MBE practice wrong answers

Question 1

Who can issue a writ of habeas corpus?

Answer 1

Only a federal court

(A state court issuing a writ of habeas corpus would violate the Supremacy Clause)

Question 2

When does disclosure of material otherwise protected by the attorney-client privilege constitute a waiver of undisclosed material?

Answer 2

(1) the waiver is intentional

(2) the disclosed and undisclosed materials share the same subject matter

(3) the materials ought in fairness be considered together

Question 3

What is the forum-defendant rule?

Answer 3

A case filed in state court may not be removed to federal court under diversity jurisdiction if a defendant is a citizen of the state where the case was filed - even if a different defendant is trying to remove.

Question 4

In criminal law, what is constructive possession?

Answer 4

Constructive possession is legal possession of an object that is not in the possessor’s direct physical control, but the possessor still has knowledge and control over it.

Question 5

What are the four threshold matters a court must determine before admitting expert testimony?

Answer 5

(a) the expert’s knowledge is helpful to the factfinder

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Question 6

When can bulge jurisdiction be applied?

Answer 6

When a party is joined under Rule 14 (third-party practice) or Rule 19 (required joinder)

Question 7

What is the best evidence rule?

Answer 7

When a party wants to admit the contents of a letter or other writing or recording, the actual writing or recording must be presented, unless the original is lost.

Question 8

Does the political question doctrine apply when the issue is the validity of a federal statute?

Answer 8

No

Question 9

How is the amount of an embezzlement calculated?

Answer 9

The value of the property at the time of the commission of the offense (as opposed to any appreciation or depreciation later)

Question 10

What is an implied-in-fact contract?

Answer 10

A contract where mutual promises are inferred through conduct

Question 11

What are the usual steps to prove service of process?

Answer 11

1. Send a notice of complaint and request for waiver of service.
2. If service is not waived within 60 days, properly serve the defendant
3. File proof of service
4. If the defendant does not file a motion or answer in a timely period, move for default

Question 12

Can a person commit conversion if they reasonably believe the property does not belong to the victim?

Answer 12

Yes

Question 13

When does a party forfeit a hearsay or Confrontation Clause Objection?

Answer 13

When the party engaged in wrongful conduct for the purpose of preventing the declarant from testifying

Question 14

When should a jury be instructed on a lesser included offense?

Answer 14

When the jury could rationally acquit the defendant of the charged offense but could convict of the lesser offense

Question 15

What is the standard of proof for admitting expert testimony?

Answer 15

Preponderance of the evidence

Question 16

What happens when a written contract fails to express the actual agreement of the parties?

Answer 16

A court may reform the writing to express the agreement

Question 17

When are punitive damages warranted in medical malpractice cases?

Answer 17

When the provider’s conduct was willful or wanton

Question 18

When can the addition of a party relate back to the date of the original complaint?

Answer 18

When the claim against the party arose out of the same events, and the party has notice and knew that it would be sued if not for mistaken identity

Question 19

What is the standard for an appeals court setting aside a court’s finding of fact?

Answer 19

Clear error - give due weight to judge’s determination of witness credibility

Question 20

Does an attorney have to object to a judge’s findings of fact in order to challenge them on appeal?

Answer 20

No

Question 21

What level of scrutiny applies to burdens on fundamental rights?

Answer 21

Strict

Question 22

Are mandatory presumptions allowed in criminal cases?

Answer 22

No

Question 23

What is continuing trespass?

Answer 23

Continuing trespass is when a person takes another’s property without the intent to permanently deprive the owner, but later develops such an intent, at which point larceny occurs

Question 24

When can a buyer reject goods under an installment contract?

Answer 24

UCC § 2-612(2): a buyer may reject any nonconforming installment if the nonconformity substantially impairs the value of the installment and it cannot be cured.

Question 25

What is the best basis for Congress regulating the rental market, i.e. fair housing?

Answer 25

Commerce Clause: rentals constitute economic activity that, in the aggregate, has a substantial effect on interstate commerce

Question 26

What notice is required for a default judgment hearing?

Answer 26

7 days if the party appeared in the action

Question 27

How can a criminal defendant prove her own good character?

Answer 27

Reputation or opinion evidence if character is not an element of the crime

Specific acts, reputation or opinion if character is an element of the crime

Question 28

What is common law murder?

Answer 28

1. Intentionally killing someone
2. Causing another’s death by actions intended to cause serious bodily injury

Question 29

What are the elements of a nuisance claim?

Answer 29

1. substantial and unreasonable interference
2. with use and enjoyment of property

Question 30

Deed poll

Answer 30

A deed signed only by the grantor and not the grantee. If the grantee accepts it, he accepts all conditions that come with it.

Question 31

Death escrow

Answer 31

Giving a deed to an escrow agent to be given to the recipient upon the grantor’s death, in such a way that the deed is placed outside the grantee’s control

Question 32

What happens when an acceptance under the UCC contains an additional term?

Answer 32

The term becomes part of the contract unless
1. it materially alters the contract
2. the offer expressly limits the terms
3. the other party objects within a reasonable time

Question 33

Does the exclusionary rule extend to grand jury proceedings?

Answer 33

No

Question 34

When must an objection to proposed jury instructions be made?

Answer 34

After the court tells the parties about them, before giving them to the jury

Question 35

What is one nondelegable duty?

Answer 35

A landowner who holds his land open to the public must keep the premises safe for business visitors

Question 36

When does opposing counsel have a right to inspect a writing used to refresh a witness’s memory?

Answer 36

The court has discretion to require production of the writing if it was used to refresh the witness’s memory before she testifies.

The court must allow opposing counsel to see the writing if it is used to refresh the witness’s recollection while she is on the stand.

Question 37

When is a federal civil jury of fewer than six members appropriate?

Answer 37

When the parties stipulate to it

Question 38

What is the effect of a second voluntary dismissal?

Answer 38

Adjudication on the merits - dismissed with prejudice

Question 39

When is an employer liable for the actions of an independent contractor?

Answer 39

When the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party’s injury (the contractor is also still liable)

Question 40

What is the effect on appeal if the parties do not object to proposed jury instructions?

Answer 40

Full appeal is waived, and appellate courts only look at whether there was (1) plain error that (2) affected a party’s substantial rights

Question 41

What is the standard for authentication of evidence?

Answer 41

Production of evidence sufficient to support a finding that the evidence is what the proponent claims it to be

Question 42

When is nondisclosure of a fact tantamount to a misrepresentation?

Answer 42

When a person knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation.

Question 43

Can the parties stipulate to a non-unanimous jury verdict?

Answer 43

Yes

Question 44

Traditional assumption of risk

Answer 44

Complete defense - if someone knowingly and voluntarily chose to encounter the risk, they cannot recover

Question 45

Doctrine of exoneration

Answer 45

Encumbrances of a property conveyed by a will is discharged with funds from the originating estate, not from the property itself.

Question 46

Under the UCC, when is a good identified to the contract?

Answer 46

When the seller ships, marks, or otherwise designates them as goods to which the contract refers

Question 47

Whose law governs privilege in a federal diversity action?

Answer 47

State law

Question 48

What kind of false information justifies avoiding a contract?

Answer 48

(1) fraudulent misrepresentation

(2) material misrepresentation (even if the other party also did not have the correct information)

Question 49

Can records of illegal activity be admitted through the business records exception?

Answer 49

Yes

Question 50

What will a court do if the parties to a contract leave a missing term in an otherwise-enforceable contract?

Answer 50

The court will supply a term that is reasonable to both parties under the circumstances

Question 51

How can a scheduling order be modified?

Answer 51

(1) The moving attorney must show good cause, meaning the party acted diligently to try to meet the original deadline

(2) If good cause is shown, the opposing party must not be able to show that prejudice would result from modification

Question 52

Does a mandatory meeting with a probation officer constitute custodial interrogation?

Answer 52

No, even though a probation or parole officer may compel attendance and truthful answers to questions, this is not custodial interrogation.

Question 53

Are statements made during civil settlement negotiations admissible in a later criminal case?

Answer 53

No

Question 54

Under the common law, when is a modification without consideration valid?

Answer 54

If the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made.

Question 55

What investigations are admissible under the public records exception?

Answer 55

factual finding based upon an official investigation, except for criminal investigations by law enforcement

Question 56

Can the deadline for a renewed judgment as a matter of law be extended?

Answer 56

No, under no circumstances

Question 57

What duty permits rights to be fairly implied in order to carry out the intention of the parties?

Answer 57

Duty of good faith

Question 58

What happens if a seller does not tender goods on the delivery date?

Answer 58

The buyer’s duty to pay is discharged even if the seller tries to deliver the goods on a later date, unless the contract says otherwise

Question 59

If a seller breaches and a buyer covers by acquiring alternate goods, what is the buyer’s remedy?

Answer 59

The difference between the contracted price and the cover price

Question 60

Whose law governs in determining whether an action qualifies as a class action?

Answer 60

In federal court, federal law

Question 61

What are the requirements for admitting a witness’s prior inconsistent statement for impeachment purposes?

Answer 61

The witness must be testifying and must have the opportunity to explain or deny the statement

Question 62

What is the standard for modifying a final pretrial order?

Answer 62

Preventing manifest injustice

Question 63

Is strict products liability available when a plaintiff’s only loss is economic?

Answer 63

No

Question 64

Who does a title insurance policy cover?

Answer 64

The named beneficiary plus the beneficiary’s heirs and devisees so long as they own the property

Question 65

What is the standard for a renewed JMOL?

Answer 65

Whether there is legally sufficient evidence to support the verdict

Question 66

Can there be recovery under strict products liability if the only thing damaged was the product itself?

Answer 66

No

Question 67

What is the remedy for tort conversion?

Answer 67

The value of the item before it was taken

Question 68

When can a plaintiff recover for NIED when she was not in the zone of danger?

Answer 68

Situations in which people are especially likely to be distressed, such as a medical professional negligently misdiagnosing someone with a serious ailment

Question 69

When may inadmissible evidence that forms the basis of an expert’s opinion be disclosed to the jury?

Answer 69

When its probative value in helping the jury evaluate the expert’s opinion substantially outweighs its prejudicial effect

Question 70

How does a junior mortgagee’s foreclosure affect senior mortgages?

Answer 70

The senior mortgages remain in effect, even if the mortgagees are joined in the action

Question 71

When does a police officer’s lie to a suspect invalidate a confession?

Answer 71

When the lie overbears the suspect’s will and deprives the suspect of the ability to make a free choice

Question 72

When must a Rule 12(b)(6) motion (failure to state a claim) be filed?

Answer 72

(1) in any pleading permitted under Rule 7(a),

(2) by a motion for judgment on the pleadings under Rule 12(c), or

(3) at trial. Fed. R. Civ. P. 12(h)(2)

The motion does not need to be consolidated with other Rule 12(b) motions.

Question 73

When may a court correct a clerical error in a judgment?

Answer 73

Any time, though it must get permission from the appeals court if the appeal has been docketed

Question 74

Can other damages be added to liquidated damages in a contract?

Answer 74

No

Question 75

May a lay witness provide opinion testimony about a criminal defendant’s mens rea?

Answer 75

Yes, though an expert witness may not

Question 76

When can a party move for summary judgment?

Answer 76

Any time up until 30 days after the close of discovery

Question 77

By what time must a seller cure a delivery of nonconforming goods that the buyer rejects?

Answer 77

by the end of the contract time, as long as the seller has reasonably informed the buyer of intent to cure (the buyer is obligated to accept)

Question 78

When is a seller allowed a reasonable time to cure nonconforming goods (as opposed to being strictly held to the contract deadline)

Answer 78

When the seller reasonably believed the nonconforming tender would be acceptable

Question 79

Can a sublessor be liable to a sublessee for violations of the original lease agreement?

Answer 79

No

Question 80

When can a party to a contract for the sale of goods demand adequate assurances from the other party’s legatee?

Answer 80

Any time - delegation is a circumstance creating reasonable grounds for insecurity and may without prejudice to his rights against the assignor demand assurances from the assignee

Question 81

If a defendant removes a case to federal court before service of the complaint, when must service be effected?

Answer 81

90 days from the date of removal

Question 82

What is merger by deed?

Answer 82

the terms of the deed govern over conflicting terms in the prior sale contract

Question 83

When may a court admit evidence of a plaintiff’s past sexual conduct or sexual predisposition in a civil case?

Answer 83

When the evidence’s probative value substantially outweighs the risk of harm to the victim (e.g., humiliation) and unfair prejudice to any party

Question 84

When will a court enforce specific performance?

Answer 84

A court will not order specific performance unless (1) the terms of the contract are sufficiently definite, (2) the order will not be disproportionately burdensome for the court to enforce, and (3) damages will be inadequate

Question 85

If an unconstitutional prior identification of a criminal defendant by a witness is suppressed, when can an in-court identification be admitted?

Answer 85

When the government proves, by clear and convincing evidence, that the in-court identification was not tainted by the unconstitutional out-of-court identification

Question 86

What is the standard for admissibility of demonstrative evidence?

Answer 86

The evidence is a fair depiction or reasonable facsimile of the actual object.

Question 87

If a sales contract provides for delivery of goods at the seller’s place of business or the situs of the goods, when does the risk of loss pass to the buyer?

Answer 87

The risk of loss remains on the merchant “until actual receipt by the buyer, even though full payment has been made and the buyer notified that the goods are at his disposal.”

Question 88

Is additur allowed in federal courts?

Answer 88

No because it violates the constitutional right to a jury trial

Question 89

What is the deadline for filing a renewed motion for judgment as a matter of law?

Answer 89

28 days after the entry of judgment

Question 90

How are challenges to federal laws under the Tenth Amendment evaluated?

Answer 90

Procedural immunity – states are adequately protected from federal intrusion onto their sovereignty so long as the federal law resulted from a properly functioning political system in which the states, through their representatives, participated.

Question 91

In evidence, what is the learned treatise exception?

Answer 91

If the court finds a publication to be a reliable authority, statements from it may be read into evidence, but the publication itself may not be received as an exhibit

Question 92

When is jury unanimity required?

Answer 92

Six-person jury in a criminal trial

Question 93

What is the effect of a fee simple determinable on marketability of title?

Answer 93

It makes title unmarketable

Question 94

For what purpose can a prior inconsistent statement not made under oath be used?

Answer 94

Only for impeachment

Question 95

What is common-law arson?

Answer 95

The malicious burning of the dwelling of another

Question 96

What is the crime-fraud exception to attorney-client privilege?

Answer 96

Disclosure is REQUIRED if the client knowingly seeks legal services to further a crime or fraud

Question 97

What is the standard of proof for admitting evidence as an adoptive admission?

Answer 97

there is sufficient evidence to support a jury’s finding that an individual had actual or apparent authority to act on behalf of the other person

Question 98

What is the dying declaration exception?

Answer 98

A hearsay statement is admissible if made by a person speaking under the belief of imminent death, about the circumstances of the death

Question 99

Can a defendant waive the right to counsel at a critical stage once it has attached?

Answer 99

Yes, if it is an intelligent waiver

Question 100

Is substantial performance permissible to satisfy an express condition in a contract?

Answer 100

No, the express condition must be satisfied exactly

Question 101

When is a statement inconsistent such that it is admissible as a prior inconsistent statement?

Answer 101

Any difference between the prior statement and the current testimony that has a reasonable bearing on the witness’s credibility is sufficient to render the statements inconsistent - up to the trial court’s discretion, no particular showing need by made

Question 102

If a party is trying to prove the contents of an official public document, when may the party introduce a copy of the document?

Answer 102

(1) is certified as correct by the custodian of the document or is self-authenticating, or

(2) is testified to be correct by a witness who compared the copy with the original.

Question 103

What are the court’s options if a jury’s answers to written questions are consistent with each other but inconsistent with a general verdict?

Answer 103

(1) disregard the general verdict and enter judgment according to the answers,

(2) direct the jury to reconsider its answers and verdict, or

(3) order a new trial.

Question 104

Can a mistake of law be justified if the defendant reasonably relied on the advice of a professional?

Answer 104

No

Question 105

How can an opposing party appeal class certification?

Answer 105

By asking permission from the appeals court

Question 106

What damages are available when there is a defense of private necessity?

Answer 106

The defendant must compensate the plaintiff for damage done to property, but will not be liable for punitive damages

Question 107

What happens if a jury’s answers to written questions are inconsistent with each other and with a general verdict?

Answer 107

(1) the judge may order a new trial

(2) the judge may order the jury to continue deliberations

Question 108

What are the judge’s options when a party files a renewed judgment as a matter of law?

Answer 108

(1) deny the motion and enter judgment

(2) grant JMOL

(3) order a new trial

Question 109

What is required to appeal the resolution of one claim in a multi-claim litigation?

Answer 109

An express determination by the judge that there is no just reason for delay

Question 110

Can conditional promises constitute consideration?

Answer 110

Yes, even if one or both parties never actually have to do anything

Question 111

What three elements are required to void a contract for mutual mistake?

Answer 111

First, the mistake must concern a basic assumption on which the contract was made.

Second, the mistake must have a material effect on the agreed-upon exchange of performances.

Third, the adversely affected party must not bear the risk of the mistake.

Question 112

When does a party to a contract bear the risk of mistake of fact?

Answer 112

(1) the parties agreed in the contract to allocate the risk to that party,

(2) a court allocates the risk to that party because the risk is reasonable under the circumstances, or

(3) the party was consciously ignorant of the relevant facts.

Question 113

What damages are available to the non-breaching party in a lost-volume contract?

Answer 113

Lost profits, including reasonable overhead, that the seller would have made from the buyer’s full performance, including incidental damages but less any expenses saved by the buyer’s breach.

Question 114

When does strict liability apply to livestock?

Answer 114

foreseeable personal injury or property damage caused by trespassing livestock

Question 115

Can a buyer repudiate a contract for the sale of property before closing due to the seller being in violation of restrictive covenant?

Answer 115

No, only if the violation is still present and has not been remedied at closing

Question 116

When may a temporary restraining order be issued without notice?

Answer 116

(1) specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(2) the movant’s attorney certifies in writing any efforts made to give notice and why it should not be required.

Question 117

When is extrinsic evidence of prior inconsistent conduct admissible?

Answer 117

When it is offered to impeach a hearsay declarant

Question 118

Are findings of fact and conclusions of law required for rulings on interlocutory injunctions?

Answer 118

Yes

Question 119

What happens if a description of property is internally inconsistent?

Answer 119

The courts give precedence to descriptions in the following order:

(1) natural objects or landmarks,

(2) artificial monuments,

(3) adjacent boundaries,

(4) courses and distances, and

(5) descriptions of quantity.

Question 120

What is clear error as it applies to reviewing a trial court’s findings of fact?

Answer 120

The appeals court has a definite and firm conviction that the trial court was wrong

Question 121

When do the parties to a contract become unable to modify a contract with an intended third-party beneficiary

Answer 121

When the beneficiary:

(1) materially changes his position in justifiable reliance on the promise,

(2) brings suit on it, or

(3) manifests assent to it at the request of the promisor or promisee.

Question 122

What is the agency approach in felony murder?

Answer 122

If the homicide was committed by one of the felons, and if it was done in furtherance of the felony, then all of the co-felons are deemed responsible because each is considered to be the agent of the other.

Question 123

How do you establish a due process violation from delays in charging a crime?

Answer 123

(1) the government deliberately delayed charging the defendant for tactical reasons or to harass the defendant, and

(2) the delay resulted in actual and substantial prejudice to the defendant.

Question 124

What are the main topics of Supreme Court jurisdiction? (3)

Answer 124

1. cases involving foreign ambassadors,
2. cases involving other public ministers
3. consuls of foreign countries, and cases in which a state is a party.

(nothing else - Congress can’t expand the Court’s original jurisdiction)

Question 125

Can an employer be vicariously liable in a criminal case?

Answer 125

Yes

Question 126

Can a jury determine the authenticity of handwriting by comparing a specimen with authenticated specimens?

Answer 126

Yes

Question 127

Can lower federal courts hear cases within the Supreme Court’s original jurisdiction?

Answer 127

Yes

Question 128

What is permissive intervention under Rule 24(b)?

Answer 128

A nonparty may intervene in an action if their claim shares common questions of law or fact

Question 129

What is mandatory intervention under Rule 19?

Answer 129

A nonparty must intervene as an indispensable party (or the action is dismissed) if there is a risk to the nonparty’s interests if they are kept out of the action

Question 130

What are the elements of intrusion upon seclusion?

Answer 130

1. An act of prying or intruding by defendant upon plaintiff;
2. The intrusion would be objectionable to a reasonable person; and
3. The thing to which there is an intrusion or prying is “private.”

Question 131

What are the elements of public disclosure of private facts?

Answer 131

1. Publication or public disclosure by defendant of private information about the plaintiff; and
2. The reasonable person would object to the facts being made public.

Question 132

What priority does a purchase-money mortgage have over other liens?

Answer 132

Superpriority - paid off even before prior judgment liens

Question 133

Without exigent circumstances, when can officers force their way into a house pursuant to an arrest warrant?

Answer 133

When they reasonably believe the suspect is at home at the time of entry

Question 134

Can a joint tenancy be devised in a will?

Answer 134

No

Question 135

What are the elements of private nuisance?

Answer 135

(1) substantial and unreasonable

(2) interference with the use and enjoyment of someone’s property

(3) that the person actually possesses or has the right to possess

Question 136

What happens if a TRO is expanded for more than 14 days?

Answer 136

It is treated as a preliminary injunction

Question 137

What is the difference between derivative-use and transactional immunity?

Answer 137

(1) derivative-use immunity is when the prosecutor promises not to use any of the witness’s testimony or any evidence derived from it, against the witness

(2) transactional immunity is when the prosecutor promises immunity from prosecution for any crime the witness discloses during testimony

Question 138

What is the Bruton rule?

Answer 138

In a joint trial of multiple defendants, one defendant’s constitutional right to confront a nontestifying codefendant is violated by admission of that codefendant’s pretrial confession to if it implicates the defendant in the alleged crime, even if the trial court gives a limiting instruction to tell jurors not to consider the confession against the other defendant.

Question 139

What are the integral parts of self-government that justify rational basis review for discrimination against lawful permanent residents?

Answer 139

1. Voting
2. Running for office
3. Serving on a jury

Question 140

When does an easement by necessity arise?

Answer 140

When a landowner divides her land and conveys one parcel, and the parcel is landlocked (not connected to a public road), an easement by necessity arises to allow the new owner access to the road.

Question 141

Can a jury in a criminal case be instructed to take a judicially noticed fact as conclusive?

Answer 141

No

Question 142

When may a court take a fact as judicially noticed?

Answer 142

When the indisputability of a fact can be accurately and readily determined from sources whose accuracy cannot be questioned.

Question 143

What happens if a deed is delivered to a nonexistent grantee?

Answer 143

The deed is void

Question 144

Can just compensation for a taking include the cost of equipment or loss profits?

Answer 144

No

Question 145

What is the standard for regulating commercial speech?

Answer 145

Intermediate: the restriction directly advances an important government interest and the restriction is not substantially more extensive than necessary to protect that interest.

Question 146

What is the secondary effects doctrine?

Answer 146

Primarily in the context of adult entertainment, allows the government to regulate content-based speech with content-neutral scrutiny based on the effects of the speech, i.e. neighborhood deterioration

Question 147

What is the standard for upholding a regulatory taking?

Answer 147

(1) there is an essential nexus between the condition and the state interest at issue and

(2) the extent of the condition is roughly proportional to the impact of the proposed development.

Question 148

What must the findings in a preliminary injunction grant or denial contain?

Answer 148

(1) state the reasons why it was issued,

(2) state its terms specifically, and

(3) describe the acts restrained or required in reasonable detail, not by referring to the complaint or to another document

Question 149

In a mortgage, can the right of redemption be waived?

Answer 149

No

Question 150

In products liability, what must an adequate warning contain?

Answer 150

(1) the existence of any reasonably foreseeable risk associated with using or misusing the product;

(2) the nature and scope of the risk; and

(3) how the user can minimize or avoid the risk, if possible

Question 151

In products liability, what three factors go into whether a warning is positioned to attract the average user’s attention?

Answer 151

(1) the nature of the product,

(2) the information to convey, and

(3) the characteristics of the average user

Question 152

What is interpleader?

Answer 152

A proceeding in which multiple parties (claimants) claim an interest in the same property (stake) possessed by a party (the stakeholder).

Interpleader joins the stakeholder on one side and the claimants on the other side. The stakeholder pays the stake into court, and the claimants litigate amongst themselves how to distribute the stake.

Avoids multiple liability on the part of the stakeholder

Question 153

How does diversity jurisdiction work in interpleader actions?

Answer 153

(1) if under Rule 22, normal rules of diversity jurisdiction

(2) if statutory, a federal court can hear the case if the stake is worth more than $500 and one claimant is diverse from the stakeholder

Question 154

In burglary, what is constructive breaking?

Answer 154

The defendant obtains entry through fraud, conspiracy, or threat of violence

Question 155

Who may not be excluded from the courtroom upon a party’s request?

Answer 155

(1) parties,

(2) a party’s designated representative if the party is not a natural person,

(3) a person whose presence is essential to the case (e.g., an expert witness), or

(4) a person authorized by statute to be present.

Question 156

Are easements or leases that last less than one year subject to the statute of frauds?

Answer 156

No - even though they are interests in land

Question 157

In products liability, what factors do courts consider in evaluating reasonability of an alternative design under the risk-utility test?

Answer 157

Whether the product was

(1) safer in the aggregate,

(2) technically feasible, and

(3) economically feasible.

Courts also require that the proposed alternative design be one that the manufacturer actually could have implemented before the product left its control.

Question 158

What six elements must be proven for a restrictive covenant to run with the land?

Answer 158

(1) the covenant must be in writing,

(2) the original parties must have intended that the covenant run with the land (either expressly or through surrounding circumstances, such as a uniform plan of development),

(3) the covenant must touch and concern the land,

(4) the original parties must have been in horizontal privity,

(5) the owner of the servient estate must be in vertical privity with the original promisor, and

(6) the owner of the servient estate must have adequate notice of the covenant.

Question 159

Under the First Amendment, what is the standard for a content-neutral regulation?

Answer 159

The regulation is

(1) is narrowly tailored to burden no more speech than necessary,

(2) serves a significant or substantial government interest, and

(3) leaves open ample alternative channels of communication

Question 160

What is the burden in chain of custody issues?

Answer 160

The party offering the exhibit must demonstrate that the chain of custody was substantially unbroken

Question 161

What is a diminished capacity defense?

Answer 161

a defendant alleges that, although he or she is responsible for the prohibited act, his or her mental capacity was sufficiently diminished by intoxication, mental disease, or trauma that the defendant did not possess the specific mental state or intent essential to the particular offense charged

Question 162

In contracts, how are advertisements treated?

Answer 162

As an invitation to offer, not an offer itself – unless there is something in the advertisement that makes it an offer, e.g. first-come first-serve

Question 163

What must a party do before moving to compel discovery under Rule 37?

Answer 163

Demonstrate that it made a good faith effort to meet and confer

Question 164

What is the deadline for responding to interrogatories?

Answer 164

30 days, unless the parties stipulated or the court ordered a different deadline

Question 165

In constitutional law, what is the fair cross-section requirement?

Answer 165

The jury pool must be a fair cross-section of the defendant’s community, even if the jury itself is not.

Question 166

When is a sale for goods more than $500 enforceable even if it does not satisfy the statute of frauds?

Answer 166

When payment has already been made or the goods have been received and accepted

Question 167

What is the helpless peril doctrine?

Answer 167

If an actor places a victim in a state of helpless peril, the actor has an affirmative duty to seek out help – even if the actor did not negligently cause the peril

Question 168

What must happen in a delegation for the original party to be released from liability on the contract?

Answer 168

The other party must agree to release the first party from liability

Question 169

What factors do courts use to evaluate a sentence’s proportionality under the Eighth Amendment?

Answer 169

(1) the gravity of the offense compared to the harshness of the penalty,

(2) the sentence imposed on a particular defendant compared to the sentences imposed for various offenses within the same jurisdiction, and

(3) the sentence imposed on a particular defendant compared to the sentences imposed for the same or similar offenses in other jurisdictions.

Question 170

When does the implied warranty of marketability kick in on an installment land contract?

Answer 170

At closing, i.e. when the installments are paid off

Question 171

When may the remainderman of a life estate sue to eject an adverse possessor?

Answer 171

When the life estate holder dies and the remainderman’s interest becomes possessory

Question 172

What is the standard for excluding evidence of past sexual assault in a criminal sexual assault case?

Answer 172

The evidence’s unfair prejudice substantially outweighs its probative value.

Question 173

If a grantor delivers a deed to an escrow agent with instructions to deliver it to a grantee upon a condition, and the grantor dies before the condition happens, when does the grantee get title?

Answer 173

Title relates back to the date of delivery to the escrow agent once the condition occurs

Question 174

Is personal service on corporations outside the United States permitted?

Answer 174

No

Question 175

When are contracts not freely assignable?

Answer 175

If the assignment would materially (1) change the obligor’s duty,

(2) increase the obligor’s contractual burden or risk,

(3) impair the obligor’s chance of obtaining return performance, or

(4) reduce the value of the assignor’s return performance to the obligor

Question 176

What does a request for waiver of service have to contain? (6)

Answer 176

(1) identify the court where the complaint is filed;

(2) inform the recipient of the consequences of waiving or not waiving service;

(3) provide the recipient a reasonable amount of time to respond to the request for waiver, at least 30 days for requests sent within the United States and 60 days for requests sent outside the United States.

(4) attach to the request a copy of the complaint,

(5) attach two copies of the Rule 4 waiver form,

(6) attach a prepaid method for returning the form. Fed. R. Civ. P. 4(d)(1).

Question 177

What’s the burden of proof for an affirmative defense in a criminal case?

Answer 177

Preponderance of the evidence (establishes reasonable doubt)

Question 178

Can consideration for a contract consist of an invalid legal claim?

Answer 178

Yes, as long as the claim was made in good faith

Question 179

What law governs the claim preclusive effect of a federal court adjudication?

Answer 179

Federal common law (even if second case heard in state court)

Question 180

When can a state pass a law impairing the obligation of contracts under the Contracts Clause (whether or not it is a party)?

Answer 180

(1) the law serves a significant and legitimate public purpose and

(2) the impairment is reasonable and appropriately tailored to that purpose.

Question 181

In torts, what is the duty of care for common carriers?

Answer 181

In some jurisdictions, much higher than reasonably prudent - do everything possible to protect passengers

Question 182

What is burglary under the MPC?

Answer 182

Entering of a building or occupied structure with the intent to commit a crime, unless the premises are, at the time, open to the public.

Question 183

When may a court impose sanctions under Rule 16?

Answer 183

When a party

(1) fails to appear at a scheduling or other pretrial conference;

(2) is substantially unprepared to participate, or does not participate in good faith, in the conference; or

(3) fails to obey a scheduling or other pretrial order.

Question 184

In many jurisdictions, can a law impose a civil penalty in order for negligence per se to apply?

Answer 184

No

Question 185

In contracts, what are restitution damages?

Answer 185

The benefit that a breaching party has conferred by way of part performance or reliance in excess of the loss that he has caused by his own breach.

Question 186

Can accumulation of multiple harmless errors warrant reversal of a conviction?

Answer 186

Yes

Question 187

When is a federal tax law valid under the taxing and spending clause?

Answer 187

Almost always, as long as it

(1) produces some revenue and

(2) does not impose a penalty

Question 188

What are the elements of an easement by prescription and how is it different from adverse possession?

Answer 188

Elements:

(1) open and notorious,

(2) adverse to the property owner’s rights (even if the owner is mistaken as to their own rights), and

(3) continuous for the applicable period

Adverse possession requires exclusive possession whereas easements by prescription do not.

Question 189

When may a plaintiff recover the full amount of damages in a comparative negligence jurisdiction even if the plaintiff was also negligent?

Answer 189

1. In medical malpractice cases when the provider was treating a negligently self-inflicted injury
2. When the defendant is under a duty to protect the plaintiff from his own negligence

Question 190

When is there a quasi-contract?

Answer 190

1) a measurable benefit was conferred on the defendant,

(2) under circumstances in which the defendant’s retention of the benefit without payment would be unjust, because

(3) the defendant impliedly or expressly requested the benefit be conferred.

Question 191

Will physical evidence derived from a Miranda violation be suppressed at trial?

Answer 191

No

Question 192

What happens if a prior estate terminates before a contingent remainder vests?

Answer 192

At common law, the contingent remainder was destroyed.

In most states, the grantor gets a reversion until the contingent remainder vests

Question 193

What is the rule in Shelley’s case?

Answer 193

An attempt to create a life estate in a grantee and a fee simple remainder in the grantee’s heirs will result in the grantee holding the property in fee simple absolute.

Question 194

What is the doctrine of worthier title?

Answer 194

If a grantor conveys property and, in the same instrument, creates a future interest in the grantor’s heirs, the future interest is void and the grantor holds a reversion.

Question 195

Does the Privileges and Immunities Clause apply to corporations?

Answer 195

No

Question 196

When is a prior consistent statement admissible?

Answer 196

To:

(1) refute allegations of recent fabrication or improper motive, or

(2) rehabilitate credibility, if attacked on other grounds.

Question 197

When can a statement against interest be admitted?

Answer 197

When the declarant is unavailable

Question 198

May prior consistent statements be used as substantive evidence?

Answer 198

Yes, once admitted

Question 199

When may a party terminate a contract that calls for successive performances but does not specify for how long?

Answer 199

Upon adequate notice to the other party

Question 200

Is a possibility of reverter subject to the Rule Against Perpetuities?

Answer 200

No

Question 201

Does an intended beneficiary have to be named at the time the contract is made?

Answer 201

No

Question 202

When does the party to a contract assume the risk of mistake?

Answer 202

(1) the terms of the contract expressly allocate the risk to the party,

(2) the court allocates the risk to the party upon finding that it is reasonable to do so, or

(3) the party proceeds with the contract despite conscious ignorance of the relevant facts.

Question 203

When does a mistrial NOT terminate jeopardy?

Answer 203

When granted on the defendant’s motion, or with the defendant’s consent, even if the mistrial is based on prosecutorial or judicial error

Question 204

What is the standard for federal question jurisdiction if the claim arises under state law?

Answer 204

(1) the claim necessarily raises a federal issue,

(2) the federal issue is substantial and in actual dispute, and

(3) the exercise of federal jurisdiction will not disturb “any congressionally approved balance of federal and state judicial responsibilities.”

Question 205

If something other than a writing is used to refresh recollection, is the other party entitled to examine it?

Answer 205

No

Question 206

What must be proven for the residual hearsay exception to apply?

Answer 206

(1) the judge must determine that the proffered statement has sufficient guarantees of trustworthiness;

(2) the statement must be the most effective way to prove a material fact, despite reasonable efforts to find otherwise admissible evidence; and

(3) the statement’s proponent must give notice of the intent to use the statement at trial.

Question 207

When will a condition in a contract be waived upon its non-occurrence?

Answer 207

(1) the occurrence of the condition is not a material part of the agreed-upon exchange and

(2) forfeiture would otherwise result

Question 208

Is specific performance available if a seller of real estate cannot convey marketable title?

Answer 208

Yes - the court can order that the seller convey whatever interest he has, and the purchase price is abated

Question 209

How does one renounce a conspiracy under the MPC?

Answer 209

Renunciation occurs if the defendant thwarts the conspiracy’s success, provided the circumstances indicate complete, voluntary renunciation of the conspiracy’s unlawful purpose

Question 210

What is false light?

Answer 210

(1) publicizing to a wide audience

(2) false information about the victim, and

(3) the false portrayal would be highly offensive to a reasonable person.

Question 211

What is the foregone conclusion exception to the privilege against self-incrimination?

Answer 211

A document can be compelled if the government has independent knowledge of

(1) the documents’ existence,

(2) the documents’ authenticity, and

(3) the witness’s custody or control of the documents.

Question 212

What is the applied warranty of merchantability?

Answer 212

Ensures the product is not unreasonably dangerous due to a defect of the kind that would give rise to products liability in tort.

Applies to any foreseeable user, not just the purchaser

Question 213

When does the partial performance exception to the statute of frauds for the conveyance of land apply?

Answer 213

When the grantee does two of the following:

(1) taking possession of the property,

(2) paying some or all of the purchase price, and

(3) making substantial improvements to the property.

AND the grantee’s actions are explained by the contract

Question 214

When a party to a contract does not perform on the due date and the other party suspends performance, when does the other party NOT have to wait a reasonable time after the due date before terminating the contract?

Answer 214

(1) time is of the essence,

(2) cure is impossible or apparently not forthcoming, or

(3) the breaching party repudiates the contract.

Question 215

When would the federal government prosecuting a defendant for the same crime as a state violate double jeopardy?

Answer 215

When one sovereign so dominated the actions of the other that the jurisdictions were not acting independently - and thus the federal prosecution is for the sole purpose of getting around double jeopardy

Question 216

In a defamation action involving a public figure, what is the burden of proof for falsity?

Answer 216

The plaintiff must prove falsity by clear and convincing evidence

Question 217

What kinds of interest could potentially be subject to the RAP?

Answer 217

(1) contingent remainders,

(2) executory interests,

(3) options to purchase property,

(4) class gifts,

(5) rights of first refusal, and

(6) powers of appointment

Question 218

How can a non-defendant witness assert the privilege against self-incrimination?

Answer 218

By asserting the privilege in response to every question

Question 219

What is marshalling?

Answer 219

The order in which a mortgagee must foreclose on properties, unless the combined value of the properties does not pay off the mortgage:

(1) parcels on which no subordinate interests exist,

(2) parcels with subordinate interests created more recently in time, and

(3) parcels with subordinate interests created earlier in time.