MBE Questions Flashcards
Civ Pro - Post Trial Matters
A three-car accident occurred in which the drivers were a citizen of State A, a citizen of State B, and a citizen of State C. The State A citizen filed a negligence action against the other two in federal district court and lost his case.
After judgment, may the State C citizen assert and maintain a negligence action against the State B citizen seeking damages for the injuries the State C citizen sustained in the same accident?
Yes, because, while the State C citizen could have asserted the claim as a cross-claim in the prior action, he may wait and assert it as an independent action.
- The State C citizen may assert and maintain a negligence action against the State B citizen. The claim could have been asserted as a cross-claim in the prior action because it arose from the same transaction or occurrence, but cross-claims are never compulsory.
Civ Pro - Trial Matters
A truck collided with a car in State A, injuring the driver of the car. The driver of the car filed a civil action in federal district court in State A against the trucking company to recover damages for the driver’s injuries. The trucking company filed a motion to dismiss the action against it on the grounds that the court in State A did not have personal jurisdiction over it. Although the driver of the truck was the company’s employee, the trucking company argued that the driver did not have authorization to drive the truck to State A. Following a hearing, however, the court ruled that the trucking company was subject to the court’s personal jurisdiction.
Another two months passed, and the trucking company did not file an answer. The driver of the car then filed a motion asking that the clerk of court make an entry of default, and the clerk did so.
What procedure must the driver follow to obtain a default judgment against the trucking company?
File a motion to have the judge enter the default judgment, which the judge may do as long as the trucking company receives additional notice of the motion for default judgment.
- The driver must file a motion to have the judge enter the default judgment. A defendant against whom a default is entered loses the right to contest liability unless the entry of default is set aside. However, the amount of damages must still be determined before a default judgment may be entered, and the defaulting party can be heard at the hearing for damages. If the defendant has “appeared,” even though he has not answered, he must be notified of the request for a default judgment by first-class mail at least seven days before the hearing on the application for a default judgment. Appearance includes any actual formal appearance before the court and any other action that clearly indicates that the defendant intends to contest the case on the merits. Here, the trucking company made an appearance when it challenged the court’s jurisdiction.
Civ Pro - Trial Matters
A plaintiff sued a trucking company for negligence in federal court, alleging that its employee, a driver for the company, was acting within the scope of his employment when driving the truck that hit her. The company’s first response to the complaint was to file a motion for summary judgment, together with an affidavit, alleging that the driver was not acting within the scope of his employment when the driver hit her, because the accident happened in State A and the driver was only authorized to be in State B at the time. Under applicable law, the company would not be liable if the driver was not acting within the scope of his employment. The plaintiff responded with a competing affidavit from an eyewitness who saw the driver texting immediately before the crash.
How should the court rule on the company’s motion?
Grant the motion, because there is no dispute as to a material fact.
- The court should grant the motion. Summary judgment should be granted in cases such as this, where there is no genuine dispute of material fact such that the moving party (the trucking company here) is entitled to judgment as a matter of law. Here, the trucking company established through an affidavit that the driver was not acting within the scope of employment (by driving in an unauthorized state), which would negate the company’s liability. Affidavits may be presented in support of a summary judgment motion if they are made on personal knowledge by someone competent to testify and the facts would be admissible in evidence. There is nothing here to show any challenge to the affidavit. To the contrary, the plaintiff’s affidavit fails to address the company’s motion, so the court should consider the facts in the company’s affidavit (that the driver was not within the scope of employment) undisputed for the purpose of granting summary judgment. A motion for summary judgment is appropriate at any time until 30 days after close of all discovery; as a result, the motion here is timely and not premature.
Civ Pro - Pretrial Matters
A tourist from State A was severely injured in a bar fight in State B. The tourist filed a battery action against one of the bar’s patrons, seeking $100,000 for his injuries. The defendant patron claims that the tourist is mistaken about who hit him. The patron says that he did not touch the tourist. The patron claims that it was the bar’s bouncer-who looks like the patron-who hit the tourist and then continued to pummel him. The bouncer claims that he never touched or harmed the tourist.
Can the patron assert a third-party claim against the bouncer to bring him into the action?
No, because the patron has no legal basis to assert a claim against the bouncer and is not seeking to recover from the bouncer any portion of the patron’s liability to the tourist.
- The patron cannot assert a third-party claim against the bouncer to bring him into the action. Third-party claims may be asserted only to obtain recovery, and that recovery must be for the defendant/third-party plaintiff’s own liability to the plaintiff. Since the patron is not seeking to recover from the bouncer any portion of the patron’s liability to the tourist, he cannot assert a third-party claim.
Civ Pro - Pretrial Matters
A developer contracted with a general contractor to build an office building, and completion of the building was two years late. The developer filed a breach of contract action in federal district court against the general contractor, seeking damages caused by the delay. The general contractor filed a third-party claim against a major subcontractor, claiming that the subcontractor caused any delay and should be liable to the general contractor for anything the general contractor has to pay the developer. The subcontractor believes that the developer interfered with the subcontract and that the developer’s interference caused not only the delay but also substantial cost overruns for the subcontractor.
May the subcontractor assert a claim in the pending action against the developer seeking payment for the cost overruns?
Yes, because the subcontractor’s claim against the developer arises from the same transaction or occurrence as the developer’s original claim, but the subcontractor may assert the claim in an independent action if it prefers.
- The subcontractor may assert a claim against the developer in the pending action. A third-party defendant may assert a claim against the plaintiff if the claim arises out of the same transaction or occurrence as the plaintiff’s original claim. (A) is therefore incorrect. Because the subcontractor’s claim seeking payment for cost overruns and the developer’s original contract claim arise out of the same transaction or occurrence, the subcontractor may assert its claim against the developer. (B) is incorrect because the subcontractor’s claim does not have to seek indemnity; it must arise out of the same transaction or occurrence as the original claim. (C) is incorrect because a third-party defendant’s claim against the plaintiff is not compulsory. Therefore, failure to assert the claim in the pending action would not bar the subcontractor from asserting it in an independent action.
Civ Pro - SMJ
An employee who was fired plans to sue her former employer, claiming that the employer is liable for both wrongful termination under state law as well as violation of federal employment discrimination statutes, claiming total damages in the amount of $50,000. The employer and employee are citizens of the same state.
Yes, because the federal court has federal question jurisdiction over the federal statutory claim and supplemental jurisdiction over the state law claim.
- The employee may assert these claims together. Federal question jurisdiction is available when the plaintiff, in his well-pleaded complaint, alleges a claim that arises under federal law. Here, the federal employment discrimination claim arises under federal law. Thus, a federal court has federal question jurisdiction over the claim. When the federal court has subject matter jurisdiction over one claim, it has discretion to exercise supplemental jurisdiction over related claims that derive from the same common nucleus of fact and are such that a plaintiff would ordinarily be expected to try them in a single judicial proceeding. (Essentially, this means that the supplemental claim must arise from the same transaction or occurrence as the claim invoking federal subject matter jurisdiction.) In the instant case, the federal employment discrimination claim is very closely related to the state wrongful termination claim. Each will deal with much of the same factual issues, and it would be expected for a plaintiff to bring such claims in a single action if at all possible. Thus, the court has supplemental jurisdiction over the state wrongful termination claims.
An employee filed an employment discrimination action against her employer in federal district court. The employee alleges that she has not been promoted because of her gender. She intends to call a co-worker as a witness at trial. The co-worker will testify that a senior manager of the employer told the co-worker that the employee would not be promoted because the employer deemed women to be poor managers.
Is the identity of the co-worker subject to discovery by the employer?
Yes, the employee must disclose the identity of the co-worker even without any request from the employer.
Yes, the employee must disclose the identity of the co-worker even without any request from the employer.
The court should deny the venue motion, because the defendants waived any objection to venue when they did not raise the objection in their pre-answer motion objecting to subject matter jurisdiction.
*The court should deny the venue motion. Objections to venue are waived if not asserted in the defendants’ first response to the complaint-whether that first response is the answer or a Rule 12(b) pre-answer motion. Here, the defendants did not object to venue in their first pre-answer motion; they only objected to subject matter jurisdiction.
Civ Pro - Jurisdiction/Venue
A plaintiff filed an action against a defendant in federal district court in State A, and properly served process on the defendant at his residence in State B. The defendant timely filed an answer denying the material allegations and also moving to dismiss the complaint on the ground that the court lacked personal jurisdiction over him.
Is the defendant’s objection to personal jurisdiction timely and proper?
Yes, because the defendant objected to personal jurisdiction in his first response.
- The objection was timely and proper. Federal Rule of Civil Procedure 12 provides that objections to personal jurisdiction may be asserted by pre-answer motion or in the answer-provided that the objection is asserted in the defendant’s first response. If the objection to personal jurisdiction is not presented in the first response, the objection is waived.
Civ Pro - Pretrial Matters
A homeowner discovered that the siding on his house was defective and had allowed water to enter the structure, causing damage to the wood framing. The homeowner tried for some time to negotiate a settlement with the corporation that the homeowner believed had manufactured the defective siding. When no settlement was forthcoming, the homeowner filed an action in federal district court against the corporation one week before the statute of limitations expired. Service of process was effected on the corporation several months later. After inspecting the home, the corporation filed and served its answer in which it denied manufacturing the siding used on the homeowner’s house. Upon examining the corporation’s evidence, the homeowner conceded that the siding was manufactured by another company. With leave of the court, the homeowner then filed an amended complaint substituting the actual manufacturer of the siding for the original incorrect defendant. The amended complaint was served on the manufacturer approximately seven months after the original complaint was filed and after the statute of limitations had expired. The manufacturer was unaware of the action until it was served with the amended complaint. The manufacturer filed a motion for summary judgment on the grounds that the homeowner’s claim against it is barred by the statute of limitations.
How should the court rule on the motion?
Grant the motion, because the amended complaint was filed after the statute of limitations expired and the actual manufacturer did not receive timely notice of the action.
- The court should grant the motion for summary judgment on the basis that the claim is barred by the statute of limitations. Amendments substituting a new defendant for one originally named are allowed and the amendment will relate back to the time the original complaint was filed if (i) the claims in the amendment arise from the same transaction or occurrence as the claims set out in the original pleading; and (ii) within the time allotted for serving the original complaint (90 days from filing per Federal Rule 4(m)), the new defendant received such notice of the action that it will not be prejudiced in defending on the merits and knew or should have known that the action would have been against it (the new defendant). Here, the manufacturer received no notice of the action within the time allotted for service and could not have known about the plaintiff’s mistake in naming the defendant. The amendment thus does not relate back and is time-barred.
Civ Pro - Post Trial Matters
A group of employees brought a class action lawsuit in federal court against their employer, alleging employment discrimination and the violation of several labor laws. The court granted certification of the class action. Wanting to force each employee to litigate individually, the employer immediately files an appeal.
Can the court of appeals hear this appeal?
Yes, because an order granting certification of a class action is immediately appealable.
The court of appeals can hear this appeal because a district court’s order granting or denying certification of a class action can be appealed within 14 days of entry of the order.
Civ Pro - Trial Matters
A car owner sued a crane operator for negligence in a federal court because the crane operator backed over and crushed her car. During jury selection, the car owner’s lawyer wished to exercise one of her peremptory challenges to excuse some potential jurors.
Which of the following reasons would provide the best grounds for the crane operator’s lawyer to object to the peremptory challenge?
A: Excusing the only potential male juror because he is a crane operator, just like the defendant.
B: Excusing a second African-American juror.
C: Excusing the juror with multiple tattoos.
D: Excusing the juror who has been unemployed for two years.
B: Excusing a second African-American juror.
- Peremptory challenges allow an attorney to disqualify a potential juror because the juror displays an attitude or some characteristic that appears unfavorable to the attorney’s client but that does not rise to the level of bias that would present grounds for a challenge for cause. A party cannot use peremptory challenges if the court suspects the challenge is for race, national origin, religion or gender, which violate the juror’s equal protection rights under the Fourteenth Amendment. If the court detects a pattern of excluding jurors for any of these reasons, the opposing party can object, and the party may be required to justify the challenge by providing other nonobjectionable means. Here, exercising a peremptory challenge to excuse a second African-American juror from the panel without any other reason appears that it may be based on race. Therefore, choice (B) provides the best choice for the defense to object to the plaintiff’s peremptory challenge.
At a federal trial for breach of contract, the plaintiff presented evidence of both contractual and consequential damages amounting to $115,000. The jury, however, awarded the plaintiff $250,000 in damages. The defendant filed a motion for a new trial, arguing that the damage award was clearly excessive.
If the court agrees that the award is excessive, the court may:
A: Deny the motion for a new trial but lower the damage award and require the plaintiff to accept the remittitur.
B: Deny the motion for a new trial contingent on the plaintiff accepting a remittitur.
C: Grant the motion for a new trial only because the jury award may not be changed.
D: Grant the motion for a new trial only because remittitur is not allowed in federal court.
B: Deny the motion for a new trial contingent on the plaintiff accepting a remittitur.
- The court may deny the motion contingent on the plaintiff accepting a lesser award by means of remittitur. If the judge believes that the jury’s compensatory damages award is so excessive as to “shock the conscience” (or, in a diversity case, if the award meets the state standard for excessiveness), the judge may order a new trial or may offer the alternative of remittitur. When offered remittitur, the plaintiff is given the choice between accepting an award less than that awarded by the jury or submitting to a new trial.
Civ Pro - SMJ
A driver, domiciled in State B, struck a car driven by a father domiciled in State A and his young daughter, who was living with her mother in State B. The father commenced an action in federal court against the driver in his own right and on behalf of his daughter, seeking $80,000 for his injuries, which were severe, and $5,000 for his daughter’s injuries, which were minor.
Does the court have subject matter jurisdiction of the claim for the daughter’s injuries?
No, because the daughter is a citizen of State B.
- There is no subject matter jurisdiction for the daughter’s claim because both she and the defendant driver are citizens of State B. Supplemental jurisdiction is not available here because supplemental jurisdiction cannot be used to override the complete diversity rule.
Civ Pro - PJ/Venue
A resident of the District of State A properly brought a diversity action in federal court against a resident of the District of State B and a resident of the District of State C for a cause of action that arose from events that occurred in the District of State D.
In which judicial districts is venue proper?
A: Only in the District of State B and in the District of State C.
B: Only in the District of State D.
C: Only in the District of State A.
D: In the District of State B, the District of State C, and the District of State D.
B: Only in the District of State D.
- Venue is proper only in the District of State D, where the events giving rise to the claim occurred.
Civ Pro - Pretrial Matters
A motorist from State A struck and injured a pedestrian in State B. The pedestrian, a State B resident, brought an action in a State B federal court against the State A motorist, seeking $100,000 in damages. The summons and complaint were served on a receptionist at the motorist’s place of business in State A. State A’s rules permit service of process in this manner, while State B’s rules do not.
If the motorist moves to dismiss the complaint on the basis of improper service of process, is the court likely to dismiss the action?
No, because the federal rules permit service under the rules of the state in which service will be effected.
- The court is not likely to dismiss the action. Generally, Rule 4 allows for: (i) personal service, (ii) service left at the defendant’s usual place of abode with one of suitable age and discretion residing therein, or (iii) service upon an authorized agent of the defendant. Alternatively, service may be made as provided by the rules of the state in which the federal court sits or the state in which service is to be effected, regardless of the basis of subject matter jurisdiction. Here, the rules of State A, the state in which service was effected, permit service of process in this manner. Hence, service of process was proper.
Civ Procedure - Post Trial Matters
A car driver properly sued a truck driver for negligence in federal court for crashing into the driver’s car at an intersection. The truck driver had been issued a speeding ticket at the accident scene, after which he had mailed in the citation admitting he was speeding, paid the fine of $100, and never went to court.
At trial, the car driver wants to use the speeding citation as an admission of responsibility for speeding, so as to preclude the truck driver from relitigating whether he was speeding at the time of the accident.
Is the court likely to preclude the truck driver from relitigating the issue?
No, because he did not litigate the issue when he paid the citation.
- The court likely will refuse to preclude the truck driver from relitigating the issue. For issue preclusion (collateral estoppel) to apply, the relevant issue must have been actually litigated and determined in the previous case. Here, although the truck driver admitted to speeding and paid the ticket, the issue was not actually litigated. Consent judgments and settlements generally do not carry with them preclusive effect. Therefore, issue preclusion will not apply.
Civ Pro - Post Trial Matters
A liquor store owner sued a woman for negligence in federal court after she drove her car through the front of his store. At trial, the store owner did not present any evidence on the issue of causation. No motions were filed during the trial, and the jury returned a general verdict for the plaintiff. Immediately after the verdict was read, the defendant filed a motion for judgment as a matter of law and a motion for a new trial.
The court may:
A; Deny the motion for a new trial, but grant the motion for judgment as a matter of law.
B: Deny both the motion for a new trial and the motion for judgment as a matter of law.
C: Grant either the motion for judgment as a matter of law or the motion for a new trial, but not both.
D: Grant the motion for a new trial, but not the motion for judgment as a matter of law.
D: Grant the motion for a new trial, but not the motion for judgment as a matter of law.
A motion for a new trial may be granted because of an error during the trial (usually going to the admissibility of evidence or the propriety of the jury instructions), because the verdict is against the weight of the evidence (limited to cases where the judge finds the verdict seriously erroneous), because of jury misconduct, or because the verdict is excessive or inadequate. A motion for judgment as a matter of law (formerly known as a motion for directed verdict) may be made by any party any time before submission of the case to the jury. Here, the court may grant the motion for a new trial under these circumstances because there was absolutely no evidence presented on the issue of causation, which is a fundamental element of a negligence claim that must be proven. As such, the court may find that the verdict is seriously erroneous and against the weight of the evidence and grant the motion for a new trial. However, the court cannot grant the motion for judgment as a matter of law because it was filed after the case was submitted to the jury, so it was too late for such a motion.
Con Law - Separation of Powers
One of the provisions of federal anti-smoking legislation imposes restrictions on federal economic development grants, which were awarded to states to promote and assist small businesses in urban areas. The legislation mandates that grants will be reduced by 10% for any state that fails to require businesses engaged in the sale of cigarettes to take steps to avoid sales to minors, including checking drivers’ licenses or photo ID cards. A tobacco-growing state that receives several million dollars under the federal grant program challenged the constitutionality of the provision in federal district court. The state established that the federal provision affects businesses that do not operate in interstate commerce.
Should the court uphold the federal provision?
Yes, because Congress may condition grants of money under its spending power.
- The court should uphold the federal provision because it is within Congress’s power to spend for the general welfare. Article I, Section 8, provides that Congress may spend to “provide for the common defense and the general welfare.” This spending may be for any public purpose-not merely the accomplishment of other enumerated powers. Under this power, Congress may “regulate states by imposing explicit conditions on the grant of money to state or local governments.” Such conditions will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program as long as the conditions are (i) clearly stated, (ii) related to the purpose of the program, and (iii) not unduly coercive. Here, Congress has attempted to address a national problem-minors embarking on a potentially addictive habit that has been shown to damage health-by restricting access to the product causing the problem. Even if Congress’s enumerated powers would not permit it to directly require businesses to take the steps specified by the legislation, it may use its spending power to encourage states to impose these steps.
Con Law - 1st Amendment
To encourage minority business and foster pride in minority heritage, a state adopted legislation exempting magazines and other periodicals from the state’s receipts tax if 20% of the magazine is devoted to articles concerning minorities (a commission was set up to sample magazines to determine on a yearly basis whether they should be exempt). A publisher produced a sports magazine in the state that occasionally contained articles about minority athletes, but the commission determined that the publisher’s magazine was not eligible for the receipts tax exemption. After paying the tax assessed on her magazine, the publisher sued for a refund.
How will the court most likely rule?
In favor of the publisher, because the tax violates the First Amendment freedoms of speech and press.
- The court should rule in favor of the publisher because the tax exemption regulates speech based on its content in violation of the First Amendment. The freedom of the press is guaranteed by the First Amendment. As with other areas within the First Amendment, the freedom does not prohibit all government regulation of the press, but it does place limits on regulation. The press and broadcasting companies can be subject to general business regulations and taxes, but generally may not be singled out for a special tax. Moreover, a tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling justification. Although the state tax here appears to be a general receipts tax, the exemption is based on content, which means that the tax also is based on content (i.e., a publication is subject to the tax unless it contains . . . ). As discussed below, a compelling interest is not presented here, so the exemption is invalid and the tax should fail.
Con Law - Individual Rights
A state statute prohibited the state and any county, municipality, or other governmental unit within the boundaries of the state from hiring as a civil engineer any person who is not a citizen. A well-qualified engineer who is not a United States citizen read that the state’s department of transportation needed a new drafting engineer. The foreign engineer applied for the position and had the required qualifications. However, the hiring official turned down the engineer’s application, explaining that he could not hire her because of the state statute. The engineer filed suit in federal court, claiming that the statute violates her right to equal protection under the Fourteenth Amendment.
If the engineer prevails, what will be the most likely reason?
The state has failed to prove that the law is necessary to achieve a compelling government interest.
- If the engineer prevails, it will be because the state has failed to show that the law is necessary to achieve a compelling state interest, as required by the Equal Protection Clause of the Fourteenth Amendment. Under that clause, a governmental action involving classification of persons will be subject to strict scrutiny if a suspect classification is involved. The law will be struck down unless the government proves that it is necessary to achieve a compelling interest. State and local laws that classify persons based on alienage are subject to strict scrutiny unless the law is discriminating against alien participation in the functioning of the state government. In that case, the law will be upheld as long as it is rationally related to a legitimate government interest. Thus, a state can validly refuse to hire aliens as primary or secondary school teachers or police officers because these positions have a direct effect on the functioning of government. On the other hand, a state law requiring citizenship for all civil service positions was held to be invalid. Similarly, a state law requiring a notary public to be a citizen was struck down under the strict scrutiny standard because a notary’s responsibilities are essentially clerical. The engineer could argue that the civil engineer position involves engineering skills rather than the functioning of government. If she prevails it will most likely be because the court agreed with her position and the state failed to meet its difficult burden under the strict scrutiny test of proving that the ban was necessary to achieve a compelling government interest. (
Con Law - Individual Rights
A philanthropist told his friend, who was a state governor, that he planned to build a museum. The governor thought that the museum would bolster the state’s tourism industry and offered to arrange to have the state purchase land and grant it to the museum to enable the philanthropist to build a bigger museum with his money than originally planned. The philanthropist agreed, and the museum was built.
The philanthropist undertook the hiring of the museum’s senior staff. He was of German descent and was ashamed of Germany’s actions during World War II. To assuage his own conscience, he refused to hire anyone whom he believed to be of German descent. A restoration expert applied for a job as chief curator of the museum, but the philanthropist refused to hire him because of his German background. The restoration expert discovered the philanthropist’s rationale and brings suit against the museum, claiming that the hiring practice violates his constitutional rights.
How is the court most likely to rule?
The policy is constitutional, because the museum is a private entity and so may constitutionally hire and fire as it desires.
- The court should find that the museum is a private entity and that it may constitutionally hire and fire as it pleases because its actions do not constitute state action. The Equal Protection Clause prohibits states from discriminating against persons on the basis of race, alienage, or national origin unless the discrimination is necessary to achieve a compelling state interest. The museum’s policy here of not hiring persons of German descent clearly violates the Clause’s prohibitions. However, there is no constitutional violation here because there is no state action. The Equal Protection Clause prohibits only government infringement. This does not mean that only direct government action is proscribed. Private action may constitute state action where the private actor is performing an exclusive state function or the government is significantly involved in the private actor’s activities. The running of the museum here, however, is not an exclusive government function (e.g., running elections), and the state’s grant of the land for the museum does not constitute significant state involvement in the museum’s affairs (see below). Thus, there is no state action here and no constitutional violation. (Note that the museum’s actions probably violate several civil rights statutes that apply to private citizens.)
Con Law - Intergovernmental Immunities
A state statute prohibited the sale or possession of any food product containing more than one part per billion of a dangerous pesticide. An out-of-state driver taking her recreational vehicle through a corner of the state was stopped at a state inspection station. When the state trooper learned that the pantry of her RV was stocked with food, he asked to test a few samples of her baked goods. The samples contained about 600 parts per billion of the prohibited pesticide, and all of the other baked goods in her possession were tested and found to have the same level of pesticide. All of her baked goods, worth about $150, were confiscated and destroyed.
The state in which the driver lived has no laws governing the pesticide level of baked goods. A federal law designed to protect agricultural workers requires that any food product containing more than 500 parts per billion of the toxic pesticide must be labeled as such and be in special containers. The driver brings an action in federal court asserting that the state statute is invalid because it is preempted by the federal law.
How should the court rule as to this claim?
For the state, because the purposes of the federal law are different from those of the challenged statute.
- The court should rule for the state because the purpose of the federal law is different from the purpose of the state law. The question here is whether the state law is preempted by the federal law. Implied preemption will be found where it was the intent of the federal government to occupy the entire field with its regulation, the state law directly conflicts with the federal law, or the state provisions prevent achievement of federal objectives. Because the federal law here is aimed only at occupational safety, no conclusion can be drawn that the federal government intended to occupy the entire field of regulation of pesticides, and the state law does not interfere with the federal law. For regulations involving health, safety, and welfare, the Court will presume that state police powers are not preempted unless that was the clear and manifest purpose of Congress when it enacted the federal law.
Con Law - 1st Amendment
A state legislature enacted a program by which students in the public schools could request instruction as to specific religions and religious beliefs, and thus participate in public school programs in which leaders of the religions involved gave religious instruction and performed religious practices on school grounds. The parent of a student who objected to religion being taught as part of the public school curriculum brought suit in federal court, seeking to have the program halted on First Amendment grounds.
Assuming the parent is a proper party to bring the suit, is the court likely to find the program violates the First Amendment?
Yes, because the program is not neutral toward religion and there is no long history of such religious instruction in public schools.
- The strongest argument against the constitutionality of the program would be that the program is not neutral toward religion and that there is no long history of such religious instruction in public schools. It is the strongest argument because it reflects two of the criteria the Supreme Court uses in assessing whether government action violates the Establishment Clause: Is the government action neutral toward religion, and if not, is there a long history of the action being accepted or would the Founding Fathers have found the government action to be acceptable?
Con Law - PDP
Concerned about the rising death toll on the state’s highways, a state legislature enacted a statute providing for a summary one-year suspension of the driver’s license of any person convicted of three speeding violations within a 12-month period. The statute provided that an administrative hearing is immediately available upon request. However, that hearing is limited to a determination of whether the licensee is the same person who was convicted of the speeding violations.
A driver received three speeding citations in a three-week period and was convicted of all three charges. Her license was promptly suspended under the authority of the state statute. Without first seeking an administrative hearing, the driver files a suit in federal district court challenging the constitutionality of the statute.
Should the court uphold the constitutionality of the state law?
Yes, because the state’s interest in promptly removing unsafe drivers from its roads outweighs the driver’s right to a prior hearing under these circumstances.
- The state law is valid because the prior judicial determinations that the driver violated the speeding laws satisfy the procedural due process requirements of the Fourteenth Amendment. Under the Due Process Clause of the Fourteenth Amendment, the state must provide some fair process or procedure before it may deprive a person of “life, liberty, or property.” Fair procedure at a minimum requires an opportunity to present objections to the proposed action to a fair, neutral decisionmaker. Whether a prior evidentiary hearing is required and the extent of procedural requirements is determined by weighing (i) the importance of the individual interest involved, (ii) the value of specific procedural safeguards to that interest, and (iii) the governmental interest in fiscal and administrative efficiency. [Mathews v. Eldridge (1976)] Because the government has taken control of who may drive automobiles on public roads, which is a sufficiently important area of human activity that persons have a liberty interest in it, the government must provide fair procedure to those who are specifically barred from engaging in the activity. In applying the Mathews v. Eldridge balancing test, the Court has held that the state generally must afford a prior hearing before a driver’s license is suspended or terminated. However, where the suspension is based on prior judicial determinations that traffic laws were violated, the driver has already had prior evidentiary hearings before unbiased decisionmakers on the significant factual issues involved. The governmental interest in keeping unsafe drivers off public roads and in not relitigating issues already fairly decided outweighs the driver’s interest in keeping her driver’s license. The procedural safeguards in the judicial proceedings in which she was convicted were sufficiently broad so that no additional prior hearing is necessary. Thus, the court should rule that the state law satisfies procedural due process requirements.
Con Law - 1st Amendment
Auto workers went on strike in a town heavily reliant on the auto industry. While negotiations between the union and management were ongoing, a person intercepted and recorded a phone call between the union’s president and management’s chief negotiator. A state statute makes it illegal to record a phone call without the consent of the parties being recorded. The statute also makes it illegal to play an illegally recorded conversation on television or radio.
The person who recorded the call anonymously sent the recording to a local TV station. The TV station news anchor played the recording on air.
Can the anchor who played the recording be prosecuted under the statute?
No, because the anchor did not record the conversation, and the information is truthful and about a matter of public significance.
- The anchor may not be prosecuted. Generally, the press has a right to publish information about a matter of public concern, and this right can be restricted only by a sanction that is narrowly tailored to further a state interest of the highest order. The right applies even if the information has been unlawfully obtained in the first instance, as long as (1) the speech relates to a matter of public concern, (2) the publisher did not obtain it unlawfully or know who did, and (3) the original speaker’s privacy expectations are low. Here, because a strike is ongoing, the labor negotiation very likely is a matter of public concern, and the speakers could have anticipated great public interest in the conversation. Moreover, since each party to the conversation was speaking to an adversary, neither would have been justified in thinking the details of the conversation would be kept private. The anchor received the recording anonymously. Therefore, the anchor cannot be prosecuted.
Con Law - 1st Amendment
A state’s law requires driver’s licenses to display a photograph of the person whose name is on the license. The law was adopted to prevent fraudulent use of state drivers’ licenses as proof of identification. As such, the law does not provide for any exemptions from this requirement. Members of a religious sect within the state believe that allowing oneself to be photographed is sinful. A member of the sect who was refused a driver’s license because he would not allow himself to be photographed challenged the state regulation in federal court.
Is the court likely to uphold the application of the regulation to the religious group?
Yes, because it appears the law is religiously neutral, generally applicable, and not motivated by a desire to interfere with religion.
- The law will be upheld because it is a neutral law that is applicable to all drivers in the state and nothing indicates it was motivated by a desire to interfere with religion. The Free Exercise Clause does not require exemptions from government regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. Unless the law was motivated by a desire to interfere with religion, it can be applied to regulate the conduct of one whose religious beliefs conflict with the law. Here, the sect member must allow his photograph to be taken if he wants to obtain a driver’s license; the state is entitled to enforce this regulation because it is a neutral law of general applicability.
Con Law - Separation of Powers
Congress enacted a statute that provided for direct money grants to the various states to be distributed by them to police agencies within their jurisdictions for the purpose of purchasing gas-efficient patrol vehicles. One of the objectives of the statute was to help reduce the dependency of the United States on imported oil.
Which of the following would provide the best constitutional justification for the statute?
The power to tax and spend for the general welfare.
(If general welfare and tax and spend are together, pick it. If general welfare if by itself, don’t pick it.)
- The statute is authorized by Congress’s spending power. Article I, Section 8 gives Congress the power to spend “to provide for the common defense and general welfare.” This power allows Congress to spend for any public purpose as long as it does not infringe on other specific constitutional restrictions (such as the Bill of Rights). The statute here is clearly for a public purpose and is not otherwise unconstitutional; it is therefore within Congress’s spending power.
Con Law - Intergovernmental Immunities
One provision of a federal law provided that state governments may enact legislation regulating any form of pinball machine or video game, including location and hours of operation. In response, a Western state enacted legislation providing, among other things, that any video game sold or operated within the state use a particular LCD screen designed to minimize eyestrain.
A corporation that designs and manufactures video games for sale throughout the United States and in Europe is based in the Midwest. Approximately 10% of its gross sales are made in the Western state that has regulated the LCD screens. The corporation’s machines are not manufactured using the special eye-protecting LCD screens; to install such screens in all machines manufactured would cause the price of the machines to increase by 20%, and to use the screens in machines sold only in the Western state would increase the cost of those machines by 50%. The corporation files suit in federal court to enjoin enforcement of the state video game statute.
How should the court rule?
For the state, because Congress has acted within its power to authorize video game regulation by the states.
- The state will prevail because Congress has consented to the state regulation of interstate commerce. A state may regulate local aspects of commerce (i.e., intrastate commerce), but state regulation that discriminates against or substantially burdens interstate commerce may be held invalid under the Supremacy Clause, because of Congress’s very broad power to regulate interstate commerce under the Commerce Clause. Here, the state statute, standing alone, might have been held invalid because its substantial burden on interstate commerce could have been found to outweigh any legitimate local interest in reducing eyestrain. However, the federal statute changes the equation. Because Congress’s power over interstate commerce is very broad, Congress may allow a state to adopt legislation that would otherwise be invalid as an unconstitutional burden on interstate commerce; this is what Congress did here. By allowing the state regulation, it is actually exercising the federal commerce power-it simply allows for nonuniform (state-by-state) rules.
Con Law - Judicial Review
Recently enacted legislation required farmers in certain counties of a western state to use drip irrigation systems instead of traditional methods in order to conserve water for agricultural and other uses. A farmer who refused to use the drip system was charged pursuant to the enforcement provisions of the legislation. A state court enjoined him from using other irrigation methods and fined him.
The farmer appealed to the state supreme court, renewing his trial court claims that the irrigation legislation violated a state constitutional provision prohibiting certain governmental intrusions into private commercial activities and that it was preempted by federal water management statutes. The state supreme court held that the state constitution prohibited the challenged legislation, and construed the relevant statutes as being within the parameters of the federal statutes, and thus preempted.
If the state petitions for certiorari to the United States Supreme Court, how should the Court rule on the petition?
Deny the petition, because there is no substantial federal question that is dispositive of the case.
- The state’s challenge to the decision of the state supreme court presents no substantial federal question and will be denied. The Supreme Court’s appellate jurisdiction under 28 U.S.C. section 1257 extends to reviewing the decision of the highest court of a state where the validity of state legislation is called into question on the ground that it is unconstitutional or contrary to federal statutes. However, the Supreme Court will hear a case from a state court only if the state court judgment turned on federal grounds. The Court will refuse jurisdiction if it finds adequate and independent nonfederal grounds to support the state decision, because a different interpretation of the federal statutes would have no effect on the judgment rendered by the state court, so that the Supreme Court, in effect, would be rendering an advisory opinion. Here, even if the state court was incorrect in holding that federal statutes preempted the state legislation, it also held that the state constitution prohibited the state legislation. Hence, a different interpretation of the federal preemption issue would have no effect on the outcome of the case.
Con Law - Judicial Review
A state prohibited the sale of heated grips for motorcycles within its borders to discourage motorcyclists from riding in dangerously cold conditions. The owner of a cycle shop that sells heated grips within the state that are purchased from an out-of-state manufacturer seeks an injunction in state court prohibiting the state from enforcing its statute. The owner claims that the statute unreasonably interferes with interstate commerce.
If the state court rules that the relevant statute is valid and denies injunctive relief, which of the following is the proper next step for the owner to take to obtain review of the state court decision?
Appeal to the state appellate courts.
- The proper next step for the corporation is to appeal to the state appellate courts. A plaintiff bringing an action in a state trial court is required to exhaust its state appellate remedies before seeking review in federal courts, even where federal issues are involved.
Con Law - Judicial Review
Federal legislation provided that the marketing and sale of oranges was subject to the control of a local marketing authority. The marketing authority determined what quantity of oranges could be sold by each grower, the price, and the location of sale. These decisions were made by a council of local growers whose members were selected by the federal Department of Agriculture. The applicable federal legislation provided, in part, that when any grower subject to a marketing order challenged the propriety of that order, the council of the marketing authority must submit the controversy to the United States district court with geographical jurisdiction for a recommendation as to whether the order should be confirmed, modified, or rescinded. After the hearing in district court, the council must revote on the challenged marketing order.
A citrus grower brings suit in United States district court, seeking on constitutional grounds to enjoin enforcement of the federal legislation providing for the marketing order that the council issued with regard to his orange crop.
If the court rules on the constitutional issue, is the grower likely to prevail?
Yes, because the federal legislation permits the federal district court to give an advisory opinion.
- Because the federal legislation merely allows the district court to issue a “recommendation,” the legislation permits the rendition of advisory opinions. Article III of the United States Constitution establishes the basis for the judicial power of federal courts. It provides that the judicial power extends to “cases and controversies.” Although Congress has power to delineate the jurisdictional limits of Article III courts, it is bound by the standards of judicial power set forth in Article III as to subject matter, parties, and the requirement of “case or controversy.” Thus, Congress cannot require these courts to render advisory opinions or perform administrative or nonjudicial functions. The federal orange marketing legislation at issue here does not give federal district courts the authority to render binding decisions in final resolution of a controversy. Rather, the legislation simply allows the courts to make a recommendation as to confirmation, modification, or rescission of a challenged marketing order. This recommendation is apparently nonbinding on the parties and is followed by a re-vote of the marketing council. These circumstances indicate that, under this federal legislation, an Article III federal court would be rendering an advisory opinion in violation of the Constitution.
Con Law - Judicial Review
A merchant owned a skate rental business that she operated out of a specially equipped van. She would drive to various parks and public beaches within her home state and rent roller skates, related safety equipment and lightweight stereo/earphone sets to passersby on an hourly basis. She also sold skates and skating equipment. About 50% of the merchant’s time is spent in a single city, and she earns about 70% of her gross rental and sale income at that city’s beach areas. After receiving numerous complaints from beachgoers about the sidewalks congested with roller skaters, the city council passed an ordinance prohibiting roller skating on public property between the hours of 7 a.m. and 9 p.m.
If the merchant seeks to enjoin enforcement of the ordinance in federal district court on the basis that it is unconstitutional, what should the court do?
Reach the merits of the merchant’s challenge, because enforcement of the ordinance will harm her business and the rights of the public are linked to her rights.
- The merchant has standing to challenge the ordinance because her business will be harmed by it, and this will adversely affect her relationship with those who would buy and rent her equipment, resulting in an indirect violation of their rights. A person who challenges a government action must have standing to raise the constitutional issue. A person has standing only if she can demonstrate a concrete stake in the outcome of a controversy and that the governmental action at issue impairs her own rights. A plaintiff may assert third-party rights if she has suffered injury and that injury adversely affects her relationship with third parties, resulting in an indirect violation of their rights. Enforcement of the ordinance at issue will effectively destroy 70% of the merchant’s business. Thus, the merchant is faced with an immediate and direct threat of injury to her livelihood as a result of the ordinance. This injury will also adversely affect her relationship with those persons at the beach areas of the city who would normally buy and rent her equipment, because they will now be prohibited from roller skating on the beaches between the hours of 7 a.m. and 9 p.m. This will, in turn, cause a potential violation of the rights of such third parties (e.g., the law might violate their First Amendment right to join with other persons for expressive activity). Consequently, the merchant is deemed to have standing to challenge the ordinance, and the court will reach the merits of the challenge.
Con Law - Individual Rights
A state’s pension program provided supplemental state pension benefits to surviving spouses and children of state employees. The program provided that when the spouse remarried, that spouse’s benefits would be gradually terminated based on a statutory formula. Because of statistics showing past disparities between the household income levels of male surviving spouses and female surviving spouses, different formulas were used for the termination schedule depending on whether the surviving spouse was male or female.
A widower of a state employee was informed after he remarried that his pension benefits would be terminated in 90 days according to the applicable formula. Upon learning that a similarly situated widow would have continued to receive benefits for six months after remarrying, the widower decided to file suit in federal court, alleging that the state program is unconstitutional because it is discriminatory and it unfairly burdens his right to marry.
Which of the following best states the burden of persuasion in this case?
A: The state must demonstrate that the program is narrowly tailored to achieve a compelling government interest.
B: The state must demonstrate that the program is substantially related to an important government interest.
C: The widower must demonstrate that the program is not substantially related to an important government interest.
D: The widower must demonstrate that the program is not rationally related to a legitimate government interest.
B: The state must demonstrate that the program is substantially related to an important government interest.
- The state has the burden of proving that the program is substantially related to an important government interest. When analyzing government action based on gender, the courts will apply an intermediate standard of review and strike the legislation unless it is substantially related to an important government interest. In these cases, the government bears the burden of proving this substantial relationship. Here, because the formula used to calculate termination of pension benefits depended on whether the surviving spouse was male or female, the legislation discriminates on the basis of gender. Thus, an intermediate scrutiny standard will be applied.
Con Law - Intergovernmental Immunities
Congress passed a statute designed to make college tuition-free. The statute significantly increased funding to states for this purpose; however, it made all federal funding to states dependent on the state making state universities tuition-free to United States citizens, and several state budgets consist of as much as 50% federal funding. Some states do not wish to participate in the program and want to retain their level of federal funding that existed before the statute was passed.
If these states challenge the constitutionality of the statute in court, will the court likely uphold the statute?
No, because the funding condition is unduly coercive.
- The court will not uphold the statute. Congress may regulate states through the spending power by imposing conditions on the grant of money to state governments. These conditions do not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity so long as the conditions are clearly stated, relate to the purpose of the program, and are not unduly coercive. Here, the condition is unduly coercive because the funding amounts to as much as 50% of states’ total budgets.
Con Law - Individual Rights
The National Park Service recently created a new personnel level for field employees, which became the highest salaried position available to Park Service field employees. The position is restricted to employees over six feet in height. A female ranger who is five feet, three inches tall seeks your advice as to whether she can challenge the validity of the height restriction in federal court.
If you decide to file suit on her behalf, which of the following would be your strongest argument against the validity of the restriction?
Because most women are less than six feet tall, the restriction is an invalid discrimination on the basis of gender in violation of the Due Process Clause of the Fifth Amendment.
- The ranger’s strongest argument, although by no means guaranteed of success, is that the height restriction is a gender-based classification that is not substantially related to important governmental interests. The Due Process Clause of the Fifth Amendment protects against action by the federal government. Although not expressly stated, this clause also provides an equal protection guarantee against federal action that generally applies to a similar extent that the Fourteenth Amendment Equal Protection Clause applies to the states. If the ranger can show that the Park Service restriction actually establishes a classification of eligibility for the new position based on gender, then the restriction will be found to violate the Fifth Amendment Due Process Clause unless the government has an exceedingly persuasive justification that the restriction is substantially related to important governmental interests. However, if the ranger is only able to show that the restriction has a discriminatory impact without being able to prove discriminatory intent, the court will not treat it as a gender-based classification and the ranger will not be successful. Despite the difficulty of success, however, (B) is the correct answer because it provides the best possibility of a winning argument for the ranger. Remember that “best of the lot” questions are sometimes “best of a bad lot.” You might need to work through all of the alternatives and arrive at the best answer by process of elimination.
Con Law - Intergovernmental Immunities
A state study shows that computer chip manufacturing has decreased 60% in the past five years due to a large supply of foreign chips entering the state. To prevent the complete loss of computer chip manufacturing, the state enacted legislation requiring that at least 50% of the units sold by electronic products retailers within the state incorporate chips manufactured within the state. The owner of a chain of computer stores in the state sells electronic devices manufactured entirely in other states.
If the computer store owner challenges the state legislation on constitutional grounds, will she likely prevail?
Yes, because the legislation discriminates against out-of-state commercial activity.
- The store owner likely will prevail because the state legislation discriminates against out-of-state goods in violation of the negative implications of the Commerce Clause. A state may regulate local aspects of interstate commerce if such regulation is not in conflict with federal regulations and if: (i) the subject matter of the regulation does not require nationally uniform regulation; (ii) the regulation does not discriminate against out-of-state competition to benefit local economic interests; and (iii) any incidental burden on interstate commerce of the nondiscriminatory regulation does not outweigh the legitimate local benefits produced by the regulation. Laws that are designed to protect local businesses against interstate competition generally will be invalidated. Here, the state legislation discriminates against out-of-state manufacturers to protect local businesses by limiting the amount of units that can be sold by retailers of electronic products containing chips manufactured out of state. There is no such limit on units that can be sold that utilize locally manufactured chips. This law was enacted to encourage the development of local manufacturing operations. Because this law is designed to protect local businesses against interstate competition, it should fail a challenge under the Commerce Clause.
Contracts - Consideration
A jogger found a stray dog in the park. She took the dog home with her and placed an ad in the paper to try to find the dog’s owner. Soon thereafter, the owner of the dog contacted the jogger. He came to the jogger’s home and identified the dog as his. He offered to pay the jogger a $200 reward at the end of the week. The jogger thanked the dog owner but turned down the reward.
At the end of the week, however, the jogger changed her mind, so she called the dog owner and told him that she would like the reward after all. He refused to pay her, and she sues him for breach of contract.
What will the jogger recover?
Nothing, because there was no consideration to support a contract.
- The jogger will recover nothing because her finding the lost dog occurred prior to the dog owner’s promise to pay the $200. An enforceable contract must be supported by consideration. Consideration consists of: (i) a bargained-for exchange between the parties; and (ii) an element of legal value to that which is bargained for. Legal value is present if the promisee has incurred a detriment (i.e., has done something she is under no legal obligation to do or has refrained from doing something that she has a legal right to do). To have a “bargained-for exchange,” the promise must induce the detriment, and the detriment must induce the promise. If something has already been given or performed before the promise is made, it will not satisfy the bargain requirement, because it was not given in exchange for the promise. Here, the jogger was under no legal obligation to return the dog to its owner. Thus, in doing so, she incurred a detriment. However, the jogger was not induced to so act by the dog owner’s promise to pay $200. Because the jogger’s actions regarding the dog were performed before the dog owner’s promise, those actions were not given in exchange for the promise when made. Thus, the “bargain” element is absent.
Contracts - 3rd Party Beneficiary
A large insurance company instituted a supplemental benefit plan for its own employees. Under the plan, any employee who had worked for the company for at least 25 years would be permitted to designate a charity to receive, on the employee’s retirement, a donation in the employee’s name of six months’ worth of the employee’s salary. The plan gave participating employees an unqualified right to change the beneficiary at any time before payment was made. An employee nearing retirement enrolled in the plan and named his favorite church as the beneficiary of the donation. The church received a letter from the company informing it that the employee had named it beneficiary of his plan and indicating the approximate amount that it would receive upon the employee’s retirement in 10 months. The letter did not inform the church of the employee’s right to change beneficiaries before that time. Church elders, anticipating the gift, authorized restoration work to the church building, making plans to pay for the work with the funds from the employee’s benefit program.
Six months later, the employee converted to a different religion and changed the beneficiary of his plan to his new church. When the employee retired, the company paid the benefit to his new church. His old church, which had paid for the restoration work on its completion, demanded payment of the benefit from the company. When payment was refused, the church sued the company.
Which party is likely to prevail?
The church, because the interests of justice require it.
- The church will be able to recover against the insurance company because the interests of justice require it. Under the majority view, consideration is not necessary to make an agreement at least partially enforceable where the facts indicate that the promisor should be estopped from not performing. This is stating the concept of promissory estoppel without labeling it as such. Under the Second Restatement, a promise is enforceable to the extent necessary to prevent injustice if the promisor should reasonably expect the promise to induce action or forbearance and such action or forbearance is in fact induced. Here, the insurance company sent a letter to the church informing it that the employee had named the church beneficiary under his employee benefits program. The company did not warn the church that the employee had the right to change his beneficiary and should have reasonably expected that the church would rely on the promise in some way; it is not necessary in charitable contribution cases that the promisor know of a specific expenditure that the recipient made or is going to make. The church did in fact rely on the promise by authorizing and paying for the restoration work. Hence, to prevent injustice, as choice (A) states, the church can recover against the company to the extent of its reliance (the cost of the restoration work).
Contracts - Consideration
Two brothers who were certified public accountants worked together at a large accounting firm practicing their chosen profession. The older brother was concerned about his younger brother’s apparent inability to show up at his job by 9 a.m. each morning, sober and clear-eyed. One day, after the younger brother showed up late for work yet again, the older brother told him that if he would show up at the office sober and ready to work by 9 a.m. each morning for the next 10 months, he would pay him $15,000 at the end of that time. The younger brother accepted the offer and complied with its terms from that day forward. Nine months later, the older brother died unexpectedly. One month after that, the younger brother filed a claim with his brother’s estate for the $15,000.
Will the younger brother prevail in his claim?
Yes, because he has performed under a valid contract, and thus his brother’s estate must now perform.
- The younger brother will prevail because he has performed under a valid contract. He entered into and performed a valid unilateral contract with his brother, who offered to give him $15,000 if he showed up at the office sober and ready to work by 9 o’clock each morning for the next 10 months. He accepted by fully performing; his giving up the right to do something that he had a legal right to do constitutes valid consideration. Because the younger brother fully performed his duties under the contract, the older brother’s estate is bound to perform his duties and must now pay him.
Contracts - Defenses
A nephew asked his uncle, who like him was a farmer, to guarantee a loan to buy a new tractor. The local bank had already refused to extend credit to the nephew alone to buy the tractor. The uncle was inclined to refuse, but then decided that he could benefit from his own use of the tractor, so he told his nephew that he would guarantee the loan if he could use the new tractor without cost for 10 days during his harvest season. The nephew agreed to his uncle’s proposal. The uncle went to the bank and told the loan officer that he was willing to guarantee the proposed loan to his nephew. This prompted the loan officer to agree to extend the requested credit to the nephew. Although the loan officer did not make the uncle sign any papers, the uncle provided consideration and the bank issued the nephew a loan commitment statement. That evening, the uncle had a change of heart. The next day, he telephoned the loan officer and told him to forget about his guaranteeing any loan to his nephew. Despite the uncle’s phone call, the loan officer did not stop the check from being issued, and the nephew received the money to purchase the tractor. He drove the tractor over to the uncle’s farm and delivered it for the uncle’s 10-day use, as promised. The uncle told his nephew that he did not want to use the tractor and that he was not guaranteeing his loan. Within six months, it became clear that the nephew could not make good on the loan.
If the bank sues the uncle for the unpaid portion of the loan, who will likely win?
The bank, because the uncle’s main purpose in making the agreement with the bank was to benefit himself, not his nephew.
The uncle’s main purpose in making the agreement was to benefit himself rather than his nephew, so the agreement is outside of the Statute of Frauds and is enforceable even though it was oral. Under the Statute of Frauds, certain agreements must be evidenced by a writing that contains: (i) the identity of the party sought to be charged; (ii) identification of the contract’s subject matter; (iii) terms and conditions of the agreement; (iv) recital of consideration; and (v) signature of the party to be charged, or of his agent. One type of agreement that is covered by the Statute of Frauds is a promise to answer for the debt or default of another where the promise is collateral rather than primary. However, where the main purpose or leading object of the promisor is to secure an advantage or pecuniary benefit for himself, the contract is not within the Statute of Frauds, even if the effect is still to pay the debt of another. The uncle guaranteed the loan to his nephew, which means that the uncle agreed to repay the loan only if his nephew refused to do so. Therefore, the uncle made a collateral promise to answer for the debt or default of the nephew regarding the loan from the bank. However, because the main purpose of the uncle’s making the agreement was to benefit himself rather than his nephew (by, e.g., being allowed to use the tractor without cost), the agreement is outside the scope of the Statute of Frauds and would be enforceable against the uncle even in the absence of a writing.
Contracts - Defense (Parol Evidence)
A retail store owner e-mailed an electronics supplier an offer to buy 300 flash drives imprinted with the retailer’s trademark at $2 per flash drive. The supplier immediately e-mailed back his acceptance. A week later, the retailer telephoned the supplier and truthfully explained that she had made an error in her order-it should have been for 200 flash drives. She asked if she could reduce her order to 200. The supplier thought the imprinting process was not yet completed and so agreed to reduce the order to 200. After the phone call, the supplier discovered that all 300 flash drives had already been imprinted. He delivered the 300, but the buyer accepted only 200.
Can the supplier recover damages with respect to the 100 flash drives that were not accepted?
No, because the supplier agreed to the modification and his mistake was unilateral.
- The supplier cannot recover damages for the flash drives that were not accepted because the modification is valid and enforceable. For sale of goods contracts, a modification must be in writing if the contract as modified falls within the Statute of Frauds; i.e., if the contract as modified is for $500 or more. Here, the buyer and the supplier’s original contract was for $600 worth of flash drives, but the modified contract is for $400 worth of flash drives. Because the contract as modified is for less than $500, no writing is required to make the modification enforceable. Moreover, a unilateral mistake is not a defense unless the other party knew or should have known of the mistake. Here, the supplier was mistaken as to whether the imprinting was done, but the mistake was unilateral-the buyer did not know that the imprinting was done and had no reason to know. Thus, the supplier’s mistake was unilateral and not a defense. Therefore, the contract is enforceable only to the extent of the 200 flash drives accepted.
