MBE half day and full day exams Flashcards
The state legislature enacted a statute authorizing all state agencies having legal departments or employing lawyers to subscribe to a specific computarized legal research service provided by a legal research corporation. A contract was duly entered into between the state and the corporation. Befroe the corporation could begin installing the necessary equipment in state offices, it was revealed that the state university system had exhausted its budgeted resources and would not be able to operate without additional money. The legislature then repealed the statute authorizing use of the computer legal service and reallocated these funds to the university/
In an action by the corporation against the state to enforce the contract, how should the trial court rule regarding the statute?
A) the repealed statute is invalid, because it violates the constitutional prohibition against impairment of contracts
b) the repealed statute is invalid because the state is equitable estopped to renounce a valid bid it has accepted
c) the repealed statute is valid because the legislature has constitutional power to repeal its own enactments
d) the repealed statute is valid because the sovereign may not constitutionally be used without its own consent.
A:
As a general rule a state may not retroactively late ra contract to which it is a party. WHile that prohibition is not absolute, legislation that reduces the contractual burdenson on the state will be strictly scrutinized. Here the legislature is simply making a choice about how to distribute recourse to meet competing needs, and the impairment will be striken. A state may repeal its own enactments, but may not do so when repeal violates a constitutional prohibition.
D no because sovereign immunity is not a constitutional doctrine, except as subsumed in the Due Process Clause in a manner not as directly applicable under these circumstances.
In response to a tremendous increase in begigng int he downtown area of a city, the city council enacted an ordinance that required anyone soliciting for charitable contributions of any sort in any public place to wear an identity card issued by the local police department. Identity cards could be obtained by completing an affidavit providing the applicant’s identification and address information and further affirming that the applicant was not soliciting for personal use and belonged to a recognized charitable organization.
A member of an anti-tabacco charitable organization wishes to solicit contributions by similarly minded persons for use in his organization’s campaign against public smoking. He does not want to comply with the identity card ordinance. He comes to you for legal advice and asks whether he should challenge the ordinance in federal court.
Should you advise that th ordinance is constitutional?
a) NO because it violates the First Amendment prohibition of government infringement of th right of free speech
b) no because it prevents religious organizations from obtaining contributions from their members and thus interferes with the free exercise of religion
c) yes because it represents a reasonable balancing of the state’s police power interest in protecting its citizens from fraud and annoyance against the right of people to seek charitable constirbutions
d) yes, because preventing fraud in the solicitation for charitable contributions is a compelling interest.
A:
The ordinance is probably unconstitutiaonl because it violates free speech rights under the First Amendment. The Supreme Court has held that a charitable appeal for funds involves a variety of speech interests protected by the First Amendmet.
In one case, an ordinance that prohibited door to door solicitation by organizations that did not use t least 75 of their receipts for charitable purposes was struck down by the Court. The present ordinance would probably run afoul of the same rule, because in effect it prohibits all charitable solicitation absent relatively burdensome compliance with its registration provisions. The ordiance is also vulnerable because it limits the right of solicitation to those who belong to a “recognizes charitable organization”.
D no because even if there was a compelling interest it was NOT narrowly tailored.
Congress enacted a law requiring all civil service employees to retire by age 75, except when such employees are employed by the armed services. Civilservice employees of the armed services are reuiqred to retire by age 65. An employee of the armed services just turned 65 years old. He filed suit in the federal district cour seeking a declaratory judgementthat would prevent his employer form requiring him to retire before age 75.
What is the employee’s strongest argument that the statute’s provision regarding civil service employees of the armed services is invalid?
a_ the provision denies him the privileges and immunities of national citizenship
b) the provision denies him a property right without just compensation
c) the provision is invidious discrimination on the basis of age in violation of the Fufth Amendment
d) the provision is not within the enumerated powers of Congress under Article I, Section 8
C:
we are talking about equal protection and discrimination based on age where we have rational relation/
B: NO because “just compensation” would not reinstate him would only give him money
A state statute makes it a crim eto operate a motor vehicle while intoxicated. Another state statute provides that a blood alcohol level of .10 raises a presumption of intoxication. A state police officer spotted the defendant’s pickup weaving from lane to lane on the highway and stopped the truck. THe defendant took a breathalyzer test that indicated a .12 blood alcohol level. He was charged with operating a more vehicle while intoxicated.
At trial at the close of all the evidence and over the defendant’s objection the judge instructed the jury “if you are convinced that, at the time the defendant was pulled over, his blood alcohol level was .10 or greater you must presumed that he was intoxicated”. The defendant was convicted and he is appealing on the ground that the judge’s instruction was improper.
Hopw should the appeallte court rule?
a) affirm because the judge may instruct the jury on the law and he merely cited the state statute
b) revernse and reamdn because the jruy should have been left to draw it sown conclusion without the judge’ sinstruction
c) recever and remand because the presumption might lead the jury to believe that the prosecution di dnot have to meet its burden of proving ghte defendant guilty beyond a reasonable doubt
d) reverse and reamdn because the instruction was substantially more prejudicial than probative.
C
THe appellate court should reverse and remande. When the existence of a presumed fact is submitted to the jury in a criminal case, the judge must instruct the jury that it MAY regard the basic facts as sufficient evidence of the presumed fact, but that it is not REQUIRED by law to do so. If, as here, the presumed fact (intoxication) is an element of the offense, its existence must be proved beyond a reasonable doubt. Thus, the judge should have insturcted the jury that ti may read a blood alcohol concertaintion of .10 or more as sufficient evidence of intoxication not that it must do so. The instruction appears to relieve the prosecution of its burden of proving intoxication beyond a reasonable double.
Professor believed that a store was keeping his computer. He broke in and decided to take his own computer. However after turning it realized that it was not his. However he decided to take it. Larceny?
YUP. Once he turned it over he knew it was not his and THEN took while knowing that it was not his.
A well regarded paving contractor entered into a written contract with a store owner to pave the parking lot behind his store The contract contained no provision regarding assignment. A few days after they entered into the contact, the contractor encountered scheduling difficulties and assigned the job to another paving contractor who has a comparable reputation and would do the job for the contract price.
With regard to this assignment by the contractor, which of the following statements is true?
a) the assignment is valid only if the store owner agrees to accept performance by the competitor
b) the contractor breached his contract with the store owner by assigning it to the competitor without his prior consent
c) the store owner must accept performance by the competitor
d) the assignment is valid even if the store owner objects, as long as the contractor supervises the performance of the contract by the competitor
C:
The store owner must accept hte competitor’s performance. THe assignment by the contractor of the contract involved a delegation of her duties to the competitor/ WHile generally all contractual duties may be delegated to a third person, duties involving personal judgement and skill may not be delegated. However, a contract fo rpaving generally would not be regarded as involving a personal subject matter, hence, the contractor could delegate the duties to another competent contractor without the store owner’s consent and the store owner must accept perofrmance
A state enacted a sales tax on specified items purchased within the state. A subdivision of the federal government purchased from a dealer in the largest city in the state 100 new automobiles for use by federal agencies operating within the state.
Must the federal government pay the sales tax applicable to the new auto purchase?
a) no unless COngress has consented to such a tax
b) no because the tax is unfairly discriminates against interstate commerce
c) yes because the tax is nondiscriminatory
d) yes because there is a rational basis for the tax and it does not appear to be a disguised penalty.
A: as direct tax on the federal government the sales tax is invalid unless Congress has consented to such a tax
C is wrong because direct state taxation of the federal government is invalid whether or not discriminatory absent the consent of Congress
Anotehr driver and the defendant were racing along a two-lane road, while the other driver tried to pass in the land to the left of the center line, the plaintiff’s car came into view, heading directly at the driver’s vehicle. The driver lost control of his vehicle and collided with the plaintiff’s car. The defendant’s car having already passed the plaintiff’s car, was not involved in the collision. The plaintiff brings suit against the defendant for damages suffered in the collision.
Which of the following would be the defendant’s best course of action?
a) seek dismissal of the claim, beacseu the defendant did not cause the plaintiff damage
b) seek indemnity from the other driver if the plaintiff recovers a judgement against the defendant
c) asks the court to limit his liability to one half of the plaintiff’s dmaages
d) seek contribution from the other driver, if the plaintiff recovers a judgement against the defendant
D:
Tehdefendant should seek contribution from the other driver. The other driver and the defendant are joint tortfeasor who are each jointly and severally liable for the plaintiff’s injuries. As such either may be sued for the entire amount fo damages suffered.
C is incorrect since he wpoudl have no right to indemnity because he is actively negligent in causing the plaintiff’s injuries.
A pedestrian was walking home when she saw a man waving what looked to be a police badge pursuing another man with a wallet in his hand. THe pursuer yelled, “don’t let him get away. Im a police officer and he just mugged someone!”. The pedestrian immediately put out her left and tripped the man injuring him. The pursuing police officer arrested the man for the mugging, a felony in the jurisdiction. Subsequent investigation revealed that the man had just picked the victim’s pocket, a misdemeanor, rather than mugged him, as the victim had told the officer.
If the man sues the pedestrian for batter, will the pedestrian have a valid defense?
A) Yes, ebacuse she saw the badge and therefore had reasonable ground to believe that the pursuer was a police officer
b) yes because the police officer had reasonable ground to arrest the man
c) nno beuacse the pedesitran did not witness the crime
d) no because a felony had not in fact been committed
B:
the pedestrian will have a valid defense to her use of force. A felony arrest without a warrant by a police officer or a private citizen acting at the officer’s direction is privileged if the officer has reasonable grounds to believe that a felony has been committed and that the person arrested has committed it. In such a case, force reasonable necessary yo make the arrest is permitted.Here, the police officer had reason to believe he was chasing someone who had committed a felony, and the pedestrian can rely on the officer’s privilege because she was acting at the officer’s direection.
C is wrong because the pedestrian need not have been a witness to make an arrest for a felony and can rely on the police officer’s privilege even though the crime committed was a misdemeanor.
Yet again, nonconforming under UCC
Under UCC a buyer who receives nonconforming goods has a choice of rejecting them or accepting them. If the buyer chooses to accept the nonconforming goodsshe may recover damages from the seller resulting form the breach but only if she gives notice to the seller within a reasonable time after she discover to should have discovered the breach.
During a gang shootout in a city a ganmember looked for a rival among the combatants because he wanted to kill him. Beliving a bystander to be the rival the ganmember shot at the bystander and missed. The bullet passed through a window and killed the homeowner who was asleep on her sofa.
Of which crimes may be gangmember be properly convicted?
a) attempted murder of the rival
b) attempted murder of the bystander
c) attempted murder of the bystander and murder of the homeowner
d) manslaughter of the homeowner
C: the gangmember may be concited of attempted murder of the bystander and murder of the homeowner. THe gand member’s actions with respect to the rival never rose to the level of attempt under either the traditional “proximity test” or the modern Model Penal Code tes.t Here there is no evidence that the rival was even present. Thus A is incorrect. Even though the gangmember thought the bystander was the rival he intended to kill the person at whom he aimred (bystander). HIs action with regard to the bystander fulfil the test for attempt under every approach/
Furtehrmore hahnmemrb intent to kill bystander is transferred to the homeowner making the gangmember guilty of murder not manslaughter.
