Missed Mixed MBE Review Questions

A professional football association implemented a policy requiring football teams that were part of the association to interview black candidates for any open high-level coaching positions, although no quota was established or preference given to black applicants. The purpose of the policy was to attempt to remedy a history of discrimination in the association wherein black applicants were less likely to be hired and more likely to be fired than their white counterparts. As a result of this policy, more black coaches were hired. Due to the success of the policy, and because other professional sports teams also had a history of discrimination in hiring black coaches, Congress enacted a statute requiring all professional sports teams to implement a similar policy. A professional baseball team has challenged the constitutionality of the statute as an equal protection violation.Is the statute constitutional? a. No, because the statute is attempting to remedy general societal discrimination. b. No, because the statute is not rationally related to a legitimate government interest. c. Yes, because remedial race-based classifications further an important government interest. d. Yes, because the statute is remedying specific past discrimination in the hiring of black coaches.

Answer choice A is correct. Although there is no federal equal protection clause, the Supreme Court has held that the Fifth Amendment Due Process Clause includes the rights guaranteed by the Equal Protection Clause, thereby making discrimination by the federal government subject to review under the same standards as discrimination by the states. The Equal Protection Clause provides that states are generally prohibited from passing legislation that treats similarly situated persons differently. Programs that favor racial or ethnic minorities are subject to strict scrutiny. For a governmental affirmative action program based on race to survive, the relevant governmental entity (here, Congress) must show more than a history of societal discrimination. The government must itself be guilty of specific past discrimination against the group it is seeking to favor, and the remedy must be narrowly tailored to end that discrimination and eliminate its effects. In other words, the elimination of past discrimination in a particular governmental institution is a compelling state interest; attempting to remedy general societal injustice through affirmative action is not. Here, there is no evidence presented to show that a particular governmental institution is guilty of specific past discrimination. Rather, it is the professional sports teams that have engaged in past discrimination. The statute enacted by Congress is thus attempting to remedy a general social injustice through affirmative action, instead of specific governmental conduct. Therefore, the statute is unconstitutional.

Question 4225 A customer entered a hardware store to purchase paint. The associate who helped the customer had just been hired the day before, and was not trained with regard to paint selection. The customer explained that she was painting her house and had applied a water-based primer, and that she needed to select an appropriate top coat. The associate showed the customer an oil-based paint, assuring the customer that the paint was appropriate for the job. The associate then told the customer that he was selling the paint "as is," and that he could not be responsible for any adverse reactions. The customer made the purchase and used the oil-based paint to paint her house. Upon drying, the paint immediately peeled away from the water-based primer, causing extensive damage to the exterior of the house.In a breach of warranty action against the hardware store, will the customer prevail? a. Yes, because the associate's promises created an express warranty. b. Yes, because the warranty of fitness for a particular purpose cannot be disclaimed. c. No, because the associate's statement that the paint was sold "as is" disclaimed any warranties. d. No, because the associate was not a merchant.

Answer choice A is correct. Any promise, affirmation, description, or sample that is part of the basis of the bargain is an express warranty, unless it is merely the seller's opinion or commendation of the value of the goods. In this case, the associate's assurances that the paint selected was appropriate for the job created an express warranty. That warranty was breached, and the customer would prevail.

Question 3232 The jury commissioner at a state court was charged with stealing the identities of dozens of potential jurors. She readily confessed to her crime to her employer immediately after the allegations of her behavior surfaced. The county immediately terminated her employment. Both her employment contract and state law clearly stated that jury commissioners can be terminated only if there is just cause to do so. A hearing was scheduled for a week following the commissioner's termination. The commissioner filed suit to have herself reinstated as commissioner. She alleged that, because she had not been convicted, she was entitled to a pre-termination notice and an opportunity to respond.Has the commissioner likely received the due process to which she is entitled? a. Yes, because she will receive a prompt post-termination hearing. b. Yes, because no hearing is required when there is cause to terminate the employee. c. No, because she has not been convicted of a crime. d. No, because she did not receive a pre-termination hearing.

Answer choice A is correct. Generally, a public employee who may be discharged only 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 pre-termination hearing, however, is not required. If there is a significant reason for immediately removing a "for-cause" employee from the job, a prompt post-termination hearing with reinstatement and back pay if the employee prevails constitutes sufficient due process. Here, the commissioner's theft of information directly related to her position as jury commissioner and the ability to continue such criminal behavior is a justification for her immediate removal as commissioner. Accordingly, only a post-termination hearing is required, and as that hearing is set for the week following the commissioner's termination, the commissioner has likely received proper due process.

Question 8368 In a state court of general jurisdiction in State A, a debtor, who was a resident of State A, brought suit against a lender, who was an alien with permanent residency status in State B, for violation of the federal Fair Debt Collection Practices Act. The lender waived personal jurisdiction. Under state procedural rules, venue was proper in the state court. The lender timely removed the action to the federal court for the Northern District of State A, which was the district in which the state court sat. The lender then timely moved to dismiss the action for improper venue, noting that, had the action initially been brought in federal court, the federal court for the Northern District of State A would not have had proper venue over this action.How should the court rule on this motion? a. Deny the motion, because the state court sat in the federal Northern District of State A. b. Deny the motion, because venue was proper in the state court under state procedural rules before the action was removed. c. Grant the motion, because the lender is deemed to reside in the judicial district where that person is domiciled. d. Grant the motion, because the federal court for the Northern District of State A would not have had proper venue over this action had the action been initially brought in federal court.

Answer choice A is correct. In a case that is removed from state court, venue is proper in the federal district court in the district where the state action was pending. Since this action was removed from a state court in the Northern District of State A, venue is proper in the federal district court for the Northern District of State A. Answer choice B is incorrect because the federal rules regarding proper venue when a case is removed from state court do not turn on whether venue was proper in the state court from which the case was removed.

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. You Selected: No, because each note constitutes a separate claim. c. Yes, because the buyer failed to raise this defense in the prior action. d. 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.

Question 8392 A professor was granted tenure at a specific state university. As a tenured faculty member, he was entitled to continued employment at that university until retirement or resignation unless he was terminated for good cause. For the next 10 years, he taught at the university. Then, facing a budget deficit, the state legislature abolished that specific university. Consequently, after receiving notice, the professor was terminated without any hearing. Have the professor's procedural due process rights been violated? a. No, because his termination was not an adjudicative act. b. No, because the professor received notice of his termination. c. Yes, because he had tenure. d. You Selected: Yes, because he was terminated without a hearing.

Answer choice A is correct. Procedural due process only applies in quasi-judicial or adjudicatory settings, and not with respect to the adoption of general legislation. Here, the professor was not terminated as an individual, but instead as a consequence of the abolition by the legislature of the specific university at which he was granted tenure. Therefore, his termination did not trigger his procedural due process rights.

A plaintiff properly filed a negligence action in federal district court based on diversity jurisdiction. Although either party could have filed a demand for a jury trial, neither party did. The case was heard before a judge. The defendant admitted liability, but contested the amount of damages sought by the plaintiff. The judge considered both documentary as well as testimonial evidence before detailing her findings and making the award. The defendant has timely appealed this award.What is the appropriate standard of review for the appellate court to apply to the amount of damages awarded by the trial judge? a. The award should not be set aside unless it is clearly erroneous. b. The award should be reviewed under an abuse of discretion standard. c. The preponderance of the evidence standard applies because this is a civil case. d. The appellate court should consider the evidence de novo because this is a bench trial.

Answer choice A is correct. The amount of damages to be awarded is a factual finding. As such, the award must not be set aside unless clearly erroneous. Answer choice B is incorrect because the abuse of discretion standard is typically applied to decisions made that relate to the conduct of the trial, such as the appropriate sanction to be imposed for the failure to comply with a discovery order.

Question 6361 A car collector entered into an agreement with a car restorer to completely restore an exotic convertible. The car collector sought substantial work on the interior and exterior of the car, as well as the engine. The car restorer began working on the interior of the car and was able to complete a substantial portion of the interior restoration in one day. After the car restorer left his shop for the day, a severe storm occurred that contained highly damaging winds. A large tree located next to the shop was uprooted and landed directly on the exotic convertible, completely destroying it. The car restorer sought to recover the value of the work performed on the car's interior from the car collector.Will the car restorer's claim to recover the value of the work performed succeed? Answers: a. No, because no benefit was conferred by the car restorer upon the car collector. b. No, because the duties of both parties to the contract were discharged by impossibility. c. Yes, because the car collector's duty under the contract is not discharged. d. Yes, because the car restorer can recover the value of his service in quasi-contract.

Answer choice A is correct. The defense of impracticability (impossibility) is available if the specific subject matter of the contract is destroyed. In this case, the exotic convertible was destroyed through no fault of either party. As a result, the parties were no longer required to perform under the contract. The car restorer can still recover in quasi-contract for any benefit that was conferred prior to impracticability, but the court would only award restitutionary recovery in order to prevent the unjust enrichment. When a defendant is unjustly enriched by the plaintiff, restitution generally allows the plaintiff to recover on the benefit conferred by the plaintiff upon the defendant, rather than on the harm suffered by the plaintiff. Here, no benefit has been conferred, and thus the car restorer cannot recover the value of his service. Answer choice B is incorrect. Although the duties of both parties were discharged, this fact alone would not bar the car restorer's recovery in quasi-contract for the work performed. Therefore, answer choice A is the better answer.

A state recently enacted a consumer protection statute preventing the in-state sale of avocados containing less than 8 percent oil to ensure that only mature avocados were marketed within the state. Pursuant to a federal law that permitted fruit growers in economically depressed areas to cooperatively fix marketing rules for the orderly and economically efficient marketing of fruit for the benefit of both the local and national economy, avocado growers in a neighboring state, an economically depressed area, determined the marketability of avocados based solely on the size and color of the avocado. In accordance with the federal law, the U.S. Secretary of Agriculture approved this marketability rule. A significant number of avocados in the economically depressed state that met the federally approved rule would be excluded from sale in the first state by that state's consumer protection statute, although no growers from the economically depressed state have yet tried to sell their avocados in the first state. The cooperative formed by these growers to oversee the marketing rules filed an action in federal court against the officials in the first state, seeking to enjoin those officials from enforcing the statute.Which of the following arguments is the best argument for the officials in the first state? a. The first state's statute is a valid exercise of the police power and is not preempted by federal law. b. The Eleventh Amendment prevents this suit. c. You Selected: The cooperative lacks standing to sue. d. The federal law is unconstitutional because Congress cannot regulate intrastate activity.

Answer choice A is correct. The state statute is not expressly preempted by the federal rule. In addition, the state statute arguably is not impliedly preempted because there is no indication that the federal law intended for the marketing rules to occupy the field. In addition, the state statute does not directly conflict with the federally approved rule. It does not prevent the growers in the economically depressed state from complying with their marketing rule. Also, the state statute does not indirectly conflict with the federal law: the state statute does not deal with the same purpose, and the federally approved rule was adopted to improve economic conditions, while the state statute seeks to protect consumers from immature avocados. Although there could be an argument that the rule undercuts the economic stimulation purpose of the federal statute, the absence of preemption is the state official's best argument. Note that if there has not been federal preemption in a given area, a state is free to set more stringent standards than those imposed by the federal government, as occurred here.

Question 7299 Hoping to crack down on the indoor cultivation of marijuana in a particular neighborhood, an officer brought a drug-sniffing dog door-to-door, asking everyone who answered the door if they knew anything about the marijuana market in the area. The officer and his dog entered the defendant's yard and walked onto his front porch. Before the officer could knock at the door, the dog alerted to the presence of marijuana. The officer left without knocking and obtained a search warrant to search the home for "immature and mature marijuana plants" based on the dog's alert. The officer returned to execute the warrant and found the defendant in the basement with a small quantity of harvested marijuana, but no growing plants. The officer arrested the defendant and seized the marijuana. At the defendant's trial for drug offenses, the defense attorney moves to suppress the marijuana seized pursuant to the Fourth Amendment.Of the following, which argument best supports the defendant's motion to suppress evidence of the marijuana? Answers: a. The officer and dog entered the curtilage of the defendant's home by walking on the porch. b. The officer failed to knock and announce before applying for the warrant. c. The officer's use of a drug-sniffing dog without a warrant was an unconstitutional search. d. The search warrant did not specify that harvested marijuana could be seized.

Answer choice A is correct. Use of a trained dog to sniff for the presence of drugs is a search if it involves a physical intrusion onto constitutionally protected property, such as the curtilage of a home. Here, the defendant's strongest argument is to establish that the officer conducted an invalid search when he brought a trained drug-sniffing dog into the curtilage of the defendant's home without a warrant or probable cause.

Question 6712 An indigent defendant was arrested and charged with burglary. At his preliminary hearing, counsel was appointed. Unable to satisfy the conditions for his pre-trial release, the defendant was detained in jail awaiting trial on the burglary charge. While the defendant was in jail, a police detective questioned him about an unrelated murder without his lawyer present. Prior to questioning, the police detective revealed that she was a police officer and Mirandized the defendant. The defendant subsequently made an incriminating statement with regard to the murder, which lead to him being charged for that crime as well. At his trial for the murder, the defendant timely moved to suppress the statement he made to the police detective as having been obtained in violation of his constitutional rights.Should the court grant this request? Answers: a. No, because the defendant was in custody for an unrelated burglary. b. No, because the defendant was given Miranda warnings before making his incriminating statement. c. Yes, because the defendant's Fifth Amendment right to counsel was violated. d. Yes, because the defendant's Sixth Amendment right to counsel was violated.

Answer choice B is correct. Although the defendant had a Fifth Amendment right to counsel with regard to the unrelated murder because he was in custody and being interrogated about the crime, he had been informed of his Miranda rights before making the incriminating statement. Absent an assertion of his right to counsel prior to making the statement, the defendant cannot now assert that his Fifth Amendment right to counsel was violated. Answer choice A is incorrect. The defendant's Fifth Amendment right to counsel is triggered when the defendant is in custody, regardless of the reason that the defendant is in custody. However, here the defendant's Fifth Amendment right to counsel was not violated because he was given Miranda warnings before being questioned about the murder.

Question 6325 A father was throwing a wedding for his daughter, and the wedding costs were adding up so quickly that the father was forced to take out a second mortgage on his home, as well as a bank loan at a very high interest rate. The father was under a great amount of financial pressure, but he was willing to do anything to give his daughter her dream wedding. After many months of stress and anxiety, his daughter's wedding day finally arrived. While waiting in the buffet line to get some dinner at the wedding reception, the father overheard his daughter's mother-in-law tell another guest that she thought the wedding was low-rent and tacky, and that her daughter-in-law's father was a penny-pinching, tightfisted man. The father became enraged and could not control himself. He grabbed a knife from the roast beef carving station and stabbed his daughter's mother-in-law to death. A state statute defines murder in the first degree as premeditated and deliberate, murder in the second degree as common-law murder, and voluntary manslaughter under the common-law rule.What crime did the father commit? a. First-degree murder. b. Second-degree murder. c. Voluntary manslaughter. d. Involuntary manslaughter.

Answer choice B is correct. Common-law murder is the unlawful killing of another human being committed with malice aforethought. Malice aforethought includes the following mental states: intent to kill, intent to do serious bodily injury, reckless indifference to an unjustifiably high risk to human life (depraved heart), or intent to commit certain felonies (felony murder). Here, the father intended to do serious bodily injury when he stabbed the mother-in-law with a carving knife. He also demonstrated a callous disregard for human life when he stabbed her over some disparaging comments about the wedding and his alleged tight-fistedness.

Question 7037 A buyer and a homeowner signed a writing on July 1 providing that the homeowner would sell his home to the buyer on July 20 for $250,000. However, the buyer's obligation to purchase the home was conditioned on the buyer being able to obtain financing before the date of closing. On July 15, the homeowner received another offer on his home for $275,000. Because the homeowner had not yet heard from the buyer regarding whether he had obtained financing for the purchase, the homeowner accepted the offer and delivered title to the home to the second buyer. On July 20, the buyer, having obtained the necessary financing, visited the homeowner to close on their contract. Because the homeowner could no longer deliver the title of the home, the buyer sued the homeowner for breach of contract.If the buyer succeeds in his action, which of the following will the buyer be entitled to recover? a. Nominal damages only. b. The amount, if any, by which the fair market value of the home exceeded c. $250,000 on the date of the homeowner's breach. $25,000, plus the amount, if any, by which the fair market value of the home exceeded $250,000 on the date of the homeowner's breach. d. The full fair market value of the home on the date of the homeowner's breach.

Answer choice B is correct. Damages for failing to perform a real estate sales contract are measured by the difference between the contract price and the market value on the date of the breach.

Question 369 A defendant in a robbery case was awaiting trial, though his attorney had negotiated with the prosecution to allow him to be under house arrest while awaiting trial, instead of sitting in jail. The police had been unable to find the gun that the defendant purportedly used to commit the robbery, and knew that finding the gun would greatly help the prosecution make its case. One of the police officers decided to visit the defendant at his home. After talking with the officer for about 30 minutes, the defendant decided to confess to the robbery. The defendant also admitted that the gun was hidden in a random office building downtown, which the police had never thought to search. Based on the confession, the officer got a warrant to search the building and found the gun. The prosecutor plans to introduce both the confession and the gun into evidence at the defendant's trial.On a motion by the defense to suppress the confession and the gun, how should the court rule? a. Grant the motion as to the confession, but deny it as to the gun. b. Grant the motion as to both the confession and the gun. c. Deny the motion as to the confession, but grant it as to the gun. d. Deny the motion as to both the confession and the gun.

Answer choice B is correct. The evidence should be suppressed because there were both Fifth and Sixth Amendment violations. The defendant's Sixth Amendment rights were violated because he was represented by counsel in the matter at issue and there was no effective waiver of that right. Evidence obtained in violation of a defendant's Sixth Amendment rights may not be introduced at trial. This is the case for both statements of a defendant and any evidence derived from such statements. In addition, the defendant's Fifth Amendment rights were violated. Since the defendant here was under house arrest, he was in "custody." A reasonable person would not believe that he was free to leave under such circumstances. Since there were no Miranda warnings given, the confession is inadmissible. (Note that the lack of Miranda warnings would not necessarily preclude admission of the gun.) Answer choice A is incorrect because it would allow for admission of evidence derived from such a confession. Answer choices C and D are incorrect because they would allow for admission of an illegally obtained confession.

State A and State B are separated by State C. After researching the medical uses of a synthetic drug that was originally developed as a "club drug," State A and State B have legalized the synthetic drug as a medical treatment for post-traumatic stress disorder (PTSD). State C has not legalized any use of the drug and has a statute that criminalizes its possession. There is no federal law regulating this synthetic drug. The drug is much cheaper in State B because most of it is manufactured in that state. A PTSD patient residing in State A decided to save money by visiting State B to fill her prescription for the drug. As she was returning to State A, she was validly arrested in State C for an unrelated traffic offense. When the police found the synthetic drug in a proper inventory search of her car, State C seized the drug and brought a criminal possession charge against her. After the patient learned that the State C possession statute has an exemption for common carriers who contract to transport the drug from State B manufacturers to State A pharmacies, the patient challenged the State C charges and State C's seizure of her medication solely on the grounds that State C has violated the Equal Protection Clause.Is the patient's action likely to succeed? a. No, because in State C, the patient has no protected property interest in the synthetic drug. b. No, because the state has a rational basis for differentiating between private persons and common carriers. c. Yes, because the criminal statute unduly burdens the fundamental right to interstate travel. d. Yes, because the state has no compelling purpose for differentiating between private persons and common carriers.

Answer choice B is correct. The rational basis standard is used in all cases in which one of the higher standards (intermediate or strict scrutiny) does not apply. Thus, rational basis review applies to laws drawing distinctions based on age, wealth, weight, or most other classifications, as well as to any distinctions drawn for business or economic reasons. In this case, rational basis review will apply, and because there is a rational basis to regulate possession by private individuals but not common carriers, the law is likely constitutional.

Question 7322 A statute in a jurisdiction that follows the Model Penal Code provides:A person is guilty of battery if he causes bodily injury to another.An individual has been charged with violation of this statute.Which of the following describes the lowest level of culpability that the individual must possess in order to be properly charged with this crime? Answers: a. Negligently b. Recklessly c. Knowingly or willfully d. Purposely

Answer choice B is correct. Under the Model Penal Code, if the requisite mens rea is not stated in a criminal statute, it is established if the defendant acted at least recklessly. Consequently, under the statute here, an individual must act at least recklessly in causing bodily injury to another

Question 5964 A potential gang member was required to go through an initiation in order to formally join the gang. The head of the gang told the potential member that he had to drive the getaway car in a robbery for his initiation task. Three members of the gang, including the gang leader, went to a bank one morning and held up the bank tellers. When they emerged from the bank, the potential member, who had been waiting around the corner, pulled up outside the bank in a car and drove them away. Bank security cameras recorded the gang members in the act of robbing the bank. When they were arrested, the gang members told the police that the potential gang member had driven the getaway car. He was subsequently arrested for robbing the bank.Will the potential gang member likely be convicted of robbery? Answers: a. Yes, because he was an accessory before the fact. b. Yes, because he was a principal in the second degree. c. No, because he did not enter the bank and hold up the tellers. d. No, because he was under duress.

Answer choice B is correct. Under the majority and MPC rule, an accomplice is a person who, with the purpose of promoting or facilitating the commission of the offense, aids or abets a principal prior to or during the commission of the crime. An accomplice to the crime can be convicted of the crime, even if he was not involved in the principal's criminal actions. An accomplice is responsible for the crime to the same extent as the principal. Here, the potential gang member, as an accomplice, can be convicted of robbery even though he did not enter the bank or hold up the tellers.

Question 4371 A carpenter and a homeowner entered into a valid written contract for the carpenter to design, build, and install kitchen cabinets in the homeowner's house at a cost of $25,000; the price includes the cost of materials used, but mostly reflects the cost of the carpenter's services. After execution of the contract, but before beginning performance, the carpenter realized that his initial calculations were incorrect. The carpenter phoned the homeowner, explained the matter, and demanded an additional $5,000 in order to perform the job. The homeowner orally agreed, after securing the carpenter's consent to change the style of handles and hinges to be used on the cabinets, a change that, unaware to the homeowner, resulted in a cost savings to the carpenter. The carpenter constructed and installed the cabinets. When the homeowner tendered a check for $25,000 to the carpenter, the carpenter demanded the agreed-upon contract price of $30,000.In a common-law jurisdiction, is the carpenter likely to prevail in his demand for the full $30,000? Answers: a. Yes, because the homeowner agreed to pay the higher amount. b. Yes, because the carpenter's duties under the contract were modified. c. No, because the carpenter did not suffer a financial detriment. d. No, because the oral modification violated the Statute of Frauds.

Answer choice B is correct. Unlike a contract for goods, modification of a contract for services must be supported by consideration. Where a contract has both services and goods elements, the predominant purpose test applies. Since the cost of the carpenter's services exceed those of the materials used to make the cabinets, this contract is likely to be classified as a contract for services. Consideration can be found when there is a change in a party's duties, even where that change is financially beneficial to the party

Question 8610 A father came home from work to learn that his daughter had been attacked on her way home from school. The attack resulted in her overnight hospitalization. The following day, the father learned the identity of his daughter's attacker. Still enraged by the incident, the father shot and killed the individual whom he thought was the attacker. However, instead of the attacker, the victim was the attacker's twin brother who was not involved in the attack. The father was charged with murder. Could the father be found guilty of the reduced crime of voluntary manslaughter? a. Yes, because a killing committed in the heat of passion will be mitigated to the lesser crime of voluntary manslaughter, regardless of the identity of the victim. b. Yes, because the doctrine of transferred provocation applies. c. You Selected: No, because there was not adequate provocation to reduce the killing from a murder to a manslaughter. d. No, because he wanted to kill his daughter's attacker, not the victim.

Answer choice B is correct. Voluntary manslaughter is murder committed in response to adequate provocation (i.e., in the "heat of passion"); that is, the defendant was provoked by a situation that could inflame the passion of a reasonable person to the extent that it could cause that person to momentarily act out of passion rather than reason. Generally, a serious battery constitutes adequate provocation. Here, the attack on the father's daughter, which resulted in her overnight hospitalization, constitutes a serious battery. Under the doctrine of transferred provocation, when a defendant accidentally kills the wrong person, he will be guilty of voluntary manslaughter if that would have been his crime had he killed the provoker. Therefore, it is possible that the father's crime could be mitigated to voluntary manslaughter, and if that is the case, that mitigation will extend to the victim, even though the father was mistaken as to his identity.

Question 380 An indigent defendant was indicted for driving under the influence of alcohol, a misdemeanor. The lawyer who had been appointed to represent the defendant suffered a fatal heart attack on his way to the courthouse on the day scheduled for the trial. In discussing the absence of the defendant's lawyer with the defendant, the trial judge learned from the defendant that he intended to plead guilty. The judge indicated that, in exchange for the defendant's guilty plea, the defendant would not serve time in prison. The defendant agreed and was sentenced to two months in prison, with the sentence suspended.The defendant appealed his conviction, contending that he was denied his Sixth Amendment right to counsel at trial.Should the judge reverse the defendant's conviction? a. No, because the defendant was convicted of a misdemeanor. b. No, because the defendant's prison sentence was suspended. c. Yes, because the defendant was convicted of a crime for which a sentence of incarceration was imposed. d. Yes, because the defendant was convicted of a crime that was punishable by imprisonment.

Answer choice C is correct. A defendant has the right to the assistance of counsel at any trial that results in a sentence of incarceration, even when that sentence is suspended. Answer choice A is incorrect because even a misdemeanor that results in a sentence involving incarceration requires the assistance of counsel. Answer choice B is incorrect because the fact that the sentence was suspended does not eliminate the requirement that defense counsel be provided. Answer choice D is incorrect because assistance of counsel is not required for a crime that is punishable by imprisonment as long as that punishment is not imposed

Question 378 On trial for second-degree murder, the defendant pled not guilty, asserting that he acted in self-defense.The statute in the jurisdiction defines second-degree murder as "the intentional killing of another human being with malice and without provocation." The jurisdiction also has a statute stating that "all affirmative defenses are to be proved by the defense, and the burden of persuasion shall be by a preponderance of the evidence."The judge instructed the jury that the self-defense evidence presented by the defendant should not be considered by the jury for any purpose unless the jury first determined that this evidence satisfied the "preponderance of the evidence" standard. The jury found the defendant guilty of second-degree murder.The defendant appealed his conviction, contending that the state statute and the jury instructions violated his constitutional rights. How should the appellate court rule on this appeal? a. Both the statute and jury instructions violate the Due Process Clause of the Fourteenth Amendment. b. The statute violates the Due Process Clause of the Fourteenth Amendment, but the jury instructions do not. c. The jury instructions violate the Due Process Clause of the Fourteenth Amendment, but the statute does not. d. Neither the statute nor the jury instructions violate the Due Process Clause of the Fourteenth Amendment.

Answer choice C is correct. A state (or the federal government) may place the burden of proving an affirmative defense, such as self-defense, on the defendant without violating the Due Process Clause. The preponderance of the evidence standard for judging whether the defendant has met this burden is also constitutional. The jury instructions, however, improperly prevent the jury from considering the defendant's self-defense evidence, not as an affirmative defense, but as a defense to the elements of the crime that the prosecution must prove.

A card collector decided to sell a rare baseball card. He had a friend who had always shown interest in the card. The card collector called the friend and stated, "I'm selling the baseball card that you like. It's yours for $475. I'll give you two weeks to think about it and let me know." The friend informed the card collector that he would get back to him soon. Three days later, a dealer in rare sports cards contacted the card collector and offered him $800 for the sports card. The card collector immediately accepted and sold the card to the dealer. The next day, the friend called the card collector and stated, "I accept your offer and will bring you the money later today."Does an enforceable contract exist between the card collector and the friend? a. No, because the contract was not in writing. b. No, because the card collector's offer was automatically revoked by the sale to the dealer. c. Yes, because the friend accepted the card collector's offer within two weeks. d. Yes, because the card collector's offer was irrevocable for two weeks.

Answer choice C is correct. An acceptance is an objective manifestation by the offeree to be bound by the terms of the offer. The offeree must communicate the acceptance to the offeror. In this case, the friend communicated his acceptance of the card collector's offer by calling the card collector. The friend's acceptance was communicated within the two-week period provided by the card collector in his offer. Therefore, a valid and enforceable contract came into existence upon the friend's acceptance of the offer. Answer choice A is incorrect. There is no requirement that this type of contract be in writing to be enforceable, as it constitutes a sale of a good for less than $500. Answer choice B is incorrect. If the offeree acquires reliable information that the offeror has taken definite action inconsistent with the offer, then the offer is automatically revoked (i.e., a constructive revocation occurs).

An inmate at a state prison filed a civil action under federal statute 42 U.S.C. § 1983 against prison officials for violating his constitutional rights. The inmate contended that he was subject to protracted and gratuitous strip searches in retaliation for filing grievances against prison officials. In giving jury instructions, the court erroneously placed the burden of establishing causation on the inmate, requiring him to negate the possibility that the strip search would have occurred in the absence of a retaliatory motive. The inmate's lawyer failed to object to this instruction. The jury found in favor of the prison officials. The inmate appealed this decision, raising the issue of the erroneous jury instructions for the first time.Can the appellate court consider the erroneous jury instructions in ruling on this appeal? a. No, because the inmate's attorney failed to object to the instructions during the trial proceedings. b. No, because this is a civil action, not a criminal prosecution. c. Yes, because the appellate court may apply the plain error doctrine. d. You Selected: Yes, because the jury instructions are subject to de novo review on appeal.

Answer choice C is correct. An appellate court may address a plain error in jury instructions given by the trial court, even though the party has failed to object to the instructions, when the error affects substantial rights. Here, because the jury instruction placed an improper burden on the inmate, affecting a substantial right, the appellate court may consider the erroneous jury instructions even though the error was raised for the first time on appeal. Answer choice A is incorrect. Although a party who fails to timely object to jury instructions during the trial generally cannot raise the issue of an error in those instructions on appeal, there is a narrow exception based on the plain error doctrine. Answer choice B is incorrect. Although the plain error doctrine is more frequently applied in the appellate review of criminal trials than civil ones, this doctrine is also applicable in civil cases. Answer choice D is incorrect. Although an error in jury instructions typically involves an error of law and the appellate court does review such an error under a de novo standard of review, the appellate court generally may not consider such an error unless there has been a timely objection to the instructions during the trial.

Question 7473 The owner of a ranch devised the ranch as follows: "to my wife for life, and then to my grandchildren." The owner devised the remainder of his property to his only child. The owner was survived by his wife and only child. At the time of the wife's death, the owner's child did not have any children.The applicable jurisdiction adheres to the common law Rule Against Perpetuities.What is the status of the title to the ranch immediately after the wife's death? Answers: a. The child owns the ranch in fee simple absolute, because the contingent remainder in the grandchildren failed to vest when it became a possessory interest. b. The child owns the ranch in fee simple absolute, because of the Rule Against Perpetuities. c. The child owns the ranch in fee simple subject to an executory interest. d. The child owns the ranch in fee simple subject to a contingent remainder.

Answer choice C is correct. At the time of the owner's death, the wife had a life estate in the ranch, the owner's grandchildren held a contingent remainder, and the owner's child held the reversionary interest as the devisee of the owner's property other than the ranch. The grandchildren's interest was a remainder because it was a future interest created in a grantee that was capable of becoming an estate that is presently possessory upon the natural expiration of a prior possessory estate (i.e., the wife's life estate) that was created in the same conveyance in which the remainder was created. This interest was a contingent remainder because it was created in a grantee who was unascertainable. The owner's estate held a reversion in the ranch because there was the possibility that there would be no grandchildren when the wife died. Upon the wife's death, there was no longer a prior possessory estate of known fixed duration, so the grandchildren's interest was converted into an executory interest. An executory interest is a future interest in a third party that is not a remainder and that generally cuts the prior estate short upon the occurrence of a specified condition. In this case, it will terminate the interest held by the owner's child. Upon the wife's death, the interest of the owner's child was converted from a reversion, which is a future interest, to a present possessory interest. As this interest is only subject to the grandchildren's executory interest, the interest of the owner's child is a fee simple subject to an executory interest. Answer choice A is incorrect. Although at common law contingent remainders that did not vest by the time the preceding estate terminated were destroyed, most states have abolished this doctrine. Answer choice B is incorrect. The Rule Against Perpetuities does not apply because the owner's child is a measuring life. At the child's death, it will be known whether the child has any children. Thus, the contingent remainder in the child's children (i.e., the owner's grandchildren) will either vest or will fail by the end of a life in being plus 21 years. Answer choice D is incorrect because, although initially the interest of the owner's grandchildren was a contingent remainder, it was converted into an executory interest upon the death of the owner's wife

Question 8355 A business learned that a former executive had accepted employment with a competitor in breach of a noncompete covenant in his contract with the business, likely a violation of state law. In federal district court, the business filed a complaint seeking an injunction against the former executive to enforce his obligations under the covenant. The former executive filed a counterclaim against the business based on an alleged violation of the federal Americans with Disabilities Act. There is no diversity between the parties. Prior to trial, the court granted a summary judgment motion filed by the business on the counterclaim, and it dismissed the counterclaim. Immediately thereafter, the court, acting sua sponte, dismissed the action on the grounds that the court lacked subject matter jurisdiction. a. No, because no party raised the issue of lack of subject matter jurisdiction. b. No, because the defendant's counterclaim raised a federal question issue. c. Yes, because the complaint filed by the business was based on a breach-of-contract claim. d. Yes, because the court dismissed the federal-law-based counterclaim.

Answer choice C is correct. For a federal district court to have subject matter jurisdiction based on a federal question, the action must arise under the Constitution, laws, or treaties of the United States. Here, the business sought to enforce, through an injunction, the noncompete covenant in its contract with the former executive. This complaint is based on contract law, and it therefore is not based on a federal question. Answer choice D is incorrect because a counterclaim is not considered in determining the existence of federal-question jurisdiction. Thus, the court's dismissal of the action brought by the business was proper, regardless of its ruling on the defendant's counterclaim.

Question 3236 A state board of transportation ordered a railroad company to sell a parcel of land adjoining its railroad track. The parcel in question had been part of a much larger section of land transferred a number of years before from the state to the railroad company in exchange for the company's provision of railroad services to the citizens of the state. The state board fixed a reasonable price based on the land's fair market value to compensate the railroad company for the loss of its land. The railroad refused to sell the land to the designated buyer, a farmer's cooperative. The private cooperative planned to build a warehouse on the land in order to store its members' produce for shipment by rail and other means.In an action to compel the railroad to comply with the order of the state board, should the court rule in favor of the state board? a. Yes, because the railroad is regulated by the state board of transportation. b. Yes, because the price set by the board constitutes just compensation. c. You Selected: No, because the order violates the Fourteenth Amendment's incorporation of the Fifth Amendment. d. No, because the order originated with a state board rather than a state legislature.

Answer choice C is correct. The Fifth Amendment Takings Clause, which applies to the states through the Fourteenth Amendment, provides that a government may seize private property not only for its own direct use, but also in order to transfer the property to another private party. Such a seizure is permissible if it is rationally related to a conceivable public purpose. Under these facts, the land was intended to be used by a farmer's cooperative for building a warehouse and storing its produce. It is unlikely that the intended use of the land was rationally related to a conceivable public purpose since the facts do not indicate that the seizure was based on economic redevelopment goals or safety and welfare justifications. Answer choice A is incorrect because, although the transfer of private property to a regulated public utility might be justified under the Takings Clause as satisfying the public purpose requirement, it cannot be forced to sell its land to another private person unless there is a public purpose that justifies the transfer. Here, it is unclear that there is a sufficient public purpose for taking the land. Answer choice B is incorrect because, although a private-to-public transfer of property can be constitutional when just compensation is paid to the private property owner, a prohibited private-to-private transfer is not rescued by the payment of just compensation.

An investor who purchased shares directly from a corporation successfully sued the corporation in state court for a violation of state law that required registration of securities prior to their issuance. Subsequently, the investor initiated an action in federal court against the corporation for a violation of federal law that required registration of the same securities.Can the corporation successfully plead claim preclusion as an affirmative defense to this action? a. No, because the federal and state governments are separate sovereigns. b. No, because the federal claim was not litigated in the first lawsuit. c. Yes, because the federal claim against the corporation is based on the issuance of the same securities that were the subject of the state lawsuit. d. Yes, because the investor was successful in the first lawsuit.

Answer choice C is correct. The doctrine of claim preclusion (res judicata) provides that a final judgment on the merits of an action precludes the parties from successive litigation of an identical claim in a subsequent action. The original and later-filed causes of action must be sufficiently identical to be barred under claim preclusion. Federal courts apply a transactional approach under which they bar a subsequent claim with respect to all or any parts of the transaction, or series of connected transactions, out of which the action arose. If a plaintiff sues on only a portion of a claim arising from a transaction, then the unaddressed portions of his claim merge with the judgment if the plaintiff wins, and they are barred if the plaintiff loses. Here, the investor's federal-law claim arose out of the issuance of the same securities as the prior state-law claim. Consequently, the corporation can successfully plead claim preclusion as an affirmative defense to the federal action. Answer choice A is incorrect because, under the transactional approach to claim preclusion, the focus is on whether the claims raised by the party arose from the same transaction as the claim pursued in a prior action, and not on whether the claim itself is based on the same jurisdiction's laws as the claim asserted in the prior action. (Note: In a criminal action, the dual-sovereignty rule precludes a double jeopardy defense when a defendant is separately tried by a state and the federal government for the same conduct.)

Question 7747 A state prosecutor filed an information charging a man with first-degree arson and first-degree murder. In the applicable jurisdiction, first-degree arson is defined as "the willful and malicious setting fire to and burning of a dwelling." After the presentation of the prosecution's case, the man's counsel moved for a dismissal of the arson charge because the prosecution had failed to prove that the structure that was burned was a dwelling. The court granted this motion. However, because the evidence presented by the prosecution established second-degree arson, the court permitted the prosecution to amend the information to charge the man with second-degree arson. The man then took the stand and, while testifying, admitted that the structure was a dwelling. The court permitted the prosecution to again amend the information to charge the man with first-degree arson. The jury subsequently convicted the man of first-degree arson.Can the man successfully challenge his conviction on constitutional grounds? a. No, because the man's testimony caused the reinstatement of the first-degree arson charge. b. No, because the trial was not terminated by the dismissal of the first-degree arson charge. c. Yes, because the court dismissed the first-degree arson charge against the man. d. Yes, because the man was not charged with arson through an indictment.

Answer choice C is correct. Under the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the states through the Due Process Clause of the Fourteenth Amendment, a defendant who has been acquitted of a crime generally may not be retried for the same crime. A grant of a demurrer or motion to dismiss in favor of the accused for the prosecution's failure to prove the elements of a crime at the close of the state's case is the equivalent to an acquittal. In this case, the man was effectively acquitted of first-degree arson when the charge was dismissed after the presentation of the prosecution's case. For this reason, the man may successfully challenge his first-degree arson conviction as a violation of the Double Jeopardy Clause.

Question 5070 The spouse of a deceased person filed a complaint in federal district court based on diversity jurisdiction. The complaint alleged that the deceased had died six months previously from a defective product manufactured by the defendant. The spouse took no action with regard to serving the complaint on the defendant. Nine months after the complaint was filed, the court notified the spouse that the complaint would be dismissed unless the spouse established good cause for not timely serving the complaint and summons. The spouse failed to appear in court and did not establish good cause for not serving the complaint and summons. The court dismissed the action.Is the court's dismissal with or without prejudice? a. The dismissal is with prejudice because the spouse failed to appear in court to establish good cause for not serving the complaint. b. The dismissal is with prejudice because the spouse failed to timely serve the defendant. c. The dismissal is without prejudice, because process was not timely served. d. The dismissal is without prejudice, because the court acted sua sponte to dismiss the complaint.

Answer choice C is correct. When an action is dismissed due to the failure to timely serve process, the dismissal is without prejudice. Answer choice A is incorrect. It is irrelevant whether the spouse failed to appear in court, so long as she had notice from the court, as the facts indicate she did.

Question 7786 A skier sued a ski resort company in federal court based on diversity jurisdiction for injuries she sustained when she collided with trail maintenance equipment being operated by a company employee. In its instructions to the jury, the court failed to state that, under the applicable state law, the skier could not recover if she was more than fifty percent at fault. The skier's attorney did not object to this omission. The jury returned a special verdict, finding that the skier was 65 percent at fault and the company 35 percent at fault; the court entered judgment dismissing the skier's complaint.The skier's attorney moved for a new trial, which the trial court denied. On appeal, the skier's attorney contended that the trial court's failure to instruct the jury as to the 50-percent standard constituted plain error, which mandated a new trial.The law of the state in which the federal district court sits does not recognize the plain error rule.On which of the following grounds can the appellate court deny the motion? Answers: a. The plain error rule applies only in criminal, not civil cases. b. The plain error rule does not apply in a case based on diversity jurisdiction when the law of the state in which the federal court sits does not recognize this rule. c. The failure of the skier's attorney to object to the omission of a jury instruction on the 50-percent standard precludes the application of this rule. d. The omission of the 50-percent standard did not affect the skier's substantive rights.

Answer choice D is correct. A court may consider a plain error in jury instructions that affects substantial rights. Here, based on the jury's special verdict that the plaintiff was 65 percent at fault for the accident, the appellate court could conclude that the trial court's failure to give the 50-percent standard instruction did not affect the skier's substantive rights. Answer choice A is incorrect because the plain error rule is applicable in civil as well as criminal cases. Answer choice B is incorrect because, under the Erie doctrine, a federal court generally applies federal rather than state procedural rules in an action based on diversity jurisdiction. Here, FRCP 51(d)(2) provides that a court may consider a plain error in jury instructions that affects substantial rights. Answer choice C is incorrect because the plain error rule applies in situations in which a party failed to preserve an objection to the jury instructions.

Question 7557 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.

Question 4246 A man was jealous of his brother's good fortune. Together with his best friend, the man formed a plan to take some valuable artwork from the brother's home. According to the plan, the friend would rent a van that they would use to drive to the brother's house. The man and his friend would then break into the brother's house, take the paintings, and load them into the van. The next week, the friend rented the van, picked up the man, and drove to the brother's house. When they arrived at the brother's house, the friend had a change of heart and told the man that he could not go through with breaking into the house. The man decided to go ahead with the plan on his own, after the friend ran off. The following day, the friend voluntarily went to the police station and confessed to the plan. Which of the following statements best describes the friend's criminal liability under the majority rule? a. The friend is not guilty of any crime. b. The friend is guilty of larceny as an accomplice, but not of conspiracy. c. The friend is guilty of conspiracy, but not guilty of larceny as an accomplice. d. The friend is guilty of conspiracy and of larceny as an accomplice.

Answer choice D is correct. Conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. Under the majority rule, a conspiracy does not exist until an overt act has occurred, and withdrawal is possible between the date of the agreement and the commission of the overt act. In order to withdraw, notice must be communicated to the other co-conspirators, or the police must be advised of the existence of a conspiracy in a timely manner. Upon completion of the overt act (here, renting the van), the conspiracy is formed, and withdrawal is no longer possible. Under the majority and MPC rule, an accomplice is a person who, with the purpose of promoting or facilitating the commission of the offense, aids or abets a principal prior to or during the commission of the crime. An accomplice is responsible for the crime to the same extent as the principal. To legally withdraw (and therefore avoid liability for the substantive crime), the accomplice must repudiate prior aid or do all that he can to negate the prior assistance before the crime is put into motion. A mere change of heart after the crime is put into motion is ineffective, as notification to the legal authorities must be timely and directed toward preventing others from committing the crime. In this case, the friend did not effectively withdraw as an accomplice or co-conspirator until after the man had the van in front of his brother's house, and the friend did not immediately notify the police so as to prevent the crime. Accordingly, he would be guilty of larceny as both co-conspirator and accomplice.

A federal statute created a long-term program to fund a massive renovation and repair project for bridges in the interstate highway system. The statute provided that the Federal Highway Administration (FHA) "shall allocate and distribute the appropriated funds" in accordance with a specified statutory formula to state transportation agencies that agree to participate in the program. In the current fiscal year, Congress appropriated $80 million towards this program. However, because the President determined that the statutory allocation formula reflects the exaggerated influence of certain states on Congress rather than a prioritization of repair projects based solely on engineering concerns, the President directed the administrator of the FHA to first conduct a review of the bridges in the interstate highway system based solely on engineering safety criteria before allocating and distributing the funds on the basis of a formula keyed to those criteria. Since the study has not yet been completed, the President has directed the FHA administrator to delay the allocation and distribution of the appropriated funds until the next fiscal year.Assuming no other federal statutes are applicable, is the FHA administrator constitutionally required to allocate and distribute $80 million to state transportation agencies this year? a. No, because it is the President's duty to execute the laws. b. No, because the FHA administrator, as a member of the executive branch, is required to follow the President's directive. c. Yes, because the President has no discretion whenever Congress has allocated funds to the states. d. Yes, because the President may not unilaterally delay an explicitly mandated allocation and distribution of monies appropriated by Congress.

Answer choice D is correct. If Congress explicitly mandates an allocation, distribution, or expenditure of funds, the President lacks the power to impound those funds (e.g., refuse to spend them or delay their spending). Because Congress has mandated that these funds must be allocated and distributed in accordance with the statutory formula, the President cannot unilaterally impose a different allocation or distribution formula. Answer choice A is incorrect because the President, although required to execute the laws, must take care do so faithfully. Although the President is permitted to exercise spending discretion if the authorizing legislation so provides, that is not the case here.

Question 185 One afternoon, while driving a co-worker home, a man suffered a seizure and suddenly lost consciousness. While he was unconscious, he drove off the road and slammed his car into a brick wall. As a result of the impact, the man's passenger was killed. The man was a diagnosed epileptic, had suffered several seizures in the past, and recently had voluntarily stopped taking a medication intended to control recurrences. The man was charged with common-law involuntary manslaughter, and was convicted. On appeal, the defendant contends that his conviction should be reversed.How should the appellate court rule on the appeal? a. Reverse the conviction, because the man's reckless actions did not manifest extreme indifference to the value of human life. b. Reverse the conviction, because the man did not commit an act sufficient to satisfy the actus reus requirement. c. Affirm the conviction, because the man voluntarily stopped taking his anti-seizure medication. d. Affirm the conviction, because the man engaged in reckless and criminally negligent behavior.

Answer choice D is correct. If an epileptic knows of the possibility of a seizure and engages in the voluntary act of driving a car, has a seizure while driving, and causes a fatal accident, the epileptic is criminally responsible. While the man's act of driving into the brick wall was performed while experiencing a seizure, and thus was not volitional and does not satisfy the actus reus requirement, the man's act of driving the car while knowingly suffering from the condition is considered a sufficient actus reus.

Question 6194 A consumer from State A brought a strict products liability action in state court in State B against an engine manufacturer and a retailer, alleging $80,000 in damages. The engine manufacturer and the retailer were both incorporated and had their principal places of business in State B. After being properly served, the engine manufacturer filed a notice of removal based on diversity jurisdiction with the federal district court in State B. The retailer joined in and consented to the removal by the engine manufacturer.Is removal proper? a. Yes, because the federal district court in State B has subject-matter jurisdiction over the claim. b. Yes, because both defendants consented to removal. c. No, because state law actions are not subject to removal. d. No, because the engine manufacturer and retailer are citizens of State B.

Answer choice D is correct. If removal is sought solely based on diversity jurisdiction, then the claim may be removed only if no defendant is a citizen of the state in which the action was filed. In this case, both the engine manufacturer and the retailer, the defendants, are citizens of State B, the state in which the action was filed by the consumer. Therefore, they cannot remove the case to the federal district court in State B. Answer choice A is incorrect. The federal district court in State B has subject-matter jurisdiction over the claim based on diversity because there is complete diversity and the amount in controversy exceeds $75,000. Although subject-matter jurisdiction exists and the case could properly have been brought in the district court, the case cannot be removed because the defendants are citizens of the state in which the action was filed. Answer choice B is incorrect. All defendants who have been properly joined and served are required to join in or consent to the removal. However, the fact that both defendants consented to removal here does not automatically make removal proper. Answer choice C is incorrect because removal is proper if the claim arises under state law, so long as the other requirements of diversity jurisdiction are met and no other bars to removal exist.

Question 6681 A police officer saw a man sitting in a coffee shop who he thought fit the detailed description of a suspect wanted for felony embezzlement. The officer walked into the coffee shop for a better look at the man. After making a reasonable determination that the man was the wanted suspect, the officer approached the man and placed him under arrest. Was the arrest proper? a. No, because the officer may not arrest a suspect without an arrest warrant. b. No, because the felony was committed outside the presence of the officer. c. Yes, because the officer did not have time to obtain a warrant. d. Yes, because the officer had probable cause to believe that the man was the wanted suspect.

Answer choice D is correct. In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he has probable cause to believe has committed a felony. In other words, there must be sufficient facts or evidence to lead a reasonable person to believe that a suspect has committed a crime. In this case, the officer reasonably had probable cause to believe that the man was the wanted suspect. Thus, although the embezzlement was committed outside the officer's presence, the officer was permitted to arrest the man without obtaining an arrest warrant.

Question 7316 A baker who had a contract for blueberry muffins tried unsuccessfully to negotiate with a blueberry farmer to purchase blueberries. The following evening, the baker waited until the farmer left her roadside stand and then entered the farmer's adjacent blueberry fields, and picked 25 quarts of blueberries. As the baker was loading the blueberries into his van, the baker had second thoughts about what he had done. Realizing the farmer would have no problem selling the blueberries at his stand, the baker carried the buckets filled with blueberries to the front of the farmer's stand. A few moments later, he was apprehended and charged with larceny.Of the following, which would provide baker with the best defense? a. The baker had begun to voluntarily return the blueberries before he was apprehended. b. The baker had not permanently deprived the farmer of her blueberries. c. The farmer would not have suffered a loss because she could have sold the blueberries at her stand. d. The baker had picked the blueberries himself.

Answer choice D is correct. 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. The taking of real-property items (e.g., unharvested crops) is not larceny when the defendant's act of severance occurs immediately before the carrying away of the real-property items. The act of harvesting fruit constitutes the severance of real, rather than personal property. Here, because the baker had picked the blueberries himself, he had effected their severance from the farmer's field and the blueberries the baker picked are considered to be real rather than personal property.

Question 7561 One evening, an individual learned that the county government planned to bulldoze a meadow of wildflowers located in a public park at 6:00 AM the next morning in order to create a parking lot. Distraught by this information, the individual went to the park, located the county's bulldozer, and temporarily disabled it by removing its spark plugs. The individual is arrested and charged with larceny of the bulldozer.Which of the following is the individual's best defense to this charge? a. Necessity b. Duress c. Defense of property d. Lack of intent

Answer choice D is correct. 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). Here, the individual lacked the intent to permanently deprive the county of its bulldozer because the individual only temporarily disabled it by removing its spark plugs. (Note: The individual could also raise the defense that the individual did not move the bulldozer and therefore did not carry it away.)

Question 7606 On the tenth of the month, an appliance retailer ordered 10 gas stoves of a specific type at a cost of $500 per stove from a manufacturer for delivery by the end of the month. The 10 gas stoves were the last remaining stoves of the specific type that the manufacturer had in stock, as it had discontinued the line. The manufacturer did not acknowledge the order, but delivered 10 electric stoves to the retailer the following week. The retailer promptly notified the manufacturer that it was rejecting the stoves. The manufacturer picked up the electric stoves and notified the retailer that it would deliver the gas stoves before the end of the month. The retailer told the manufacturer not to bother, that it was cancelling its order. The manufacturer replied that the retailer could not do so because they had a contract. When the manufacturer called the retailer on the morning of the last day of month to arrange for the delivery of the gas stoves that day, the retailer reiterated that it had cancelled its order and refused to take delivery. The manufacturer sold the 10 gas stoves to another retailer for $500 per stove, which was their fair market value.If the manufacturer sues the retailer for breach of contract, which of the following is the retailer's best argument? a. The manufacturer did not acknowledge and therefore did not accept the retailer's order. b. The manufacturer breached the contract by delivering 10 electric stoves. c. The retailer cancelled its order. d. The manufacturer is only entitled to nominal damages.

Answer choice D is correct. Since the manufacturer sold the 10 gas stoves for the same price that the retailer offered to pay the manufacturer ($500 each), the manufacturer's expectation damages as a seller, whether measured by the resale price of the stoves or their fair market price ($500 for either), are zero. Consequently, although the manufacturer is entitled to damages for the retailer's breach of their contract, the manufacturer is only entitled to nominal damages. Answer choice A is incorrect. When an offeror does not indicate whether an offer can be accepted by a promise or by performance, the offeree may accept the offer by either a promise or performance. Here, the manufacturer accepted the retailer's offer to purchase 10 gas stoves by delivering 10 electric stoves to the retailer. Under the UCC, this nonconforming tender operates as both an acceptance of the buyer's offer and a breach of contract.

Question 3210 A federal agency regularly contracted with a construction company to perform renovations on federal government buildings. In contracting with the company, the agency followed the federally mandated competitive bidding process; each individual renovation project was covered by a separate contract. Recently, the company made a contribution to a political action committee with interests adverse to the current administration. As a consequence, the agency terminated renovation contracts that had been awarded to the company.Did the agency's decision to terminate its contracts with the company violate the Contracts Clause of Article I, Section 10? a. Yes, because the agency cannot cancel a contract to serve the current administration's political ends. b. Yes, because a governmental entity cannot impair an existing public contract. c. No, because a governmental entity, as a party to the contract, had the right to cancel it. d. No, because the governmental entity was a federal agency.

Answer choice D is correct. The Contracts Clause of Article I, Section 10 prohibits state legislation from retroactively impairing the obligation of contracts. This clause does not apply to federal action or court decisions. Here, the entity that impaired existing contracts with the company was a federal agency. Consequently, the agency's action did not violate the Contracts Clause.

Question 7785 Holders of common stock in a corporation brought an action based on state law fraud claims arising out of a tender offer for their stock. The action against the corporation and its directors was filed in state court in State A. In entering a judgment against the corporation and its directors, the state court ruled that the tender offer contained false statements of material facts.Subsequently, holders of preferred stock in the corporation filed an action in federal district court in State B against the corporation and its directors, asserting a claim regarding the tender offer based on federal law. The preferred shareholders moved for a partial summary judgment on the issue of whether the tender offer contained false statements of material facts.Both State A and State B require mutuality of parties in order for issue preclusion to apply.Should the federal court grant the partial summary judgment motion? a. Yes, because federal law permits issue preclusion even though mutuality of parties does not exist. b. Yes, because the issue of the falsity of the statements in the tender offer was actually litigated and essential to the judgment of the state court action. c. No, because the state in which the federal court sits does not allow nonmutual issue preclusion. d. No, because State A requires mutuality of parties in order for issue preclusion to apply.

Answer choice D is correct. Under 28 U.S.C. § 1738, a federal court must give full faith and credit to state-court judgments. The requirement of full faith and credit extends to the preclusive effects of the state-court judgment. Thus, if the state-court judgment would bar a subsequent action in the state, then it acts to bar a subsequent action in federal court. This is the case even if the subsequent action would otherwise be permitted in federal court. Consequently, in determining the preclusive effect of the State A's ruling that the tender offer contained false, material statements on the current action, the law of State A governs. Since State A does not recognize nonmutual issue preclusion, the federal court cannot give preclusive effect to the state court ruling in the prior case.

Question 5757 A farmer purchased a combine to harvest his cornfields. Although the combine appeared to efficiently and safely harvest the corn, the combine, due to a defective design, contaminated the corn with a synthetic lubricant used on some of the combine's moving parts. The harvested corn was primarily used to feed cows on a nearby dairy farm. As a result of eating the contaminated corn, the cows became severely ill and were euthanized. Both farmers are now suing the manufacturer of the combine under a products liability theory in federal district court based on diversity. Prior to trial, the attorney for the farmers conducted oral depositions of 12 employees of the manufacturer. Some of these depositions occurred before the attorney had complied with the initial trial disclosure requirements. Due to some conflicting testimony as a result of the initial 12 depositions, the attorney deposed three of the employees directly involved with designing the combine a second time. The manufacturer has objected to the attorney's actions.Which of the attorney's actions require leave of the court? a. The initial deposition of 12 of the combine manufacturer's employees. b. The deposition of the manufacturer's employees before the initial disclosure requirements were met. c. The deposition of three employees a second time. d. All three of the attorney's actions in deposing the manufacturer's employees.

Answer choice D is correct. Under Rule 30, a party may take the deposition of any party or nonparty witness at any time after the party has made its mandatory initial disclosures pursuant to Rule 26(a). Without leave of the court, the plaintiffs and the defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of the court must be obtained to (i) exceed the 10-deposition limitation, (ii) depose a witness a second time, or (iii) depose a person before the deposing party has complied with its initial disclosure requirements under Rule 26(a). For this reason, answer choices A, B and C are incorrect.