Bar Review

Question 1

Service of Process on Individual U.S. Employee

Answer 1

Even though a plaintiff is pursuing an action against a U.S. officer or employer in his individual capacity, the plaintiff is required to also serve process on the United States if the basis for the action is conduct that occurred in connection with duties performed on behalf of the United States.

Question 2

Number of Depositions

Answer 2

Without leave of court, the plaintiffs, the defendants, and the third-party defendants, each as a group, are limited to 10 depositions by oral or written examination. Unless the parties agree to the deposition, leave of court must be obtained to exceed the 10-deposition limit. If leave of court is granted, a group may exceed the 10-deposition limit.

Question 3

Larceny by Trick

Answer 3

Larceny by trick occurs when a defendant obtains possession of but not title to property owned by another through fraud or deceit, with the intent to permanently deprive the victim of that property, resulting in the conversion of the property.

Question 4

False Pretenses

Answer 4

At common law, false pretenses requires obtaining title to the property of another person through the reliance of that person on a known false representation of a material fact, and the representation is made with the intent to defraud.

Question 5

Seller Damages for Defaulting Buyer

Answer 5

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.”

Question 6

Objecting Class Member

Answer 6

When a proposed settlement agreement of a class action lawsuit would bind class members, the court must approve the proposed settlement after a hearing and on finding that it is fair, reasonable, and adequate. A class member who objects to the proposed settlement has the right to appeal the court’s approval of it.

Question 7

Entry of Default Judgment

Answer 7

A clerk may enter a default judgment when (1) the claim is for a sum certain, (2) the request includes an affidavit establishing the amount due, (3) the defaulting party failed to appear, and (4) the defaulting party is not legally incompetent or a minor. Otherwise, only the court may enter a default judgment.

Question 8

Elements of Attempt

Answer 8

Attempt occurs when the defendant (1) haad the specific intent to commit a crime, (2) performed an act in furtherance of the crime, but (3) did not complete it.

Question 9

Elements of Voluntary Manslaughter

Answer 9

Voluntary manslaughter is an intentional killing committed (1) in response to adequate provocation and (2) in the heat of passion.

Question 10

Liability of Sublessee

Answer 10

A tenant who sublets - i.e., transfers his/her interest to a third party (sublessee) for less than the remainder of the lease term- is individually liable for the landlord’s entire harm arising from a breach of the lease by the sublessee. However, the sublessee has not liability to the landlord.

Question 11

Sanctions

Answer 11

A federal court must order the payment of the other party’s reasonable expenses and may impose reasonable sanctions on any attorney or party who (1) failed to attend a pretrial conference, (2) was substantially unprepared for the conference, (3) did not participate in good faith in the conference, or (4) failed to obey a pretrial order. In addition to ordering a payment of expenses, the court may impose sanctions on the noncompliant party or attorney. The court has discretion to decide which sanction to impose, but the sanction must be reasonable under the circumstances - i.e., the punishment must fit the violation. Otherwise, an arbitrary or unreasonable sanction will be reversed on appeal for abuse of discretion.

Question 12

Life Tenant’s Duty

Answer 12

A life tenant’s duty to pay current charges on the land is limited to the financial benefit that the life tenant receives from the property. Therefore, this duty is not owed if the life tenant is not in possession of and receives no income from the property.

Question 13

Automobile Exception to Warrant Requirement

Answer 13

The automobile exception to the warrant requirement allows police to conduct a warrantless search of a vehicle if they have probable cause to believe it contains evidence of a crime. Officers can search any area within the vehicle where the evidence might be located, including locked containers.

Question 14

Inquiry of Expert Witness

Answer 14

A court must determine whether a witness is qualified to testify as an expert. But a finding that the witness meets the requirements for expert testimony does not preclude the opposing party from inquiring into matters that might affect the weight of the witness’s testimony.

Question 15

Conversion

Answer 15

A defendant who has permission to use the plaintiff’s chattel commits conversion when he (1) intentionally uses the chattel in a way that exceeds the scope of permission and (2) seriously violates the plaintiff’s right to control the chattel. The defendant is liable for the FMV of the chattel at the time and place of the conversion.

Question 16

Public Forums

Answer 16

The government cannot impose content-based restrictions on speech in public forums unless it can satisfy strict scrutiny - i.e., show that the restrictions are necessary to achieve a compelling government interest.

Question 17

Seller Breach of Land Sale Contract

Answer 17

When a seller breaches a land sales contract by refusing to sell the property to the buyer, the buyer can recover for loss of bargain - i.e., the FMV of the property on the date of the breach minus the contract price.

Question 18

Degree of Proof for Affirmative Defenses

Answer 18

Due process requires the prosecution to prove every element of a criminal offense beyond a reasonable doubt. But the defendant can be required to prove an affirmative defense by any degree of proof.

Question 19

Standard of Review for Bench Trials

Answer 19

In a bench trial, the judge serves as the finder of fact and the interpreter of law. An appellate court reviews the judge’s findings of fact for clear error (high deference) and conclusions of law de novo (no deference). In a bench trial, a judge may set forth findings of fact in a written opinion or memorandum of decision but is not required to do so. The findings only need to be stated on the record - orally or in writing.

Question 20

Initial Disclosures

Answer 20

A party’s initial disclosures must include (1) persons and items that the party may use to support a claim or defense, (2) any insurance agreement with a company that may be liable, and (3) a computation of damages and the materials on which it was based.

Question 21

Supremacy Clause and State Courts

Answer 21

The supremacy clause bars state courts from discriminating against cases arising under federal law. As a result, state courts can only refuse to hear federal-law claims if (1) Congress expressly granted federal courts exclusive jurisdiction or (2) a neutral state rule prohibits the state court from hearing the case.

Question 22

Breach Delaying Use of Property

Answer 22

If a breach delays the use of property, the nonbreaching party may recover damages based on (1) the fair rental value of the property during the delay period or (2) interest non the value of the property made unproductive by the breach. Consequential damages arising from the nonbreaching party’s special circumstances are only recoverable if the breaching party (1) knew about the special circumstances or (2) could have reasonably foreseen the harm, in light of those circumstances, the would result from the breach.

Question 23

Requirements Contracts

Answer 23

A requirements contract is an exclusive agreement between the buyer and seller for the sale of as many goods as the buyer requires during a specified period. The buyer’s failure to purchase the goods from the seller violates the implied duty of good faith and fair dealing and constitutes a breach of contract.

Question 24

Presidential Immunity

Answer 24

Executive privilege and absolute immunity safeguard a President from liability when performing official duties and responsibilities. However, these protections are not absolute and will not shield the President from complying with criminal subpoena that seeks the President’s private papers.

Question 25

State Regulation Under the Commerce Clause

Answer 25

A state regulation that discriminates on its face, in its application, or in its effect against interstate commerce is invalid unless (1) it furthers a legitimate, non-economic state interest and (2) no reasonable alternative exists.

Question 26

Covenant of Warranty

Answer 26

Under the covenant of warranty, the grantor of a warranty deed must defend and compensate the grantee for any lawful claims made against the grantee’s title - e.g., when the grantee is defeated in a third party’s quiet title action.

Question 27

Injuries to Rescuers

Answer 27

Injuries to rescuers are sufficiently foreseeable to satisfy proximate cause. As a result, a rescuer can recover for negligence if (1) he was injured while attempting to rescue another and (2) that person’s peril was caused by the defendant’s negligence.

Question 28

Delivery of a Deed

Answer 28

To transfer an interest in real property, a deed must be delivered (and accepted). Delivery occurs when the grantor intends to presently transfer an interest to the grantee. Therefore delivery is ineffective if the transfer is contingent upon a future event.

Question 29

Domicile for Personal Jurisdiction

Answer 29

Individuals are only citizens of their state of domicile.
Corporations are citizens of the state(s) where they are incorporated and/or have their principal place of business.
Unincorporated associations are citizens of every state where their members are domiciles.

Question 30

Interrogatories Asking About Business Records

Answer 30

A party may respond to an interrogatory by specifying business records from which the answer may be derived if (1) the burden of deriving the answer is substantially the same for the interrogating or responding party and (2) the responding party provides the interrogating party with an opportunity to examine and copy such records.

Question 31

Undisclosed Principal

Answer 31

A principal is an undisclosed principal if the third party has no notice of the principal’s existence. An agent who enters into a contract on behalf of an undisclosed principal becomes a party to the contract. Thus, when the agent does not inform a third party of the identity or the existence of the principal, the agent becomes liable to the third party on the contract.

Question 32

Partially Disclosed Principal

Answer 32

A principal is a partially disclosed principal if the third party has notice of the principal’s existence but not the principal’s identity. Unless the agent and the third party agree otherwise, an agent who enters into a contract on behalf of a partially disclosed principal becomes a party to the contract.

Question 33

Ratification

Answer 33

A principal can ratify an act that was done on the principal’s behalf. There are four requirements for ratification: (i) the principal must ratify the entire contract; (ii) the principal and the third party must have legal capacity to enter into the contract; (iii) the ratification must occur before the third party withdraws from the contract; and (iv) the principal must know the material facts of the transaction.

Question 34

IIED

Answer 34

A defendant is subject to liability to the plaintiff for the intentional infliction of emotional distress if the defendant by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the plaintiff.

Question 35

Chain of Distribution Liability

Answer 35

Although any commercial supplier in the chain of distribution may be subject to strict products liability, suppliers who did not negligently, recklessly, or intentionally fail to discover the products defect (no independent culpability) can recover full compensation (indemnity) from suppliers earlier in the distribution chain.

Question 36

Former Testimony

Answer 36

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.

Question 37

Evidence Obtained in Violation of the Sixth Amendment

Answer 37

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.

Question 38

Constitutional Right to Counsel

Answer 38

The Sixth Amendment provides a constitutional right to counsel in any case in which the defendant is sentenced to incarceration, even if that sentence is suspended.

Question 39

Taxpayer Standing

Answer 39

In general, a taxpayer does not have standing to file a federal lawsuit simply because the taxpayer believes that the government has allocated funds in an improper way. While there is a very narrow exception for a taxpayer suit challenging a specific legislative appropriation made under taxing and spending powers for violation of the Establishment Clause, this exception does not apply when the government provides a benefit in the form of a tax credit rather than an appropriation.

Question 40

Plaintiff Personal Jurisdiction for Counterclaims

Answer 40

A plaintiff who has filed a lawsuit in a court is deemed to have consented to the court’s personal jurisdiction with regard to any counterclaim asserted against her.

Question 41

Brady Rule

Answer 41

While, under the Brady rule, a prosecutor has an affirmative duty to disclose to the defendant 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).

Question 42

Supreme Court Original Jurisdiction

Answer 42

Section 2 of Article III of the U.S. Constitution provides that the Supreme Court has original jurisdiction over all cases between two or more states. Note that Congress cannot expand or limit this jurisdiction, but it can grant concurrent original jurisdiction to lower federal courts.

Question 43

Best Evidence Rule

Answer 43

Pursuant to FRE 1002, to prove the contents of a writing, the original writing is generally required. The original is not required, and other evidence of the contents of a writing is admissible if: (1) All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; (2) no original can be obtained by any available judicial process or procedure; (3) the original is in the possession of a party opponent; or (4) the writing is not closely related to a controlling issue. FRE 1004.

Question 44

Promissory Estoppel

Answer 44

Under promissory estoppel, a promise is binding if (i) the promisor should reasonably expect it to induce action or forbearance on the part of the promisee or a third person, (ii) the promise does induce such action or forbearance, and (iii) injustice can be avoided only by enforcement of the promise. The remedy may be limited or adjusted as justice requires. Generally, this results in the award of reliance damages rather than expectation damages.

Question 45

Federal Law Priority

Answer 45

When a federal statute conflicts with an executive agreement, the federal statute takes precedence over the executive agreement. Here, the federal statute and the executive agreement directly conflict with one another, so the federal statute governs whether the territory can buy bananas from the island nation.

Question 46

Burglary

Answer 46

Burglary is the breaking and entering of the dwelling of another at night with the specific intent to commit a felony.

Answer 47

The forum court may transfer the action to any judicial district in which it originally could have been brought if it determines that such transfer is in the interest of justice. Even if the forum court lacks personal jurisdiction over the defendant, they may nevertheless transfer the action if the court has determined that the transfer is in the interest of justice.

Question 48

Conversion

Answer 48

A defendant is liable for conversion if he intentionally commits an act depriving the plaintiff of possession of her chattel or interfering with the plaintiff’s chattel in a manner so serious as to deprive the plaintiff of the use of the chattel. The defendant must have intended to exercise control over the particular chattel. The defendant need only intend to commit the act that interferes; intent to cause damage is not necessary.

Question 49

Compulsory Counterclaim

Answer 49

If a party files a claim, a counterclaim, or a cross-claim against another party, the second party must file any claim that that party has against the first party that arises out of the same transaction or occurrence as the first party’s claim.

Question 50

Takings Clause

Answer 50

The Due Process Clause of the Fourteenth Amendment has incorporated the Takings Clause of the Fifth Amendment, thereby making it applicable to the states and their subdivisions. A municipal ordinance that results in the permanent taking of property, including not only a fee simple interest but also other property interests, such as an easement, without just compensation violates the Takings Clause.

Question 51

Violation of Miranda

Answer 51

Once a custodial interrogation begins, anything the defendant says is inadmissible until the defendant is informed of the Miranda rights and the defendant waives those rights. The burden is on the government to demonstrate by a preponderance of the evidence that a suspect’s waiver of his Miranda rights was made knowingly and voluntarily. A suspect who has received and understood the Miranda warnings, and has not invoked his Miranda rights, waives the right to remain silent by making an uncoerced statement to the police. However, there can be no effective waiver until the Miranda warnings are properly given.

Question 52

Citizen’s Arrest

Answer 52

In most jurisdictions, a private actor (i.e., an individual who is not an on-duty law enforcement officer) is privileged to use force (e.g., commit a battery or false imprisonment) to make an arrest in the case of a felony if the felony has in fact been committed and the arresting party has reasonable grounds to suspect that the person being arrested committed it. The privilege, which is often referred to as “citizen’s arrest,” is recognized if the private actor makes a reasonable mistake as to the identity of the felon but not as to the commission of the felony.

Question 53

Equitable Conversion

Answer 53

Absent an agreement or statute to the contrary, the doctrine of equitable conversion applies. Equitable conversion places the risk of loss between the execution of the contract and the closing date on the buyer, regardless of whether the buyer takes possession of the property. However, there is an exception when the loss is attributable to the intentional or negligent acts of the seller.

Question 54

Foreign Defendants Personal Jurisdiction

Answer 54

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.

Question 55

Mistake

Answer 55

When only one of the parties was mistaken as to an essential element of the contract at the time the contract was formed, either party can generally enforce the contract on its terms. However, the mistaken party can void the contract if (i) there was a mistake of fact existing at the time the contract was formed, (ii) the mistake relates to a basic assumption of the contract, (iii) the mistake has a material impact on the transaction, and (iv) the adversely affected party did not assume the risk of the mistake and either (i) the mistake would make enforcement of the contract unconscionable or (ii) the non-mistaken party caused the mistake, had a duty to disclose or failed to disclose the mistake, or knew or should have known that the other party was mistaken.

Question 56

Common-interest Ownership Community

Answer 56

Restrictions contained in the recorded declaration of a common-interest ownership community are enforceable unless illegal, unconstitutional, or against public policy.

Question 57

Substantive Due Process

Answer 57

Substantive due process principles are based on the idea that laws should be reasonable and not arbitrary. Substantive due process applies when a right is being infringed upon as to all persons, while equal protection principles apply when a right is denied only to a particular class of persons. As a result, states cannot deprive individuals of life, liberty, or property without adequate justification—even if adequate procedures are employed. The required level of justification depends on whether the law deprives the individual of:

an ordinary right – under the rational basis test, the law is presumed valid until the challenger shows that the law has no rational relation to any legitimate government interest or

a fundamental right – under the strict scrutiny test, the law is presumed invalid until the government shows that the law is necessary to achieve a compelling government interest.

Question 58

Taxing and Spending Clause

Answer 58

Article I, Section 8, clause 1 of the Constitution gives Congress broad power to tax and spend for the general welfare. The spending power has been interpreted very broadly, and Congress may spend for any public purpose, and not just to pursue its other enumerated powers. A tax by Congress will generally be upheld if it has a reasonable relationship to revenue production.

Question 59

Intervention as of Right

Answer 59

Under Rule 24, a nonparty has the right to intervene in an action when, upon timely motion, (1) the nonparty has an interest in the subject matter of the action; (2) the disposition of the action may impair the nonparty’s interests; and (3) the nonparty’s interest is not adequately represented by existing parties. The burden is on the party seeking to intervene.

Question 60

Temporary Restraining Order

Answer 60

A temporary restraining order (TRO) preserves the status quo of the parties until there is an opportunity to hold a full hearing on whether to grant a preliminary injunction. A TRO has immediate effect and lasts no longer than 14 days unless good cause exists. A TRO can be issued without notice to the adverse party if the moving party can show (1) that immediate and irreparable injury will result prior to hearing the adverse party’s arguments and (2) the efforts made at giving notice and the reason why notice should not be required. Additionally, the party seeking a TRO must give security (typically by posting a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully restrained.

Question 61

Preliminary Injunction

Answer 61

A preliminary injunction can be issued if the opponent is given notice and the court holds a hearing on the issue. A party seeking a preliminary injunction must establish that: (1) the party is likely to succeed on the merits; (2) the party is likely to suffer irreparable harm in the absence of relief; (3) the balance of equities is in his favor; and (4) the injunction is in the best interest of the public. Additionally, the party seeking the preliminary injunction must provide security (typically in the form of a bond) to cover the costs and damages sustained by a party that is ultimately found to have been wrongfully enjoined.