MBE

Question 1

In a traditional public forum, the government may only regulate speech if the restrictions:

Answer 1

(i) are content-neutral as to both subject matter and viewpoint, (ii) are narrowly tailored to serve a significant governmental interest, and (iii) leave open ample alternative channels for communication. Additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest.

Question 2

The Fourteenth Amendment, Section Five Enabling Clause permits Congress to pass legislation to …

Answer 2

enforce the equal protection and due process rights guaranteed by the amendment, but not to expand those rights or create new ones. In enforcing such rights, there must be a “congruence and proportionality” between the injury to be prevented or remedied and the means adopted to achieve that end.

Question 3

Even though the ordinance does not constitute an occupation of the property by either the government or a third party, it is still subject to a three-factor balancing test to determine whether the ordinance amounts to a regulatory taking. The following factors are considered:

Answer 3

(i) the economic impact of the regulation on the property owner, (ii) the extent to which the regulation interferes with the owner’s reasonable, investment-backed expectations regarding use of the property, and (iii) the character of the regulation, including the degree to which it will benefit society, how the regulation distributes the burdens and benefits among property owners, and whether the regulation violates any of the owner’s essential attributes of property ownership, such as the right to exclude others from the property.

Question 4

When is private conduct state action

Answer 4

State action may be considered to exist when private parties carry out traditional governmental functions or if there is significant state involvement in the activities. Merely providing a service that the government could offer is not sufficient to make the provider a state actor.

Question 5

A restriction on commercial speech is subject to a form of intermediate judicial scrutiny, requiring the government to show …

Answer 5

that the restriction directly advances an important or substantial government interest and that the restriction is not substantially more extensive than necessary to protect that interest

Question 6

A law passes the rational basis standard of review if it is …

Answer 6

rationally related to a legitimate governmental interest, a test of minimal scrutiny. It is not required that there is actually a link between the means selected and a legitimate objective. However, the legislature must reasonably believe there is a link. Laws are presumed valid under this standard.

Question 7

A local government may exact promises from a developer, such as setting aside a portion of the land being developed for a park in exchange for issuing the necessary construction permits. Such exactions do not violate the Takings Clause if there is (2 things)

Answer 7

(i) an essential nexus between legitimate state interests and the conditions imposed on the property owner (i.e., the conditions substantially advance a legitimate state interest), and (ii) a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development. In determining whether there is rough proportionality between the burden and the impact, the government must make an individualized determination that the conditions are related both in nature and extent to the impact.

Question 8

In the Brandenburg case, the Supreme Court interpreted the First Amendment to preclude a conviction for inciting violence unless the speech in question is (2 things)

Answer 8

directed at inciting or producing imminent lawless action and the speech is likely to incite or produce such action

Question 9

What is substantial performance?

Answer 9

The doctrine of substantial performance provides that a party who substantially performs can recover on the contract even though full performance has not been tendered. Substantial performance is negated if the incomplete performance amounted to a material breach of contract. If the failure of a constructive condition of exchange is minor, however, it will not negate substantial performance.

Question 10

In contracts of $500 or more between merchants, the SOF may be satisfied when

Answer 10

one party provides the other with written confirmation of the oral agreement. The recipient of the agreement is bound if she does not object within 10 days of receipt. A signature includes any symbol adopted with the intention to accept a writing. It may be contained on any part of a writing, and it may even include, under proper circumstances, a billhead or letterhead when the writing was intended as a memorandum of an agreement.

Question 11

Courts may refuse to use the diminution in value measure of damages when…

Answer 11

the breach appears to be willful, and only completion of the contract will enable the nonbreaching party to use the land for its intended purposes.

Question 12

A buyer acquires an insurable interest in goods … when?

Answer 12

upon the identification of the goods. Where the contract is for future goods (i.e., goods that are not both existing and identified), the buyer does not acquire an insurable interest until the seller designates goods as those to which the contract refers, unless the parties have explicitly agreed otherwise.

Question 13

In a UCC confirming memo… If the writing omits or incorrectly states a term, it is is not still sufficient to satisfy the SOF unless it…

Answer 13

fails to state a quantity term. The contract is not enforceable beyond the quantity term contained in the writing. Although all other terms of the contract (e.g., price) may be proven by parol evidence, the quantity term cannot.

Question 14

Until a repudiating party’s next performance is due, he may retract the repudiation unless …

Answer 14

the aggrieved party has since accepted the repudiation, acted in reliance on the repudiation, or brought an action for breach.

Question 15

Can a contract be assigned despite a non-assignment clause?

Answer 15

Yes. Most contracts can be assigned. Even if the contract by its terms prohibits assignment, a party retains the power to assign, although an assignment operates as a breach of the contract.

Question 16

Anticipatory repudiation occurs when …

Answer 16

there has been an unequivocal refusal of the buyer or seller to perform, or when a party creating reasonable grounds for insecurity fails to provide adequate assurances within 30 days of demand for such assurances.

Question 17

Larceny by trick occurs when …

Answer 17

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 18

What are the elements of larceny by false pretenses?

Answer 18

False pretenses (also called “obtaining property by false pretenses” or “larceny by false pretenses”) requires: (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.

Question 19

Malice aforethought includes which mental states?

Answer 19

intent to kill,

intent to inflict serious bodily injury,

reckless indifference to a known and unjustifiably high risk to human life (depraved heart), or

intent to commit certain felonies.

Question 20

An attempt crime requires what two elements?

Answer 20

a specific intent to commit a criminal act

coupled with a substantial step taken toward the commission of the intended crime.

Question 21

M’Naghten test for NGRI

Answer 21

Defendant either did not know the nature of the act or did not know that the act was wrong

Question 22

At common law, false pretenses requires …

Answer 22

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 23

Embezzlement is …

Answer 23

the (i) fraudulent (ii) conversion (iii) of the property (iv) of another (v) by a person who is in lawful possession of the property.

Question 24

What is the majority (and MPC) rule for accomplice liability?

Answer 24

Under the majority and MPC rule, a person is an accomplice in the commission of an offense if he acts with the purpose of promoting or facilitating the commission of the offense. Thus, the accomplice must intend that her acts will assist or encourage the criminal aim.

Question 25

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:

Answer 25

Recklessly

Question 26

Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum must be …

Answer 26

charged in an indictment, submitted to a jury, and established beyond a reasonable doubt.

Question 27

Miranda context; To be testimonial, the communication must … (accomplish what?)

Answer 27

relate to a factual assertion or disclose information.

Question 28

The double jeopardy clause generally bars successive prosecutions for: greater included offenses, lesser included offenses, or both?

Answer 28

Both

Question 29

When does double jeopardy attach under the blockberger rule? (i.e. when are two (+) crimes too similar to be charged subsequent to one another)?

Answer 29

whether charges constitute the same offense depends on whether each charge requires proof of an element that the other does not.

Question 30

The Confrontation Clause requires that, to admit a testimonial hearsay statement against a criminal defendant… (2 elements)

Answer 30

the declarant must be unavailable and the defendant must have had a prior opportunity to cross-examine the declarant.

Question 31

Lay opinions are admissible with respect to commonsense impressions. To be admissible, the opinion must be (2 things)

Answer 31

(i) rationally based on the perception of the witness and (ii) helpful to a clear understanding of the witness’s testimony or the determination of a fact in issue.

Question 32

The defendant in a criminal case who testifies on his own behalf may?? may not?? be impeached by a juvenile adjudication to show that the defendant is untruthful

Answer 32

may not

Question 33

However, the duty to avoid infliction of emotional distress exists without any threat of physical impact in cases in which there is a ________ between the plaintiff and the defendant

Answer 33

special relationship

Question 34

The misappropriation of the right to publicity requires (4 elements)…

Answer 34

that the plaintiff prove the defendant’s unauthorized appropriation of the plaintiff’s name, likeness, or identity, without the plaintiff’s consent, for the defendant’s commercial advantage, and resulting in injury to the plaintiff.

Question 35

Under pure several liability, each tortfeasor is liable …

Answer 35

only for his proportionate share of the plaintiff’s damages

Question 36

The standard of care imposed upon a child is that of

Answer 36

a reasonable child of similar age, intelligence, education, and experience.

Question 37

False imprisonment requires that a person

Answer 37

acts with intent to confine or restrain another person to a bounded area and those actions directly or indirectly result in such confinement. The plaintiff must be aware of the confinement or must suffer actual harm. The

Question 38

A tenant owes a licensee …

Answer 38

the duty to warn of concealed dangers and is required to exercise reasonable care in conducting activities on her land.

Question 39

Activities are considered abnormally dangerous if (3 things)…

Answer 39

they create a foreseeable and highly significant risk of physical harm

even in the exercise of reasonable care,

and the activity is not commonly engaged in.

Question 40

Can one sever a JTRS with a will?

Answer 40

No

Question 41

A seller-financed purchase money mortgage v third-party purchase money mortgage?

Answer 41

A seller-financed purchase money mortgage > third-party purchase money mortgage

Question 42

In a periodic tenancy, notice of termination must be given when?

Answer 42

before the beginning of the intended last period of the periodic tenancy. Thus, a periodic month-to-month tenancy can be terminated by either party with a one-month notice of termination. Notice that is given late is generally treated as effective to terminate the tenancy as of the end of the following period.

Question 43

In a lease, is there a duty on the landlord to make repairs?

Answer 43

Under the common law, there was no implied duty on the part of the landlord to repair leased premises. However, the majority of jurisdictions today enforce an implied duty upon the landlord to repair under a residential lease, even when the lease attempts to place the burden on the tenant, except for damages caused by the tenant. In contrast, courts are reluctant to imply a landlord’s duty to repair in commercial leases because the implied warranty of habitability generally will not apply in commercial leases.

Question 44

Under the doctrine of equitable conversion, when one of the contracting parties dies prior to the performance date of the contract…

Answer 44

Under the doctrine of equitable conversion, when one of the contracting parties dies prior to the performance date of the contract, the seller’s interest may be treated as personal property and the buyer’s interest may be treated as a real property interest for purposes of distributing in the property pursuant to either’ will. When the seller has devised his real property interests, the proceeds from the sale of the property under contract are treated as personal property that passes to the devisee of the seller’s personal property.

Question 45

when does lease termination occur?

Answer 45

Termination of a lease occurs automatically upon the expiration of the term. Termination may also occur before the expiration of the term when the tenant surrenders the leasehold, and the landlord accepts the return of the leasehold.

Question 46

In order to end a lease before the end of its term by constructive eviction…

Answer 46

the landlord must have breached a duty, which caused the loss of the substantial use and enjoyment of the premises, the tenant must give the landlord notice of the problem and reasonable opportunity to cure, and the tenant must vacate the property within a reasonable period of time.

Question 47

Modification of a senior mortgage subordinates the mortgage to a junior mortgage …

Answer 47

only to the extent that the modification of the senior mortgage makes it more burdensome.

Question 48

Under the “equal dignities” rule …

Answer 48

when the act performed by an agent on behalf of the principal is required by law to be in writing, the agent’s authority must also be established in writing.

Question 49

Can a life estate holder make major changes to increase the property value (ameliorative waste) without the remainder holder’s consent?

Answer 49

Probably not. At common law, a life tenant was prohibited from engaging in acts that changed the property’s value (even those that enhanced the value) unless all future interest holders were known and consented. However, the current majority rule allows life tenants to physically alter structures on the property when a substantial and permanent change in neighborhood surroundings makes it necessary in order to continue reasonable use of the property, so long as the property value is not diminished.

Question 50

Most jurisdictions place the risk of a loss that occurs after the contract for real estate has been entered into (prior to closing) on the ____

Answer 50

buyer

Question 51

Must a life tenant insure the property for the benefit of the remainderman?

Answer 51

No

Question 52

Is there a duty to mitigate damages in a breach of lease?

Answer 52

The majority of jurisdictions now require a landlord to mitigate damages by attempting to re-rent the premises in the event that the tenant abandons the property and breaches of the lease. Accordingly, the landlord has a responsibility to make a good-faith attempt to re-rent the property.

Question 53

Who is eligible to benefit from an anti-lapse statute?

Answer 53

Only statutorily defined persons (usually close relatives)

Question 54

In a criminal trial, to admit an out-of-court testimonial statement against a defendant, the Confrontation Clause of the Sixth Amendment requires that …

Answer 54

the declarant be unavailable and that the defendant had a prior opportunity to cross-examine the declarant. A statement that is not testimonial does not violate the Confrontation Clause.

Question 55

In determining whether a statement is testimonial, courts look to …

Answer 55

the primary purpose of the statement.

Question 56

Attempt requires (2 things)

Answer 56

the specific intent to commit a crime and a substantial step in furtherance of the commission of that crime.

Question 57

The UCC does permit substantial performance with regard to an installment contract. In addition, when there is a nonconforming tender or a tender of nonconforming goods under one segment of an installment contract, the buyer may cancel the contract only if

Answer 57

the nonconformity substantially impairs the value of the entire contract to the buyer.

Question 58

Imperfect self-defense occurs when …

Answer 58

the person claiming self-defense unjustifiably kills her attacker, such as when she honestly but unreasonably believes self-defense is required. The rule reduces the charge from murder to voluntary manslaughter.