Final Bar Review Questions - Wrong/Not Sure Flashcards
Con Law - Federalism
A statute passed by both houses of Congress and signed by the President authorizes a federal agency to select a site for and to construct a monument honoring members of the capitol police force killed in the line of duty. The statute appropriates the necessary funds but provides that the funds may not be expended until both houses of Congress have adopted a concurrent resolution, not subject to presentment to the President, approving the agency’s plans for the monument’s location and design.
Is the provision requiring further congressional approval before expenditure of the funds constitutional?
A No, because decisions regarding the placement and design of government-owned structures are an exclusively executive function with which Congress may not interfere by any means.
B No, because the provision amounts to an unconstitutional legislative interference with an executive function.
C Yes, because Congress may attach reasonable conditions to its appropriation of funds to executive departments, and its special interest in the members of its own police force makes the provision a reasonable condition.
D Yes, because the provision is part of a statute that was passed by both houses of Congress and signed by the President.
Answer Discussion - Incorrect
(B) is correct. The enactment of laws by Congress requires passage of the law in both houses (bicameralism) and approval of the law by the President (that is, the presentment requirement) or an override of a presidential veto. Here, Congress passed a law and the President signed it, but Congress sought further control by requiring expenditures to be approved specifically by Congress without presentment to the President. Such a requirement usurps the power of the executive branch to execute laws and places it in the hands of Congress in violation of the doctrine of separation of powers. (A) is incorrect. Under the Spending Clause, Congress certainly has the power to adopt a law specifying where a monument should be placed, and if such a law were passed by Congress and the President signed the law, it would be valid. However, that is not what happened here. Here, the law left it to an agency to select a site. (C) is incorrect for the reasons stated above; requiring subsequent Congressional approval of agency site selection is unconstitutional. (D) is incorrect for the same reason.
Contracts
A general contractor about to bid on a construction job for an office building invited a carpenter and several others to bid on the carpentry work. The carpenter agreed to bid if the general contractor would agree to give the carpenter the job provided that his bid was lowest and the general contractor was awarded the main contract. The general contractor so agreed. The carpenter, incurring time and expense in preparing his bid, submitted the lowest carpentry bid. The general contractor used the carpenter’s bid in calculating its own bid, which was successful.
Which of the following best supports the carpenter’s position that the general contractor is obligated to award the carpentry subcontract to the carpenter?
A The carpenter detrimentally relied on the general contractor’s conditional promise in preparing his bid.
Correct
B The carpenter gave consideration for the general contractor’s conditional promise to award the carpentry subcontract to the carpenter.
C The general contractor has an implied duty to deal fairly and in good faith with all bidders whose bids the general contractor used in calculating its main bid to the building owner.
D The general contractor has an obligation to the owner of the building to subcontract with the carpenter because the carpenter’s bid was used in calculating the general contractor’s bid, and the carpenter is an intended beneficiary of that obligation.
Answer Discussion - Incorrect
(B) is correct. The carpenter’s bid was consideration for the general contractor’s promise to award the carpentry subcontract to the carpenter if his bid was the lowest and the general contractor was awarded the main contract. Thus, the general contractor and the carpenter formed a contract. Two elements are necessary to constitute consideration. First, there must be a bargained-for exchange between the parties; and second, that which is bargained for must constitute a benefit to the promisor or a detriment to the promisee. The carpenter and the general contractor agreed that the carpenter would supply a bid that the general contractor could use in its own bid. The carpenter’s bid was bargained for and was a benefit to the general contractor, so it constitutes consideration sufficient to support the general contractor’s conditional promise to award the subcontract to the carpenter. Conditional promises are enforceable, but the duty to perform does not become absolute until the condition has been met or is legally excused. The conditions in this contract were met-the carpenter’s bid was the lowest and the general contractor was awarded the main contract. Thus, the general contractor is under a duty to perform his promise to award the subcontract to the carpenter. (A) is not the best answer. The carpenter is seeking specific performance of their agreement so that he will be awarded the carpentry subcontract. If the carpenter uses a detrimental reliance or promissory estoppel argument, he would be conceding that he gave no consideration and there is no contractual obligation, but he should be awarded damages to prevent injustice. Courts will often limit damages under this theory to reliance damages, which could be much less than the value of the subcontract. (C) is incorrect. Although a general contractor should deal with all bidders in good faith, this is not a reason why this particular carpenter would be awarded the subcontract. The carpenter should be awarded the subcontract because the general contractor gave him a conditional promise that he would do so in exchange for his bid. (D) is incorrect. A bid is not a third party beneficiary contract. Generally speaking, a contractor has no obligation to award a subcontract to a particular subcontractor unless there was a separate agreement that it would do so, such as the case here where the general contractor gave the carpenter a conditional promise that it would award the carpenter the subcontract if his bid was the lowest and if the general contractor was awarded the general contract.
Criminal Procedure - Sixth Amendment
A defendant was convicted of fraud after a jury trial in state court. The conviction was affirmed on direct appeal.
The defendant timely moved for postconviction relief under the Sixth Amendment on the ground that his attorney had provided ineffective assistance of counsel. The trial judge, after a hearing, found that the attorney had performed deficiently by failing to raise a proper objection that would have resulted in exclusion of important prosecution evidence.
What more, if anything, must the trial court find in order to sustain the defendant’s Sixth Amendment claim?
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A Nothing more, because the unjustifiable failure to object to important prosecution evidence is structural error.
B That the attorney was court-appointed and not privately retained.
C That there is a reasonable probability that the trial’s outcome would have been different if the attorney had objected.
D That there is clear and convincing evidence that the trial’s outcome would have been different if the attorney had objected.
(C) is correct. To obtain postconviction relief for ineffective assistance of counsel, the claimant must show her counsel’s performance was deficient and that, but for the deficiency, the outcome of the trial would have been different. (A) is incorrect because it misstates the law. As indicated above, there must also be a showing that but for the deficiency, the result of the trial would have been different. (B) is incorrect because it does not matter if an attorney is court-appointed or privately retained; both types of attorneys are sufficient to meet the defendant’s Sixth Amendment right to counsel. (D) is incorrect because it overstates the burden on the claimant for proving an ineffective assistance of counsel claim. The standard is “reasonable probability,” not “clear and convincing evidence,” that the outcome of the trial would have been different.
Real Property - Easement By Necessity
A man conveyed the eastern half of a tract of vacant land to a woman by a warranty deed. The woman promptly recorded the deed. The land conveyed to the woman fronted on a public highway. The land retained by the man was landlocked.
One year later, the man died intestate, leaving a cousin as his only heir. The cousin visited the man’s land for the first time and discovered that it had no access to a public highway. A neighbor who owned adjoining land fronting on the public highway offered to sell the cousin a right to cross the neighbor’s land for access to the highway. Although the neighbor’s price was reasonable, the cousin rejected the offer. The woman has refused to allow the cousin to cross her land for access to the public highway even though the woman’s land is still vacant.
The cousin has sued the woman, seeking access across the woman’s land to the public highway.
Who is likely to prevail?
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Correct
A The cousin, based on necessity.
B The cousin, because the woman’s land is still vacant.
Incorrect
C The woman, because the cousin could obtain an alternative access to the highway from the neighbor.
D The woman, because the man failed to reserve an easement in his deed to the woman
(A) is correct. When the owner of a tract of land sells a part of it and by this division deprives one lot of access to a public road, a right-of-way by absolute necessity is created by implied grant or reservation over the lot with access to the public road. The owner of the servient parcel has the right to locate the easement, provided the location is reasonably convenient. Here the man owned the original tract and sold a part of it to the woman. When he sold the part, his remaining tract was landlocked. Therefore, a right-of-way by absolute necessity was created to give him access to the public road. The woman can decide where to locate the right-of-way, but she cannot deny it altogether. This easement by necessity is an easement appurtenant, meaning that the right of special use benefits the holder of the easement in his physical use or enjoyment of another tract of land. The benefit of an easement appurtenant becomes an incident of the possession of the dominant tenement. All who possess or subsequently succeed to title to the dominant tenement become, by virtue of the fact of possession, entitled to the benefit of the easement. Therefore, the cousin who inherited the land is entitled to use the right-of-way. (B) is incorrect. The cousin, as the successor to the landlocked parcel, is entitled to an easement by necessity. The fact that the woman’s land is vacant has no bearing on whether or not the cousin has a right to cross her property. (C) is incorrect. When the owner of a tract of land sells a part of it and by this division deprives one lot of access to a public road, a right-of-way by absolute necessity is created over the lot with access to the public road. This is true regardless of whether the landlocked owner could obtain a right-of-way from another neighbor. (D) is incorrect. The easement here did not have to be reserved in the deed; an easement by necessity is an implied easement. It was created when the man sold the woman a portion of his property resulting in his tract becoming landlocked.
Torts - Defenses
In a tavern, an intoxicated woman threatened to slash a man with a broken beer bottle. Another customer, who had not been threatened by the woman, forcefully grabbed the woman and locked her in the tavern’s storeroom until the police could arrive. In the process, although the customer used reasonable force, the customer badly sprained the woman’s wrist.
Is the woman likely to recover in an action against the customer?
A No, because the customer’s conduct was privileged as a defense of others.
B Yes, based on battery only.
C Yes, based on false imprisonment only.
D Yes, based on both battery and false imprisonment.
(A) is correct. When a person has reasonable grounds to believe that a third person is being, or is about to be, attacked, he may use such force as is reasonably necessary to protect the third person against the potential injury. Here, the customer intervened to prevent a man from being slashed with a broken beer bottle, and used only reasonable force against the woman. Hence, the customer’s conduct was privileged as a defense of others. (B) is incorrect. Although the customer intentionally used harmful force against the woman, his conduct was privileged as a defense of others. Although he badly sprained the woman’s wrist, he used only reasonable force to prevent her from slashing someone with the broken beer bottle. (C) is incorrect. Although the customer intentionally confined the woman to a bounded area, his conduct was privileged as a defense of others. He locked the woman in the storeroom just until the police could arrive so that she would not try to harm the man or anyone else in the tavern. (D) is incorrect. Although the customer intentionally used harmful force against the woman and confined her to a bounded area, his conduct was privileged as a defense of others.
Evidence - Proper Scope of Cross-Examination
At trial in an action for personal injuries suffered in a traffic accident, the plaintiff first calls the defendant as an adverse party. The plaintiff then calls a witness who was a passenger in the plaintiff’s car but who also happens to be the defendant’s former employer. On direct examination, the witness testifies to how the accident occurred and also expresses his opinion that the defendant is not a truthful person.
Which one of the following areas of questioning is most likely to be held beyond the proper scope of cross-examination?
A In letters to prospective employers, the witness has described the defendant as very honest and dependable.
B The defendant recently filed an action against the witness for breach of contract.
C The plaintiff’s injuries were not as serious as the plaintiff is claiming.
D The witness has been falsifying his income tax returns.
(C) is correct. The scope of cross-examination is generally limited to: (i) matters brought up on direct examination; and (ii) matters concerning the witness’s credibility (i.e., impeachment). Here, the witness’s testimony on direct examination concerned how the accident happened and the defendant’s character for untruthfulness; there is no indication that the witness testified about the plaintiff’s injuries. Because the questioning does not concern the subject matter of the direct examination or the witness’s credibility, it is most likely to be held beyond the proper scope of cross-examination. The other answer choices describe proper impeachment of the witness. (A) is incorrect. A common method of impeachment is asking the witness about the witness’s prior statements that are inconsistent with the witness’s current testimony. Here the witness testified as to his opinion that the defendant is an untruthful person. Thus, it would be proper to cross-examine the witness about his inconsistent prior descriptions of the defendant’s good character for honesty. (B) is incorrect. A witness may be impeached with evidence that the witness is biased in favor of or against a party in the case. Here, the fact that the defendant recently filed an action against the witness for breach of contract shows that the witness may have a motive to testify against the defendant in this case. (D) is incorrect. A party may impeach a witness by cross-examining the witness about the witness’s specific acts of misconduct involving untruthfulness. Thus, it is proper to ask the witness about whether the witness falsified his tax returns.
Contracts - Excuses for Performance
An engineer signed a two-year contract to serve as the chief safety engineer for a coal mine at a salary of $7,000 per month. The position required the engineer to work underground each workday. After one week on the job, the engineer became very ill. He requested testing of the mine air system, which revealed the presence of a chemical agent to which the engineer had a rare allergic reaction. The engineer promptly quit. The coal mine then hired a qualified replacement for the remainder of the engineer’s contract at a salary of $7,500 per month.
Assume that no statute or regulation applies.
If the coal mine sues the engineer for breach of contract, is the coal mine likely to recover damages?
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A No, because an at-will employee has the right to terminate an employment contract.
Correct
B No, because the risk to the engineer’s health excused his nonperformance of the contract.
C Yes, because the coal mine acted in good faith in mitigating the effect of the engineer’s failure to finish the contract term.
D Yes, because the mine is reasonably safe for most people.
(B) is correct. The engineer’s nonperformance will be excused by impracticability. The occurrence of an unanticipated or extraordinary event may make contractual duties impossible or impracticable to perform. Where the nonoccurrence of the event was a basic assumption of the parties in making the contract and neither party has expressly or impliedly assumed the risk of the event occurring, contractual duties may be discharged. The test for a finding of impracticability is that the party to perform has encountered: (i) extreme and unreasonable difficulty and/or expense; and (ii) its nonoccurrence was a basic assumption of the parties. The engineer’s rare allergic reaction to a chemical found in the mine air system was unanticipated by the parties. The engineer cannot perform his job anywhere but inside the coal mine but it is unreasonable for the engineer to risk his health, and possibly his life, to fulfill his duties under the contract. Due to this unanticipated and rare circumstance, his employment under the contract will be discharged. (A) is incorrect. All employees are free to terminate their employment because involuntary servitude is prohibited by the Constitution, but in the case of an employee under a contract, doing so is a breach of contract. If the engineer’s performance was not excused by impracticability, then the coal mine could have recovered damages for breach. (C) is incorrect. If the engineer’s performance had not been excused, then the mitigation by the coal mine would have been relevant to damages. However, due to the unanticipated extraordinary circumstances of the engineer’s allergic reaction, the contract was discharged. (D) is incorrect. It does not matter that the mine was reasonably safe for most people; the test for impracticability is a subjective one. The engineer could not perform under the contract without risking illness and possibly death due to his unusual and unanticipated allergy. Thus his performance under the contract will be discharged due to impracticability.
Civil Procedure - Pretrial Motions
A mechanic sued his former employer in federal court, claiming that the employer had discharged him because of his age in violation of federal law. The employer answered, denying the claims and promptly moving for summary judgment. In support of the motion, the employer attached the mechanic’s employment evaluations for the past three years, which rated his skills and performance as poor and culminated in a recommendation for his discharge.
What is the mechanic’s best argument to defeat the summary judgment motion?
A The allegations in the complaint conflict with the mechanic’s employment evaluations, raising a genuine dispute as to material facts.
B The employer cannot rely in his motion on matters outside the pleadings.
C The essential facts are unavailable to the mechanic and therefore discovery is required.
D The motion was filed before the close of discovery.
Answer Discussion - Incorrect
(C) is correct. If the mechanic (the nonmovant) shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery. The employer moved for summary judgment right after answering and before any discovery. That timing would support defeating the summary judgment motion at this time. (A) is incorrect. Under Rule 56(c), a party asserting that a fact is genuinely disputed must support the assertion by citing particular parts of the record, including affidavits or declarations, stipulations, or discovery materials. The mechanic cannot simply rely on the complaint allegations to rebut the employer’s evidence but must support his factual position with his own evidence that a factual dispute exists. If he cannot do so, Rule 56(d) authorizes him to ask the court to defer action or deny the summary judgment motion to allow time to obtain affidavits or declarations or to take discovery. (B) is incorrect. The function of a summary judgment motion is to allow additional evidence outside the pleadings to show that there is no genuine dispute of fact and that the movant is entitled to judgment as a matter of law. Rule 56(c)(1) enumerates the types of materials that the moving party may use to support a summary judgment motion, including documents. If the mechanic (the nonmovant) shows by affidavit or declaration that he cannot present facts essential to justify his opposition to the summary judgment motion, Rule 56(d) authorizes him to ask the court to defer action or deny the motion to allow time to obtain affidavits or declarations or to take discovery. (D) is incorrect. The fact that a summary judgment motion is filed before the close of discovery does not require the court to deny it. Under Rule 56(b), a party may file the motion at any time until 30 days after the close of all discovery. The problem here is that the employer filed the motion before discovery commenced, thus providing the mechanic an argument to defer action or deny the motion under Rule 56(d).
Con Law - Individual Rights
To improve the quality of rental housing within its boundaries, a city proposed an ordinance requiring all new and existing rental housing units to provide at least one full bathroom for each bedroom, plumbing and electrical hookups for a washer and dryer, and a covered parking space.
A majority of the owners of existing rental housing in the city opposed the ordinance. They argued that it would dramatically decrease the number of low-income rental housing units because owners would be unable to raise rents enough to recoup the investment required to comply. Without denying these contentions, the city enacted the ordinance. A plaintiff who owns low-income rental housing has sued the city, claiming only that the ordinance is unconstitutional on its face.
Which of the following best states the burden of persuasion in this action?
A The city must demonstrate that the ordinance is necessary to serve a compelling state interest, because it adversely affects the fundamental right of rental housing owners to use their property in the manner they deem most economically efficient.
B The city must demonstrate that the ordinance is necessary to serve a compelling state interest, because it will have a substantial and disproportionate negative impact on low-income persons.
C The plaintiff must demonstrate that the ordinance is not substantially related to an important state interest, because it requires some owners of rental housing to invest money that they will not be able to recoup from increased rents.
D The plaintiff must demonstrate that there is no rational relationship between the ordinance and any legitimate state interest, because the ordinance regulates economic activity of a type normally presumed to be within state regulatory authority.
(D) is correct. The claim underlying the challenge here must be that the ordinance discriminates against poor people. Under the Equal Protection Clause, the burden of persuasion depends on the basis of the classification and the nature of the right involved. If the basis of the classification is suspect or a fundamental right is involved, strict scrutiny applies and the government must prove its action is necessary to achieve a compelling interest. But if no fundamental right is involved, and the classification is not suspect or quasi-suspect (that is, based on sex or legitimacy), the person challenging the government action must prove that it is not rationally related to achieving a legitimate government interest. Here, the classification appears to affect people on the basis of wealth, which is not a suspect or quasi-suspect classification, and it affects the ability to obtain housing, which is not a fundamental right. Therefore, the rational basis test applies. (A) is incorrect. It correctly sets forth the burden when a fundamental right is involved, but the right to rent housing is not a fundamental right. (B) is incorrect for a similar reason - as discussed above, wealth is not a suspect classification. (C) is incorrect too. Although it correctly indicates that the plaintiff has the burden, it states the wrong test - when the challenger has the burden, the challenger must prove the state action is not rationally related to achieving any legitimate government interest.
Real Property - Conveyance of a Deed
A man decided to give a cabin he owned to his daughter at his death. To accomplish this goal, he delivered to his attorney a deed that fully complied with the applicable statute of frauds and told his attorney to record the deed when he died unless he later gave the attorney instructions to the contrary.
Three weeks after dropping off the deed, the man properly drafted and executed his own will, which left all of his real property to his son.
One year later, the man died, and the attorney immediately recorded the deed. At the time of the man’s death, the cabin was titled in his name and he owned no other real property. The daughter and the son now disagree as to who is entitled to ownership of the cabin.
Other than the jurisdiction’s statute of frauds and statute of wills, there are no applicable statutes.
Who is entitled to ownership of the cabin?
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A The daughter, because the attorney was, for gift-law purposes, a trustee for the daughter.
B The daughter, because the deed fully complied with the statute of frauds.
Correct
C The son, because the deed was not delivered to the daughter during the man’s lifetime.
D The son, because the proper execution of the will revoked the earlier gift to the daughter.
Answer Discussion - Correct
(C) is correct. A deed is not effective to transfer an interest in realty unless it has been delivered. Delivery refers to the grantor’s intent. There must be words or conduct showing the grantor intended that the deed have some present operative effect- that title pass immediately and irrevocably, even though the right of possession may be postponed. If the right of possession is to be postponed until the grantor’s death, the deed may be held “testamentary” and therefore void (unless executed with testamentary formalities). However, most courts hold that if the grantor executes a deed and gives it to another with instructions to give it to the grantee upon the grantor’s death, the grantor’s intent was to presently convey a future interest to the grantee (either a remainder, with a life estate reserved in the grantor, or an executory interest), and so the gift is inter vivos, not testamentary. To make an effective delivery, the grantor must relinquish absolute and unconditional control. That was not the case here. The man gave the deed to the attorney to record when the man died “unless he later gave the attorney instructions to the contrary.” This language shows that the man did not relinquish control. Thus, there was no delivery, and the property passed by the will to the son. (A) is incorrect. A trustee holds legal title to property and has an equitable duty to deal with it for the benefit of the beneficiary. Here, the attorney was given a deed to hold and record at the appropriate time. The attorney never acquired title to the property, and the deed was in the daughter’s name. Also, the attorney’s duties were owed to the man; he had to hold the title and record it at the man’s death unless instructed otherwise. (B) is incorrect. The statute of frauds is only one component of a valid transfer by deed. To transfer title, a deed must not only be in writing, but also be delivered. There must be words or conduct showing the grantor intended that the deed have some present operative effect-that title pass immediately and irrevocably, even though the right of possession may be postponed. Here, the man gave the deed to the attorney to record at his death “unless he gave the attorney instructions to the contrary.” This language shows that the man did not relinquish control and thus there was no delivery. Without delivery, the daughter acquired no interest in the property. (D) is incorrect. The execution of a will has no effect on the testator’s property because the will could be changed or revoked at any time until the testator dies. The will does not become effective until the testator dies. Thus, the execution of the man’s will did not revoke the gift of the property to the daughter. Furthermore even an operative will cannot revoke a validly executed and delivered deed. A will has no effect on it because the testator no longer owns the property. Had the man delivered the deed without conditions, the property would belong to the daughter and would not pass by will to the son.
Evidence - Refreshing Recollection/Recorded Recollection
A plaintiff sued an industrial facility in her neighborhood for injuries to her health caused by air pollution. At trial, the plaintiff was asked questions on direct examination about the days on which she had observed large amounts of dust in the air and how long the condition had lasted. She testified that she could not remember the specific times, but that she maintained a diary in which she had accurately recorded this information on a daily basis. When her attorney sought to refresh her recollection with her diary, she still could not remember. The plaintiff’s attorney seeks to have the information in the diary admitted at trial.
Is the information admissible?
A No, because reviewing it did not refresh the plaintiff’s recollection.
B No, unless it is offered by the defendant.
C Yes, and the plaintiff should be allowed the option of reading it into evidence or having the diary received as an exhibit.
D Yes, and the plaintiff should be allowed to read the diary into evidence.
Answer Discussion - Incorrect
(D) is correct. Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a memorandum or other record given to her on the stand, the record itself may be read into evidence if a proper foundation is laid for its admissibility. This is known as the recorded recollection exception to the hearsay rule. Here, all the foundational requirements are met-the plaintiff had personal knowledge of the facts when she made the diary; she made the diary herself and in a timely manner each day; she has vouched for its accuracy; and she currently has insufficient recollection to testify fully and accurately about the facts contained in the diary. Thus, the information in the diary may be read into evidence. (A) is incorrect. The fact that the witness cannot remember the facts even after reviewing the diary supports, rather than prevents, the information in the diary being admitted as a recorded recollection. Refreshing recollection is a separate concept from recorded recollection; a writing that is used to refresh recollection is not authenticated, is not in evidence, and may be used solely to refresh the witness’s recollection. If the writing fails to refresh the witness’s recollection, then it may qualify as a recorded recollection if the other foundational requirements are met. Thus, the fact that the plaintiff still cannot remember after reviewing the diary is crucial to its admissibility. (B) is incorrect. It is true that a recorded recollection may not be received by the jury as an exhibit unless offered by the adverse party; it can only be read into evidence otherwise. The rationale for this limitation is to avoid giving undue weight to the record, since it is being used as a substitute for in-court testimony and nothing more. However, this limitation is one of form, not admissibility, and here the information in the diary may be read into evidence. (C) is incorrect. The plaintiff does not have the option of having the diary received as an exhibit; it may be read into evidence only, unless an adverse party chooses to offer it.
Civil Procedure - Issue Preclusion
An individual investor purchased stock through a company’s stock offering. When the price of the stock plummeted, the investor sued the company in a state court in State A, claiming that the company’s offering materials had fraudulently induced him to purchase the stock and seeking $25,000 in damages.
A university that had purchased the company’s stock through the same offering sued the company in federal court in State B, claiming that the offering materials violated federal securities laws and seeking $1 million in damages.
The individual investor’s suit proceeded to trial. The state court ruled that the company’s offering materials contained false information and awarded the investor a $25,000 judgment. The university immediately moved for partial summary judgment in its federal action against the company, arguing that the state court judgment bound the federal court on the issue of whether the company’s offering materials contained false information.
Neither State A nor State B permits nonmutual issue preclusion.
Should the court grant the university’s motion?
A No, because State A does not permit nonmutual issue preclusion.
B No, because the federal court sits in a state that does not permit nonmutual issue preclusion.
C Yes, because federal law permits nonmutual issue preclusion.
D Yes, because the issue of whether the materials contained false information was actually litigated and necessarily decided.
Answer Discussion - Incorrect
(A) is correct. Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would. (When “case one” has been decided in state court, the court in case two generally will apply the claim or issue preclusion of the jurisdiction that decided case one.) Here, the rendering state, State A, does not recognize nonmutual collateral estoppel, so a federal court sitting in State B should not give the judgment issue preclusive effect. (B) is incorrect. As stated above, the law of the rendering state generally determines the preclusive effect of the judgment. (C) is incorrect for a similar reason. The fact that federal law may permit nonmutual issue preclusion is irrelevant. The law of the rendering state generally controls the preclusive effect of the judgment. (D) is incorrect. The listed factors are used to determine whether a court may apply issue preclusion, but they do not address whether nonmutual issue preclusion is applicable.
Civil Procedure - Removal
A woman sued her former employer in state court, asserting age and sex discrimination claims under both state and federal law. The woman’s attorney had recently been embarrassed in court by the judge to whom the case was assigned. Wishing to avoid difficulties with the judge, the woman’s attorney promptly removed the case to federal court on the basis of federal-question jurisdiction. The employer’s attorney has timely moved to remand.
How is the federal court likely to proceed?
A Remand the entire case.
B Remand the state claims but keep the federal claims.
C Retain the case to avoid the risk of bias and impropriety in having it proceed before a judge who has shown clear hostility toward the woman’s attorney.
D Retain the case, because it was timely removed and the woman alleges federal claims.
Answer Discussion - Incorrect
(A) is correct. Although federal subject matter jurisdiction exists based on the presentation of a federal question, the woman is not allowed to remove because she is the plaintiff, and plaintiffs are not allowed to remove a case. Thus, the entire case must be remanded due to this defect. (B) is incorrect. Because the plaintiff is not allowed to remove, the entire case must be remanded. Note that there is a rule that when a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, the entire case can be removed to federal court. The federal court, however, must then sever and remand the purely state law claims to state court. (C) is incorrect. Local prejudice does not provide a basis for removal. (D) is incorrect because it ignores the fact that plaintiffs have no right of removal.
Evidence - Hearsay Exceptions
A defendant, a nurse at a nursing home, is charged with murdering a resident at the home by adding an allegedly lethal substance to the resident’s food. At trial, to prove that the substance added to the resident’s food could result in death, the prosecutor, without first calling any witnesses, offers to read into evidence several pages from a standard medical treatise that support the prosecution’s claim that the substance the defendant added to the food is lethal.
Is the evidence offered admissible?
A No, because the treatise excerpts were not offered during the examination of a qualified expert.
B No, because the treatise itself must be introduced as an exhibit.
C Yes, although hearsay, under the learned treatise exception to the hearsay rule.
D Yes, because the lethal nature of the substance is relevant to the defendant’s state of mind and intent.
Answer Discussion - Incorrect
(A) is correct. The content of the treatise is hearsay because it is an out-of-court statement being offered for the truth of its contents. There is a hearsay exception that allows portions of learned treatises to be read into evidence, but this exception applies only when the treatise is being used on direct or cross-examination of an expert witness. Here the prosecutor is trying to read portions of the treatise before calling any expert witness to the stand, so the treatise is inadmissible hearsay. (B) is incorrect. Even when the hearsay exception for learned treatises does apply, the treatise is read into evidence only-it is not received by the jury as an exhibit. (C) is incorrect. As stated above, the learned treatise hearsay exception does not apply here because the prosecutor is not using the treatise in the context of expert testimony. (D) is incorrect. Although the lethal nature of the substance is certainly relevant to show the defendant’s state of mind and intent, the treatise is inadmissible hearsay.
Evidence - Impeachment
A plaintiff sued the insurer of her home after the insurer denied coverage for water damage to the home allegedly caused by a frozen plastic pipe that burst. At trial, the insurer called as an expert witness an engineer, who testified that the pipe had burst because of age rather than freezing. On cross-examination, the engineer admitted that, five years earlier, he had been convicted of tax fraud, even though he had asserted that it was his accountant’s error. In response, the insurer calls a witness, who is well acquainted with the engineer and his reputation, to testify that (1) in the witness’s opinion, the engineer is a truthful person, and (2) the engineer’s neighbors all describe him as a truthful person.
How much, if any, of the witness’s testimony is admissible?
A All of the testimony is admissible to support the engineer’s credibility.
B Only the portion concerning the engineer’s reputation is admissible, because where both opinion and reputation evidence are available, only the latter is admissible under a rule of preference.
C Only the portion concerning the witness’s opinion of the engineer’s character, because the witness’s reporting of the neighbors’ comments is hearsay.
D None of the testimony is admissible, because it is collateral, having no bearing on the engineer’s qualifications as an expert.
Answer Discussion - Incorrect
(A) is correct. Once a witness is impeached with evidence of his bad character for truthfulness, he may be rehabilitated with reputation and opinion evidence of his good character for truthfulness. Here the plaintiff has attacked the engineer’s character for truthfulness by presenting evidence of his prior tax fraud conviction, so the insurer may now present evidence to rehabilitate the engineer. The witness’s opinion and reputation testimony as to the engineer’s good character for truthfulness is proper. (B) is incorrect. Reputation and opinion evidence are both admissible to rehabilitate a witness and there is no rule of preference favoring one over the other. (C) is incorrect. Although reputation evidence of character is hearsay in a sense-it is a compilation of out-of-court statements by those familiar with the person’s reputation-there is a hearsay exception for reputation evidence of a person’s character. (D) is incorrect. Whether the engineer is a truthful person has bearing on his credibility, and the credibility of a witness is never a collateral matter.
Torts - Privacy
A 15-year-old boy was killed during a gang fight. Two days after his funeral, the boy’s mother saw a television program about gang violence and was shocked to see video of herself weeping over the boy’s body. The video had been shot by the television reporting team while the boy’s body was still lying on a public street. The mother suffered severe emotional distress as a result of seeing the video.
If the mother sues the television station for invasion of her privacy and that of her son, will the mother be likely to prevail?
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A No, because a person has no right to privacy after his or her death.
Correct
B No, because the street was open to the public and the subject was newsworthy.
C Yes, because the mother did not give permission to have the video used in the program.
D Yes, because the mother suffered severe emotional distress as a result of viewing the video.
Answer Discussion - Correct
(B) is correct. The tort of invasion of privacy includes the following four kinds of wrongs: (i) appropriation by the defendant of the plaintiff’s picture or name for the defendant’s commercial advantage; (ii) intrusion by the defendant on the plaintiff’s affairs or seclusion; (iii) publication by the defendant of facts placing the plaintiff in a false light; and (iv) public disclosures of private facts about the plaintiff by the defendant. The first branch is not applicable because the fact that the defendant is using the plaintiff’s image for profit (such as television program ratings) is not sufficient; liability is generally limited to the use of plaintiff’s picture or name in connection with the promotion or advertisement of a product or service. The second branch is not applicable because the intrusion must be into something private; taking video of someone on a public street is not actionable. The third branch is not applicable because nothing suggests that the video placed the plaintiff in a false light. The fourth branch is not applicable because, again, the video was taken on a public street, so the mother’s weeping is not likely to be considered a private fact. Furthermore, the First Amendment likely prohibits recovery for this branch of invasion of privacy when the published matter is newsworthy unless the plaintiff establishes that the defendant acted with actual malice (knowledge of falsity or reckless disregard for the truth), which is not the case here. (A) is incorrect. It is true that the right of privacy is a personal right and does not survive the death of the plaintiff. Here, however, the mother is suing for invasion of her own privacy as well as her son’s. The rationale in choice (B) negates any claim for invasion of privacy and is therefore a better choice than (A). (C) is incorrect. Because the video was shot on a public street, there was no requirement that the mother give permission for the video to be used. (D) is incorrect. Even though the mother suffered severe emotional distress, she does not have a viable claim for invasion of privacy, as discussed above.
Contracts - Assignments/Delegations
A seller contracted to manufacture 1,000 toasters for a buyer for a specified price. The contract contained a provision that clearly stated: “This contract may not be assigned, and any violation of this prohibition voids the contract.” After the contract was signed, the seller informed the buyer that the toasters would be manufactured by a competitor of the seller. Citing the non-assignment provision, the buyer claimed that it was no longer bound by the contract. Toasters manufactured by the competitor were of equal quality to toasters manufactured by the seller.
Is the buyer bound by the contract?
A No, because “this contract may not be assigned” means that duties may not be delegated, and the seller delegated a duty.
B No, because the seller assigned a right despite the contractual prohibition.
C Yes, because even though the seller breached the contract, there are no damages since the competitor’s toasters are of equal quality to the seller’s toasters.
D Yes, because the non-assignment provision is not enforceable since public policy favors free assignment and delegation.
Answer Discussion - Correct
(A) is correct. A contract clause prohibiting the assignment of the contract will be construed as barring only the delegation of the assignor’s duties. Here, the seller delegated its duty to manufacture the toasters to a competitor. This voided the contract, and the buyer is no longer bound. (B) is incorrect. The seller delegated its duty to manufacture the toasters to a competitor. It did not assign its right to payment, which would have been permissible. (C) is incorrect because, as stated above, the manufacturer’s delegation of its duties rendered the contract void. (D) is also incorrect. Nonassignment provisions will be enforced, but absent circumstances suggesting otherwise, a clause prohibiting the assignment of the contract will be construed as barring only the delegation of the assignor’s duties.
Torts - Strict Liability
A hot-air balloon touring company operated near a golf course. The company’s property was separated from the golf course by a fence on which the company had posted signs warning people not to enter the property because of the dangers of balloons landing.
A golfer on the golf course hit an errant shot onto the company’s property, ignored the warning signs, and jumped over the fence to retrieve her golf ball. At about the same time, one of the company’s balloons experienced mechanical problems and had to make an emergency landing to avoid crashing. The balloon, which was out of control when it landed, struck the golfer and injured her.
The jurisdiction has decided that hot-air ballooning is an abnormally dangerous activity.
In an action by the golfer against the company, does the company have any affirmative defenses?
A No, because the balloon was out of control when it struck the golfer.
B No, because the company was engaged in an abnormally dangerous activity.
C Yes, because the balloon landed to avoid crashing.
D Yes, because the golfer assumed the risk by coming onto the company’s property.
Answer Discussion - Correct
(D) is correct. A plaintiff who knowingly and voluntarily assumes the risk of injury caused by the defendant’s conduct may be subject to the defense of assumption of risk. In a strict liability action, conduct constituting assumption of risk is an affirmative defense; depending on the jurisdiction, it may be a complete defense or it may reduce the plaintiff’s recovery under comparative fault principles. Here, the golfer ignored the signs warning of the dangers of balloons landing and jumped over the fence to retrieve her golf ball. Accordingly, even though the company’s activity is deemed abnormally dangerous and subject to strict liability, the company can defend on the basis that the golfer assumed the risk by coming onto the company’s property. (A) is incorrect. The dangers of out-of-control balloons was the reason for the company to post warning signs on the fence around its property; it does not preclude the company from raising an affirmative defense. (B) is incorrect. While the company was engaged in an abnormally dangerous activity for which it will be strictly liable, it has an assumption of risk defense based on the golfer’s conduct. (C) is incorrect. The fact that the balloon landed to avoid crashing is not a defense. Even if the operator of the balloon exercised reasonable care in making the emergency landing, the company would be liable under strict liability principles, except that the golfer assumed the risk through her conduct in entering the property.
Torts - Negligence
A pedestrian was injured when hit by a chair that was thrown from an upper-story hotel window. The pedestrian sued the occupants of all the rooms from which the chair might have been thrown.
At trial, the pedestrian has been unable to offer any evidence as to the exact room from which the chair was thrown. The defendants have filed a motion for a directed verdict.
Should the court grant the motion?
A No, because it is unreasonable to expect the pedestrian to prove which of the defendants caused the harm.
B No, because of the doctrine of alternative liability.
C Yes, because a plaintiff always has the burden to prove that a particular defendant’s conduct was the factual cause of the plaintiff’s physical harm.
D Yes, because the pedestrian has failed to offer evidence that the defendants jointly engaged in tortious conduct.
Answer Discussion - Incorrect
(D) is correct. Based on the facts, the pedestrian’s action here is likely based on negligence. In a negligence action, the plaintiff has the burden of proving that the defendant breached a duty owed to the plaintiff and that the breach of duty caused the plaintiff’s injury. If multiple defendants are acting in concert or jointly engaging in tortious conduct, all of the defendants can be held jointly and severally liable for the injury. Here, the pedestrian has offered no evidence which of the particular defendants threw the chair out the window and has offered no evidence that the defendants were jointly engaged in tortious conduct. Because the pedestrian has failed to establish a prima facie case for negligence, the court should grant the defendants’ motion for a directed verdict. (A) is incorrect. In situations where the fact that a particular injury occurred may tend to establish a breach of the duty owed, the plaintiff may be able to rely on res ipsa loquitur to create an inference of liability. However, the plaintiff generally must establish evidence connecting a particular defendant to the negligent conduct to rely on this doctrine. Unless the defendants were jointly engaged in the tortious conduct (which is not the case here), res ipsa loquitur generally may not be used to establish a prima facie case of negligence against any individual party. (B) is incorrect. Under the doctrine of alternative liability or alternative causes, which applies when two or more persons have been negligent but uncertainty exists as to which one caused the plaintiff’s injury, once the plaintiff proves that harm has been caused to him by one of the defendants, the burden of proof shifts to defendants, and each must show that his negligence is not the actual cause of the harm. Here, the pedestrian has not shown that all of the defendants were negligent, so this doctrine is inapplicable. (C) is incorrect. The language of this choice is too broad (indicated by the word “always” in the choice). In alternative liability situations the plaintiff will not have the burden to prove that a particular defendant was the factual cause of the harm. However, the facts here do not present such a situation.
