought in federal district court, the judge conducted voir dire of the prospective jurors. The judge refused to permit either attorney to directly question the prospective jurors. The judge did permit the attorney for each party to submit questions for her to ask the prospective jurors, but refused to ask particular questions that she found to be improper. Has the judge conducted voir dire in accordance with the federal rules? A. Yes, because the judge gave each party's attorney the opportunity to submit questions to be asked of the prospective jurors. B. Yes, because only the judge may examine prospective jurors. C. No, because the judge did not permit each party's attorney to directly question the prospective jurors. D. No, because the judge refused to ask particular questions submitted by the attorneys.

Answer choice A is correct. If the court examines the prospective jurors, then it must permit the parties or their attorneys to make any further inquiry it considers proper, or it must itself ask any of their additional questions that it considers proper. Here, the judge conducted the voir dire of the prospective jurors. The judge properly permitted each party's attorney to submit questions to be asked of the prospective jurors and asked the jurors the questions she deemed to be proper. Therefore, the judge conducted voir dire in accordance with the federal rules. Answer choice B is incorrect because the court may permit the parties or their attorneys to examine the prospective jurors or may do so itself. Answer choice C is incorrect because a judge may conduct voir dire without permitting the parties or their attorneys to directly examine the prospective jurors. Answer choice D is incorrect because a judge is not required to ask questions submitted by a party or the party's attorney that the court considers to be improper.

A patron at a resort ranch took part in a supervised horseback trail ride. Prior to the ride, the patron executed a valid release that enumerated the inherent risks of horseback riding and, by its terms, relieved the resort from liability from any loss, damage, or injury to the guest's person or property suffered during the ride attributable to the negligence of the ranch or its employees. The patron was injured by a fall from the horse. The horse reared in response to negligent behavior of another rider who was also a patron at the ranch. The patron filed suit against the ranch and the other rider for damages resulting from his injuries that totaled $400,000. At trial, it was determined that the ranch was 75% at fault for the patron's injuries due to its selection and training of the horse, and that the other rider was 25% at fault. The applicable jurisdiction recognizes the validity of such releases and has enacted both a modified comparative negligence statute and a pure several liability statute. How much can the patron recover from the ranch? Answers: A. Nothing B. $100,000 C. $300,000 D. $400,000

Answer choice A is correct. In general, parties can contract to disclaim liability for negligence. An exculpatory provision in a contract acts as a bar to recovery for harms arising from the negligence of the party protected by the contract. This bar applies even where the state has adopted a comparative negligence statute. Here, the patron entered into a valid agreement to exculpate the ranch from liability for its negligence. Consequently, answer choices B, C, and D are incorrect.

As part of the purchase price of a business, the buyer gave the seller several nonnegotiable promissory notes, each with a different amount and due date. When the buyer defaulted on the first note, the seller brought an action in state court to enforce the note. Although the buyer received proper and timely notice of the action, the buyer did not defend against it, even though the buyer was aware that the seller had fraudulently deceived the buyer as to the sales volume of the business. The state court in State L granted the seller a default judgment. Subsequently, the buyer defaulted on the second note. The seller brought an action to enforce this note in a federal court located in State L. The buyer defended against this action on the basis of the seller's fraud, which induced the buyer to purchase the business. The seller contends that the buyer is precluded from asserting this defense. Should the court rule that the buyer is collaterally estopped from asserting the seller's fraud as a defense to this action? A. No, because the prior judgment was a default judgment. B. No, because each note constitutes a separate claim. C. Yes, because the buyer failed to raise this defense in the prior action. D. You Selected: Yes, because all notes were given by the buyer for the purchase of the business.

Answer choice A is correct. In order for an issue to be precluded by prior litigation (i.e., for the doctrine of collateral estoppel to apply), the issue must have been actually litigated. Here, because the buyer elected not to contest the first action brought by the seller to enforce the first note, the issue of the seller's fraud was not actually litigated in the first action. Consequently, the buyer is not precluded from litigating the issue of the seller's fraud related to the purchase of the business. Answer choice B is incorrect. While each note constitutes a separate claim, and a judgment enforcing one note does not preclude the buyer from contesting the enforcement of another note, the seller's contention is based on issue preclusion, rather than claim preclusion. Answer choice C is incorrect. Unlike claim preclusion, in which the opportunity to contest a claim is sufficient to preclude the re-litigation of a claim that arose out of the transaction, issue preclusion does not apply to an issue that has not been actually litigated. Answer choice D is incorrect. Although each note was created at the same time as partial payment for the purchase of the business, each note constitutes a separate claim that can be independently enforced. In addition, the seller did not contend that the buyer cannot contest the enforcement of the second note because the first note was enforced. Instead, the seller argued that the buyer cannot raise the seller's fraud as defense because the buyer failed to raise this issue in the action to enforce the first note.

The police suspected a man was cooking methamphetamine in his home basement. From the street, the officers could detect no illicit activity in the basement, but they did see a beam of light in his side yard indicating a low window. The officers, who did not have a warrant, stepped over a low fence to enter his neighbor's yard and walked about 30 feet away from the neighbor's house. From this vantage, the officers saw evidence of methamphetamine production through a small unobstructed window into the basement. On the basis of this information, the officers obtained a search warrant and seized a large amount of methamphetamine from the man's home. The man was charged with drug offenses related to methamphetamine. The man has moved to suppress the evidence seized under the authority of the warrant, claiming that the evidence was obtained through an unconstitutional search in violation of the Fourth Amendment. Should the evidence be suppressed? A. No, because the officers were not within the curtilage of the neighbor's house when they saw evidence of methamphetamine production in the man's basement. B. No, because the man lacked a reasonable expectation of privacy in activities that he did not hide from his neighbors. C. Yes, under the fruit of the poisonous tree doctrine. D. Yes, because the plain view exception does not apply when a police officer is not legitimately on a premises.

Answer choice B is correct. The man's neighbors had a clear and unobstructed view into the man's basement through the small side window. Therefore, the man cannot successfully argue that he had a reasonable expectation of privacy in the activities or property in his basement. Although the officers presumably did trespass on his neighbor's property, the man has no standing to complain of their illegal conduct. Answer choice A is incorrect. Although whether the officers were within the curtilage of the neighbor's house when they saw evidence of the methamphetamine production would be relevant if the production was taking place in the neighbor's basement, it is not relevant to the issue of the constitutionality of the officer's visual search of the man's basement through its window. The determinative issue here is not the man's expectation of privacy in where the officers were standing, but in where they observed illegal activity. Answer choice C is incorrect. The exclusionary rule can apply not only to evidence initially seized as a result of the primary government illegality, but also to secondary "derivative evidence" discovered as a result of the primary taint, also known as the "fruit of the poisonous tree." In this case, the information acquired by the officers while on the neighbor's property was not acquired in violation of the man's constitutional rights because he did not have a reasonable expectation of privacy in this information. Therefore, there was no "poisonous tree" from which to produce an inadmissible "fruit." Answer choice D is incorrect because this limitation on the plain view rule applies when a police officer is illegitimately on the premises that the officer is searching. It does not apply to a trespass by the officer on the property of another individual that is not being searched.

A woman met a man at a party at the home of a third person. The woman noticed that the man was wearing an expensive gold watch. As the party was winding down and the woman and man were alone, the woman slipped a sedative into the man's drink. Waiting until the man passed out, the woman then removed the watch from the man's wrist and left the party. Later, the party's host discovered the man asleep, and revived him. When the man discovered that his watch was missing, the man called the police. The man, who lived at home with his parents, had taken the watch from his father's dresser for the evening, without his father's permission. The woman was arrested and charged with robbery. Can she be convicted of the crime? Answers: A. Yes, because the woman used force to permanently deprive the man of the watch he was wearing. B. Yes, because the taking took place at a dwelling. C. No, because the watch belonged to the man's father and the man did not have permission to use it. D. No, because the man was unconscious when his watch was taken.

Answer choice A is correct. Robbery is defined as (i) larceny, (ii) from the person or presence of the victim, (iii) by force or intimidation. The force used by a defendant must be more than the amount necessary to effectuate taking and carrying away the property. Force can include giving a victim drugs in order to induce unconsciousness and thereby permit the larceny to occur. Answer choice B is incorrect because, unlike common law arson and burglary, which both require a link between an act and a dwelling, robbery does not have such a requirement; it may occur anywhere. Answer choice C is incorrect because a victim need not own the stolen item at the time of the robbery; the item need only be in the victim's possession and the victim's right to possess the item must be superior to the thief's. Answer choice D is incorrect because, although the man was unconscious during the theft of his watch, the larceny nonetheless occurred by force * would be embezzlement *

A mother and her son were both injured at a construction site. They brought a negligence action in federal court against the construction company for failure to exercise reasonable care with respect to their presence at the site. The mother alleged in good faith that she suffered $55,000 in damages; her son alleged in good faith $200,000 in damages. Subsequently, they permissively joined as a defendant under Rule 20 an individual whose intentional actions in tampering with warnings posted by the construction company also allegedly caused their injuries. The mother and her son are citizens of the forum state; the two defendants are citizens of other states. The individual defendant has moved to dismiss the mother's claim against it for lack of subject-matter jurisdiction. How should the court rule? Answers: A. Grant the motion, because the mother's claim was asserted against a defendant who was permissively joined under Rule 20. B. Grant the motion, because supplemental jurisdiction does not apply to a claim for which diversity jurisdiction does not exist. C. Deny the motion, because there is complete diversity between the parties. D. Deny the motion, because the court has supplemental jurisdiction over the mother's claim.

Answer choice A is correct. The court does not have diversity jurisdiction over the mother's claim against the individual defendant, even though there is complete diversity between the parties, because her claim does not exceed $75,000. Nor can the court exercise supplemental jurisdiction over her claim against the individual defendant. The mother's claim does form part of the same case or controversy as her son's claim and the court does have diversity jurisdiction over his claim because it meets both the amount-in-controversy and diversity-of-citizenship requirements. Despite that, because the mother's claim is made by a plaintiff against a party permissively joined under Rule 20, the court cannot exercise supplemental jurisdiction. Answer choice B is incorrect because supplemental jurisdiction may apply to a claim for which there is no diversity jurisdiction, but does not in this case as discussed with respect to answer choice A. Answer choice C is incorrect because, even though there is complete diversity between the parties, the court does not have diversity jurisdiction over the mother's claim because her claim does not exceed $75,000. In addition, the court cannot exercise supplemental jurisdiction over this claim, as discussed with respect to answer choice A. Answer choice D is incorrect because, even though the court has diversity jurisdiction over the son's claim against the individual defendant, the court cannot exercise supplemental jurisdiction over the mother's claim against this defendant, as discussed with respect to answer choice A. I selected D incorrectly.

A plaintiff sued a forklift manufacturer in a product liability action after a forklift exploded when the propane tank powering the forklift detached from the body of the vehicle. In the action, the parties disputed the make and model of the forklift at issue. Without notice to the defendant forklift manufacturer, and without preliminary authenticating testimony, the plaintiff produced three sets of exhibits for admission into evidence at trial. The exhibits consisted of certified copies of a third-party retailer's business records identifying the make and model of the unit at issue (Exhibit A); a laser-etched metal plaque that had been affixed to the forklift that identified the make, model, and serial number of the unit (Exhibit B); and a certified copy of the license issued by a state agency identifying the forklift at issue (Exhibit C). The defendant objected to the admission of the exhibits into evidence on the ground that it should have been given written notice before the trial stating the plaintiff's intent to offer these items into evidence. How should the judge rule on the defendant's objection? A. Sustain the objection as to Exhibit A only. B. Sustain the objection as to Exhibit B only. C. Sustain the objection as to Exhibit C only. D. Sustain the objection as to all three exhibits.

Answer choice A is correct. The court will consider a number of items of evidence to be self-authenticating, meaning that they do not require extrinsic evidence of authenticity in order to be admitted. These include certified copies of public records, trade inscriptions (e.g., labels affixed in the course of business that indicate ownership), and business records. Generally, the proponent of a self-authenticating document is not required to give an adverse party advance notice of the intent to introduce the document. The proponent of a business record must, however, give an adverse party reasonable written notice prior to the trial or hearing of the intent to offer the record and must make the record available for inspection so that the party has a fair opportunity to challenge it. Here, the plaintiff should have sent the defendant notice of its intent to offer business records into evidence to give the defendant time to examine and prepare any appropriate challenges to the records. Answer choice B is incorrect because the metal plaque would be considered a self-authenticating trade inscription which does not require prior written notice before being offered into evidence at a hearing or trial. Answer choice C is incorrect because the signed, sealed public operating license likewise is a self-authenticating document that does not require prior written notice to the adverse party. Answer choice D is incorrect because only the business records in Exhibit A would require prior written notice to the adverse party.

A plaintiff corporation, incorporated and headquartered in State X, sued a defendant corporation, headquartered in a foreign country, in federal district court in State X for a common-law breach-of-contract claim, asserting diversity jurisdiction. The parties negotiated and executed the contract in the foreign country, and performance was also to occur there. The defendant corporation has insufficient contacts with State X and with any other U.S. state to justify the exercise of jurisdiction by a state court over the defendant. If the defendant moves to dismiss the action based on lack of personal jurisdiction, how should the court rule? A. Grant the motion, because the defendant corporation does not have sufficient contacts with the forum state. B. Grant the motion, because diversity between the plaintiff and the defendant does not exist. C. Deny the motion, because the plaintiff cannot bring the contract action against the defendant in any other state court. D. Deny the motion, because the federal district court has personal jurisdiction over a foreign defendant if the plaintiff is a U.S. citizen.

Answer choice A is correct. The defendant has insufficient contacts with State X, the forum state, to justify the exercise of personal jurisdiction over the defendant by the state court. Consequently, the federal district court in State X also lacks personal jurisdiction over the defendant. Rule 4(k)(2) is generally used for non-U.S. residents who have contacts with the United States generally, but not with any one state in particular. While Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that the claim against the defendant be based on federal law and that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution. Here, the claim is based on state common law, not federal law, and the minimum contacts with the United States required to justify an assertion of personal jurisdiction over the foreign corporation in federal court do not exist.

An office worker who suffered from severe asthma was trapped in an elevator at work for over two hours. During that time, she experienced acute anxiety. After her rescue, she was taken to hospital where it was determined that she had suffered permanent damage to her airways, and that the damage would not have occurred had her asthma not been so severe. While the damage would never be fully repaired, expensive, ongoing treatments could improve the worker's condition. The office worker brought a personal injury suit against the owner of the building, seeking to recover compensation for the permanent damage to her airways; medical expenses, both past and future; pain and suffering during the ordeal; and attorney's fees. Which of the following is the office worker unable to recover? A. Attorney's fees. B. Compensation for the permanent damage to her airways. C. Future medical expenses. D. Pain and suffering damages.

Answer choice A is correct. The measure of damages in a personal injury action includes all actual damages incurred, past and future pain and suffering (e.g., emotional distress), medical expenses, lost wages and any reduction in future earnings capacity, and loss of consortium. Under the "thin-skull" or "eggshell-plaintiff" rule, the defendant is liable for the full extent of the plaintiff's injuries due to the plaintiff's pre-existing physical or mental condition or vulnerability, even if the extent is unusual or unforeseeable. Attorney's fees in a personal injury suit are not recoverable. In this case, the plaintiff may not obtain attorneys' fees. Answer choice B is incorrect because the fact that the worker's preexisting asthma exacerbated the damage to her airways is irrelevant, as a defendant is liable for the full extent of the plaintiff's injuries, even if increased by the plaintiff's preexisting physical or mental condition. Answer choices C and D are incorrect because both future medical expenses and pain and suffering damages are recoverable in a personal injury negligence action.

Seeking to protect its small wine industry, a state passes a law prohibiting a large out-of-state corporation that engaged in the wine business in the state from entering into any new business deals within the state. The corporation sues in an appropriate federal court to enjoin state officials from enforcing this law. On which of the following grounds would the court hold that the state's law is unconstitutional? A. The Dormant Commerce Clause of Article I, Section 8 B. Privileges and Immunities Clause of Article IV, Section 2 C. The Privileges or Immunities Clause of the Fourteenth Amendment D. The Contracts Clause of Article I, Section 10

Answer choice A is correct. The state's law protects local economic interests at the expense of out-of-state competitors and therefore discriminates against the out-of-state corporation in violation of the Dormant Commerce Clause. Answer choice B is incorrect because the Article IV Privileges and Immunities Clause has been interpreted as not applying to corporations. Answer choice C is incorrect because the Fourteenth Amendment Privileges or Immunities Clause has similarly been restricted; it does not apply to corporations. Answer choice D is incorrect because the Contracts Clause, although it does apply to state legislative actions, only prohibits laws that retroactively impair contractual rights. Here, the corporation is only prohibited from entering into new business deals within the state.

A manufacturer entered into a contract with a forklift supplier to purchase 10 new forklifts for use in the manufacturer's warehouse. The contract specified that the forklifts were to be delivered within 45 days of the execution of the contract. The day after entering into the contract, the supplier was told by a reliable source that the manufacturer was in a precarious financial position. That day the supplier, reasonably relying on the information, which was in error, sent a written notice to the manufacturer demanding assurance of the manufacturer's ability to pay. Thirty-five days after receiving the notice, the manufacturer sent the supplier its most recent financial statements, which adequately demonstrated that the manufacturer was not in a precarious financial position and had the funds to pay for the forklifts, along with a statement of its willingness to receive the shipment of the forklifts. Immediately upon receiving the manufacturer's correspondence the following day, the supplier called the manufacturer's CEO and demanded his personal guarantee of payment for the forklifts before the supplier would deliver the forklifts. When the manufacturer's CEO declined, the supplier refused to deliver the forklifts. The manufacturer then purchased forklifts from another distributor at a higher price. The manufacturer sued the forklift supplier for breach of contract. Should the manufacturer prevail? A. Yes, because the supplier breached the contract by failing to deliver the forklifts. B. Yes, because the supplier's information regarding the manufacturer's financial position was in error. C. No, because the manufacturer failed to provide adequate assurances in a timely manner. D. No, because the manufacturer's CEO refused to guarantee payment of the forklifts.

Answer choice A is correct. The supplier failed to perform its contractual obligation to deliver the forklifts to the manufacturer. Upon the supplier's breach, the manufacturer sought cover by purchasing the forklifts from another source at a higher price. The manufacturer can recover from the supplier the difference between the cover price and the contract price. Under the UCC, either party can demand assurance of performance if there are reasonable grounds for insecurity about the other party's ability or willingness to perform. Once such assurances are requested, performance may be suspended until they are provided. Failure to give adequate assurances within a reasonable time, not exceeding 30 days, can be treated as repudiation. Here, the manufacturer failed to provide assurances within a reasonable time, so the supplier was within its rights to reject the assurances and repudiate the contract. However, the supplier did not cancel the contract or take any action in reliance on the failure to timely provide assurances. Consequently, when the manufacturer provided the supplier with such assurances and retracted its implied repudiation of the contract by requesting delivery of the forklifts, the supplier was contractually obligated to the deliver the forklifts.

A homeowner devised his home to his neighbor in a jurisdiction with a traditional anti-lapse statute. The neighbor died shortly before the homeowner did. The neighbor is survived by his daughter, and the homeowner is survived by his son. The neighbor's daughter claims that she should take the home, while the homeowner's son claims that it should pass with the rest of the homeowner's estate. Who should receive the homeowner's home? A. The homeowner's son, because the anti-lapse statute does not apply. B. The homeowner's son, because of the Rule in Shelley's Case. C. The neighbor's daughter, because of the anti-lapse statute. D. The neighbor's daughter, because of the rule of convenience.

Answer choice A is correct. Traditional anti-lapse statutes prevent gifts from lapsing only when those gifts were given to a family member within a certain statutory degree. Although the question does not detail the anti-lapse statute itself, traditional statutes apply only to family. Accordingly, the gift to the neighbor would lapse, so the home would go back to the homeowner's residuary estate. Answer choice B is incorrect because the Rule in Shelley's Case merges remainders in a grantee's heirs into fee simple in the grantee; it is irrelevant under this fact scenario. Answer choice C is incorrect because, as explained above, anti-lapse statutes apply to family members, not to friends. Answer choice D is incorrect because the rule of convenience dictates that a class should close as soon as any member of the class becomes entitled to take a gift; because there is no class gift at issue in this question, this rule is irrelevant.

A parking garage attendant found a necklace beside a car in the garage. Both the owner of the car and the owner of the garage claim ownership of the necklace, which has been valued at $73,000. The car owner has filed an action to gain possession of the necklace in state court naming the attendant as defendant. The attendant filed a federal statutory interpleader action in federal district court. The garage owner and the car owner are citizens of the same state and the attendant is a citizen of a neighboring state. The attendant has posted a bond with the federal court, but retains possession of the necklace. The car owner has filed a motion to dismiss the interpleader action for lack of subject matter jurisdiction. For which of the following reasons should the court grant the car owner's motion? A. The garage owner and the car owner are citizens of the same state. B. The value of the necklace does not exceed $75,000. C, The attendant has retained possession of the necklace. D. The car owner had already filed an action in state court.

Answer choice A is correct. Under the federal interpleader statute, diversity jurisdiction is met if any two adverse claimants are citizens of different states. Here, the two claimants, the garage owner and the car owner, are both citizens of the same state. Therefore, the court lacks subject matter jurisdiction over the action. Answer choice B is incorrect because, under federal statutory interpleader, the value of the property at issue need only exceed $500. Answer choice C is incorrect. The stakeholder in a federal statutory interpleader action may either deposit the property with the court or post a bond. Since the attendant has posted a bond, the attendant's retention of the necklace is not grounds for refusing to entertain this action. Answer choice D is incorrect because a federal court is not prohibited from hearing a federal statutory interpleader action merely because a state action to determine ownership or gain possession of the property in question has already been filed. The federal court has the power to enjoin other proceedings that may affect that property.

A federal statute provides that "all persons within the United States shall have the same right in every state to make and enforce contracts as is enjoyed by white persons." The Supreme Court interpreted this statute as applying to all contracts, including private contracts. A black citizen of a state in the United States claims that an appliance store in her state violated this statute by refusing to enter into a sales contract with her because of her race. The appliance store defended on the ground that the statute is unconstitutional. A federal court would be most likely to uphold this statute by relying upon which provision of the Constitution? A. The Thirteenth Amendment B. The Contracts Clause C. The General Welfare Clause D. The Equal Protection Clause of the Fourteenth Amendment

Answer choice A is correct. Unlike the Fourteenth Amendment and the Contracts Clause, the Thirteenth Amendment does not require state action. Rather, it abolishes slavery and its "badges and incidents," including racial discrimination in private transactions like contracts. Moreover, Section 2 of the Thirteenth Amendment authorizes Congress to enact legislation to implement its guarantees. Answer choices B and D are incorrect because, as mentioned, the Contracts Clause and the Fourteenth Amendment protect against wrongful conduct by the government, rather than a private party such as the appliance store. Answer choice C is incorrect. The General Welfare Clause permits Congress to exercise its spending and taxing powers for any public purpose, but it does not create a specific power to legislate for the public welfare in general. The facts do not indicate that the statute was part of a taxing and spending scheme, so the General Welfare Clause does not apply.

A number of immigrants from a South American country had settled in a U.S. city. Most of the immigrants were legal U.S. residents. After the economy declined and the unemployment rate in the region increased, tensions between ethnic groups in the area arose. The city council passed an ordinance that prohibited a non-citizen from serving on the city's police force. A legal U.S. resident, who was not a U.S. citizen, applied for a position on the police force and was denied based on the ordinance. He sued the city on Equal Protection grounds. What statement most accurately describes the burden of proof? A. The applicant must show that the ordinance is not rationally related to a legitimate state interest. B, The applicant must show that the ordinance is not the least restrictive means to achieve a compelling government interest. C. The city must show that the law is substantially related to a legitimate government interest. D. The city must show that the ordinance is the least restrictive means to achieve a compelling government interest.

Answer choice A is correct. When assessing an Equal Protection challenge to state or local governmental action based on alienage, the state or local government must generally satisfy the strict scrutiny standard. However, for state laws that restrict or prohibit an alien's participation in government functions, the burden is on the challenger to show that the governmental action does not have a rational relationship to a legitimate state interest. Answer choice B is incorrect because, although it correctly states that the applicant has the burden of proof, it describes the wrong standard. Answer choice C is incorrect because it describes the intermediate scrutiny test, which applies in the case of a classification based on gender or status as a non-marital child. Answer choice D is incorrect because, although the strict scrutiny test typically applies to a challenge of a state law that involves alienage, there is an exception for state laws that restrict an alien's participation in government functions.

Difference between a majority and minority view - What presumption is raised when P shows there is negligence per se?

In a Majority of jurisdictions, the court will find that there is a presumption of duty and breach when neg per se is found. In a Minority of jurisdictions the court will find that there is a rebuttable presumption of duty and breach when there is neg per se.

A tennis instructor gives group lessons for adult beginners at a tennis court in a local park. A novice adult player showed up at the court to participate in the drills conducted by the instructor. The instructor gave the novice instruction on her tennis game for that day and several more days. The lessons cost $50 per hour. The novice refused to pay the instructor. In a breach of contract action to recover the lesson fees, will the instructor prevail? A. Yes, because the bargain, if expressly made, would have been supported by consideration. B. Yes, because the conduct of the novice manifested assent to the bargain. C. No, because the instructor's only recovery would be in quantum meruit. D. No, because there was no formal offer and acceptance.

Answer choice B is correct because an implied-in-fact contract exists. When a person's assent to an offer is inferred from the person's conduct and the person has reason to know his conduct may be construed as assent, an implied-in-fact contract exists. Here, the novice's participation in the drills implied such consent. Answer choice A is incorrect because although implied-in-fact contracts need to be supported by consideration, this is not the definitive issue relating to the bargain's enforcement. Answer choice C is incorrect because this is an implied-in-fact contract, and therefore breach of contract remedies would be available; quantum meruit remedies are available in quasi-contract actions, which this is not. Answer choice D is incorrect because even though there was no formal offer and acceptance, an implied-in-fact contract does not require a formal offer and acceptance.

The owner of pastureland permits a herder to keep several goats in the pasture. The goats wander off the land, leap over a fence properly maintained by a neighbor, and ramble into the neighbor's garden. Once in the garden, the goats eat the vegetables growing there. In a strict liability action brought by the neighbor against the landowner and the herder, who is liable? A. Only the landowner. B. Only the herder. C. Both the landowner and the herder. D. Neither the landowner nor the herder.

Answer choice B is correct because the owner of any animal, wild or domestic (other than a household pets) is strictly liable for any reasonably foreseeable damages caused by the animal while trespassing on another's land. Strict liability does not extend to the owner of the land on which the animals are kept, even when the animals are on the land with the landowner's permission, unless the landowner also has the right to possess the animals. Consequently, answer choices A, C, and D are incorrect.

A plaintiff was severely injured when he slipped while shopping at the defendant's department store. As a result, the plaintiff brought a state law negligence action against the defendant in federal district court under diversity jurisdiction. The defendant was properly served on January 1 and filed his answer on January 15. Discovery for the matter concluded on June 1. On June 25, three weeks prior to trial, the plaintiff filed a motion for summary judgment. Was the plaintiff's motion for summary judgment timely? Answers: A. Yes, because it was filed within 30 days of trial. B. Yes, because it was filed within 30 days after the close of all discovery. C. No, because the motion must be filed prior to the close of all discovery. D.No, because the motion must be filed within 15 days after the close of all discovery.

Answer choice B is correct. A party may file a motion for summary judgment at any time until 30 days after the close of all discovery. Here, discovery closed on June 1 and the plaintiff filed a motion for summary judgment on June 25. Therefore, the motion for summary judgment was timely. Answer choice A is incorrect. The relevant event for determining whether a motion for summary judgment is timely is the close of all discovery, not the date of trial. Answer choice C is incorrect. A motion for summary judgment can be filed after the close of all discovery so long as it is filed within 30 days after that date. Answer choice D is incorrect because it states an incorrect time period after the close of all discovery for bringing a motion for summary judgment. The correct time period for bringing such a motion is any time until 30 days after the close of all discovery.

In a title theory jurisdiction, can a mortgagee take possession of the home if the owner abandons and the bank needs to unsure no deterioration?

In a Title theory state, legal title is in the mortgagee until the mortgagee has been fully satisfies. Therefore, the mortgage is theoretically entitled to take possession at any time, although the mortgagee is typically prohibited by the terms of the mortgage from taking possession of the property before default occurs.

A lawyer represented both an internist and a hospital that employed him in a pending action against them based on the alleged negligence of the internist in treating a patient. A stenographer employed by the attorney attended a meeting between the lawyer, the internist, and the hospital. The stenographer recorded what was said at the meeting. Subsequently, the hospital filed a cross-claim against the internist seeking indemnity for any damages assessed against it. The lawyer was compelled to withdraw her representation of both parties before trial. At trial, the internist called the stenographer to testify regarding a statement made by the hospital's president during the meeting that the hospital would "back the internist 100 percent." The hospital, asserting the attorney-client privilege, objected to this testimony. Should the court overrule this objection? A. Yes, because the lawyer no longer represents either party. B. Yes, because the dispute involves the hospital and the internist. C. No, because the stenographer was an employee of the lawyer. D. No, because the presence of the stenographer did not eliminate the confidentiality of the statement.

Answer choice B is correct. Although a confidential communication made by a client for the purpose of seeking legal advice or representation is generally protected by the attorney-client privilege, this privilege does not apply to communications between former co-clients who are now adverse to each other. Here, as a consequence of the cross-complaint, the internist and the hospital are adversaries with regard to who bears the ultimate liability of any judgment against the hospital. Answer choice A is incorrect because the attorney-client privilege continues to exist after the termination of the attorney-client relationship with regard to confidential communications made during the relationship. Answer choice C is incorrect because, even though the privilege applies to employees of an attorney, such as the stenographer, with regard to confidential communications made by a client, the privilege does not extend to communications between former co-clients who are now adverse to each other. Answer choice D is incorrect because, even though the privilege applies to communications made by a client in the presence of an employee of the client's attorney, the privilege does not extend to communications between former co-clients who are now adverse to each other.

A personal ad appeared in a pornographic magazine that was published and distributed nationwide. The ad stated that an individual was willing to perform various, specified deviant sexual acts. At the end of the ad, the individual was identified by her first and last name. As a consequence, the individual received lewd and offensive communications from strangers. The individual filed an action based on invasion of privacy due to the public disclosure of private facts and the publication of facts placing her in a false light, both recognized in the jurisdiction. In the complaint, the individual alleged that she had neither submitted the ad to the magazine publisher nor had any desire to perform such acts and that the publisher had published the ad with reckless disregard for its truthfulness. The publisher moved to dismiss the complaint. How should the court rule on this motion? A. Grant the motion as to both counts. B. Grant the motion as to the public disclosure of private facts and deny it as to the publication of facts placing her in a false light. C. Grant the motion as to the publication of facts placing her in a false light and deny it as to the public disclosure of private facts. D.Deny the motion as to both counts.

Answer choice B is correct. An action for the invasion of privacy based on the public disclosure of private facts is grounded in the disclosure of truthful information about the plaintiff that is not of legitimate concern to the public and that a reasonable person would find highly offensive. Here, because the ad's assertion that the individual was willing to perform the enumerated sexual acts was false, an action based on the public disclosure of private facts cannot be maintained, which makes answer choices C and D incorrect. By contrast, answer choice A is incorrect because an action for the invasion of privacy based on the publication of facts placing her in a false light can be maintained. The tort of false light is recognized in a majority of jurisdictions, including this jurisdiction. Therefore, if the individual shows that the publisher made public facts about her that a reasonable person would find highly offensive, and which placed her in a false light, she will prevail. The ad identifying the individual as someone willing to perform lewd acts placed her in a false light. In addition, the willingness to perform deviant sexual acts is likely highly offensive to a reasonable person. Further, the publisher's actions will likely amount to malice, which may be required. Thus, the motion to dismiss should be denied as to this claim only.

During a severe storm, a horse came onto a rancher's property. The rancher discovered the horse the next morning, and saw a serious wound on one of its legs. The rancher paid a veterinarian to examine and treat the horse, and the rancher then provided the horse with food and shelter. Two weeks later, the horse's owner arrived at the rancher's home and asked for the return of his horse. The rancher returned the horse to its owner, and asked the owner for reimbursement for the veterinary visit and for the expenses incurred in feeding and sheltering the horse. The horse's owner refused to pay. The rancher sued the horse's owner for the costs of veterinary care, food, and shelter. Is he likely to prevail? A. Yes, because the rancher's conduct created an implied-in-fact contract. B. Yes, because the horse's owner would be unjustly enriched if he is not forced to pay the rancher's expenses. C. No, because a valid contract was never formed between the rancher and the horse's owner. D. No, because the horse's owner never engaged in any conduct to signify that he assented to the rancher's expenditures.

Answer choice B is correct. Courts recognize the existence of an implied-in-law contract ("quasi-contract") when one party confers a benefit on another and has a reasonable expectation of compensation. Otherwise, the benefited party would be unjustly enriched. Such situations occur when: (i) the plaintiff has conferred a "measurable benefit" on the defendant; (ii) the plaintiff acted without gratuitous intent; and (iii) it would be unfair to let the defendant retain the benefit because either the defendant had an opportunity to decline the benefit but knowingly accepted it, or the plaintiff had a reasonable excuse for not giving the defendant such opportunity, usually because of an emergency.

The buyer of a business brought a diversity action against the seller in federal court seeking an injunction for breach of a covenant not to compete that had been included in their sales contract. The seller served his answer and a counterclaim seeking damages for missed installment payments under the contract. Twenty-one days later, the buyer served an answer to the counterclaim. Ten days after the buyer served his answer, the seller served a jury trial demand with regard to the counterclaim. Is the seller entitled to a jury trial on his counterclaim? A. Yes, because the seller, as the defendant with regard to the original claim, has the right to demand a jury trial. B. Yes, because the seller is seeking damages from the buyer. C. No, because the seller is the plaintiff with regard to the counterclaim and the right to a jury trial belongs to the defendant. D. No, because the seller's jury trial demand was untimely.

Answer choice B is correct. Either party may make a demand for trial by jury, and a party is entitled to a jury trial with regard to an action at law. Here, the seller is demanding a jury trial with respect to his counterclaim for damages. Since an action seeking damages is an action at law, the seller is entitled to a jury trial. Answer choice A is incorrect. Either party, not just a defendant, may make a demand for trial by jury. In addition, neither party is entitled to a trial by jury with respect to the original claim in this scenario because, since the buyer is seeking injunctive relief, the original claim is an action in equity. Answer choice C is incorrect because, although the seller is the plaintiff with regard to the counterclaim, either party may make a demand for trial by jury with regard to an action at law. Here, the seller's counterclaim, which seeks damages, is an action at law. Answer choice D is incorrect because a jury trial demand must be served within 14 days after service of the last pleading directed to the issue that is sought to be tried by a jury. Here, the seller served his jury trial demand ten day after the buyer served an answer to the seller's counterclaim. Consequently, the seller's jury trial demand was timely made.

A plaintiff filed an action in federal district court based on a state law claim. The court had diversity jurisdiction over the action. An entity timely sought to intervene as of right, contending that, although no federal statute conferred this right, the entity's interest was not adequately represented by the existing parties. Although it found that the entity had the right to intervene, the court refused to permit the intervention because, even though the entity's presence in the action would not violate the diversity-of-citizenship requirement, the entity's claim did not satisfy the amount-in-controversy requirement. Was the court's refusal proper? A. Yes, because intervention is not permitted in an action over which the court has diversity jurisdiction. B. Yes, because the court did not have subject matter jurisdiction over the entity's claim. C. No, because the entity's intervention was as of right rather than permissive. D. No, because the court had supplemental jurisdiction over the entity's claim.

Answer choice B is correct. Even when a person seeks to intervene as of right in an action for which subject matter jurisdiction is based solely on diversity jurisdiction, the court must have subject matter jurisdiction over the intervenor's claim. When the court does not have subject matter jurisdiction over a claim, the court should not permit the person to intervene. In this case, the court does not have subject matter jurisdiction over the entity's claim because it does not satisfy the amount-in-controversy requirement. Therefore, the court's refusal to permit the entity to intervene was proper.

A plaintiff filed an action in federal district court based on a state law claim. The court had diversity jurisdiction over the action. An entity timely sought to intervene as of right, contending that, although no federal statute conferred this right, the entity's interest was not adequately represented by the existing parties. Although it found that the entity had the right to intervene, the court refused to permit the intervention because, even though the entity's presence in the action would not violate the diversity-of-citizenship requirement, the entity's claim did not satisfy the amount-in-controversy requirement. Was the court's refusal proper? A. Yes, because intervention is not permitted in an action over which the court has diversity jurisdiction. B. Yes, because the court did not have subject matter jurisdiction over the entity's claim. C. No, because the entity's intervention was as of right rather than permissive. D. No, because the court had supplemental jurisdiction over the entity's claim.

Answer choice B is correct. Even when a person seeks to intervene as of right in an action for which subject matter jurisdiction is based solely on diversity jurisdiction, the court must have subject matter jurisdiction over the intervenor's claim. When the court does not have subject matter jurisdiction over a claim, the court should not permit the person to intervene. In this case, the court does not have subject matter jurisdiction over the entity's claim because it does not satisfy the amount-in-controversy requirement. Therefore, the court's refusal to permit the entity to intervene was proper. Answer choice A is incorrect because a court that has diversity jurisdiction over an action may permit a person to intervene in the action, but may do so only if the intervenor does not destroy the court's diversity jurisdiction. Answer choice C is incorrect because supplemental jurisdiction does not apply to the claims of a person seeking to intervene either as of right or permissively in a case based exclusively on diversity jurisdiction if the exercise of jurisdiction would be inconsistent with the requirements of diversity jurisdiction. Answer choice D is incorrect because supplemental jurisdiction is not available to join claims of a person seeking to intervene in a case based exclusively on diversity jurisdiction. Because the amount-in-controversy requirement was not met, the court lacks jurisdiction over this claim.

A homeowner mortgaged her home with a bank ten years ago and turned it into an inn. The bank recorded the mortgage at that time. She subsequently incurred obligations with a contractor for work on the inn to create two large, high-end suites for guests. This involved tearing down walls and thereby reducing the number of bedrooms at the inn. A year later, she was forced to undergo a foreclosure action after failing to make six months of mortgage payments. She then realized that if she reinstated the walls and increased the number of bedrooms in the inn, she could turn a higher profit. She further hoped that making these improvements might negate the need to follow through with the foreclosure action. She therefore refinanced the mortgage with the bank to make these improvements after a family member helped her to get current with her mortgage obligations. The bank accordingly adjusted the existing mortgage so that its payments were decreased for three years but ballooned to a much higher interest rate if the homeowner missed more than three payments in a row. Two years later, the inn had seen no profit, and the homeowner again defaulted on her mortgage for four months. After giving the homeowner an additional four months to catch up on her obligations, the bank again initiated a foreclosure action, which resulted in a sale of the home. At the time of the sale, the existing secured creditors included not only those associated with the foreclosure action but, by virtue of a lien that took effect prior to the refinancing, also the contractor who had performed the work on the two suites at the inn. How did the refinance impact the bank's rights as a mortgagee? A. The bank is not impacted by the action. B. The bank subordinated its interest as to only the increased rate. C. The bank subordinated its interest. D. The bank will be treated as the most senior mortgagee at the increased rate.

Answer choice B is correct. Generally, the money from a foreclosure sale is applied first to the costs associated with the sale, second to the mortgage obligation being foreclosed, and finally to the mortgage obligations owed to all junior interest holders. However, a senior mortgagee who enters into an agreement with the mortgagor to modify the mortgage or the obligation it secures subordinates his interest to a junior mortgagee's interest to the extent that the modification is materially prejudicial to the junior mortgagee's interest. The senior mortgagee's interest otherwise remains superior to the junior mortgagee's interest. Here, the bank is the senior mortgagee, with the contractor being a junior mortgagee. The bank subordinates its interest as to the increased rate but otherwise remains superior to the contractor's interest. Answer choice A is incorrect because the bank does subordinate the interest as to the modification. Answer choice C is incorrect because the bank only subordinates its interest as to the modification. Answer choice D is incorrect because as the increased rate is materially prejudicial to the contractor's interest, the bank subordinates its interest in the modification, even though the original mortgage remains senior.

A plaintiff filed a complaint in state court based on a negligence claim arising from an accident. Before the defendant responded to the complaint, the plaintiff voluntarily filed a notice of dismissal. Subsequently, the plaintiff filed a complaint in federal district court based on diversity jurisdiction, asserting the same claim. The defendant filed a motion to dismiss for improper venue, and the court denied this motion. Before the defendant filed an answer to the complaint, the plaintiff again voluntarily filed a notice of dismissal. Can the plaintiff later pursue this claim through an action filed in federal court? A. No, because the second dismissal occurred after the defendant had filed a motion to dismiss for improper venue. D. No, because the second dismissal was with prejudice. C. Yes, because both dismissals were voluntary. D. Yes, because the first dismissal was a state action, not a federal action.

Answer choice B is correct. If a plaintiff has voluntarily dismissed an action based on a claim without court approval, a subsequent voluntary dismissal of an action based on the same claim is a dismissal with prejudice and thus has preclusive effect. This is sometimes referred to as the "two-dismissal" rule. Answer choice A is incorrect. Even though the defendant had responded to the second complaint, the plaintiff could voluntarily dismiss the action without court approval or the defendant's agreement because the defendant had not filed an answer or a summary judgment motion at the time that the plaintiff filed the notice of dismissal. However, even though the dismissal was voluntary and court approval or the defendant's agreement was not required, the second dismissal was with prejudice under the two-dismissal rule. Answer choice C is incorrect. Even though both dismissals were voluntary, the second dismissal is with prejudice under the two-dismissal rule because the first action was not dismissed by a court order. Answer choice D is incorrect because the two-dismissal rule applies regardless of whether the prior action was a state or federal action

A motorcycle enthusiast purchased a custom-made motorcycle from a boutique motorcycle shop. The enthusiast paid $5,000 for the motorcycle, which was to be delivered to him in one month. One week after he purchased the motorcycle, the enthusiast decided that he no longer wanted the motorcycle. He called up his best friend and told him that he would give him the motorcycle when it was finished. The enthusiast also instructed the shop to deliver the motorcycle to his friend. Three weeks later, the shop delivered the motorcycle to the enthusiast. The enthusiast accepted the motorcycle without protest. When the friend found out, he sued the shop for its failure to deliver the motorcycle to him. Will the friend succeed? A. No, because an assignee cannot force an obligor to comply with an assignment by the obligee-assignor. B. No, because there was no consideration to support the enthusiast's assignment of the motorcycle to his friend. C. Yes, because the friend detrimentally relied upon the enthusiast's assignment. D. Yes, because the enthusiast made a valid assignment of the motorcycle to the friend.

Answer choice B is correct. If no consideration supports an assignment of contractual rights (a gratuitous assignment), the assignment is generally revocable, unless the obligor has already performed or promissory estoppel applies. Here, the enthusiast accepted the motorcycle without protest. His acceptance effectively revoked the gratuitous assignment. In addition, there is no indication that the friend relied on this assignment to his detriment. Answer choice A is incorrect. The shop, as obligor, may be compelled to comply if the assignment is valid and enforceable by the assignee. Here, however, the assignment was gratuitous and was revoked by the enthusiast's acceptance of the motorcycle. Therefore, the friend cannot enforce the assignment. Answer choice C is incorrect. Promissory estoppel is referred to as a "consideration substitute." The doctrine of promissory estoppel (detrimental reliance) can be used under certain circumstances to enforce a promise that is not supported by consideration. However, as stated above, there are no facts to indicate that the friend detrimentally relied upon the enthusiast's gift of the motorcycle. Answer choice D is incorrect. The valid assignment to the friend could be revoked by the enthusiast because it was a gratuitous assignment.

An army pilot from State A was injured when his helicopter crashed due to a defect in the tail rotor. The helicopter was manufactured by a contractor, a private company incorporated and with its principal place of business in State B. The contractor produced equipment for use by the military pursuant to contracts with the United States government. The army pilot brought a strict products liability action in federal district court in State B against the contractor, alleging $200,000 in damages. The contractor seeks to assert a defense recognized and developed by federal courts for private defense contractors involved in contracts with the United States government. Although not set forth by federal statute or other federal rule, the defense has been used to allow private defense contractors to avoid tort liability under state law. State B does not recognize this defense. What law should the federal district court apply to this issue? Federal common law, because the case arises under federal law. Federal common law, because there is a uniquely federal interest at stake and a significant conflict with state law. The law of State B, because the failure to apply state law will lead to different outcomes in state and federal court. The law of State B, because there is no federal statute or rule on point.

Answer choice B is correct. In determining whether to apply state or federal law, the district court will start by determining whether there is a conflict between state and federal law with respect to the issue before the court. If the applicable state and federal laws do conflict, then the district court must ask whether a valid federal statute or Federal Rule covers the disputed issue. If no federal statute or rule is on point, then the court must determine whether federal common law, rather than state law, should be applied. In making this determination with respect to federal common law, the district court will ask whether the failure to apply state law will lead to different outcomes in state and federal court. If the answer is yes, then the court will apply state law, unless affirmative countervailing federal interests are at stake that warrant application of federal law. The Supreme Court has also recognized the application of federal common law when a "uniquely federal interest" is at stake and a significant conflict exists between that interest and the operation of state law. In this case, there is a conflict between federal and state law as to the issue of defense contractor liability. Because no federal statute or rule is on point, the court must determine whether federal common law should be applied. Here, the failure to apply the law of State B in federal court will lead to different outcomes in state and federal court. However, there is a uniquely federal interest at stake in that the issue involves liabilities arising out of the performance of federal contracts. The outcome of the case would affect the federal government's interest in such contracts. In addition, there is a significant conflict with the law of State B on this issue. Accordingly, federal common law should be applied to this issue.

The driver of a truck was involved in an accident with a car driven by a citizen of a foreign country. The truck driver filed suit in a federal district court in the state in which the accident occurred, where the truck driver was domiciled. The driver of the car was a permanent legal resident of the United States and was domiciled in this state as well. The truck driver alleged damages of $35,000 in good faith due to personal injuries and damages of an additional $50,000 due to property losses. As permitted by state law under a direct action statute, the suit named only the insurer of the car as a defendant. The insurer was incorporated in a neighboring state and had its headquarters in a distant state. The insurer timely moved to dismiss the action due to lack of subject-matter jurisdiction. How should the court rule on this motion? Answers: A. Grant the motion, because alienage jurisdiction does not exist. B. Grant the motion, because diversity of citizenship does not exist. C. Deny the motion, because the amount in controversy exceeds $75,000. D. Deny the motion, because the insurer is not a citizen of the forum state.

Answer choice B is correct. In order for subject-matter jurisdiction to exist in an action based on state law, the action must satisfy both the amount-in-controversy requirement and the diversity requirement. Here, the action satisfies the amount-in-controversy requirement, since the plaintiff is permitted to aggregate personal injury and property loss that arises from the incident in question. The aggregated amount, of $85,000 ($35,000 + $50,000), exceeds $75,000. But, the action does not meet the diversity requirement. As a corporation, the insurer is a citizen of the state of its incorporation and also a citizen of the state of its principal place of business. However, an insurer is also deemed to be a citizen of the insured's state when the insurer is sued in a direct action. Here, the insured's state is the forum state for purposes of diversity jurisdiction because the insured is a lawful permanent resident of the United States domiciled in the forum state. Consequently, diversity jurisdiction does not exist between the plaintiff-truck driver and the defendant-insurer. Answer choice A is incorrect because this is not an action between the truck driver and the driver of the car, but a direct action against the insurer, a United States corporation. Answer choice C is incorrect because, even though the amount-in-controversy requirement is met, the court does not have subject-matter jurisdiction over the action because the diversity requirement is not. Answer choice D is incorrect because an insurer is treated as a citizen of the state in which its insured is a citizen. Here, the insured is treated as a citizen of the forum state because the insured is a lawful permanent resident of the United States who is domiciled in the forum state. Consequently, diversity jurisdiction does not exist between the plaintiff-truck driver and the defendant-insurer.

The only intestate heir of a wealthy businessman, upon hearing of the businessman's death, immediately visited his friend who worked at an expensive car dealership. The heir signed a contract with the friend, a legal representative of the car dealership, to purchase a car from the dealership. The car needed to be ordered from overseas, so no money was due up front on the contract. Just before he signed the contract, the heir told his friend that he certainly would not be able to buy the car without obtaining this inheritance, but that as soon as the heir inherited the businessman's estate, he would return to pay for the car. The friend agreed, and they both signed the contract, which did not make mention of the inheritance. A week later, the heir discovered that the businessman had left a valid will that left his entire estate to a charity, and that the heir was not entitled to any portion of the estate. He returned to the car dealership to try to cancel his contract to purchase the car, but the car had already arrived. The car dealership has not attempted to resell the car. The car dealership subsequently sued the heir to enforce the contract. Is the car dealership's action likely to succeed? A. No, because the car dealership has not attempted to resell the car. B. No, because the heir's duty to purchase the car was conditioned upon receiving an inheritance. C. Yes, because the heir signed the contract with a legal representative of the car dealership. D. Yes, because the heir's oral statements to his friend contradict the written contract.

Answer choice B is correct. Performance by one or both of the parties may be made expressly conditional in the contract, and the conditions may precede the obligation to perform (condition precedent), or may discharge the duty to perform after a particular event occurs (condition subsequent). Here, the heir told the friend that he would not pay for the car unless he received an inheritance, and the friend agreed. Therefore, the heir's duty to purchase the car was subject to a condition precedent, and that condition was not satisfied. Accordingly, the car dealership will be unable to enforce the contract. Answer choice A is incorrect. The fact that the car dealership has not attempted to resell the car is irrelevant. The express condition precedent failed and thus the heir did not breach the contract. Answer choice C is incorrect because the written contract is still subject to a condition precedent to which the friend, a legal representative of the car dealership, agreed. Answer choice D is incorrect because parol evidence may be admitted to prove a condition precedent to the existence of the contract. Therefore, the heir's oral statement may be admitted, and the contract can be held subject to the condition precedent to which the heir and the friend orally agreed.

An employee was fired after working for an employer full-time for six months. The employee filed suit against the employer alleging that he was fired because of age discrimination. The employer claimed the employee was fired for excessive tardiness. The employer requires all employees to clock in and out using a terminal located in its facility, and the attendance data is maintained electronically. During discovery, the employee served a document request on the employer seeking the employer's timekeeping records on him. The employer failed to provide the records, claiming that all of its attendance data for the relevant period was destroyed as a result of a computer malfunction. Despite pursuing other discovery on the issue, the employee was ultimately unable to obtain any records relating to his attendance from the employer. During trial, the employee established that the employer had erased the employee's attendance data in violation of the employer's stated policies. What is the effect of this destroyed evidence at trial? A. The employee is entitled to a directed verdict on all his claims against the employer. B. The employee is entitled to a rebuttable presumption that the missing records would have been unfavorable to the employer. C. The employer is barred from raising the issue of the employee's attendance during the presentation of its case. D. The missing records are conclusively presumed to be unfavorable to the employer's defense.

Answer choice B is correct. When a party can show that another party intentionally destroyed evidence, that party is entitled to a rebuttable presumption that the destroyed evidence would have been unfavorable to the party that destroyed it. The party seeking the presumption must establish that (i) the destruction was intentional, (ii) the destroyed evidence was relevant to an issue about which the party seeks the inference, and (iii) the injured party acted with due diligence in seeking the evidence. Here, the employee has met all three requirements and is therefore entitled to the rebuttable presumption. Answer choice A is incorrect. The employee, although entitled to the rebuttable presumption, must still prove his claims in order to obtain judgment in his favor. Answer choice C is incorrect. The employee is entitled to a rebuttable presumption that the destroyed records would have been unfavorable to the employer, but the employer may still make its case and attempt to rebut that presumption. Answer choice D is incorrect. The employee is entitled to the presumption that the destroyed evidence would have been unfavorable to the employer, but the presumption is rebuttable, not conclusive.

The manufacturer of major appliances sued the maker of replacement parts for these appliances in federal court. Among the claims asserted by the manufacturer was copyright infringement. The manufacturer contended that the maker of replacement parts had included the manufacturer's instruction sheets in the packaging of the replacement parts. The maker, in its answer to the manufacturer's complaint, contended that there was no other way to present the instructions. At trial, the manufacturer seeks to introduce, after proper authentication, evidence that the maker subsequently prepared its own instruction sheets for the replacement of appliance parts that varied from the manufacturer's instruction sheets. Should the court permit the introduction of this evidence? A. Yes, as an opposing party's statement. B. Yes, because the evidence contradicts the maker's contention regarding the feasibility of preparing other instruction sheets. C. No, because of the policy exception for subsequent remedial measures. D. No, because this is not a negligence or products liability action.

Answer choice B is correct. Rule 407 provides that evidence of a subsequent change may be admitted for the limited purpose of showing the practicability of making a change. Consequently, since the maker, in its answer, denied that there was any other way to present the instructions for the replacement of various parts of the manufacturer's appliances, the maker's own instruction sheets rebut this denial. Answer choice A is incorrect because the maker's instructions sheet are not introduced for their truth (i.e., that these are the steps that must be taken in order to effect the installation of a replacement part in the manufacturer's appliance), but to show that the preparation of such instruction sheets was feasible. Answer choice C is incorrect because, although there is a policy exception that prevents the introduction of relevant evidence of a subsequent remedial measure, this exception does not apply when the evidence is use to rebut an assertion that the measure was not feasible. Answer choice D is incorrect because, although the subsequent remedial measure exception generally is applicable to a negligence or products liability action, this exception applies to whenever the subsequent remedial measure is used to establish culpable conduct.

A retail store that specialized in glass objects entered into a written contract to purchase 100 hand-blown glass ornaments from an artisan. Because of the artisan's popularity, the store paid in full for the ornaments at the time that the contract was executed. The contract specified that the store would pick up the ornaments after notification that they were ready. The contract contained no other terms related to delivery of the ornaments and did not allocate the risk of loss. When the ornaments were ready, the artisan notified the store. The parties arranged for the store to pick up the packaged ornaments no later than 2:00 pm the next day. The employee assigned by the store to make the pickup did not arrive until 6:00 pm. In the late afternoon just before the store employee arrived, a short but intense storm caused a large, healthy tree on the artisan's property to fall over and destroy all the ornaments. Neither party had insured the ornaments against such a loss. Who bears the risk of the loss with respect to the ornaments? A. The store, because the artisan had tendered delivery of the ornaments to the store prior to the loss. B. The store, because the artisan's insurance did not cover the loss. C. The artisan, because the store had not taken possession of the ornaments. D. The artisan, because the store was a merchant.

Answer choice B is correct. The UCC provides that a merchant seller generally retains the risk of loss in the absence of a contract term to the contrary until the buyer receives the goods. However, if the buyer is in breach of the contract, the risk of loss passes to the buyer to the extent of any deficiency in the seller's insurance coverage. Here, the store, as buyer, was in breach of the contract by failing to pick up the ornaments by 2:00 pm. Although the UCC only requires that the delivery time be "reasonable" in the absence of a specific contract term, the parties here modified the contract in that regard by agreeing that the seller should pick up the ornaments by 2:00 pm. Consequently, answer choice B is correct and answer choice C is incorrect. Answer choice A is incorrect because, although the risk of loss passes to the buyer upon tender of delivery of the goods when the seller is not a merchant, the artisan here is a merchant (he has specialized knowledge or skill peculiar to glass ornaments). Consequently, the risk of loss does not pass until the buyer receives the goods unless the buyer is in breach of the contract (as was the case here). Answer choice D is incorrect because, although the store, as buyer, was a merchant with respect to the ornaments, this status is irrelevant to the issue of risk of loss. It is the seller's status as a merchant that can delay the shift in the risk of loss from the tender of delivery by the seller to the buyer's actual receipt of the goods.

A plaintiff filed a complaint against his former employer in federal court, alleging that the plaintiff had been terminated based on his race in violation of federal law. The complaint included a short and plain statement of the plaintiff's claim and the facts upon which it was based, but not detailed factual allegations. Ten days after the complaint was filed, the defendant filed an answer. The following day, the defendant filed a motion to dismiss the complaint, asserting that the plaintiff had failed to state a claim upon which relief could be granted. The defendant attached to the motion an affidavit from the plaintiff's former supervisor stating that the plaintiff was terminated based upon his performance and described an incident in which the plaintiff made a mistake that caused the employer to lose an important customer. The court granted the motion to dismiss, noting that the facts described in the affidavit undermined the plaintiff's claims. Was the court's ruling granting the motion to dismiss proper? A. No, because the defendant waived any objection based on the pleadings by filing an answer. B. No, because the court considered matters outside the pleadings. C. Yes, because the plaintiff did not state with particularity the circumstances constituting discrimination. D. Yes, because the motion included a credible affidavit with facts that undermined the plaintiff's claims.

Answer choice B is correct. The court can grant a motion to dismiss if the claim fails to assert a valid legal theory of recovery or fails to allege facts sufficient to support a cognizable claim. However, if the court considers new evidence in its review of a motion to dismiss, as it did with the affidavit here, it should treat the motion as a motion for summary judgment rather than a motion to dismiss. Here, the court was in error because it did not treat the motion as a motion for summary judgment despite considering new evidence. Answer choice A is incorrect because unlike lack of personal jurisdiction or improper venue, the defense of failure to state a claim upon which relief can be granted may be raised in any pleading or at trial. Answer choice C is incorrect because for most claims, "a short and plain statement" that provides defendant fair notice of the claim is sufficient. There is generally no requirement that the plaintiff state the claim with particularity. Answer choice D is incorrect because the court could not properly consider the affidavit in ruling on a motion to dismiss.

What type of damages are injuries to 3rd parties and how does one get such damages?

In a breach of contract, a personal injury to a third party are consequential damage and are recoverable if it was reasonably foreseeable at the time of contracting.

A manufacturer sells shoes with the manufacturer's brand name to two competing retailers. When the larger of the two retailers, a national retailer, learns that the manufacturer is also selling the same brand of shoes to its competitor, the retailer stops placing orders for the shoes with the manufacturer. In response to a query by the manufacturer as to the reason for larger retailer's action, the large retailer states that it does not want to carry the same brand name shoes as the smaller regional retailer. Under no contractual obligation to sell the brand name shoes to the regional retailer, the manufacturer stops doing so. The national retailer resumes ordering the brand name shoes from the manufacturer. The regional retailer, while suffering a loss of income due to its inability to sell the brand name shoes, continued to be profitable since shoe sales represented only a small fraction of its overall sales. In an action for intentional interference with a contract brought by the regional retailer against the national retailer, which of the following would be the national retailer's weakest argument? A. There was no contract between the manufacturer and the regional retailer. B. The national retailer did not substantially interfere with the regional retailer's overall business. C. The regional retailer was a competitor. D. The national retailer is merely exercising its freedom to refuse to deal with another.

Answer choice B is correct. To prove intentional interference with a contract, the regional retailer must prove that (1) a valid contract existed between the regional retailer and the manufacturer, (2) the national retailer knew of the contractual relationship, (3) the national retailer intentionally interfered with the contract, causing a breach, and (4) the breach caused damages to the the regional retailer. The regional retailer need only show a pecuniary loss of the benefits from the contract; there is no requirement that the interference prevent the regional retailer from being profitable or that the loss be substantial.

An illustrator filed an action in federal district court against a competitor, alleging that the competitor had used one of the illustrator's designs without permission in violation of federal copyright law. A pretrial conference was scheduled for the following month. On the scheduled date, the illustrator failed to attend the pretrial conference, and he failed to notify the court or the competitor. He later informed the judge that his absence was due to a family emergency. The judge then issued an order requiring both parties to notify the judge by telephone at any time prior to the conference if they could not appear. On the date of the re-scheduled pretrial conference, the illustrator again failed to appear as he had to deal with another family emergency. In his haste, the illustrator forgot to notify the judge by telephone. Due to his frustration with the illustrator's conduct, the judge dismissed the case. Was dismissal of the action proper? A. No, because dismissal is not a permitted sanction for failure to appear at a pretrial conference or obey a pretrial order. B. No, because the illustrator's conduct was excusable. C. Yes, because the illustrator failed to attend the pretrial conference. D. Yes, because the illustrator failed to obey the judge's order.

Answer choice B is correct. Under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action. Dismissal of an action is a severe sanction, and generally it is appropriate only when a party's conduct is serious, repeated, extreme, and otherwise inexcusable. In this case, the illustrator failed to attend the pretrial conference on two occasions and did not comply with the judge's order requiring prior notice by telephone if he could not make the conference. However, the illustrator's conduct was excusable in each case due to family emergencies. Therefore, while the judge could have imposed some sanctions, dismissal is not appropriate because the illustrator's conduct, although repeated, was not serious, extreme, or otherwise inexcusable. Answer choice A is incorrect because dismissal of a case is a permitted sanction in such circumstances. Answer choices C and D are incorrect. Although the failure to attend the pretrial conference or obey a pretrial order are possible grounds for dismissing a case, as discussed above, dismissal is not proper here.

A widget manufacturer contracted in writing to deliver to a warehouse 500 tin widgets on November 1. In October, the price of tin rose, and the manufacturer could not obtain enough tin to fill the warehouse's order. However, the manufacturer still had leftover copper from a previous order that had been canceled. On November 1, the manufacturer delivered 500 copper widgets to the warehouse, explaining in good faith that it had no tin to work with and that the copper widgets were of a higher quality. The manufacturer then asked the warehouse to pay the contract price they had agreed upon for the lower quality tin widgets. The warehouse refused to accept the copper widgets and refused to pay the manufacturer any money. Which of the following most accurately describes the legal relationship between the warehouse and the manufacturer? The warehouse must give the manufacturer an opportunity to cure the breach before bringing a claim against the manufacturer. The warehouse can immediately bring a valid breach of contract claim against the manufacturer for its failure to deliver tin widgets. The manufacturer's duty under its contract with the warehouse was excused by the unavailability of tin. The manufacturer can immediately bring a valid breach of contract claim against the warehouse for rejecting the copper widgets.

Answer choice B is correct. Under the UCC, the basic obligations of a seller are to transfer ownership of the goods to the buyer and to tender goods conforming to the warranty obligations. The UCC requires "perfect tender," and substantial performance will not suffice except for installment contracts, or when the parties agree that it applies. Thus, under the UCC's perfect tender rule, the manufacturer has breached the contract with the warehouse, and the warehouse can immediately bring an action against the manufacturer. Answer choice A is incorrect because the warehouse has no obligation to allow the manufacturer to cure the breach of this contract before bringing an action, as the time for performance has elapsed and there are no facts to indicate the manufacturer had reasonable grounds to believe that the warehouse would accept despite the nonconformity. Answer choice C is incorrect because non-extraordinary increases in the cost of performance are not sufficient to excuse performance. Answer choice D is incorrect because the warehouse was entitled to reject this nonconforming shipment of copper widgets by the manufacturer, despite their higher quality. Therefore, the manufacturer does not have a claim against the warehouse for breaching its duty to purchase the widgets.

A municipality was sued by a resident of the municipality in federal district court under 42 U.S.C. § 1983 for violation of his constitutional rights. The resident sought general damages of $75,000 and punitive damages of $100,000. The court required the parties to submit proposed jury instructions prior to trial. Both the resident and the municipality each submitted differing jury instructions on the issue of damages. The instructions submitted by the resident with regard to damages were ultimately given by the court to the jury, and the municipality did not object. The jury rendered a verdict, assessing both general and punitive damages against the municipality in the amounts sought by the resident. The municipality appealed the verdict. On appeal, the appellate court determined that the trial court's jury instructions were in error because punitive damages could not be awarded as a matter of law under these facts. The appellate court vacated the award of punitive damages and ordered the trial court to enter a judgment for the municipality on the issue of punitive damages. Of the following, which is the most likely reason for the appellate court's action? a. The appellate court determined that the trial judge abused his discretion. b. The appellate court applied the plain error doctrine. c. The trial court disregarded the municipality's proposed jury instructions. d. The trial court required the parties to submit proposed jury instructions before the close of evidence.

Answer choice B is correct. Unless a party timely and properly objects on the record to an erroneous instruction given or proposed to be given by the court or to the court's failure to give an instruction timely requested by a party, the party generally cannot raise the matter on appeal. However, the appellate court can address a plain error with regard to the jury instructions that affects substantial rights. Here, the trial court's mistaken instructions regarding the right of the resident to collect punitive damages from the municipality led to the award of such damages, directly affecting the rights not only of the municipality but also ultimately the taxpayers of the municipality who most likely were not directly involved in the wrongdoing but would shoulder the burden of the punitive damages award.

In reporting on the death of a city official whose bullet-ridden body was found in a barren apartment, a newspaper attributed the death to a "drug deal that went sour." The newspaper reporter who filed the report had serious doubts about the official's involvement with drugs. Later, the newspaper determined that the official neither used nor sold illegal drugs, but instead was killed because he had been involved in a fraud scheme that went awry. The executor of the official's estate brought an action for defamation against the newspaper. The executor is unable to establish special damages. Who will prevail? Answers: A. The executor, because presumed damages are permitted for a libel action. B. The executor, because the newspaper acted with malice. C. The newspaper, because the city official was dead. D. The newspaper, because the statement regarding the city official's involvement in criminal activity was substantially true.

Answer choice C is correct. A deceased person cannot legally be defamed. The estate of the deceased official cannot maintain an action for defamation because the defamatory statement was made after the official's death. Answer choice A is incorrect, because, even though presumed damages are permitted in a libel action, there is no basis for an action under these facts. Answer choice B is incorrect because, even though the newspaper acted with a reckless disregard for the truth of its statement about the official's involvement in illegal drug activity, which is sufficient to constitute malice, the statement was made about a deceased person. Answer choice D is incorrect because a statement that a person has engaged in conduct that is substantially different from the conduct in which the person did in fact engage, such as different kinds of crime, is not considered to be true.

A shareholder brought a derivative action in federal district court on behalf of a closely-held corporation. At the time that the action was filed, the corporation had a total of nine shareholders. The complaint alleged that two of the three members of the board of directors had colluded to breach their duty of loyalty by usurping a corporate business opportunity prior to the shareholder's purchase of her shares. The complaint also alleged that a demand to take corrective action had not been made upon the board since such a demand would have been futile. The shareholder did not plead that she suffered special harm as a shareholder as a consequence of the directors' collusion. Of the following, which is a ground on which the court may dismiss the complaint for failure to state a claim upon which relief may be granted? A. The class of shareholders is not so numerous that joinder of all shareholders is impracticable. B. The shareholder failed to make a demand upon the board of directors to take corrective action. C. The shareholder did not own stock in the corporation at the time of the alleged wrong. D. The shareholder did not plead that she suffered special harm as shareholder.

Answer choice C is correct. A shareholder who brings a derivative action on behalf of a corporation must have owned stock in the corporation at the time of the wrong. Otherwise, the shareholder cannot pursue such an action. Here, the facts state that the board members allegedly usurped a corporate business opportunity prior to the shareholder's purchase of her shares. Because the shareholder did not own any shares at the time of the alleged wrong, the complaint should be dismissed. Answer choice A is incorrect. Since this is a derivative action brought to assert the rights of the corporation, the shareholder need not satisfy the requirement for a class action that joinder of all members of the class be impracticable because they are too numerous. Answer choice B is incorrect. A shareholder is generally required to plead with particularity that the shareholder has made a demand upon the board of directors that the board take corrective action. In the absence of a demand, however, the shareholder may state reasons why such a demand was not made. When, as is the case here, a majority of the directors is alleged to have participated in the wrongdoing, the shareholder may assert the futility of such a demand. Answer choice D is incorrect. Because this is a derivative action brought on the corporation's behalf, the shareholder need not establish that she has suffered harm as a consequence of the wrongdoing.

A state prohibits voting for a write-in candidate in both primary and general elections. However, the state provides a mechanism by which individuals who want to appear as candidates on the primary ballot, as well as groups that want to be classified as a party, can do so. Of the following, which is the best argument that a voter challenging the constitutionality of this ban on write-in candidates can make? A. The right to vote is a fundamental right, so the state ban is subject to strict scrutiny review. B. The state ban imposes a burden on the right of voters to select the candidates of their choice. C. The mechanism provided by the state does not provide for reasonable access to the ballot. D. The Fifteenth Amendment limits a state's power to regulate its own elections.

Answer choice C is correct. A state may ban all write-in candidates in both primary and general elections, at least when the state provides reasonable means by which a candidate can get on the ballot. Consequently, the best argument for challenging this ban is that the state fails to provide reasonable means by which a candidate can get on the ballot. Answer choice A is incorrect because, while the right to vote is a fundamental right, governmental restrictions on this right are not necessarily subject to strict scrutiny review. A state may ban all write-in candidates in both primary and general elections, at least when the state provides reasonable means by which a candidate can get on the ballot. Answer choice B is incorrect because, even though a state ban on write-in candidates does burden the right of voters to select candidates of their choice, this ban is not unconstitutional provided the state provides reasonable means by which a candidate can get on the ballot. Answer choice D is incorrect because, while the Fifteenth Amendment does limit the power of states to control their own elections, this amendment is limited to the denial of the right to vote by a state (or the federal government) on the basis of race, color, or previous condition of servitude. The denial of all write-in candidates, at least on its face, does not run afoul of this prohibition. Therefore, this rule is not the best argument for challenging this ban.

A defendant's father was asked prior to trial about whether his daughter had ever committed violent acts against animals as a child. Her father responded with a nod of his head up and down. He accompanied the nod with the statement, "Animals are one thing, but it's heartbreaking to think she could kill a child." During the defendant's trial for the murder of her own child, the prosecution sought to introduce into evidence the statement from the defendant's father, as well as the fact that her father nodded in response to the question, to demonstrate that the defendant had a violent history against animals. The father died immediately prior to the start of the trial. How should the court rule on these motions to admit the aforementioned evidence? A. Admit the evidence of the nod only as non-hearsay. B. Admit the evidence of the nod and the statement as non-hearsay. C. Refuse the admission of both the nod and the statement. D. Admit the evidence of the nod and the statement as hearsay falling under an exception.

Answer choice C is correct. A statement is a person's oral or written assertion, or it may be nonverbal conduct intended as an assertion. Fed. R. Evid. 801(a). An example of assertive conduct is a defendant nodding his head up and down to indicate a "yes" answer to a question. Here, the defendant's father was deceased and could not testify regarding his words, so the court was using the statements to prove the truth of the matter asserted—that the defendant had actually killed animals and been a violent person. The nod would constitute assertive conduct falling under the definition of hearsay and absent an exception, would be inadmissible. The statement was intended to prove the matter asserted. Answer choice A is incorrect because the nod is hearsay. Answer choice B incorrect because both the nod and the statement are hearsay. Answer choice D is incorrect because the facts do not indicate that the statement would qualify as an exception to the hearsay rules.

During legislative hearings on a new bill promoted by the President, a congressman made a defamatory statement about the President. That evening, the congressman appeared on a television news program, during which he repeated the defamatory statement in an attempt to entice citizens to contact their congresspersons to encourage them to vote against passage of the bill. In response, the President stated that the congressman was uninformed and possibly taking bribes, encouraging the rest of Congress to ignore the congressman's comments and vote in favor of the bill. If a civil suit for money damages is filed against either the President or congressman as a result of the statements, who may properly be held liable? A. Both the President and the Congressman, because each exceeded the immunity of his office. B. Neither the President nor the Congressman, because neither exceeded the immunity of his office. C. The Congressman only, because he exceeded his legislative immunity. D. The President only, because he exceeded his executive immunity.

Answer choice C is correct. Although members of Congress enjoy immunity for statements made in the regular course of the legislative process (i.e., during legislative hearings on a bill), the immunity will not protect statements made outside of Congress. Accordingly, the immunity will not extend to a "re-publication" of a defamatory statement, even if that statement was originally made in Congress. On the other hand, the president enjoys absolute executive immunity to civil suits for money damages for actions while he is in office. Answer choice A is incorrect because it both ignores the executive immunity and improperly extends the legislative immunity. Answer choice B is incorrect because it improperly extends the legislative immunity. Answer choice D is incorrect because it improperly states that the congressman enjoys immunity for the republication of the defamatory statement.

An employer filed suit in federal district court against a district director of the IRS for a refund of federal unemployment taxes that were allegedly wrongfully collected by the director under color of her legal authority. The employer now resides in the forum state, which has only one federal judicial district. For business reasons, the employer has recently moved from the state in which all the relevant events on which the claim is based took place and in which the director resides. The director has timely filed a motion to dismiss the action for improper venue. Should the court grant this motion? A. Yes, because the director resides in a state other than the forum state. B. Yes, because all of the relevant events on which the claim is based took place in a state other than the forum state. C. No, because the director was acting under color of her legal authority. D. No, because the court must transfer the case to the state in which all of the relevant events on which the claim is based took place.

Answer choice C is correct. An action against a federal officer or employee acting in an official capacity or under color of legal authority may be brought in the judicial district in which the plaintiff resides. Answer choice A is incorrect because, even though the state in which the director resides may be a forum in which this action could have been brought, this does not prevent the employer from bringing the action in the state in which he resides. Answer choice B is incorrect because, even though the state where all of the relevant events on which the claim is based took place may be a forum for the action, this fact does not prevent the employer from bringing the action in the state in which he resides. Answer choice D is incorrect because, while a court may transfer a case to another federal district in which it might have been brought, the court is not required to do so.

with kickback schemes is a witness entitled to 5th amendment protections and must they be informed that the information could lead to an investigation of them?

No, With indictments related to kickback schemes the 5th amendment does not prohibit the use of hearsay by grand jury in its decision to issue an indictment and no right to be informed that she is subject to investigation. - confusing, but MBE explanation.

Is impossibility a defense to attempted robbery or conspiracy?

No, because Attempt crimes and conspiracy require specific intent crimes and impossibility is not a defense to a specific intent crime.

A superintendent owned two adjacent buildings. The superintendent sold one of the buildings to a professor. The deed stated, in part: "The Professor, her heirs, and successors-in-interest, shall only paint the exterior of said building white or ivory in order to maintain aesthetic uniformity in the neighborhood." The deed was subsequently recorded. Ten years later, the professor sold the building to an artist, who promptly painted the exterior of the building red. The superintendent sued the artist for injunctive relief and the court ordered the artist to paint the building white or ivory. Which of the following would justify the court's decision? A. The superintendant retained an easement in gross. B. The building was subject to a real covenant. C. The building was subject to an equitable servitude. D. The building was subject to a license.

Answer choice C is correct. An equitable servitude is a nonpossessory property right created when: (i) there is an intent that a land use restriction is to be enforceable not only by parties to the agreement but also by their successors-in-interest; (ii) if the person against whom the servitude is to be enforced is a purchaser, the person has actual, constructive, or inquiry notice of the servitude; and (iii) the servitude touches and concerns the land. Here, the language of the contract expresses a clear intent for the restriction to run to the professor's successors-in-interest, the artist had inquiry notice of the servitude because it was in the recorded deed, and the restriction as to color choice of the building touched and concerned the land because it affected the artist's actions as a landowner. Answer choice A is incorrect because an easement in gross is granted to benefit a particular person, does not run with the land, and therefore cannot be claimed or enforced by a successor-in-interest. Answer choice B is incorrect because only monetary damages, and not injunctive relief, are available to enforce a real covenant. An equitable servitude is enforceable by an injunction. Answer choice D is incorrect because a license is a non-possessory right to enter another's land for some delineated purpose.

A wealthy bicycle aficionado loaned one of his bicycles to a cyclist for use in a race. After the race, the cyclist failed to return the bicycle despite repeated requests by the aficionado. Several months later, while walking through the park, the aficionado happened upon the cyclist riding another bicycle that was the same make, model, and color as the aficionado's bicycle. Believing it to be his bicycle, the aficionado, standing only inches away from the bicycle, verbally threatened to grab the bicycle out from under the cyclist if he did not hand it over immediately. The cyclist, fearful of such an attack, surrendered the bicycle to the aficionado. Of the following, what is likely the most serious offense of which the aficionado could be properly convicted? A. Robbery B. Larceny C. Assault D. No crime

Answer choice C is correct. Assault is (i) an attempt to commit a battery, or (ii) intentionally placing another in apprehension of imminent bodily harm. Battery is the (i) unlawful (ii) application of force (iii) to another person (iv) that causes bodily harm to that person or (v) constitutes an offensive touching. With regard to the "fear of harm" type of assault, although the cyclist was fearful of the aficionado carrying out his threat, the threat was not to inflict imminent bodily harm on the cyclist, but instead to recover the bicycle. By contrast, with regard to the attempted battery version of assault, the verbal threat made by the aficionado coupled with his proximity to the bicycle makes it likely that he took a substantial step towards committing a battery. Although the aficionado did not threaten to harm the cyclist, he did threaten an offensive touching of the bicycle which was attached to the cyclist's person. The cyclist's apprehension of this offensive touching occurring was likely reasonable, given the aficionado's verbal threat and proximity to the bicycle. Even though he made a reasonable and honest mistake of fact that the bicycle in question was his bicycle because both were the same make, model, and color, the aficionado has no right to recover his own bicycle by the use of force when he voluntarily relinquished possession of it to the cyclist initially. Consequently, although the aficionado did not commit the "fear of harm" type assault, he did commit the attempted battery type of assault. Answer choice B is incorrect. Larceny is the (i) trespassory (ii) taking and carrying away (iii) of the personal property of another (iv) with the intent to permanently deprive that person of the property (i.e., intent to steal). A mistake of fact is a defense to a specific-intent crime, even if the mistake is unreasonable. Here, the aficionado had a reasonable and honest belief that the bicycle in question was his bicycle. Consequently, he did not have the specific intent to take the personal property of another and therefore did not commit larceny. Answer choice A is incorrect. Robbery is larceny from the person or presence of the victim by force or intimidation. Although the aficionado did gain possession of the bicycle through intimidation, because he did not commit larceny, he also cannot have committed robbery. Answer choice D is incorrect because, although the aficionado did not commit robbery or larceny, he did commit assault.

A state statute created a scheme by which the prices paid by its citizens for prescription drugs were subject to state regulation. The Supreme Court found that this statute violated the Dormant Commerce Clause of the U.S. Constitution. Congress subsequently passed legislation, signed into law by the President, that authorized the scheme adopted by the state in the form of a federal statute. The constitutionality of this federal statute has been challenged in federal court. How is the court likely to rule on this challenge? A. Uphold the challenge, because of the separation of powers doctrine. B. Uphold the challenge, because the job of defining the constitutionality of a statute rests with the Supreme Court. C. Deny the challenge, because of the plenary power granted to Congress under the Commerce Clause of Article I, Section 8. D. Deny the challenge, because of the Supremacy Clause of Article IV, Section 2.

Answer choice C is correct. Because Congress has exclusive authority over interstate commerce, it may explicitly permit states to act in ways that would otherwise violate the Dormant Commerce Clause. Even assuming that the scheme in question only affected intrastate activity, Congress would have the power to legislate so long as there was a rational basis for concluding that the "total incidence" of the activity in the aggregate substantially affects interstate commerce.

A restaurant management group brought an action for negligence against a chef of one of its restaurants, claiming that his actions resulted in the burning down of the restaurant where he worked. At trial, it was established that the chef had been experimenting with high-flame cooking techniques after the restaurant was closed. The restaurant management group claimed that the chef started the fire by attempting to use the high-flame techniques while inebriated. The chef, however, contended that the restaurant burned down due to faulty wiring. An investigation of the fire was inconclusive as to its cause. When the owner of the building where the restaurant was located was called to the witness stand, he testified that the fire was likely caused by faulty wiring, as there had been some minor wiring issues in the past. On cross-examination, the restaurant management group attempted to enter into evidence a fire insurance policy on the restaurant in the building owner's name that would pay out $750,000 for fires stemming from malfunctioning restaurant equipment, faulty wiring, or other related issues; it would not pay out for fires caused by the negligent conduct of restaurant employees. Is evidence of the fire insurance policy admissible? A. No, because admission of the fire insurance policy would be against public policy. B. No, because the fire insurance policy is not relevant as it was not in the chef's or restaurant management group's name. C. Yes, because it shows that the building owner's testimony may be biased as to the cause of the fire. B. Yes, because there is no public policy exclusion related to liability insurance in negligence cases.

Answer choice C is correct. Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. However, such evidence may be admissible for another purpose, such as to prove agency, ownership, or control, or to prove a witness's bias or prejudice. In this case, the fire insurance policy is admissible because it shows that the building owner may be biased with regards to his opinion as to the cause of the fire. Answer choice A is incorrect because although evidence of liability insurance is inadmissible to show negligence or wrongdoing, the fire insurance policy is being admitted for another purpose—to show the building owner's bias. Answer choice B is incorrect because the restaurant management group is trying to prove the building owner's bias. Thus, the fact that the policy is in the building owner's name is relevant and only strengthens its argument. Answer choice D is incorrect because evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully, regardless of whether it is admitted in a criminal or a civil case.

A butcher and a seller entered into a written contract for the purchase and sale of a building to be used as a butchery. The closing was scheduled for June 1. On May 25, the seller was notified by the city that the building, which had previously been used as a butchery, had a number of significant city code violations. The seller immediately contracted with an electrician and others to correct the issues. Despite his best efforts, the seller realized the building would not be brought up to code until at least June 10. The seller promptly sent written notification of this issue to the butcher and informed him that he would be unable to take possession of the building until June 10. Based on his agreement with the seller, the butcher had declined to renew his lease at his current location and was forced to remove his equipment and inventory from his current location by the end of May. Between June 1 and June 10, to prevent spoilage of his inventory due to the delay, the butcher had to rent space to store his equipment and inventory. He moved his freezer to the rented space to store his meat at a cost of $200 per day, plus the cost of electricity to run the freezer. On June 10, the building was up to code. The butcher paid the seller the agreed-upon purchase price of $300,000 and took possession of the property. What damages, if any, may the butcher recover from the seller? A. Nothing, because the seller acted in good faith. B. Nothing, because the contract did not contain a "time is of the essence" clause. C. $2,000, the rental cost he had to pay from June 1 to June 10. D. $2,000 plus the cost for electricity to run the freezer.

Answer choice C is correct. Expectation (benefit-of-the-bargain) damages are intended to put the nonbreaching party in the same position as if the contract had been performed as agreed. Expectation damages must be calculated with reasonable certainty. If the seller breached but acted in good faith, then damages are limited to the buyer's out-of-pocket expenses. In this case, the butcher is entitled to be compensated for the loss that resulted from the seller's (minor) breach, which is the $2,000 in rental costs that the butcher had to pay from June 1 to June 10. Answer choice A is incorrect. The seller remains liable for breach even though he acted in good faith. However, the seller's good faith limits the butcher's damages to out-of-pocket expenses only. Answer choice B is incorrect because the absence of a "time is of the essence" clause in the contract does not prevent the butcher from recovering his out-of-pocket expenses from the seller. Answer choice D is incorrect because the butcher would have had to pay the same cost for electricity to run the freezer in the building he purchased if he had been able to move in.

The owner of a convenience store was in the back of his store when he heard a loud noise. When he walked to the front of the store to determine the cause of the commotion, he saw that a large pile of canned goods had just fallen. Around that time, a woman walked into the store wearing a large coat despite the warm weather outside. The woman was bedraggled and smelled of liquor. The owner correctly ascertained that the woman neither caused the canned goods to fall nor stole anything. However, he assumed that she entered the store intending to steal. The owner therefore ordered the woman to go to the back office, where he questioned her for two hours. While he left the door to both the office and the store unlocked, he continually threatened that if the woman did not comply with questioning or left the room, he would have her arrested the next time he saw her around his store. The woman was obviously confused and anxious but never left or asked to leave the room at any point. Would the owner's actions constitute false imprisonment? A. Yes, because the questioning lasted for over two hours. B. Yes, because the owner's actions were not reasonable. C. No, because the woman was not confined or restrained. D. No, because the woman was a suspected shoplifter.

Answer choice C is correct. False imprisonment results when a person acts: i) intending to confine or restrain another to a bounded area; ii) those actions directly or indirectly result in such confinement; and iii) the other is conscious of the confinement or harmed by it. The defendant may confine or restrain the plaintiff by the use of physical barriers, physical force, direct or indirect threats (to the plaintiff, a third party, or plaintiff's property), failure to provide a means of escape, or invalid use of legal authority. The defendant's use of moral pressure or future threats does not constitute confinement or restraint, and a plaintiff is not imprisoned if she willingly submits to confinement. Here, the door was unlocked for the woman to leave at any time, and the only threats exhibited were future threats. Answer choice A is incorrect because even if the questioning lasted longer than was reasonable, no confinement actually occurred. Answer choice B is incorrect because the woman was not detained, and therefore it is not necessary to determine whether the owner's actions were reasonable, and thus whether he may be protected by the shopkeeper's privilege. Answer choice D is incorrect because there was no detention, and thus the shopkeeper's privilege is not implicated. Moreover, the owner could not validly assert the privilege, which allows a shopkeeper to reasonably detain a suspected shoplifter, because the woman was not a suspected shoplifter.

The holder of a trademark sued an entrepreneur in federal court for damages resulting from the breach of an agreement that granted the entrepreneur exclusive use of a trademark in a specified geographic area. Although the weight of the evidence regarding the breach was clearly against the entrepreneur, there was substantial evidence to support the entrepreneur's position. The jury rendered a verdict in favor of the entrepreneur and the trial court entered a judgment accordingly. On appeal, the trademark holder sought to have the judgment set aside because the verdict was against the weight of the evidence. How should the appellate court rule? A. Set aside the judgment, because the verdict was against the weight of the evidence. B. Set aside the judgment, because the issue was one that should have been decided by the court. C.Affirm the judgment, because there was substantial evidence to support the verdict. D. Affirm the judgment, because the appellate court is precluded from setting aside a jury verdict by the Seventh Amendment.

Answer choice C is correct. In determining whether to set aside a jury verdict, it is not sufficient that the verdict is against the weight of the evidence. Some appellate courts refuse to set aside a jury verdict if there is substantial evidence supporting the verdict. Other courts require only sufficient evidence to sustain a jury verdict. Still others uphold a jury verdict unless there is no evidence to support the verdict. Because there was substantial evidence to support the verdict in this case, the judgment should be affirmed regardless of the requisite level of evidence necessary to support the verdict in the applicable jurisdiction.

A man was involved in a serious car accident with another driver and a motorcyclist. The man brought an action for negligence against the driver and the motorcyclist. After a lengthy trial, the jury concluded that the man's total damages were $200,000. The jury found the man to be 50% at fault for the accident. The driver was found to be 30% at fault and the motorcyclist was found to be 20% at fault. The jurisdiction has adopted pure comparative liability and joint and several liability. Which of the following is the maximum amount the man may recover from the motorcyclist? A. Nothing. B. $40,000 C. $100,000 D. $200,000

Answer choice C is correct. In jurisdictions that have adopted the doctrine of pure comparative negligence, a plaintiff's contributory negligence is not a complete bar to recovery. Instead, the plaintiff's full damages are calculated by the trier of fact and then reduced by the proportion that the plaintiff's fault bears to the total harm. Under the doctrine of joint and several liability, each of two or more defendants who is found liable for a single and indivisible harm to the plaintiff is subject to liability to the plaintiff for the entire harm. In this case, the total damages were $200,000. The man was found to be 50% at fault. Thus, the man can recover a total of $100,000. Because the jurisdiction follows joint and several liability, the man can recover the entire $100,000 from the motorcyclist. Answer choice A is incorrect because a plaintiff in a pure comparative liability jurisdiction can always recover, unless he is found to be 100% at fault. Answer choice B is incorrect because $40,000 represents the motorcyclist's share of the total damages. This would be the correct answer if the jurisdiction applied several—rather than joint and several, liability. Answer choice D is incorrect because the total damages are reduced by the proportion that the man's fault bears to the total harm. Here, the total damages are reduced by $100,000 because the man was 50% at fault.

A telephone company was removing wooden utility poles on a residential street and replacing them with new steel poles. The old poles were approximately 25 feet tall, and weighed several tons each. One morning, telephone company employees were removing an old pole. As a 10-year-old boy walked past the construction site, the old utility pole fell and crushed him to death. When the news was conveyed to the boy's mother, who was at work several miles away, she immediately fainted. For the next 48 hours, the mother was unable to function due to shock over the event. In the following months, the mother had difficulty sleeping due to nightmares as a result of the incident. The mother sued the telephone company for negligent infliction of emotional distress stemming from her son's death. She produced evidence at trial conclusively establishing that the telephone company was negligent in allowing the old utility pole to fall. The applicable jurisdiction has abandoned the zone of danger requirement for this type of action. Which party is likely to prevail? A. The mother, because she was closely related to the boy. B. The mother, because she suffered severe emotional distress. C. The telephone company, because the mother was not present at the scene of the accident. D. The telephone company, because its actions were not extreme and outrageous.

Answer choice C is correct. In order for a person who is not within the zone of danger to recover under a theory of negligent infliction of emotional distress, she must (i) be closely related to the person injured by the defendant, (ii) be present at the scene of the injury, and (iii) personally observe (or otherwise perceive) the injury. In the instant case, the mother was not present at the scene of the accident. Thus, the mother's claim cannot succeed. Answer choice A is incorrect because although a bystander must be closely related to the person directly harmed in order to recover, the existence of this relationship is not the sole requirement for recovery. Similarly, answer choice B is incorrect because, although the mother's fainting, shock, and sleeping problems are sufficient indicia of severe emotional distress, the existence of such distress is not the sole requirement for recovery. Answer choice D is incorrect because "extreme and outrageous conduct" is an element of intentional infliction of emotional distress, not negligent infliction of emotional distress.

A defendant is on trial for robbery. A witness picked the defendant's picture out of a photo array that was conducted by a police officer at the police station after the defendant's arrest. The photo array was impermissibly suggestive. No counsel was present for the defendant at the photo array. Later, at trial, the witness identified the defendant. Because of the witness's extended opportunity to view the defendant at the time of the crime, this identification was reliable. The defendant moves to suppress the identification. Should the court grant this motion? Answers: A. Yes, because the defendant's right to counsel was violated. B. Yes, because the identification procedure was impermissibly C. No, because the identification was reliable. D. No, because the photo array was conducted by a police officer at a police station.

Answer choice C is correct. In order for a witness to be prevented from identifying the defendant in court due to a previous impermissibly suggestive photo array, the defendant must demonstrate that there was a substantial likelihood of misidentification, which is not the case here. Answer choice A is incorrect because there is no right to counsel at a photo identification. Answer choice B is incorrect because, even though the identification procedure was impermissibly suggestive, the witness's in-court identification was reliable. Answer choice D is incorrect because neither the location of the photo array nor the identity of the person who conducted it is relevant to the issue of whether the witness's in-court identification of the defendant should be suppressed.

A plaintiff, a citizen of State X, sued a defendant, a citizen of State Y, for negligence in federal district court in State X under diversity jurisdiction, in connection with an automobile accident that occurred in State Y. The defendant has had no contacts with State X. The plaintiff personally served the defendant with a summons and complaint at his home in State Y. The defendant's first response to the complaint was an answer that specifically denied the plaintiff's claims but omitted the defense of lack of personal jurisdiction. Fifteen days after serving the answer on the plaintiff, the defendant amended the answer to include the defense of lack of personal jurisdiction without asking leave of the court. Which of the following statements is most accurate regarding the defendant's actions? The defense of lack of personal jurisdiction was permanently waived when the defendant's answer failed to include it. The defense of lack of personal jurisdiction has been waived unless the court subsequently grants the defendant leave to amend his answer. The defense of lack of personal jurisdiction was not waived and may be asserted by the defendant. The defense of lack of personal jurisdiction can never be waived and may always be asserted by a defendant.

Answer choice C is correct. Pursuant to Rule 15(a)(1)(a), a party may amend its pleading once as a matter of course within 21 days after serving it. Under Rule 12(h)(1)(B), a party waives the defense of lack of personal jurisdiction by failing to include it in a pre-answer motion, a responsive pleading, or in an amendment allowed by Rule 15(a)(1), as a matter of course. Here, the defendant included the defense of lack of personal jurisdiction in an amendment made within 21 days after serving its answer. Accordingly, the defense was not waived and may be asserted by the defendant in the case. Answer choice A is incorrect. The failure to include the defense of lack of personal jurisdiction in the defendant's answer would have waived the defense, but the defendant subsequently amended his answer within 21 days of serving it to include the defense. Answer choice B is incorrect. Because the defendant amended the answer within 21 days of serving it, leave of court is not required to amend, pursuant to Rule 15(a)(1)(a). Answer choice D is incorrect. The defense of lack of personal jurisdiction (unlike lack of subject matter jurisdiction) can be waived, as discussed above.

A man well over six feet tall decided to rob a convenience store. The man walked into the store, handed the store clerk, who was five feet tall, a bag and told her to put all the money from the cash register in the bag or he would kill her. The clerk, believing the man due to his large stature even though he did not display a weapon, put the money from the register into the bag. A police officer entered the store just as the clerk finished. The man, unsettled by the police officer's presence, left the bag and walked out of the store before the stunned clerk could alert the police officer. The man has been charged with robbery. Can he properly be convicted of this crime? A. Yes, because the man entered the store with the intent to rob it. B. Yes, because the clerk was intimidated by the man. C. No, because the man did not take the bag. D. No, because the man did not display a weapon.

Answer choice C is correct. Robbery is larceny from the person or presence of the victim by force or intimidation. Larceny is the (i) trespassory (ii) taking and carrying away (iii) of the personal property of another (iv) with the intent to steal. Here, it can be argued that the man took the money by compelling the clerk to place the money in his bag. However, in addition to taking, larceny requires the defendant to carry the property away. Although this element of the crime, also known as asportation, requires only a slight movement of the property, the man did not take the bag from the clerk and therefore did not carry the money away. Consequently, because the man has not committed larceny, he cannot be convicted of robbery.

A mechanic and his former employee were indicted for automobile theft. Unbeknownst to the mechanic, the former employee confessed to the crime and implicated his employer. In exchange for favorable treatment by the prosecutor, the former employee agreed to cooperate in the prosecution of the mechanic. The police were also investigating the mechanic for an alleged plan to kill another person who was to serve as a witness for the state at the mechanic's trial. The mechanic sought a meeting with the former employee. Upon learning of the proposed meeting, the police wired the former employee in order to record the conversation between the mechanic and the former employee. The police directed the former employee to encourage the mechanic to talk about his criminal activity. At the meeting the mechanic made incriminating statements about stealing automobiles. The mechanic's lawyer filed a pretrial motion to suppress these statements on the grounds that his client's right to counsel was violated. Should the court grant this motion? A. No, because the statements were obtained by police during an investigation of a possible crime, a plan to murder a witness, for which the right to counsel had not attached. B. No, because the mechanic initiated the meeting with his former employee. C. Yes, because the police knowingly used the former employee to elicit incriminating statements from the mechanic about the charged crime. D. Yes, because the police used a secret agent to obtain the incriminating statements.

Answer choice C is correct. Since the right to counsel attaches upon the initiation of formal proceedings against the accused, such as indictment, the police cannot seek to elicit incriminating statements from the accused about the crime without the presence of the accused's lawyer unless the accused waives his right to counsel. Seeking such information through a private person who acts as an agent of the police is also prohibited. Answer choice A is incorrect because the fact that the police were also investigating the accused in regard to an uncharged crime for which the right to counsel had not attached does not excuse or justify the police action in seeking to elicit incriminating statements about the charged crime. Answer choice B is incorrect because, even though the accused initiated contact with an unknown police informant, the accused does not waive his right to counsel simply by initiating such contact since the accused is not aware that the informant is acting on behalf of the police. Answer choice D is incorrect because the police are not prohibited from obtaining incriminating statements from the accused through the use of a secret agent so long as the agent does not actively solicit incriminating information from the accused.

An older man was corresponding daily with a 13-year-old girl in an online chat room called Minors for Men. The older man knew that the girl was a minor because they discussed her age and the trials and tribulations of being a teenager during their many online chats. In addition, the girl sent a picture of herself to the older man and it was clear that she was a minor. The two agreed to meet, and they ended up having sexual intercourse. The older man's wife discovered the relationship when she was looking through his Internet history. She reported him immediately to the authorities and the older man was arrested. The girl found out, and revealed to the authorities that she was actually 23 years old, but she looked very young and she enjoyed role-playing. Can the older man be found guilty of attempt to commit statutory rape? A. No, because it was factually impossible for the older man to commit statutory rape of a 23-year-old woman. B. No, because it was legally impossible for the older man to commit statutory rape of a 23-year-old woman. C. Yes, because the older man sincerely believed that the girl was 13 years old. D. Yes, because mistake of fact is a defense to statutory rape.

Answer choice C is correct. Statutory rape is sexual intercourse with a person under the age of consent. The man intended to have sexual intercourse with a minor. Impossibility is not a defense to attempt if the crime attempted is factually impossible to commit due to circumstances unknown to the defendant. If the girl had actually been only 13 years old, then there would have been a crime committed. Further, the MPC crime of attempt (as well as many jurisdictions) requires the performance of a substantial step to support a conviction of attempt, which the man performed here. Answer choice A is therefore incorrect. Answer choice B is incorrect because legal impossibility does not apply to this situation. Legal impossibility is a defense if the act intended is not a crime; the defendant cannot then be guilty of attempt. Statutory rape is a crime, so the older man is guilty of attempt. Answer choice D is incorrect because statutory rape is a strict-liability crime with respect to the age of the victim. Thus, a defendant's reasonable mistake of fact concerning the victim's age is not a defense.

Who can be requested to be excluded from the court in a criminal hearing so that they do not hear another witnesses testimony?

At a party's request, the court must order the exclusion of a witness from the courtroom so that the party cannot hear the testimony of the other witnesses, unless an exception applies. There is an exception for a person whose presence is essential to the presentation of a party's case, such as the police officer in charge of investigating a criminal case.

A prisoner in a state penitentiary filed a habeas corpus petition with the highest state appellate court as required by state procedural rules. The prisoner alleged that his imprisonment was a result of the ineffective assistance of counsel at his trial in state court in violation of his federal constitutional rights. The state court denied the petition on the grounds that it was untimely. Unlike the federal procedural rules that require a habeas corpus petition to be filed within one year, the applicable state procedural rules do not fix a specific time period for filing a habeas corpus petition. Instead, the state's highest court requires a habeas corpus petition to be filed without substantial delay after the time a petitioner knows or reasonably should have known of the information that supported the grounds for the petition. The prisoner filed his petition approximately five years after his conviction became final. He gave no reason for the delay in his petition. The petitioner has sought review of the state court's denial of his petition by the United States Supreme Court. Which of the following reasons would best support the United States Supreme Court's denial of this petition? A. Supremacy Clause of the United States Constitution B.Erie Doctrine C. Adequate and Independent State Grounds Doctrine D. Tenth Amendment to the United States Constitution

Answer choice C is correct. The Adequate and Independent State Grounds Doctrine operates to forestall review by the U.S. Supreme Court of a final state-court judgment based on state law that is independent of federal law and adequate to support the judgment. A judgment by a state court may be adequate even if it prevents a party from litigating a federal right on the basis of a state procedural rule. The rule may even permit the state court to exercise discretion so long as the rule is not being utilized to discriminate against claims of federal rights. Answer choice A is incorrect. The Supremacy Clause does not grant the Supreme Court power to hear appeals; rather, that power is conferred by Article III of the Constitution. The Supremacy Clause would come into play only if the Court had jurisdiction, in which case it would have to apply federal law over contrary or inconsistent state law. Answer choice B is incorrect because the Erie Doctrine determines the law to be applied in a diversity action brought in federal district court. Answer choice D is incorrect because, while the Tenth Amendment, by its terms, serves as a check on the power of the federal government, this amendment has not been interpreted by the U.S. Supreme Court as a limitation on its power to review state court decisions involving a federal question.

A father who owned land in fee simple absolute devised the land by will as follows: "To my daughter, her heirs and assigns; but if my son is alive twenty-five years from the date of my death, then to my son, his heirs and assigns." Shortly after the father's death, the son learned that he has a terminal illness. Currently, the son is alive and the daughter has given birth to a child. The jurisdiction continues to adhere to the common law Rule Against Perpetuities. Which of the following is the best argument that the daughter currently owns the land in fee simple absolute? A. The daughter has an heir. B. The son will die before his interest becomes possessory. C. There can be no future interest after the grant of a fee simple absolute. D. The son's interest could not have become possessory within twenty-one years after his father's death.

Answer choice C is correct. The daughter's best argument is that, reading her father's devise from left to right ("to my daughter, her heirs and assigns"), he granted her the land outright without any conditions. Having done so, he could not then place conditions on that grant. Answer choice A is incorrect because use of the phrase "her heirs and assigns" is an accepted, but no longer required way in which the grantor can indicate his intent to convey a fee simple absolute interest in the property. The grantee is not required to have heirs (or assigns) in order to take the property in fee simple absolute. Answer choice B is incorrect because, if the daughter's argument is rejected, then the son has an executory interest in the land. Although upon the son's death his executory interest will cease to exist, currently the son is alive. Answer choice D is incorrect because the Rule Against Perpetuities does not require that a future interest become possessory within a life in being plus 21 years, but that it vest within that time period. Moreover, as the son was a life in being at the time of his father's death, it would be known within his lifetime whether he lives for 25 years after his father's death.

A defendant is convicted of murder and properly sentenced to life imprisonment. Subsequently, the family members of the victim bring a wrongful death action against the defendant. They seek to introduce a properly authenticated, certified copy of the final judgment to show that the defendant wrongfully killed the victim. The defendant objects to the introduction of the judgment. May the plaintiffs introduce the copy of the final judgment from the defendant's criminal case? A. No, because a copy of the judgment does not satisfy the original document rule. B. No, because the judgment is inadmissible hearsay. C. Yes, because the defendant was found guilty of a crime punishable by death or imprisonment of more than one year. D. Yes, because any criminal judgment is admissible in a subsequent civil action.

Answer choice C is correct. The judgment of a conviction in the criminal case is hearsay because it is being introduced to prove that the defendant is responsible for the wrongful death of the victim. Nonetheless, it is admissible under a hearsay exception that permits the admission of such a judgment where the crime is punishable by death or imprisonment of more than one year. Since murder is such a crime, the defendant's judgment of conviction is admissible under the hearsay exception. Answer choice A is incorrect because the original document rule permits the introduction of a certified copy of a public record. Answer choice B is incorrect because, although the judgment is hearsay, the judgment is admissible under a hearsay exception. Answer choice D is incorrect because only criminal judgments of conviction may be admitted in a subsequent civil action when the conviction was for a crime punishable by death or imprisonment for more than one year.

After consuming too much alcohol, an actor tripped over his own feet and smashed face first into a sidewalk. The actor delayed seeking medical attention for his facial injuries for several days, which aggravated those injuries. When the actor finally sought treatment from a plastic surgeon, the plastic surgeon negligently performed the operation on the actor's face. After surgery, the actor failed to follow the surgeon's post-operative instructions. All of the actor's actions coupled with the surgeon's negligence contributed to the actor's permanent facial scarring. The actor received reimbursement for some of his medical expenses from an insurer under a health insurance policy. The actor sued the plastic surgeon for damages attributable to the surgeon's medical treatment of the actor's facial injuries. The applicable jurisdiction has not modified the common law collateral-source rule. Assuming that the monetary effect of each of the following can be established with reasonable certainty, which can be taken into account to reduce the damages to which the actor would otherwise be entitled due to the surgeon's negligence? Answers: A. The plaintiff's negligent behavior that initially led to his facial injuries. B. The plaintiff's failure to promptly seek medical care. C. The plaintiff's failure to follow the surgeon's post-operative instructions. D. The reimbursement for medical expenses received by the plaintiff.

Answer choice C is correct. The plaintiff must take reasonable steps to mitigate damages. A failure by the plaintiff to mitigate his damages can be taken into account in determining the amount of the plaintiff's damages. Answer choices A and B are incorrect because the plaintiff's conduct, while contributing to the plaintiff's injuries, produced the condition that the defendant undertook to treat. Consequently, the surgeon is not liable for such injuries, but only for the harm caused by the surgeon's negligent treatment of those injuries. Answer choice D is incorrect because the jurisdiction continues to adhere to the collateral-source rule and therefore the defendant cannot reduce his damages by amounts received by the plaintiff from a third party.

A defendant owned a gun shop. Due to the recent local surge in gun-related crimes, there was an urgent, valid public interest to ensure that the gun shops were only selling guns to individuals with valid gun permits. In response to this public interest, the police department decided to visit all gun shops in the area to ensure they were following proper gun-sale procedures. Pursuant to this plan, but without a valid search warrant, the police entered defendant's gun shop during regular business hours and demanded to view his gun-sales logs in order to confirm that he sold guns only to individuals with valid gun permits. The police discovered that the defendant had sold numerous guns to individuals without valid gun permits, and arrested and charged the defendant for the illegal sale of guns. The defendant has moved to suppress evidence of the gun-sales logs. Should the court grant the defendant's motion? A. Yes, because the police engaged in an invalid warrantless search. B. Yes, because the police lacked probable cause to search the defendant's sales logs. C. No, because this search was valid without a warrant. D. No, because this invalid administrative search does not require suppression of the evidence.

Answer choice C is correct. The state may conduct warrantless searches of businesses in highly regulated industries due to an urgent public interest. Here, gun shops are a highly regulated industry, and the police had a reasonable plan supported by an urgent public interest to reduce the recent surge in gun violence. Therefore, this search was valid without a warrant.

A plaintiff sued a defendant in a patent infringement suit. To sustain his claim, the plaintiff was required to demonstrate the formula for a common chemical compound. The plaintiff produced three well-known chemistry texts containing explanations of the formula and asked the court to take judicial notice of the formula for the compound. Must the trial judge take judicial notice of the formula? A. No, because a party may not request that the court take judicial notice of a fact, the court may only take judicial notice of a fact on its own. B. No, because the court has discretion not to take judicial notice under these circumstances, if it so chooses. C. Yes, because judicial notice was requested by a party and the court was supplied with the necessary information. D. Yes, but only if the request was made before closing arguments in the case.

Answer choice C is correct. Under FRE 201, the court must take judicial notice of an adjudicative fact if a party so requests and provides the court with the necessary information to do so. Here, the fact at issue is an adjudicative fact in that it is not subject to reasonable dispute because it can be accurately and readily determined by resorting to sources whose accuracy cannot reasonably be questioned. The plaintiff made the request and provided the court with three well-known chemistry texts containing the fact. Accordingly, the court was required to take judicial notice of the fact at issue.

The United States Supreme Court, overruling Roe v. Wade and Planned Parenthood v. Casey, held that women do not have a constitutional right to abortion. Congress responded by passing the Abortion Rights Restoration Act (ARRA), which restored the essential holdings of Roe and Casey by prohibiting any government from unduly burdening a woman's exercise of the constitutional right to abortion. In a constitutional challenge to the validity of ARRA, is a federal court likely to strike down the act? A. No, because Congress had a rational basis for concluding that abortions are a commercial activity that, considered in the aggregate, substantially affect interstate commerce. B. No, because Congress is defining constitutional rights more expansively than the Supreme Court, not restricting them. C. Yes, because Congress is not remedying the violation of a judicially recognized constitutional right, but rather is attempting to create a new constitutional right. D. Yes, because it violates the constitutional principle of federalism.

Answer choice C is correct. Under Section 5 of the Fourteenth Amendment, Congress can only enforce constitutional rights as declared by the Supreme Court—not create new rights. In this case, Congress is attempting to create a constitutional right to an abortion, which has not been recognized by the Supreme Court. Answer choice A is incorrect because Congress in ARRA is not regulating the commercial or economic aspects of abortion and has set forth no facts indicating any connection of ARRA to interstate commerce. Rather, Congress is simply trying to overturn the Supreme Court's interpretation of the Constitution as not establishing a right to abortion. Answer choice B is incorrect because, under principles of separation of powers, Congress can neither expand nor contract constitutional rights as defined by the Supreme Court. Answer choice D is incorrect because, acting pursuant to Section 5 of the Fourteenth Amendment, Congress has the power to enforce rights created by the Fourteenth Amendment (as interpreted by the Supreme Court) against the states.

A large manufacturer, seeking to trim costs, entered into an agreement with an outside contractor to provide its employees with "appropriate and safe workplace tools and equipment," and to maintain that equipment in safe working order. A rotary saw provided by the outside contractor malfunctioned as a result of improper maintenance, and severely injured one of the manufacturer's employees. The employee sued the manufacturer for negligence. Is the employee likely to succeed? Answers: A. No, because the manufacturer was relieved of liability when it outsourced its activities to an independent contractor. B. No, because the manufacturer is free to subcontract functions that are not inherently dangerous. C. Yes, because a principal remains simultaneously liable for the torts of its independent contractor. D. Yes, because workplace safety is uniquely the responsibility of the manufacturer.

Answer choice D is correct. A company's duty to ensure the safety of its workforce is a critical function, and, therefore, a non-delegable duty. Consequently, the manufacturer's decision to outsource its equipment-supplying functions will not relieve it of liability associated with the negligent furnishing of faulty equipment. Answer choice A is incorrect for that reason. Answer choice B is incorrect because inherently dangerous activities are only one subset of non-delegable duties. Answer choice C is incorrect because employers are not liable for the torts of true independent contractors, except where (i) an employer is negligent in selecting an independent contractor, (ii) the function is inherently dangerous, (iii) the employer is a storekeeper or operator of premises open to the public and has the duty to keep the premises in a reasonably safe condition, or (iv) as in this case, the function is non-delegable.

A public university adopted the following policy: In order to be recognized as a student organization with rights to school facilities and funds, an organization must permit any student to be a member regardless of the student's status or beliefs. One student organization was a local chapter of a national organization that restricted membership in local chapters to members of a particular religious sect and denied membership to homosexual individuals. May the university apply its policy to the student religious group? A. No, because the policy violates the First Amendment Free Exercise Clause. B. No, because the policy violates the First Amendment Freedom of Association Clause. C. Yes, because a public university is free to allocate its funds among student groups in any rational manner it sees fit. D. Yes, because a public university is a limited public forum and the policy is content neutral.

Answer choice D is correct. A public school, as a designated limited public forum, may allocate access to school facilities and funds among student groups when the allocation is done in a manner that is viewpoint neutral. In this case, the university's policy was viewpoint neutral, and thus may be applied to the religious group.

A pest control company fumigated one of two buildings in an apartment complex with a toxic gas in order to eliminate unwanted insects. Even though the company exercised reasonable care, the gas escaped into the other building, which adjoined the fumigated building, where the gas caused serious illness to a tenant in that building. The tenant had received a written advance notice about the fumigation that advised the tenant of the need to vacate his apartment during the hours the fumigation was conducted. The tenant chose instead to remain there in order to watch a favorite television program. The applicable jurisdiction treats fumigation as an ultrahazardous activity. The injured tenant filed an action against the pest control company. Who will prevail? A. The tenant, because the pest control company is strictly liable for the harm that resulted from the fumigation. B. The tenant, because the pest control company was negligent in conducting the fumigation. C. The pest control company, because the tenant was not a resident of the fumigated building. D. The pest control company, because the tenant assumed the risk.

Answer choice D is correct. Although the pest control company, by engaging in an abnormally dangerous activity, is strictly liable for harm that results from the conduct of that activity, assumption of the risk is a defense to strict liability. The tenant's decision to remain in the apartment and thereby possibly expose himself to the gas was both knowing and voluntary. Answer choice A is incorrect because, as noted, even though the company is strictly liable, assumption of the risk is a defense to strict liability. Answer choice B is incorrect because the company exercised reasonable care in fumigating the building. Answer choice C is incorrect because the company's strict liability to the tenant is not based on residency in the fumigated building.

In a murder trial, the prosecutor plans to call an eyewitness to the stand to testify that he saw the defendant kill the victim. However, the witness recently suffered a severe head injury that seriously affected his memory. The witness can no longer remember witnessing the murder. Prior to the witness's injury, he testified to what he saw before the grand jury. The prosecutor would like to introduce the witness's grand jury testimony as substantive evidence that the defendant committed the murder. The defendant objects to the introduction of the evidence. Should the court admit the witness's grand jury testimony into evidence? A. Yes, because the witness is unavailable to testify. B. Yes, if used to refresh the witness's recollection. C. No, because the witness does not meet the "unavailability" standard. D. No, because the former testimony exception does not apply to these facts.

Answer choice D is correct. Although the witness is "unavailable" for the purposes of the hearsay rules (as will be discussed below), and there is a "former testimony" exception to the hearsay rule, the former testimony exception does not apply to grand jury testimony. Although grand jury testimony could be admissible as a prior inconsistent statement, because the witness is not testifying here, there is no statement that is "inconsistent" with a prior statement. To be admissible, the former testimony of an unavailable witness must be given under oath in a hearing or deposition, and the party against whom the testimony is being offered must have had an opportunity and similar motive to develop the testimony by direct or cross-examination; grand jury testimony does not meet this standard because the defendant does not have the opportunity to cross-examine grand jury witnesses. Answer choice A is incorrect because, as discussed above, even though the witness is unavailable to testify, grand jury testimony does not fall within the former testimony exception. Answer choice B is incorrect because items used to refresh the witness's recollection are not admitted into evidence and also because the witness has no recollection that can be refreshed. Answer choice C is incorrect because the witness does meet the standard for "unavailability." A witness is considered unavailable if that person is exempt on the grounds of privilege, refuses to testify, lacks memory of the subject matter of the statement, is unable to testify due to death or physical or mental disability, or is absent and cannot be subpoenaed or otherwise made to appear. The witness's lack of ability to remember the subject of his testimony due to a brain injury qualifies the witness as unavailable.

A state maintained its departments, including its Fish and Game Department, through tax revenues collected primarily from its residents. The department required all recreational deer hunters (i.e., those who hunt purely for sport) to obtain a deer hunting license. The license fee was $25 a year for state residents and $150 a year for out-of-state residents. An out-of-state resident wanted to go deer hunting for sport. He objected to paying a license fee that was six times the fee paid by in-state residents. He sued in an appropriate federal court. Will the court hold that the licensing fee scheme for recreational deer hunting is unconstitutional? A. Yes, because the scheme violates the Equal Protection Clause by discriminating against out-of-state hunters. B. Yes, because the scheme violates Article IV's Privileges and Immunities Clause by failing to accord out-of-state residents the same rights as state residents. C. No, because the scheme is constitutionally valid under the Dormant Commerce Clause, as the subject of the fees, deer hunting, is a recreational activity, not a commercial one. D. No, because the scheme is constitutionally valid under Article IV's Privileges and Immunities Clause, as recreational deer hunting is not a fundamental right, and a state may charge its residents a lower fee because their taxes support the Fish and Game Department.

Answer choice D is correct. Article IV's Privileges and Immunities Clause protects citizens of one state from discrimination by another state in their exercise of fundamental rights. Here, the state can charge higher licensing fees for out-of-state residents because recreational deer hunting is not a fundamental right, and the differential treatment is fair because state residents' taxes help to fund the state's Fish and Game Department. For this reason, answer choice B is incorrect. Answer choice A is incorrect because, since out-of-state deer hunters are not a suspect classification, the Equal Protection Clause merely requires that the state action satisfy the rational basis standard, which it does. Answer choice C is incorrect because the Dormant Commerce Clause applies only when a state discriminates against an out-of-state commercial actor, whereas here the out-of-state resident wishes to hunt for noncommercial, recreational purposes.

A retailer sponsored a game that required individuals to collect game pieces in order to win various monetary prizes. An employee of the retailer embezzled the rare game pieces necessary for the significant monetary prizes. The employee then separately contacted various individuals, each of whom was given a rare game piece. The employee did not disclose and the individuals did not learn that the employee gave game pieces to anyone else. Each individual then submitted the necessary game pieces, including the rare game piece provided by the employee, to the retailer for a monetary prize. In order to obtain a prize, each individual falsely stated that he had obtained all of the game pieces through authorized, legitimate channels. Upon receipt of the prize money, each individual paid 50 percent of the money to the employee, as previously agreed. Among other offenses, the employee and all of the individuals were charged with entering into a single conspiracy to obtain money from the retailer by false pretenses. Can the defendants properly be convicted of this conspiracy? A. Yes, because each individual falsely stated that he had obtained all of the necessary game pieces through authorized, legitimate channels. B. Yes, because each individual shared 50 percent of the prize received from the retailer with the employee. C. No, because only the employee embezzled the games pieces from the retailer. D. No, because the individuals did not know of the participation of the other individuals in the scheme.

Answer choice D is correct. At common law, conspiracy is (i) an agreement (ii) between two or more persons (iii) to accomplish an unlawful purpose (iv) with the intent to accomplish that purpose. Here, the unlawful purpose was to obtain money from the retailer by false pretenses. False pretenses is (i) obtaining title to the property (ii) of another person (iii) through the reliance of that person (iv) on a known false representation of a material past or present fact, and (v) the representation is made with the intent to defraud. In this case, each individual and the employee had the intent to obtain money from the retailer through the retailer's reliance on each individual's false representation that he had obtained all of the game pieces through authorized, legitimate channels. However, there was not an agreement among all of the individuals to participate in the employee's scheme, but only separate agreements between the employee and each individual to obtain money from the retailer by false pretenses. Consequently, the employee and all of the individuals cannot properly be convicted of entering into a single conspiracy. Answer choice A is incorrect. Although each individual satisfied the requirements for the crime of obtaining money by false pretenses, there was not an agreement among all of the individuals to participate in the employee's scheme, but only separate agreements between the employee and each individual to obtain money by false pretenses. Answer choice B is incorrect. Although the fact that each individual shared 50 percent of the prize received with the employee demonstrates the existence and furtherance of a conspiracy, that conspiracy only existed between the employee and each individual, not between the employee and all of the individuals in a single conspiracy. Answer choice C is incorrect because each person in a conspiracy need not engage in every illegal act necessary for the accomplishment of the purpose of the conspiracy.

A tenant leased a set of ten commercial storefronts spanning two city blocks. The lease was for a term of five years and complied with all relevant statutes. The lease was silent as to the effect of condemnation by the city. Three years into the lease, the city properly took one of the city blocks for public use pursuant to eminent domain and compensated the landlord accordingly. The city demolished five storefronts and began developing a public park. Upon this condemnation, the tenant stopped paying rent for all ten storefronts. In an appropriate action, the landlord sued the tenant for the unpaid rent on all ten storefronts. Is the landlord likely to succeed? A. No, because the lease terminated upon condemnation of some of the leased property. B. No, because the landlord breached the implied covenant of quiet enjoyment. C. Yes for the full amount, because the obligation under the lease is still in effect. D. Yes for half the amount, because the tenant is entitled to compensation.

Answer choice D is correct. Condemnation is the taking of land for public use or because it is unfit for use. The right of a tenant upon condemnation depends upon whether the condemnation is partial or complete. If the condemnation is partial, meaning only a portion of the leased property is taken, the tenant must continue to pay rent. The tenant is entitled to compensation for the portion that was taken. In this case, the condemnation was partial, as five of the tenant's ten storefronts were demolished. Due to the partial taking, the tenant is still required to pay rent according to the lease. However, the tenant must be compensated for losing half of his storefronts.

A witness who was not a defendant invoked his Fifth Amendment right to remain silent during a federal criminal trial for insider trading. After being given derivative-use immunity, the witness testified. Several weeks later, the witness was a defendant in a state-law civil fraud proceeding based on his previous testimony in the federal trial. He moved to dismiss the case on the grounds that the previous grant of immunity protected him against a future action against him. Will the defendant's motion be granted? A. Yes, because a grant of immunity can be given to a witness who is not a defendant. B. Yes, because the defendant was given derivative-use immunity. C. No, because the defendant's immunity was limited to federal prosecution. D. No, because the defendant's immunity does not extend to a subsequent civil trial.

Answer choice D is correct. Derivative-use immunity protects a witness from the use of the witness's own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit. Answer choice A is incorrect because, while it is true that a witness need not be a defendant in order to be given immunity, such immunity does not extend to use of the witness's testimony at a subsequent civil trial. Answer choice B is incorrect because immunity, whether transactional or derivative-use immunity, does not apply to subsequent civil actions. Answer choice C is incorrect because immunity is not limited to federal prosecution despite the "separate sovereignty" doctrine. However, it is limited to criminal prosecutions.

An adult woman was vacationing at a friend's house on a lake. One afternoon, the woman watched her friend maneuver his motorized personal watercraft around the lake; the friend took a particularly violent spill that temporarily knocked the wind out of him but left him otherwise unharmed. The next morning, without the friend's knowledge, she decided to take the personal watercraft out on the lake herself. Due to her inability to control the vehicle, it flipped over. As a consequence, the woman suffered serious physical injuries. The woman brought a lawsuit against the friend to recover damages for her injuries. The applicable jurisdiction has adopted comparative negligence rules. Prior to the submission of the case to the jury, the friend requested that the court specifically instruct the jury on the assumption of the risk defense. Should the court grant this request? Answers: A. Yes, because the woman voluntarily assumed the risk of being injured. B. Yes, because assumption of the risk is an absolute bar to recovery. C. No, because the defendant did not have the requisite knowledge for this defense. D. No, because assumption of the risk is not recognized as a separate defense.

Answer choice D is correct. In a comparative negligence jurisdiction, assumption of the risk is not recognized as a separate defense—it has been merged into the comparative-fault analysis and merely reduces recovery. The plaintiff's awareness of the risk of her conduct is generally taken into account in determining the degree to which she is at fault, but it can also be considered in determining the reasonableness of the plaintiff's or the defendant's actions. Answer choice A is incorrect because, even assuming that the woman did voluntarily assume that risk, such a defense is not recognized as a separate defense in a comparative negligence jurisdiction. Answer choice B is incorrect because assumption of the risk is only an absolute bar to recovery in a contributory negligence jurisdiction, not a comparative negligence jurisdiction. Answer choice C is incorrect because assumption of the risk requires the plaintiff, not the defendant, to be aware of the risks of the plaintiff's conduct.

For years, an artist has lived in a house she rents on a month-to-month basis. Five years ago, she got the owner's permission to install a sculpture she had designed for the house. The elaborate wrought iron sculpture was bolted to the walls and woven through the railings of an open spiral staircase connecting the two floors. Recently, the owner told the artist that the monthly rent would be raised by a substantial amount. Because he doubted the artist would be able to pay the increased rent on her irregular income, he informed her that her tenancy would terminate in two months. The owner also told her that she must remove her sculpture within a week because he wanted to show the house to potential tenants and believed the sculpture would make the home harder to rent. Because she was unwilling to destroy the sculpture, the artist was unable to remove the sculpture in that time. However, a potential tenant who toured the home a week later loved the sculpture and told the owner she wanted to rent the home with the sculpture intact. The owner then informed the artist that she was no longer permitted to take the sculpture. By this time, the artist had devised a plan to deconstruct the sculpture and remove it in fragments. Her plan would allow her to remove the sculpture, reconstruct it elsewhere, and leave the house in its original condition. However, her plan will take two days longer than the time remaining on her lease. May the artist legally remove the sculpture in accordance with her plan? A. No, because a fixture may not be removed after the termination of a lease. B. No, because the artist did not remove the sculpture in the week permitted by the owner. C. Yes, because the artist had the owner's permission to install the sculpture. D. Yes, because there is no agreement that limits her ability to remove the structure.

Answer choice D is correct. In general, absent an agreement to the contrary, a tenant may remove a fixture that the tenant has attached to the leased property if (i) the leased property can be and is restored to its former condition after the removal, and (ii) the removal and restoration is made within a reasonable time. Here, the artist can remove the sculpture without damaging the home. Although a reasonable time for removal generally does not extend beyond the termination of the lease, it may do so when (i) the termination is not due to a breach by the tenant, and (ii) the date of termination is not foreseeable by the tenant sufficiently far enough in advance to permit removal before the termination of the lease. Here, the owner gave the artist as short a notice of the termination of the lease as permitted by law, and the termination is not due to the artist's breach. Therefore, removing the sculpture within two days of the end of her lease is reasonable, despite the owner's originally unreasonable deadline of one week. Therefore, because no agreement limits her right to remove this fixture, she may do so before she vacates the house. Answer choice A is incorrect. As stated above, there are situations in which a reasonable time for removing a fixture may extend beyond the termination of a lease. Therefore, answer choice A misstates the law. Answer choice B is incorrect because the owner's demand that the artist remove the sculpture in a week does not constitute an agreement that would limit the artist's ability to remove the fixture. Answer choice C is incorrect because, although the owner's permission to install the sculpture is relevant in determining whether the sculpture constituted waste, it is not relevant to the artist's right to remove the fixture.

A woman rescued a pair of dogs from a rescue organization and put them in a cage on her backyard patio until she could get back from work. Later that morning, a water cooler deliveryman carried a five-gallon bottle to the woman's back door as she had requested. As the delivery man entered the woman's backyard, the dogs started barking ferociously. The deliveryman immediately dropped the water bottle and ran because he thought he was about to be attacked. The bottle broke, spilling water all over the woman's patio. The deliveryman did not inform the woman or the water company of the broken water bottle, nor did he clean up the spill. Early in the evening, but before the woman returned home, the dogs started to bark again. Upon hearing the barking, the woman's neighbor entered the backyard to make sure nothing was amiss. The woman had given the neighbor the key to her house and permission to enter her property in order to handle any issues that might arise while she was at work. As the neighbor approached the cage, she slipped on the puddle on the patio and broke her arm. If the neighbor sues the deliveryman for negligence, of the following, which is the court most likely to conclude? A. The deliveryman is not liable because there was only actual causation. B. The deliveryman is not liable because there was only proximate causation. C. The deliveryman is not liable because there was neither actual nor proximate causation. D. The deliveryman may be held liable because there was both actual and proximate causation.

Answer choice D is correct. In order to establish a prima facie case of negligence, one must prove duty, breach, causation, and damages. The plaintiff must prove that the defendant's actions were both the actual cause (also known as the factual cause or "cause in fact") and the proximate cause (also known as the legal cause) of the plaintiff's injury. Actual ("but-for") causation establishes that the incident would not have occurred but for the negligent act. In this case, if the delivery man had not dropped the water bottle, spilling water all over the woman's patio, the neighbor would not have subsequently slipped and broken her arm. Thus, the neighbor's injuries would not have occurred but for the deliveryman's act. Proximate (legal) causation establishes that the injury was within the "scope of liability" of the defendant's conduct. Under the majority rule, a defendant is liable for reasonably foreseeable consequences resulting from his conduct. Here, it is foreseeable that someone could slip on the puddle left by the deliveryman. Thus, the most likely result is that the deliveryman's negligence was both the actual and legal cause of the neighbor's injuries, making answer choices A, B, and C incorrect.

A hospital placed an order to purchase scalpel blades from a medical supply company. The hospital specified that the blades were to be shipped immediately. Upon receipt of the order, the supply company discovered that it did not have the type of blade ordered by the hospital, and shipped instead a different type of blade, along with a note that these blades were not the type ordered by the hospital but were sent as an accommodation. The hospital rejected and returned the shipped blades, then sued the supply company for breach of contract. Will the hospital be successful in its suit? A. Yes, because of the perfect tender rule. B. Yes, because acceptance of the hospital's order could be made by shipment as well as by a promise. C. No, because the hospital order could only be accepted by shipment of the type of scalpel blades ordered. D. No, because the medical supply company did not accept the hospital's offer.

Answer choice D is correct. Normally a shipment of goods by a seller made in response to an order placed by the buyer constitutes acceptance of the buyer's offer. Such a shipment does not constitute acceptance, however, if the seller indicates that the shipped goods are made as accommodation. Since the supply company so designated the blades that it sent, the shipment did not constitute acceptance. Consequently, no contract was formed, so there can be no breach. Answer choice A is incorrect because, although the perfect tender rule does apply to a sale of goods, such as scalpel blades, it applies only when a contract exists between the buyer and seller. Answer choice B is incorrect because, although a seller may accept a buyer's offer by shipment of the goods, as well as by a promise to ship the goods, a shipment of goods as an accommodation does not constitute an acceptance of the buyer's offer. Answer choice C is incorrect because a seller's shipment of goods in response to a buyer's order can constitute acceptance even if the goods do not conform to the contract.

The parents of a four-year-old child knew that the child was aggressive and had a tendency to hit others. The parents hired an experienced babysitter, who was unfamiliar with the child's reputation for violence, to watch the child one evening. Fearing that the babysitter would not watch the child if she knew of the child's tendency to be violent, the parents did not mention the child's behavioral problems. That evening, the child hit the babysitter in the eye, permanently damaging the eye. Are the parents likely liable for the babysitter's injuries? A. No, because parents are not liable for the intentional torts of their minor children. B. No, because the parents had no duty to warn the babysitter of the child's violence. C. Yes, because parents are strictly liable for the intentional torts of their minor children. D. Yes, because the parents knew that the child was violent.

Answer choice D is correct. Parties who have the actual authority to control the actions of another, such as parents over their children, have the duty to exercise reasonable control over the other's actions. This duty may be imposed on parents when the parents know that their child is apt to act in a harmful way. Here, the parents were aware that the child had a tendency toward violence, and they knowingly exposed the babysitter to the risk. At the very least, the parents had the duty to warn the babysitter of the child's aggressive tendencies. Answer choice A is incorrect because the parents have a duty of reasonable care with respect to the actions of their minor children, whether those actions are intentional or negligent. Answer choice B is incorrect because the parents had a duty to warn the babysitter of the child's tendencies, and they had a duty to protect the babysitter from the child's known violence. Answer choice C is incorrect because parents are not strictly liable for the intentional torts of their minor children.

Tip for Subsequent remedial measures.

Subsequent remedial measures be sure to see if the remedy occurred after the injury, if before the injury then admissible and not SRM..

A recidivism statute calls for a mandatory life sentence for a defendant who is convicted of three felonies. The defendant was convicted of felony theft three separate times and was sentenced to life in prison after his conviction for the third theft. In each case, the defendant stole the items from stores when nobody was watching. He did not use any weapons, nor was he violent. The defendant challenges the sentence on constitutional grounds. Will the defendant succeed? A. Yes, because the sentence violates the Eighth Amendment prohibition on cruel and unusual punishment because the defendant's crimes were non-violent. B. Yes, because the sentence violates the Double Jeopardy Clause. C. No, because the Eighth Amendment prohibition on cruel and unusual punishment only applies to degrading or painful sentences involving the use of force. D. No, because the recidivism statute is constitutional even when applied to non-violent offenders.

Answer choice D is correct. The Eighth Amendment prohibition does not prohibit life sentences for three-time repeat felony offenders, even if they are non-violent, making answer choice A incorrect. Answer choice B is incorrect because this type of recidivism statute has been judged not to violate the Double Jeopardy Clause. Answer choice C is incorrect because the Eighth Amendment applies to all cruel and unusual punishment, not just that which involves the use of force. Some sentences that are not proportional to the crime have been held to violate the Eighth Amendment even if the sentences do not involve the use of force.

A state statute provides that local county governments within the state may adopt an ordinance that prohibits the sale of alcoholic beverages within the county. A local county government, in accord with this statute, adopted a resolution banning the sale of alcoholic beverages within the county with an alcoholic content in excess of 10 percent. Which of the following provides the best support for the constitutionality of this ordinance? A. The Dormant Commerce Clause of the Article I, Sec. 8, of the U.S. Constitution B. The Tenth Amendment to the U.S. Constitution C. The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution D. The Twenty-First Amendment to the U.S. Constitution

Answer choice D is correct. The Twenty-First Amendment, in addition to repealing prohibition, specifically gives states the authority to prohibit the transportation or importation of alcoholic beverages into the state for delivery or use within the state. Answer choice A is incorrect because the Dormant Commerce Clause, rather than supporting a state's regulation of alcoholic beverages, serves as a check on such regulation. Answer choice B is incorrect. The Tenth Amendment generally reserves to the states the powers not delegated to the federal government by the Constitution or prohibited to the states. However, the Twenty-First Amendment specifically grants to the states the power to prohibit the transportation or importation of alcoholic beverages in the state for delivery or use within the state. Answer choice C is incorrect because the Equal Protection Clause, rather than supporting a state's regulation of alcoholic beverages, serves as a check on such regulation.

A man decided to master the art of throwing knives. He practiced for several years, until he had perfected his skills and was able to hit a spot no larger than a dime with confidence. After demonstrating his prowess to a friend, the man convinced the friend to stand against a wall while the man threw knives at her. The man threw three knives extremely close to the friend, but the fourth knife struck the friend, injuring her slightly. Although the friend's injury was minor, unbeknownst to the man, she had a rare blood disorder that caused her to bleed to death. The crimes below are listed in ascending order of seriousness. What is the most serious common law crime for which the man can be convicted? A. Battery B. Involuntary manslaughter C. Voluntary manslaughter D. Murder

Answer choice D is correct. The man may be convicted of depraved heart murder. Depraved heart murder is a killing that results when the defendant acts with reckless indifference to a known and unjustifiably high risk. For this type of murder, the man need not have had the intent to cause either death or serious bodily injury. The woman's consent to the act that led to her death is not a defense. Nor is the fact that the woman's death would not have happened but for her rare medical condition, or the man's lack of awareness of that condition. Because the man may be convicted of murder, the less serious crimes listed in answer choices A, B, and C are incorrect.

A defendant was convicted of bank robbery in federal court. Subsequently, the defendant was indicted in the state where the bank was located for the crimes of robbery and conspiracy to commit robbery. The defendant moved to dismiss the state prosecution of these offenses on double jeopardy grounds. Should the defendant's motion be granted? Answers: A. Yes, as to both offenses. B. Yes, as to the robbery offense only. C. Yes, as to the conspiracy offense only. D. No, as to either offense.

Answer choice D is correct. Under the "Dual Sovereignty" doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not prevent a state from prosecuting the defendant for a crime arising out of the same event. (Note: Under this doctrine, the reverse is also true.) Under Blockburger, robbery and conspiracy to commit robbery are separate offenses. Each contains an element that the other does not. Consequently, prosecution of the defendant for either robbery or conspiracy to commit robbery by the state is not prohibited by double jeopardy. For these reasons, answer choices A, B, and C are incorrect.

Two brothers possessed a farm in fee simple as tenants in common. They joined in a mortgage on the farm with a local bank. The jurisdiction follows the lien theory of mortgages. The elder brother erected a fence along what he believed was the eastern edge of the farm to separate it from the property owned by the neighboring dairy farmer. Shortly thereafter, the two brothers had a falling out, and the elder brother moved away, leaving the younger brother living on the farm alone and the mortgage debt unsatisfied. A year later, the dairy farmer conducted a survey of his property and discovered that the fence erected by the elder brother was crooked, infringing on both properties at various points. The dairy farmer and the younger brother entered into an agreement that modified the boundary between the dairy farm and the farm to conform to the fence. The agreement conformed to all formalities required in the jurisdiction and was promptly recorded. The next year, the two brothers reconciled and the elder brother moved back to the farm. When informed about the changed boundary, the elder brother immediately removed the fence and rebuilt it along the original accurate boundary line. The elder brother, having repudiated the younger brother's boundary line agreement with the dairy farmer, brought an action to quiet title along the original boundary. Neither change in the boundary line changed the acreage of either property. Should the court hold in favor of the elder brother? A. No, because the agreement benefitted both of the brothers. B. No, because the elder brother was not in possession of the farm when the agreement was executed. C. Yes, because the bank did not consent to the boundary line agreement. D. Yes, because the elder brother did not join in the boundary line agreement made by the younger brother.

Answer choice D is correct. Unless there is an agreement to the contrary, one co-tenant may not bind another co-tenant to a boundary line agreement. In this case, because the elder brother did not enter into the agreement made by his younger brother, the court should recognize the original boundary as the legal boundary between the two farms. Answer choice A is incorrect because, even if the agreement were mutually beneficial to the brothers, as co-tenants in common, both brothers would need to agree to any change in the boundary line. Answer choice B is incorrect because the younger brother's sole possession of the farm at the time of the boundary line agreement does not give him the power to bind his co-tenant elder brother to the agreement. Answer choice C is incorrect. The jurisdiction adheres to the lien theory of mortgages. Thus, the bank as mortgagee does not hold title to the mortgaged farm. Consequently, the bank was not required to be a party to the boundary line agreement.

What is the Ministerial Exception?

Supreme court case law Hosanna, recognized the existence of a "ministerial exception" grounded in the First Amendment religious expression clause that precludes the application of employment discriminating laws concerning the employment relationships of religious organizations and ministers

In accordance with state law, the developer of a subdivision filed a declaration of covenants, restrictions, and easements with the applicable county land records office. Among the provisions in the declaration was one that restricted the use of each lot in the subdivision to a single-family home; the declaration also provided that the developer could amend the declaration at any time with regard to the lots owned by the developer. After approximately four-fifths of the lots were sold and single-family residences were constructed on those lots, the developer modified the declaration to permit the construction of multi-family residences on the lots still owned by the developer. Shortly thereafter, the developer turned over control of the subdivision association to its members, the owners of the lots, and secured local government approval of the construction of multi-family residences on his lots. The association sued the developer, seeking an injunction to prevent the developer from building multi-family residences on the lots owned by the developer. How is the court likely to rule on the association's action? A. For the developer, because the developer reserved the right to amend the declaration with regard to the lots he owned. B. For the developer, because the local government approved the construction of multi-family residences on his lots. C. For the subdivision association, because the developer must seek the association's approval for any further development. D. For the subdivision association, because the declaration did not fairly apprise purchasers of the developer's power to materially change the character of the subdivision.

Answer choice D is correct. While the declaration gives the developer a general power to amend the declaration with respect to lots owned by the developer, the developer may not use this power in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed. The change in the type of residences that may be constructed on the developer's lots likely represents a material change. Consequently, the court is likely to grant the injunction requested by the association. Answer choice A is incorrect because, while the declaration gives the developer a general power to amend the declaration with respect to lots owned by the developer, it fails to alert those homeowners who have purchased lots that the power could be used to change the residential character of the subdivision from single to multi-family residences. Answer choice B is incorrect because, even though the developer's plan to build multi-family residences on his lots has been approved by the local government, the developer must also comply with the restrictions in the declaration that limit the type of residential structure that he can build on a lot. Answer choice C is incorrect because, once a developer turns over control of a homeowners' association to its members, the developer is required to develop his lots in accord with the declaration. The developer need not seek the association's approval to do so.

A defendant was charged with theft of a motor vehicle and convicted primarily on an identification of the perpetrator by the individual who purchased the stolen automobile from the defendant. The police did not reveal to the prosecutor that the buyer was serving as a paid police informant with regard to traffic in stolen vehicles. Since the prosecutor was unaware of this information, the prosecutor did not reveal it to the defendant's attorney. The defendant's attorney did not make a discovery request of the prosecutor for evidence favorable to the defendant. Subsequently, upon learning of the buyer's role as a paid police informant, the defendant challenged his conviction on the grounds that the prosecution's failure to reveal such information violated the defendant's due process rights. Among the following, which is the strongest argument that the state can make to uphold the defendant's conviction? A. The withheld evidence does not exculpate the defendant, but only impeaches the buyer's testimony. B. A prosecutor has no duty to reveal information of which the prosecutor is unaware. C. The defendant made no request for disclosure of such evidence. D. The defendant was not prejudiced by the nondisclosure of the information.

Answer choice D is correct. While, under the Brady rule, a prosecutor has an affirmative duty to disclose any material evidence favorable to the defendant, nondisclosure of such evidence does not violate the defendant's due process rights unless the failure to disclose causes prejudice against the defendant (i.e., that there is a reasonable probability that the defendant's conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant). Since the buyer's identification of the defendant as the perpetrator of the crime was key to the defendant's conviction, the failure to disclose evidence that called into question the validity of that identification could arguably constitute prejudice. Answer choice A is incorrect because the Brady rule applies to impeachment evidence as well as exculpatory evidence. Answer choice B is incorrect because the Brady rule may apply to evidence of which the police or other state actor is aware, even though the prosecutor is not aware of such evidence. Answer choice C is incorrect because the Brady rule requires the prosecutor to voluntarily provide the defendant with evidence, despite the absence of a request by the defendant for such information, where such evidence is material.

A consumer purchased a ladder from a hardware store for use around the house. Due to a defect in the design of the ladder, the consumer fell from the ladder and was seriously injured. The manufacturer of the ladder had affixed a notice to the ladder that limited consequential damages from any defect in the ladder or from a breach of the implied warranty of merchantability. The consumer had read the notice prior to purchasing the ladder. The consumer brought an action based on both a products liability claim and breach of the implied warranty of merchantability claim against the manufacturer to recover damages for his personal injuries. Can either claim support the consumer's recovery A. No, as to either type of claim. B. Yes, as to the products liability claim, but no, as to the implied warranty of merchantability claim. C. Yes, as to the implied warranty of merchantability claim, but no, as to the products liability claim. D. Yes, as to both types of claims.

Answer choice D is correct. With respect to a products liability claim, a limitation of consequential damages by a product seller or other distributor does not generally bar or reduce an otherwise valid products liability claim for personal injury. With respect to a breach of the implied warranty of merchantability, while a limitation of consequential damages is permitted, the limitation of such damages for personal injury in the case of consumer goods is prima facie unconscionable. Consequently, answer choices A, B, and C are incorrect.

What is the Enclave Clause?

Article 1 Section 8 Clause 17, Enclave Clause, Congress has the general police and regulatory powers over the district of Columbia that enjoys over persons or things within boundaries. Including power to tax or not. Example: Congress prohibits income tax for people work in district of Columbia but live elsewhere but tax those that live and work in the district to encourage work there. Constitutional under the enclave clause.

MBE - Subsequent purchaser's right to sue under present and future warranties?

Only the original grantee of a deed can sue on the present covenants. Once the original grantee transfers to a subsequent purchaser (SP), that SP cannot sue on the present covenants of that original grantee's deed, but they can sue on the future covenants of that deed

State law contains a variety of provisions regarding the homeschooling of a child by the child's parent or guardian, including specific subjects that must be taught; the number of hours of educational instruction the child must receive on a yearly basis; certification that the instructor has at least a high school diploma or its equivalent; and notification to the superintendent of the child's public school district of the parent's or guardian's intent to homeschool the child. The parents of an elementary school-aged child have challenged these requirements in federal court as violating their due process rights regarding their child's education. How should the court rule on the parents' challenge to these requirements? A. The court must strike them down, because parents have a fundamental right to privately educate their children. B. The court must strike them down if the court finds that they impose unreasonable educational standards. C. The court must uphold them as a valid exercise of the state's police powers, because a state may compel a child to attend public school. D. The court must uphold them, because education has been an area of traditional state concern and the requirements deal with noneconomic activity.

B is Correct. While parents do enjoy a fundamental right to make decisions regarding the care, custody, and control of one's children, including the right to privately educate one's child outside the public school system, that right is subject to reasonable educational standards imposed by the state. Consequently, the court must strike down any requirements that the court finds impose unreasonable educational requirements on the homeschooling of children.

A son and a daughter are opposing parties in federal court. At trial, the daughter presented evidence that her father has been missing for ten years, and that no one has heard from him in that time. The son testified that he received a phone call three years ago from a person that he believes was his father. In the jurisdiction, a rebuttable presumption arises that a person is dead when a party establishes that the person has been missing and not heard from for more than seven years. Which of the following is correct? A. The jury must find that the father is dead. B. The jury may find that the father is dead. C. The burden shifts to the son to prove the father is a lie. D. The judge must instruct the jury that the father is dead.

B is correct, a jury may find the father is dead. A presumption is a conclusion that the trier of fact is required to draw upon a party's proof of an underlying fact or set of facts (i.e., basic facts). A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. However, a rebuttable presumption may be overcome by evidence to the contrary. If no contrary evidence is introduced, the judge must instruct the jury to accept the presumption. If contrary evidence is introduced, as is the case here, then the presumption no longer has a preclusive effect. At this point, the jury may, but is not required to, draw the conclusion from the basic facts. Thus, the jury may determine the weight and credibility of all of the evidence. For this reason, answer choice A is incorrect. Answer choice C is incorrect because a rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party. Answer choice D is incorrect because it is an incorrect statement of law. After a rebuttable presumption no longer has a preclusive effect due to the introduction of contrary evidence, a judge may instruct the jury that it may, but is not required to, draw the conclusion from the basic facts.

Common Law Exoneration of Liens

The devisee of real property under common law has the doctrine of exoneration of liens to have any outstanding balance of a mortgage or the encumbrance on the property to be paid from the remain assets of the estate. Today most jurisdictions, have abolished this doctrine and prop passed subject to any encumbrance.

The owner of a boat contracted with a sail maker to make a replacement sail for the boat at a price of $1,500. Under the terms of their written contract, which did not contain a liquidated damages clause, the owner made a deposit of $750. The owner sold the boat before the sail maker finished making the sail. Despite the unusual configuration of the sail, the sail maker was able to sell the finished sail to another boat owner for $1,500. The owner has sued the sail maker in restitution for the return of his deposit. How much of his deposit is the boat owner entitled to receive? a. $0 b. $450 c. $500 d. $750

B. $450. 00 For contracts for the sale of goods, a defaulting buyer is entitled to a refund of any payments made on the contract less damages provable by the seller and either (i) the amount to which the seller is entitled by virtue of an enforceable liquidated-damages provision or (ii) a penalty of "20 percent of the value of the total performance for which the buyer is obligated under the contract, or $500, whichever is smaller." Here, because the contract between the boat owner and the sail maker did not contain a liquidated damages clause, the boat owner is entitled to a refund of his $750 deposit less the smaller of $500 or 20 percent of the price of the sail ($1,500), which is $300. The boat owner, therefore, is entitled to recover $450 ($750 - $300) of his deposit.

Best evidence as an answer in MBE.

Best Evidence apples in narrow situations, so usually the wrong answer and the key is to best evidence is if the contents are being used.

Does the bulge provision apply to third party defendants being impleaded?

Bulge provision allowed personal jurisdiction over a party who is served within 100miles form where the summons is issued, even if state law would otherwise not permitted permit such service. This rule applies to third party defendants joined by impleader.

Question 1441 The maker of a prescription drug provides physicians who prescribe the drug with detailed instructions regarding its use. The instructions include a warning about the possibility of an allergic reaction that could result in serious physical harm if the drug is taken with a common over-the-counter medication. However, the allergic reaction is only likely to occur in a very small portion of the population, so the drug maker does not provide this warning to consumers of the drug. A physician who had received the detailed instructions from the drug maker prescribed the drug for a patient. The physician did not warn the patient about the possible allergic reaction. The patient experienced an allergic reaction from taking the drug in combination with the over-the-counter medication and suffered a debilitating injury. The patient brought a strict products liability action against the drug maker based on its failure to warn the patient of the possibility of an allergic reaction. Who will prevail? A. The patient, because the drug maker failed to warn the patient of the allergic reaction. B. The patient, because the drug maker, as a commercial supplier, is liable for harm done by the drug. C. The drug maker, because it warned the prescribing physician of the allergic reaction. D. The drug maker, because the number of persons at risk was very limited.

C is correct, Under the learned intermediary rule, the manufacturer of a prescription drug typically satisfies its duty to warn by informing the prescribing physician of problems with the drug rather than informing the patient taking the drug.

MBE- If a tax on a out of state business is authorized by congress and therefore allowed under the commerce clause may still violate what constitutional amendment

the fourteenth Equal Protection clause, if there is no rational basis to support the tac.

O and B entered a K for B to redo O's kitchen with certain pipes for 15K. later, O offers to pay P 10K for another grade of pipes and B accepts. B completes the work with the changes pips and O refuses to pay. The jury finds that B's originally installed pipes did not satisfy the K and the changing of the pipes was a substitute agreement which O breached. What is the max amount that B can get form O? A. 25K B. 15K C. 10K D, 0

C. 10K B can only collect 10K because they parties entered into a "substitute" agreement and not an accord.

A licensing agreement provided that a manufacturer could use an investors patent in manufacturing its products for ten years. Immediately thereafter, the investor assigned his right to receive payment pursuant to the licensing agreement to a corporation that he is the controlling shareholder. The investor did not receive compensation for the assignment. The inventor upon his death five years later, decides the stock in the corporation to his daughter, and all of his remaining property to his son. To whom should the manufacturer make its payments under the licensing agreement? A. The corporation B. The inventors daughter C. Inventors son D. The manufactor's obligation to make payments under the licensing agreement upon the death of the inventor

C. The investors son - A gratuitous assignment of a contract right terminates upon the death of the assignor and thus the corporations assignment was revoked at the inventors death. Because the right of the inventor's property, other than the corporate stock, was devised to his sone, his son is entitled to receive the licensing payments from the manufacturer for the remaining term of the licensing agreement

MBE - Scope of Judicial power - Can Supreme Court review the acts of congress, executive officers?

Congress and executive actions - Yes, in order to declare the act unconstitutional.

Auditorium open for public debate, based on availability. The plaintiff was denies because the topic was heavily debated and tented to cause violence. Although there was other forums for the topic debate. Is this a time, place, manner restriction or a content based regulation?

Content based restriction

o and B enter into an installment k for the purchase of a home with an acceleration clause. After 7 years of the 10 year contract, B missed 3 installments and O filed for summary ejectment proceeding and tendered missed payment. Jurisdiction follows lien theory and does not recognize strict foreclosure. Can O be awarded possession of the home?

Owner cannot be awarded possession because there has not been a foreclosure sale. Because O must wait until foreclosure to regain possession because O is the equitable owner before foreclosure and because it is .a lien theory, O has no right to possession.

MBE- A state tax may violate the Commerce Clause and the Comity Cause if:

the tax discriminates against nonresident individuals - example is income tax that exempts local residents.

A brother knew that his sister was suffering from an advanced form of bone cancer and had approximately six months to live. The brother also knew that his sister was considering ending her life if her condition became unbearable. The brother decided to hasten his sister's death with a slow-acting poison so he could collect as the beneficiary of her life insurance policy. The poison caused the sister such severe nausea that she skipped her next scheduled chemotherapy appointment. The bus that the sister usually took to attend chemotherapy crashed that day, leaving no survivors. Three days later, the sister was in unbearable pain from the poison. Believing that the pain was caused by her progressing cancer, the sister decided to end her own life with an overdose of pain medication. An autopsy conclusively established that the sister had enough poison in her system to cause intense pain, but that the poison would not have killed her for another week. The coroner determined that the overdose had been the actual cause of her death. The coroner also predicted that the sister's bone cancer would have caused her death within the year. The applicable jurisdiction does not classify suicide as a crime. Can the brother properly be found guilty of common-law murder based on these facts? A. No, because the brother's conduct actually extended the sister's life. B. No, because the pain medication was the actual cause of the sister's death. C. Yes, because an act that accelerates impending death is a legal cause of that death. D. Yes, because a trier of fact could find that the brother's conduct was the actual and proximate cause of the sister's death.

Correct answer is D. Yes, because a trier of fact could find that the brother's conduct was the actual and proximate cause of the sister's death. Because

What is a Suretyship contract and what does it require?

Suretyship is a three-party contract, wherein one party (the surety) promises a second party (the obligee) that the surety will be responsible for any debt of a third party (the principal) resulting from the principal's failure to pay as agreed. Under the Statute of Frauds, a suretyship contract, or contract to answer for the debt of another, must be signed by the party to be charged

A public co-ed high school has adopted a requirement that boys who play any school-sponsored sport cannot have hair longer than four inches. The school does not impose a similar requirement on girls who play a school-sponsored sport. A male student in the school challenges this requirement in federal court on the grounds that it interferes with his right to wear his hair as he pleases. Which of the following is likely the best statement of the burden of persuasion for the action brought by the student? A. The school is required to establish that the school requirement is the least restrictive means to achieve a compelling interest of the school. B. The school is required to establish that the requirement is substantially related to an important interest of the school. C. The student is required to establish that the requirement is not substantially related to an important interest of the school. D. The student is required to establish that the school requirement is arbitrary or

D is correct. The standard of review to which governmental action is subjected when challenged on substantive due process grounds depends on the right asserted by the plaintiff. If the plaintiff is asserting a fundamental right, the government must establish that its requirement is the least restrictive means to achieve a compelling governmental interest. If a fundamental right is not involved, the plaintiff must show that the restriction does not bear a rational relationship to a legitimate government interest. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. Here, the student's interest in being able to wear his hair as he chooses is merely a life style choice that does not involve a fundamental right. Consequently, the burden is on the student to show that the requirement is arbitrary or irrational. Answer choice A is incorrect. In addition to governmental conduct that violates a fundamental right, the strict scrutiny standard set out in this answer choice also applies to intentional government conduct that discriminates against a suspect class. Because the facts do not indicate that the student belongs to a suspect class and a fundamental right is not involved, strict scrutiny review of the school hair requirement is not appropriate. Answer choice B is incorrect. The intermediate scrutiny standard of review set out in this answer choice is appropriate for equal protection challenges when intentional government conduct discriminates against a quasi-suspect class. Although the student here could have pursued a constitutional challenge based on equal protection grounds (i.e., gender discrimination), he did not, and instead has brought a substantive due process claim based on the denial of a right to wear his hair as he wished. Consequently, this standard of review does not apply to his substantive due process challenge. Answer choice C is incorrect because the intermediate scrutiny standard of review does not apply to a substantive due process challenge. In addition, even if the action had been brought on equal protection grounds, the burden would be on the school, not the student.

MBE- Notes:

TORTS - Having trouble with torts when there is multiple parties or causes because I am reading too fast. Remember to slow down and keep track of people or causes. TORTS - default rules for tort if not states otherwise in the the question PRESUME (1) pure comparative negligence and (2) joint and several liability. CRIM PR) ant Evd - Issue with keeping straight the Sustain and overrule.

A man was set up on a blind date with a woman through a mutual friend. After the date, the man raped the woman; he was subsequently convicted of rape by a jury. After the trial, the woman's injuries from the rape developed into an undetected hemorrhage that caused her death. A grand jury subsequently indicted the man for felony murder of the woman. The man filed a motion to dismiss the indictment because it violated his rights under the Double Jeopardy Clause. Should the motion to dismiss be granted? A. Yes, because the second prosecution may result in multiple punishments for the same offense. B. Yes, because the man has already been convicted of rape for his conduct. C. No, because rape and felony murder do not require proof of the same elements. D. No, because the man is being indicted for a more serious crime than his rape conviction.

D. No, because the man is being indicted for a more serious crime than his rape conviction. The Fifth Amendment Double Jeopardy Clause provides protection against (i) a second prosecution for the same offense after acquittal; (ii) a second prosecution for the same offense after conviction; and (iii) multiple punishments for the same offense. However, when jeopardy has attached with respect to a lesser included offense (explained below) prior to the occurrence of an event necessary to establish the greater offense, the defendant may be subsequently tried for the greater offense.

Defendant (D) charged with violation of state criminal statute, and while prosecution pending, D files civil action in Federal District Court, alleging that the state statute "as applied" to D violated the US Constitution. Should the Federal Court entertain this action? A. No, b/c the defendant lacks standing since no state prosecuted yet. B. No b/c defendant seeks injunction against pending state criminal procedure. C. Yes, b/c defendant has alleged state statute violate U.S. Constitution. D. Yes b.c the defendant has alleged the state statue violated the US Constitution

D. Yes b.c the defendant has alleged the state statue violated the US Constitution because of the Younger doctrine which states a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute

When is an employer not liable for the acts of an independent contractor?

Employers are not liable for the torts of true independent contractors, except where (i) an employer is negligent in selecting an independent contractor, (ii) the function is inherently dangerous, (iii) the employer is a storekeeper or operator of premises open to the public and has the duty to keep the premises in a reasonably safe condition, or (iv) the function is non-delegable A company's duty to ensure the safety of its workforce is a critical function, and, therefore, a non-delegable duty. Consequently, the manufacturer's decision to outsource its equipment-supplying functions will not relieve it of liability associated with the negligent furnishing of faulty equipment. Answer choice A is incorrect for that reason.

What is the standard of review under equal protection if a plaintiff claims that a law has a disproportionate impact on that group?

Equal protection claims that law has a disproportionate impact on the plaintiff is not sufficient, there must be proof of discriminatory motive or intent to trigger strict or intermediate scrutiny. If not then rational basis.

A police officer observed an individual leaving a residence where the officer had reasonable suspicion that illegal drugs were being sold. Although the officer lacked reasonable suspicion that the individual had purchased drugs at the residence, he wanted to question the individual to discover whether his suspicions were correct. He stopped the individual's car, requested the individual's identification, and upon being presented with the individual's driver's license, ran a check to see if he had any outstanding warrants. When the check, which took only several minutes, revealed that there was an outstanding arrest warrant for the individual for a minor traffic infraction, the officer arrested him. During a search of the individual's person immediately following the arrest, the officer found methamphetamine. The individual was charged with possession of a controlled substance. The individual has filed a motion in limine to suppress the evidence of the methamphetamine found on his person. How should the court rule on this motion?

Deny The Motion because the arrest warrant was attenuated from the illegal stop. Although evidence of the individual's possession of an illegal drug was directly linked to the illegal stop of the individual and therefore a "fruit of the poisonous tree" to which the exclusionary rule would usually apply, here the seizure of this evidence was attenuated by the existence of a valid warrant for the individual's arrest. The illegal stop was not effected for the purpose of arresting the individual, and the length of the stop did not constitute flagrant police misconduct.

Are doctors and hospital liable under strict liability?

Doctors and hospitals are providers of service and not goods, even when implanting something in the body. Service providers are not liable under strict liability with regard to harm regarding a defect.

if a tenured professor is fired from a college for plagiarism what is the best constitutional bases as to why he should be able to produce evidence against his firing? What about a student expelled for cheating?

Due process- a public employee who may be discharged for cause has a property interest in her job and therefore is entitled to notice of termination and a pre-termination opportunity to respond, a formal hearing . - tenured professor - yes - upper division college student - no

Generally, a governmental regulation that adversely affects a person's property interest is not a taking, but when a regulation so substantially hinders a person's property interest as to make it virtually valueless, that law may be considered a "regulatory taking." In determining whether a regulation constitutes a taking, the court will consider what factors?

Generally, a governmental regulation that adversely affects a person's property interest is not a taking, but when a regulation so substantially hinders a person's property interest as to make it virtually valueless, that law may be considered a "regulatory taking." In determining whether a regulation constitutes a taking, the court will consider: (1) the economic impact of the regulation on the property owner; (2) the extent to which the regulation interferes with the owner's reasonable, investment-backed expectations regarding his use of the property; and (3) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner's essential attributes of property ownership, such as the right to exclude others from the property. A court generally will not examine whether a regulation substantially advances a legitimate governmental interest. Here, all the factors are valid considerations for the court except whether or not the law advances a legitimate government interest.

what is required for a party to depose a witness prior to initial disclosures?

If a party wants to depose someone before compliance within initial disclosure requirements then they must get leave of court.

MBE - Assuming the mortgage Obligation vs Subject to the mortgage

If a transferee-buyer assume the mortgage obligation, then, upon default the transferee-buyer, as will as the mortgagor-borrower, is personally liable to the lender. Most jdx do not require assumptions to be in writing. If the buyer takes the title subject to an existing mortgage, then upon default the buyer is not personally liable, but the property may be sold at a foreclosure sale to satisfy the debt. In a Majority of jdx, if a deed or transfer is silent or ambiguous as to the buyers liability, then the buyer is presumed to have taken the property subject to the mortgage. In a minority of jdx, an assumption is implies in a transfer.

If a party failed to satisfied a condition president what is the effect on the contract or the other parties condition?

If party does not satisfy a condition president, then they have discharged other party's duty but not a breach

A defendant files a motion to dismiss as the first responsive pleading, which is denied, after the defendant motions to assert an affirmative defense and counterclaim. P motions to strick because the issues are waived because D should have asserted them in the first responsive pleading?

If the motion to dismiss is the first responsive pleading in a case form the defendant, then the defend does not have to raise affirmative defenses or compulsory counterclaims.

If a defendant is an accomplice to a felony murder, under want circumstances can they be sentenced to death?

In a felony murder cases, the death penalty is not applicable unless the defendant that was an accomplice acted with the intent to kill, attempt to kill, or significant involvement in the commission of the felony and acted with reckless indifference towards human life.

Can hearsay be considered when determining whether an expert or is qualifies?

In a jury trial the judge decides the qualifications of an expert and in doing so not the judge is not bound by the rules of evidence.

Mortgagee's Right to Possession of Land

In a lien theory, Maj jdx, the mortgagee cannot take possession prior to foreclosure because the mortgagor is considered to be the owner of the real property until foreclosure. After foreclosure, the mortgagee can possess the land. In a title theory, Min jdx, the legal title is in the mortgagee until the mortgage has been fully satisfied. Thus, the mortgagee is theoretically entitled to take possession at any time, although typically not until default occurs.

What is the Minority view called "guest statute" and the Majority view?

In a minority of states have a guest statute which requires a defendant to act in a willful, or wanted misconduct to hold them liable for an accident in which the plaintiff was a passenger. The minority of jurisdictions will hold the defendant liable if the driver breached the duty of reasonable care.

Does the court or jury take into the consideration involuntary intoxication on the part of a defendant in a negligence action when looking at the standard of care?

Involuntary intoxication is taken into consideration when looking at the negligence standard of a person.

Privileges and immunities of the Fourteenth applies only to states treatment of its own citizens and is limited in application and is usually only successful in cases involving the right to travel. Priv & Imm of the fourth allies to a states discrimination of nonresident citizens with respect to fundamental rights or essential activities like the pursuit of employment, transfer of property, assess to state courts and engaging in political process.

MBE - Privileges and Immunities of the Fourteenth and of the Fourth

A defendant is released on probation and if probation violated then taken in to prison for 4 years, at the probation revocation hearing D requested an attorney and the court denied. Must the court appoint an attorney?

Mp because there is no absolute constitutional right to counsel at a probation revocation hearing when there is already an imposed sentence is executes as a result of a probation unless an attorney is necessary for a fair trial.

As a car came to a stop at a stop sign, a pedestrian watched as a box fell off the roof of the car. The pedestrian tried unsuccessfully to alert the driver about the box before the car sped away. The mailing label on the box indicated that, although the intended recipient of the box lived out of state, the sender of the box lived only a couple of blocks away. As required by state law with regard to lost property, the pedestrian decided to return the box to its sender. As the pedestrian reached the sender's residence, the pedestrian had a change of heart and decided to keep the unopened box and its contents for herself. Although the outside of the box gave no indication of its contents, there was a controlled substance inside the box. The applicable law provides that knowing possession of a controlled substance is a criminal offense. If the pedestrian were to be arrested before she arrived at her home with the unopened box, with which of the following offenses can she be charged?

Neither Larceny nor possession of controlled substances. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property. Under the continuing trespass rule, a trespass is deemed to be continuing when the defendant does not possess the necessary intent at the time of the taking but later develops the intent to permanently deprive the owner of the personal property. However, the initial taking of the personal property must have been wrongful. Here, the pedestrian's original taking of the box was not wrongful. State law required the pedestrian to return lost property to its owner, and that was her intent at the time she took possession of the box. Consequently, the taking was not wrongful, and the pedestrian has not committed larceny.

Does dbl jeop apply to mistrials for to a hung jury?

No

A sold to B than B to C, can C sue A of Siesin?

No because present covenants do not pass to subsequent grantees and they cannot sue the original grantor for breach of a present covenant. Future covenants run to successive grantee's

Is consideration required for a land sale contract? A executes a deed to B and all requirements are meet. A subsequently challenges the transfer for lack of considerations.

No consideration is required and thus the challenge is not going to be successful.

Covenant for cost of building and maintaining a wall between their properties A and B. A dismantled the wall and B sales land to C. A wants to rebuild the wall and asked C for costs and C refuses, is Ce liable for 1/2 of the cost?

No, Because the party dismantled the wall b/c the covenant was abandoned, A covenant is abandoned if the parties to a covenant act in an affirmative way that shows a clear intent to relinquish the covenants right. Mere nonuse or statements or statements of intent without act do not constitute abandonment.

If congress allocates spending for reimbursement of improvement of highways, can president delay funds until state shows substantial improvements?

No, If congress explicitly mandates an allocation, distribution or expenditures of fund, the president cannot impound those funds by refusing to pay or delay

After an unanimous jury verdict in a civil action in federal court the judge pulled the jury and all but one affirmed their vote. Must the judge grant a new trial?

No, In a Federal Civil jury trials the verdict must be unanimous unless the parties otherwise agree. If the jury is polled and one does not affirm a prior unanimous verdict then the judge can (1) grant a new trial or (2) require further deliberation. Therefore, a judge is not required to do so.

General contractor takes bid form 22k to 29k and uses the bid 22k bid in submitting his overall bid and the general contractor won the bid. After winning the another subcontractor offered 20K and General contractor used that bid. The subcontract with the 22k bid sues, will be succeed?

No, because the bid prior to the general contractor wining and informing the sub-contractor is the bid is only an outstanding offer and the general contractor is not required to accept the bid upon winning the contract.

Two non-merchants are talking and the offeror agrees to wait a week for the offeree to agree to buy a good. Two days later offeree learns that the offeror sold the good. Did the offeror breach the contract?

No, because two non-merchants agree to leave offer own for a week, three days later a third party tells offeree that they cannot longer purchase the item. If not a merchant then regulate common law rules and the parties need consideration or the offer is properly revoked when the offeror makes a manifestation an an intent not to enter into the proposed contract.

Does A DNA swabs during booking proper as a booking procedure constitute a search?

No, if valid arrest.

What is the maximum number of jurors a federal civil trial can have with party agreement?

No, more than 12 even if agree to more.

If on cross the attorney is not sure whether a specific bad act was done by the witness but thinks it might have can they ask about it?

No, specific events when cross examining a character witness for impeachment of credibility the event must be asked with the goof faith belief that it occurred

What state law claims are generally excluded from a diversity jurisdiction?

State law claims that are generally excluded from diversity jurisdiction that includes: Marriage, alimony, custody, probate and domestic relations actions

When can a prior inconsistant statement be used in court and how?

Prior inconsistant statement is nonhearsay. Prior inconsistant statements can be used to impeach. if made under oath, it is admissible as substantive evidence so long as witness testifies at the proceeding and subject to cross even if the are not actually cross examined.

MBE- Pullman Doctrine and Younger abstention Doctrine

Pullman- supreme court may refrain from ruling a federal constitutional claim that depends on resoling an unsettled issue if state law best left to the state courts. Younger- Supreme Court will not enjoin a pending action in state criminal case in the absents of bad faith, harassment, or a patently invalid state statute.

Under what circumstance may the court restrain the media from publishing on public on matters of public concern?

Restraints on media to publish about matters of public concern and the right of the public to receive such information may only be restricted by government action is narrowly tailored to serve a compelling government interest

When does the right to self incrimination apply?

Right against Self incrimination extends to witnesses in Civil or Criminal trial, formal or informal proceedings if the answer would provided some reasonable possibility of incrimination t the witness in a future criminal procedure.

When can an Officer's search of car with D inside or D outside?

Search of the area in a car where the defendant has access and may pose a danger to the officer or evidence that caused a reasonable belief that there is evidence of the arrested crime might be in the care.

Can a state prevent a felon form voting?

Section 2 of the 14th Amendment, a state may prohibit a felon from voting even one who has unconditionally been released form prison.

MBE- Article 1 Powers of Congress

Taxing and spending Origination clause - of bills in the house of representatives, senate can propose or concur to amend. War and defense Powers -provide for national defense, military courts/tribunals, national guard, Enclave Clause - power over the District of Columbia to exclusive legislation whatsoever Necessary and Proper Clause- always with an enumerated power never independent. Power to enforce the 13, 14, 15 amendment Other: Property Power, Postal Power, Aliens and citizenship power, naturalization powers, bankruptcies, maritime, coining, patents and copy rights, Election Clause.

A defendant was tried before a jury for the crimes of possession of a controlled dangerous substance with intent to distribute and the lesser included offense of possession of a controlled dangerous substance. The jury acquitted the defendant of simple possession of a controlled dangerous substance, but deadlocked over the other charge. Subsequently, the prosecution sought to retry the defendant for the crime of possession of a controlled dangerous substance with intent to distribute. The defendant moved to dismiss the charge on double jeopardy grounds. Should the court rule in favor of the defendant? A. Yes, because the issue preclusion aspect of the Double Jeopardy Clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment prevents the defendant's retrial. B. Yes, because the Double Jeopardy Clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment prohibits the retrial of a defendant for an offense of which the defendant has been acquitted. C. No, because the prosecution may retry a defendant for an offense where the previous trial for that offense was terminated due to a hung jury. D. No, because the doctrine of collateral estoppel only applies to civil, not criminal cases.

The Double Jeopardy Clause encompasses the doctrine of issue preclusion. Where a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury deadlocks, the jury determination that the defendant did not commit the lesser included offense precludes the prosecution from retrying the defendant on the greater offense. Answer choice B is incorrect because the defendant was acquitted by the jury of the lesser included offense of possession of a controlled dangerous substance, not the greater offense of possession of a controlled dangerous substance with intent to distribute. The jury deadlocked over the greater offense. Answer choice C is incorrect because, although the prosecution may generally retry a defendant where a trial is terminated for a manifest necessity, such as a hung jury, a retrial is not permitted where the issue preclusion aspect of the Double Jeopardy Clause would prevent such retrial. Answer choice D is incorrect because the doctrine of collateral estoppel can apply to a criminal case through the Double Jeopardy Clause.

What is the Export Taxation Clause?

The Export Taxation Clause, holds that congress may not tax goods to foreign countries. This applies to actual export, course of export, or services or activities closely related to export tax as well.

When can the government deny a person a job based on their membership in an organization?

The First Amendment protects the right to associate or participate in any group without restriction, but the right is not absolute and can be prohibited if (1) active member of subversive organization, (2) has knowledge of illegal activities, and (3) specific intent to further the illegal ac, objective, or purpose. Lack of specific intent to further the organization's illegal objections this intent is necessary in order to punish her based upon her association with the group.

What is the Property Clause

The Property Clause of Article IV, section 3 gives Congress the "power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." There is no express limit on Congress's power to dispose of property owned by the United States.

What is the exception to the Erie doctrine to allow a federal court sitting in diversity to use federal common law on a substantive issue?

The Supreme Court has also recognized the application of federal common law when a "uniquely federal interest" is at stake and a significant conflict exists between that interest and the operation of state law.

A state legislature enacted a statute providing that punitive damages were recoverable against an employer in a claim filed by an employee only if the employee waived the right to receive unemployment benefits. After the statute was enacted, many employees challenged the law and the state's lower appellate courts all ruled that the statute was valid under state constitutional law. A claim was then filed in federal district court in the state in which the statute had been enacted. The state supreme court had not yet addressed the constitutional issue. When determining whether to award punitive damages to the employee who had brought the claim, the federal district court followed the state court's intermediate appellate rulings. After the federal court's decision, but before a final appeal in the federal-court matter had been disposed of by the court of appeals, the state supreme court held that the statute was unconstitutional under state law. Which of the following is a correct statement? A. The court of appeals must apply what it believes is the proper legal interpretation of state law on the issue. B. The court of appeals must defer to the ruling of the district court that followed the state court's intermediate appellate rulings on the issue. C. The court of appeals must apply the state supreme court's ruling on the issue. D. The court of appeals may, but need not, follow the state supreme court's ruling on the issue.

The correct answer is C. A federal appellate court is bound by the decision of a state's highest court on an issue even if it is handed sown after a federal district court action on that issue was completed. The federal appeals court is bound by that ruling so long as the final appeal has not been disposed of in the matter.

When can a court correct a clerical error in a judgement, and when cant they?

The court can correct a clerical error or other mistake resulting form oversight or omission in a judgement, order, or on the record, this can be done by party motion or by the court. Unless, the case is submitted for appeal, then there must be leave of the appeals court

What factors are considered in determining whether the defendant has been deprives their right to a speedy trial?

The factors to be considered in determining whether the defendant has been deprived his post-accusation right to a speedy trial are (i) the length of the delay; (ii) the reason for the delay; (iii) the defendant's assertion of a right to a speedy trial; and (iv) the prejudice to the defendant resulting from the delay. The seriousness of the crime with which a defendant is charged is not a factor in determining whether the defendant's speedy trial right has been violated.

Robbery - Intimidation element

The intimidation must be for a threat of harm to the the person or another person. It cannot be a threat of harm to property.

What is the Wharton Rule?

Under the common law, conspiracy is (1) an agreement (2) between two or more persons, (3) to accomplish an unlawful purpose (4) with the intent to accomplish that purpose. Under the majority rule, on of the co-conspirators must also commit an overt act in furtherance of the conspiracy. Under the Wharton Rule, if a crime requires to or more participants, the there is no conspiracy unless more than the parties necessary to complete the crime agree to commit the crime.

What is the time limitation of a renewed motion for judgment as a matter of law?

The movant of may files a renewed motion for judgment as a matter of law no later than 28 days after the entry of judgment.

MBE - Can a President pardon a federal officer for impeachment in federal court?

The presidents power to pardon does not extend to impeachment of a federal officer.

When is a person liable for negligent entrustment?

The tort of negligent entrustment allows the owner of a vehicle to be held liable for the negligent acts of a driver to whom the car was entrusted if the owner knows or should know of the driver's negligent propensities. In the instant case, the neighbor had a clean driving record, and the enthusiast had no reason to believe that the neighbor had negligent propensities

MBE- Common Law Exoneration of Liens Doctrine

Under the common-law exoneration of liens doctrine, if a testator makes a specific devise of real property that is subject to an encumbrance, such mortgage or a lien, then the devisee is entitled to have the land "exonerated" by payment of the encumbrance form the remaining assets in the testator's estate. most states have abolished this doctrine. In such states the property passes subject to the encumbrance unless the will specifically requires payment of the encumbrance.

When facts say "unable to find direct evidence of negligent condition after through investigation" what issue is triggered? what are the elements of that issue

These facts indicate res ipsa loquitur is at issue. Res ipsa loquitur is applicable when: (1) accident not of the kind that ordinarily would occur absent negligence, (2) accident was caused by an agent or instrument within immediate and exclusive control of the defendant, and (3) it was not caused by any action of the plaintiff.

What Cross overs are there in property Law?

Torts - Nuisance and tort liability Remedies- SP and Damages Constitutional Law- Takings

MBE - Can a buyer request specific performance if the seller failed to provide marketable title by a zoning issue and now refuses to sale?

Yes, the buyer can seek specific performance because although not quit marketable title, if buyer still wants property the issue can be addressed with damages or abatement for sale price.

Review- presumption in UCC for the integration of contracts?

UCC presumed a contract is partially integrated allowing additional consistent terms unless clearly would have been in the contract.

What is the Younger doctrine?

Under Younger doctrine, a court will not enjoin a pending state criminal case in the absence of bad faith, harassment, or a patently invalid state statute

What is a modified comparative negligence jurisdiction in regard to negligence?

Under a modified comparative negligence regime, a plaintiff's damages are reduced by the percentage that the plaintiff is at fault.

What duties does a land owner have to trespasser under the restatement of torts?

Under the Restatement of Torts, a land owner owes all people, even to trespassers, a reasonable duty of care. That includes the duty to fix uneven floors when homeless are staying in building rather than warn.

What is the Uniform Class Fairness Act?

Under the Uniform Class Action Fairness Act, the class must be at least 100 members, and the amount in controversy must be more than 5million dollars, if those are meet them inly minimum diversity is required.

What is the agency theory in Criminal Law?

Under the agency theory of the FMR, a defendant is not liable for the deaths of a bystander by a officer or 3rd party but only deaths caused by an agent of the defendant in perpetrating a felony

A buyer entered into an agreement with the corporate owner of real property located in State A to purchase the property. The buyer and the corporate owner were both citizens of State B. The agreement specified that it should be governed by the laws of State B. After the corporate owner was placed in a court-ordered receivership, a dispute arose over ownership of the property. The buyer properly brought suit in State B court for a declaratory judgment that equitable title to the property resided in her, as well as an order compelling the receiver to transfer legal title to the property to her. The court, after concluding that the laws of State A and State B were in conflict regarding this dispute, determined that the conflict-of-law rules of State A applied to this dispute. Which of the following is the most likely explanation for the court's determination? A. State B had a more significant relationship to the transaction and the parties than State A. B. The dispute between the buyer and the corporate owner was about the equitable ownership of the property. C. The dispute between the parties was about validity of the contract for the sale of real property and the rights created thereby. D. The parties to an agreement about the sale of real property cannot select the applicable law to be applied to their agreement.

When a dispute involves the existence of an equitable interest in land, the general conflict-of-laws rule is that the law applied by the forum court should be determined by the conflict-of-laws rule that would be applied by the state where the property is located. It is this general rule that the court likely applied to determine that the law of State A should resolve this dispute.

Equal Protection Standard of Review

When reviewing government action under equal protection theories, the court applies one of three scrutiny depending on the type of person concerned. - Strict scrutiny: law is the least restrictive means to achieve a compelling government interest, To trigger SS there must be discriminatory intent by the government. just a disparate effect is not sufficient. BOP on the government. Applicable to fundamental rights or suspect classes of race, ethnicity, national origin, and alienage. - Intermediate: the law mist be substantially related to an important government interest, BOP generally on government, however case law unclear. Applicable to gender and non-marital children. - everything else is rational basis: the law is rationally related to a legitimate government interest and BOP on plaintiff. Law is presumed valid and P has to show law is arbitrary or irrational.

If X sells land to Y with a mortgage that Y does not know about it. How does Y take to land in regards to the mortgage

Y takes the "subject to the mortgage" but did not assume the mortgage. Therefore the property is subject is subject to mortgage and can be foreclosed, but Y is not personally liable.

If a husband tells a wife with a terminal illness that sex will cure her and the defendant is prosecuted for rape, is consent a defense?

Yes because Fraudulent conduct does not negate consent in most situations. Fraud in the inducement, standing alone, does not regret consent for rape.

Can an owner be held liable for a chicken that pecks a mailman when it escapes from its cages when the owner knew that it would peck her when she would take its eggs and had to wear protective gloves.

Yes because an owner will be held strictly liable for domestic animals that the owner knows has a propensity for violence.

Is there a Private Nuisance when the P is not actually effected by the alleged nuisance but everyone else in the community is effected, example due to inability to smell or hearing issues.

Yes because it is evidence that there is a reasonable interference with the use and enjoyment in the property.

Does sending letters and calling constantly with offensive remarks to the point where a person is granted a restraining order constitute extreme and outrageous conduct.

Yes harassment = extreme and and outrageous conduct for IIED.

Congress enacted the Health Care Act (HCA) "to ensure all Americans access to health care at a reasonable cost." Congress delegated to an executive agency, the Department of Health & Human Services (HHS), responsibility for promulgating regulations to implement the HCA. The HCA further provided that a joint House/Senate committee can repeal or revise the HHS regulations if the committee determines that they inadequately fulfill the HCA's purpose. Would a court be likely to hold that the HCA is unconstitutional?

Yes the law is unconstitutional because, Congress cannot authorize a legislative committee to "veto" agency regulations. The Constitution requires that legislative power be exercised in accord with the bicameralism (i.e., passed by both Houses of Congress) and Presentment Clauses of Article I (i.e., the requirement that, in order for a bill to become law it must be presented to the president for approval or return).

Is retail seller (car dealer) or (component)commercial supplier liable for defects in a product?

Yes, A retail seller that is in the business of selling the good is liable for defects in that good even if the seller is not responsible for the defect in the good in any way, even if product was not purchased directly form the seller. A commercial supplier is liable only if the component that the supply supples was the cause of the defect itself.

In a civil action, the federal government sought to collect on a judgment rendered in a criminal proceeding that imposed a fine on a corporate defendant. The federal government moved for the district court to appoint a receiver to identify corporate property that could be seized and sold to satisfy the judgment. The district court denied this motion. The federal government timely filed a notice of appeal of this denial. Does the appellate court have jurisdiction over this appeal?

Yes, Although generally a district court order that does not constitute a final order is not immediately appealable, there is a special statutory exception for an order that appoints or refuses to appoint a receiver.

A manufacturer is making a plane for the governments forest department to fight fires. The supplier of the materials to the manufacture placed a lien on the plane for the material. the government took the plane. S cannot enforce the lien but D makes a claim under the takings clause. Will he be successful?

Yes, One way in which a takings occurs is through the destruction of property or the elimination of a property right. While a lien holder cannot sue a government entity that has the property because they have sovereign immunity, but it would constitute a taking because the lien would be eliminated at that point

Three D's tried for conspiracy D1 and D2 are acquitted and D3 is found guilty, An appeal should the court reverse D3's conviction?

Yes, because At common law, a conspirator cannot be convicted of conspiracy if all other co-conspirators are acquitted in the same trial because conspiracy requires a agreement between two or more people.

If during the grand jury trial the prosecution excludes a minority group based on race, show the appeals court vacate the indictment if the court finds that it was harmless error?

Yes, because If during a grand jury trial excluded racial group because of race, then there is a violation of equal protection and the appeals court must vacate the indictment, even if harmless error.

In a probate proceeding, the beneficiary of a purported holographic will sought to introduce a photocopy of that will. An heir of the testator opposed the introduction of this will. Contending that the testator was not of sound mind when the will was written, the heir demanded that the beneficiary produce the original will. The applicable jurisdiction recognizes the validity of a holographic will and has adopted a dead man's statute. Is the photocopy of the will admissible without an explanation of the unavailability of the original?

Yes, because the photocopy is a duplicate of the original. The photocopy of the will is a duplicate, since it was produced by a process that accurately produces the original. Consequently, it is admissible to the same extent as the original unless there is a genuine question as to the authenticity of the original or other circumstances that would make its introduction unfair. Since the only challenge advanced by the heir relates to the validity of the will for reasons that lie beyond the authenticity of the original, the photocopy is admissible.

Can the court direct the plaintiff or their representatives to appear at the pretrial conference?

Yes, because under Rule 16(a), the court may direct counsel and unrepresented parties to appear for pretrial conferences for such purposes as expediting disposition of the action, effective case management, and facilitating settlement. The court may require that a party or its representative be present or reasonably available by telephone or by more sophisticated electronic means to consider possible settlement. If counsel or a party fails to appear, fails to participate in good faith, or fails to obey a pretrial conference order, then the court may generally impose the same sanctions as those permitted for failure of a party to comply with a discovery order, including contempt of court or dismissal of an action. Here, the court can direct the women to be available for the pretrial conference because it may facilitate a settlement and expedite disposition of the action.

If a case for negligence is being heard in Federal Court based on Diversity, and the court finds that the defendant has acted in bad faith to cause more discovery expense to the plaintiff, Can the court on its own require defendant to pay for attorney cost if the forum state does not allow for awards of attorneys fees?

Yes, in a diversity case on a state law claim, the federal court may properly use its inherent power to assess attorney's fees as a sanction for a defendant's bad-faith conduct during the litigation, even if the law of the forum state provides that attorney's fees may not be awarded to a successful party.

MBE- What type of regulation are the following? (cb, cn,syb, com, tpm) (1) ordinance about up-coming event signs that limited the number and time period of the displays because city was concerned about signs being left and building up. (2) regulation requiring no violent displays on electronic billboards near roads in concern for distracted driving.

all content based

MBE- 11th amendment and exceptions

is a jurisdictional bar that prohibits the citizens of one state form suing another state in federal court. It immunized the state from suit in federal court for money damages or equitable relief when the state is a defendant in an action brought by a citizen of another state or foreign country. In addition, the 11th amendment bars suits in federal court against state officials for VIOLATIONS OF STATE LAW. EXCEPTIONS: (1) consent and (2) injunctive relief against state official. (3)Damage to individual against a state officer, personally as an individual. (4) Prospective damages, (5) congressional authorization (6) actions against local governments

A man and a woman agreed to engage in consensual sexual intercourse at a particular hotel the following night. The man, who was the son of the woman's brother-in-law, rented the hotel room for their tryst, but the woman did not show up. In the applicable jurisdiction, a statute provides that a person commits the offense of incest when such person engages in sexual intercourse with a person whom he or she knows he or she is related to either by blood or by marriage as aunt or nephew. Can the woman and man properly be charged with conspiracy to commit incest? A. Yes, because each consented to engage in sexual intercourse. B. Yes, because the man rented a hotel room. C. No, because of the Wharton Rule. D. No, because the woman did not show up to the hotel.

nswer choice C is correct. Under the common law, conspiracy is (i) an agreement (ii) between two or more persons (iii) to accomplish an unlawful purpose (iv) with the intent to accomplish that purpose. Under the majority rule, one of the co-conspirators must also commit an overt act in furtherance of the conspiracy. Here, a woman and man who were related to each other as aunt and nephew by marriage agreed to engage in consensual sexual intercourse and the man rented a hotel room for that purpose. However, under the Wharton Rule, if a crime requires two or more participants, there is no conspiracy unless more parties than are necessary to complete the crime agree to commit the crime. In this case, because only the woman and man agreed to commit incest and both are required in order to commit this crime, neither can properly be charged with the crime of conspiracy to commit incest. Answer choice A is incorrect. Although each agreed to commit incest, because both are necessary parties to this crime, neither can be charged with conspiracy to commit incest. Answer choice B is incorrect. The fact that the man rented a hotel room would constitute an overt act in furtherance of the conspiracy in a jurisdiction requiring an overt act. However, as both the woman and the man are necessary parties to this crime, neither can be charged with conspiracy to commit incest. Answer choice D is incorrect because withdrawal is not a defense to conspiracy under the common law. Even if this jurisdiction applies the MPC or majority rule, upon completion of the overt act, the conspiracy is formed, and withdrawal is no longer possible. Consequently, the woman's failure to show up would not serve as a withdrawal from the conspiracy.

When more than one cause or more than one defendant that caused the plaintiffs injury, what is the test for causation

substantial factor test to P's injury

what is the Pinkerton Rule

the Pinkerton rule says that every co-conspirator is guilty of any foreseeable substantive offense committed in furtherance of the conspiracy, regardless of its commission.

MBE- what does the "color of state law: requirement mean?

the color of state law is functionally identical to state action prerequisite to trigger constitutionality liability.

MBE - Contracts Clause and State Regulations

the contracts clause does not apply to state regulations.

MBE- If an income based taxed is imposed on nonresidents that tax earned outside that stat's borders may violate what constitutional amendment? Not: commerce, EP, T& Sp, not comity. . .

the due process clause of the 14th.

MBE- State taxation of federal government.

the federal government and its instrumentalities are immune from taxation by the states. States may impose a generally applicable indirect tax so long as they do not unreasonably burden the federal government.