MBE Questions Flashcards

Question

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?

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

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.

Answer 7

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.

Answer 8

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.

Answer 9

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.

Answer 10

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.

Answer 11

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.

Answer 12

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.

Answer 13

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.

Answer 14

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.

Answer 15

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).

Answer 16

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.

Answer 17

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.

Answer 18

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.

Answer 19

Yes, because the debtor incurred a different obligation than he originally had. * The new agreement between the two parties is enforceable as an accord. An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that he is supposed to receive from the other party, some other, different performance. Generally, an accord must be supported by consideration, but the consideration may be of a lesser value than the originally bargained-for consideration in the prior contract, as long as it is of a different type or the claim is to be paid to a third party. Here, the debtor's obligation to provide the creditor with a new entertainment system was a sufficient new consideration to form a valid accord.

Answer 20

Yes, because the December 18 agreement between the parties suspended the car buyer's obligation on the promissory note. * The car buyer may enjoin the dealership's action because the dealership currently does not have the right to enforce the promissory note. A valid accord, taken alone, does not discharge the prior contract. It merely suspends the right to enforce it in accordance with the terms of the accord contract. The performance of the accord agreement, which is called satisfaction, discharges not only the accord agreement but the original contract as well. Where the accord agreement is breached by the creditor by suing on the original contract, as is the case here, the debtor may seek to have the action enjoined by raising the accord agreement as an equitable defense.

Answer 21

The bakery will recover the amount necessary to replace the destroyed apples, over the contract price. * If the bakery brings an action against the apple orchard, the bakery will be able to recover the costs of replacing the destroyed apples because the apple orchard remained liable on the assigned contract and it had the risk of loss. Although most contractual duties may be assigned-unless they are personal-and the obligee must accept performance from the delegate, the delegating party (delegator) remains liable on his obligation. Thus, an assignment of a contract that includes a delegation of duties does not relieve the assignor from its duty to perform. Here, the bakery did not receive the performance that was due (the apples), so it could sue the apple orchard to recover for the breach. When a nonbreaching buyer does not receive the contracted goods, it has several options: it can cancel the contract and recover any incidental damages, or it can purchase replacement goods and sue for the cost of replacement-"cover." Damages under the latter option are measured by the difference between the contract price and the amount the buyer actually has to pay for the replacement goods.

Answer 22

The contractor, because the contract did not provide that time was of the essence. * The late installation does not justify the refusal to pay. Unless the nature of the contract is such as to make performance on the exact day agreed upon of vital importance (e.g., contract for use of a wedding chapel), or the contract by its terms provides that time is of the essence, failure by a promisor to perform at the stated time will not be material. Merely providing a date for performance does not make time of the essence. Nothing in the contract here states that time is of the essence, and the contract does not by its nature require timely performance. This is a services contract, rather than a goods contract governed by the UCC, so perfect performance is not required. Thus, late performance is treated as a minor breach that gives the nonbreaching party a right to damages but does not relieve him of his duty to perform. The bottler still has the duty to pay the $50,000 but would be entitled to an offset for the damages suffered due to the delay.

Answer 23

No, because the supplier did not sign the form specifying the length of time that the offer would be held open. * No contract was created because the supplier effectively revoked his offer. Under the UCC, an offer by a merchant to buy or sell goods in a signed writing that, by its terms, gives assurances that it will be held open is not revocable for lack of consideration during the time stated (not to exceed three months). If the term assuring that the offer will be held open is on a form supplied by the offeree, it must be separately signed by the offeror. Here, the school district supplied the form stating that the offer must be held open for four months. The supplier's verbal assent to that requirement was not sufficient to qualify as a firm offer under the UCC. Thus, he was free to revoke his offer.

Answer 24

$40,000. * The builder is most likely to recover $40,000 because he is entitled to his profit plus costs. Where an owner breaches a construction contract after construction has been started but before construction is completed, the builder is entitled to recover any profit he would have derived from the contract plus any costs he has incurred to the date of the breach. Here, the builder's profit would have been $10,000 and his costs up to the time of the breach are $30,000. Thus, he can recover $40,000. Another way of saying this is contract price minus the cost of completion. Here, the contract price was $100,000 and the cost of completion was $60,000. Thus, the builder is entitled to $40,000.

Answer 25

The contract was unconscionable. * If the court rules in favor of the boy, it will be because the parties' contract was unconscionable. Unconscionability usually arises where one of the parties has substantially superior bargaining power and can dictate the terms of the contract to the other party, who has inferior bargaining power. Here, the boy told the doctor that he needed medical attention and the doctor forced him to agree to work for, in essence, $1.25 per hour in exchange for care and a medicated bandage. These facts would meet the requirements of an unconscionable contract.

Answer 26

No, and the chef need not make the initial $60,000 payment. * The contractor has not breached the contract, and the chef need not make the first payment until the contractor begins work. The contractor promised to build the restaurant by September 30. He did not promise to begin on April 15. The contractual term as to the contractor's beginning construction is a condition precedent to making the first payment. It is a condition relating to the chef's performance, not the contractor's performance. Nothing in the facts indicates that the contractor promised to begin on April 15. Contracts are construed as a whole and words are given their ordinary meaning. The purpose of the contract is to build a restaurant by September 30. Construction cannot commence before the spring thaw. Thus, the best interpretation is that the language regarding commencement of construction was merely a condition of the chef's first payment, inserted to insure that the contractor was motivated to begin and that the chef would not be out of pocket if the contractor failed to begin. Thus, the term regarding the beginning of construction of the restaurant on April 15 merely fixes a tentative time of the start of performance, and does not involve an absolute promise by the contractor to commence performance on April 15. Because the contractor was under no absolute duty to commence construction on April 15, his failure to do so does not constitute a breach of the contract.

Answer 27

Grant it, because the "night-vision" binoculars were not available to the general public. The use of thermal imaging binoculars to observe the marijuana where it could not be observed by simply using the naked eye likely renders the search invalid. To be able to assert a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect to the place searched or the item seized. There is no such expectation of privacy in objects or places held out to the public or that may be viewed from a public vantage point. Thus, the police may fly over an area to observe it with the naked eye, and even a low flyover by a helicopter to view inside a partially covered building is permissible. This is true even if the area is within the curtilage. However, the police may not use technologically enhanced methods that are not available to the public to search areas (at least as to areas within the curtilage). In the instant case, the police have flown over the defendant's greenhouse at night and used a means of enhancing their vision that is not available to the general public. This enabled them to see what could not have been observed with the naked eye, which likely constitutes an impermissible search. [See Kyllo v. United States (2001)]

Answer 28

Deny the motion, because the defendant's statements were made voluntarily after receiving Miranda warnings. * The defendant's motion should be denied because his interrogation did not violate his Fifth Amendment right to counsel. At any time prior to or during interrogation, a suspect may invoke a Miranda (Fifth Amendment) right to counsel. However, the request must be unambiguous and specific. If the defendant agrees to answer questions orally, but requests the presence of counsel before making any written statements, the defendant's oral statements are admissible. The defendant's agreement to talk constitutes a voluntary and knowing waiver of the right to counsel, even if it could be argued that it indicates a misunderstanding of the evidentiary effect of oral statements. [Connecticut v. Barrett (1987)] T

Answer 29

No, because the referee did not see the bottle, nor did the fan intend to hit anyone. * The fan should not be convicted under either definition of assault. Criminal assault is either: (i) an attempt to commit a battery, or (ii) the intentional creation, other than by mere words, of a reasonable apprehension in the mind of the victim of imminent bodily harm. In the instant case, the fan did not intend to hit anyone. Thus, the fan's actions do not constitute an attempt to commit a battery, which would require a specific intent to bring about bodily injury or an offensive touching. In addition, the fact that the referee did not see the bottle being thrown at him means that the defendant did not create in the referee a reasonable apprehension of imminent bodily harm. Consequently, the fan is not likely to be convicted of either type of assault.

Answer 30

Yes, because he was intoxicated while driving a huge piece of earthmoving equipment. * The defendant should be convicted because he was intoxicated when he damaged the property. The defendant is being charged with reckless damage to property. A person acts recklessly when he consciously disregards a substantial or unjustifiable risk that a prohibited result will follow and this disregard constitutes a gross deviation from the standard of reasonable care. Driving earthmoving equipment while intoxicated would be considered to be reckless because of the great potential for destruction arising from the huge size and power of the equipment.

Answer 31

No, because the programmer did not know that the virus would cause damage to the computer's hard drive. * The computer programmer cannot be found guilty of violating the statute because he did not know that his act would cause the damage to the business's computer that it did. Under the Model Penal Code fault standards adopted by modern criminal codes, a person acts "knowingly" with respect to the nature of his conduct when he is aware that his conduct is of that nature or that certain circumstances exist. He acts knowingly with respect to the result of his conduct when he knows that his conduct will necessarily or very likely cause such a result. When a statute establishes a culpable state of mind without indicating to which material elements of the offense it is to apply, the statute will be interpreted as requiring that state of mind for every material element of the offense. In this case, the statute requires that the defendant "knowingly cause over $200 in damage to another's property." The requirement that the damage caused be over $200 is a material element of the offense because it defines the harmful result that will trigger criminal liability under the statute. Thus, the programmer must have known that his act of sending the computer virus would necessarily or very likely cause over $200 in damage to the business's computer to be liable under the statute in this case.

Answer 32

Deny it, because the police had a reasonable suspicion that the client might be armed and dangerous. * The client's motion should be denied because the seizure of the marijuana was properly within the scope of the stop and frisk. A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. [Terry v. Ohio (1968)] In such circumstances, if the officer reasonably believes that the person may be armed and dangerous, she may conduct a protective frisk. The scope of the frisk is limited to a patdown of the outer clothing for concealed instruments of assault, but the officer may reach into the suspect's clothing and seize any item that the officer reasonably believes, based on its "plain feel," is a weapon or contraband. [Minnesota v. Dickerson (1993)] Here, the officer believed that the client put a weapon in his jacket as he was leaving a place where weapons and ammunition were being sold illegally; thus, she had reasonable grounds to conduct both a stop and a frisk. If the court accepts the officer's testimony that she instantly recognized the marijuana cigarettes based on the patdown only without any further conduct, they were properly seized and can be admitted into evidence.

Answer 33

Yes, because the man was trying to enter the property and he had the necessary state of mind. * The man will likely be found guilty. An attempt requires both a specific intent to commit the crime and an overt act in furtherance of that intent. Given that the man intended to enter his friend's property and was apprehended just before doing so, both requirements for attempt can be established.

Answer 34

No, because the number of jurors needed for a conviction is unconstitutional for this offense. * The judge should not overrule the objection. There is no constitutional right to a jury of 12, but there must be at least six jurors to satisfy the right to a jury trial under the Sixth and Fourteenth Amendments. Also, the Supreme Court has held that juries must be unanimous.

Answer 35

Instruction 1 was unconstitutional; Instruction 2 was constitutional. * The appellate court should rule that only Instruction 2 was constitutional. Due process of law requires a state to prove each element of the crime charged beyond a reasonable doubt. However, as to affirmative defenses to the criminal charge, the Supreme Court has held that the state can place the burden of proof on the defendant without violating the defendant's constitutional rights. [Leland v. Oregon (1952)] Common law larceny is the taking and carrying away of property in the possession of another with the intent to permanently deprive the other of the property. Since the intent to permanently deprive is an element of the crime, the state cannot require the defendant to prove that he intended to return the car, which would negate the required intent for larceny. The state must prove beyond a reasonable doubt that he intended to permanently deprive. Hence, Instruction 1 is unconstitutional.

Answer 36

False pretenses. * At common law, theft by false pretenses occurs when a defendant (i) obtains title; (ii) to the property of another; (iii) by an intentional (or knowing) false statement of past or existing fact; (iv) with the intent to defraud another. In the instant case, the employee's conduct meets all of the elements of the crime. The employee obtained title to the property by falsely misrepresenting the number of hours that he worked, with the intent that the company would pay him for the hours. Thus, he has committed the crime of false pretenses.

Answer 37

Guilty, because he acted with malice. * The homeowner should be found guilty. Common law arson consists of the malicious burning of the dwelling of another. At common law, the state of mind required-malice-is satisfied not only by intentionally burning the dwelling of another but also by acting with reckless disregard of an obvious risk that the structure would burn. While many courts ordinarily require that the defendant be subjectively aware of the risk, they will find malice when the failure to be aware of the risk is due to voluntary intoxication. Even had the homeowner done what he intended, he would have put his neighbor's house in jeopardy of burning. The fact that his intoxication caused him to fail to recognize the risk would not be a defense. Nor could he raise a mistake of fact defense because mistake of fact must be reasonable to negate the existence of malice, and here the facts state that his mistake was caused by his intoxication.

Answer 38

No, because the evidence was offered before a grand jury, not a court. * A grand jury may consider any evidence available to it in determining whether probable cause exists to return an indictment against the defendant. Because the exclusionary rule does not apply, a grand jury may base its indictment on evidence that would not be admissible at trial. Thus, even if the pistol was the product of an illegal search and seizure, and the grand jury based its indictment on this evidence, the foreman will not prevail in his attempt to quash the indictment.

Answer 39

Murder. * Even if the jury believes that the defendant did not intend to hit the park ranger with the arrow, the defendant nonetheless may be found guilty of murder. At common law, murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if the defendant has any of the following states of mind: (i) intent to kill; (ii) intent to inflict great bodily injury; (iii) reckless indifference to an unjustifiably high risk to human life (i.e., an "abandoned and malignant" heart); or (iv) intent to commit a felony. Here, a jury could find that the act of shooting an arrow toward the close proximity of another person constituted a reckless indifference to a high risk of serious injury or death.

Answer 40

Deny it, because the officers had probable cause to search the trunk. * The suspect's motion should be denied. As a general matter, to conduct a constitutionally valid search, the police must have a search warrant based on probable cause unless the case falls under one of the exceptions to the warrant requirement. One well-established exception to the warrant requirement is the automobile exception. If the police have probable cause to believe that an automobile contains contraband or evidence of a crime, they may search whatever area of the car that may contain the object of their search without having to get a warrant. Probable cause to search is defined as reasonable grounds for believing that a particular item of seizure is located at a particular place. From the facts given, the officers had reasonable grounds to believe that cocaine was in the trunk of the car.

Answer 41

No, because the officer had reason to believe that the car contained evidence of the crime for which the defendant was arrested. * The driver's motion should be denied. As a general matter, to conduct a constitutionally valid search, the police must have a search warrant based on probable cause unless the case falls under one of the exceptions to the warrant requirement. One exception to this rule is applicable here. After arresting a person who was recently in an automobile, the police may search the passenger compartment of the automobile if they reasonably believe that evidence of the offense for which the person was arrested may be found in the automobile. That is the case here, as the officer arrested the driver for drunk driving and saw the driver leave a bar with an open bottle in his hand and get into the automobile.

Answer 42

Deny the motion, because the charges could have been tried together but the defendant consented to the separate trials. * The court should deny the motion. Where charges can be tried in a single trial, but the defendant consents to having two separate trials, there is no double jeopardy violation. Just as consent is an exception to the warrant requirement, consent to a second trial is an exception to the double jeopardy rule.

Answer 43

He will be convicted, because his reasonable investigation does not vitiate violation of the statute arising from a mistake of law. * The reasonableness of the collector's belief that the length of his rifle did not violate the statute provides no defense to the crime charged. Unless the collector can establish a valid defense, he will be liable for violating the statute because he possessed a rifle less than 24 inches long. It is not a defense to a crime that the defendant was unaware that his acts were prohibited by the criminal law or that he mistakenly believed that his acts were not prohibited, even if such ignorance or mistake was reasonable. Here, the collector knew that the rifle he was purchasing was 22 inches long, but he was unaware that the statute prohibited possession of a rifle whose length was less than 24 inches. Such ignorance of the prohibition of the statute will not constitute a defense to the charge of possession of a sawed-off rifle, even if such ignorance remained after a reasonable investigation by the collector.

Answer 44

Overruled, because the prosecution is seeking only to impeach the defendant's testimony. * This question illustrates the operation of the Sixth Amendment right to counsel approach, which you should use to evaluate the admissibility of any statements made after the defendant has been charged with the relevant crime. The Sixth Amendment provides defendants with a right to counsel at any post-indictment interrogation. Since the defendant was on trial for arson, any interrogation relating to those charges must take place, if at all, in the presence of the defendant's counsel unless the defendant has knowingly and voluntarily waived the right.

Answer 45

Robbery. * The defendant could be convicted of robbery under these facts because of his use of force. Robbery is larceny from the person or presence of the victim by means of violence or intimidation. Larceny is the taking and carrying away of the tangible personal property of another by trespass with the intent to permanently deprive the person of his interest in the property. The use of force constituting a battery is sufficient for robbery, and the perpetrator's use of force to overcome the person's resistance to the taking is also sufficient force to constitute a robbery. All that is required for taking is that the perpetrator have possession of the item, and the slightest movement will suffice for the carrying away. The fact that the defendant subsequently dropped the wallet does not negate his completion of the crime.

Answer 46

The testimony violates the best evidence rule. * The defense counsel should object because the officer's testimony violates the best evidence rule. Under the best evidence rule, the original writing must be produced when proving the material terms of that writing. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than by serious misconduct of the proponent. Here, the terms of the letter are material and no justification has been given for why it cannot be produced. Thus, the original letter must be produced and the officer's testimony violates the best evidence rule.

Answer 47

Yes, because the plaintiff may not attempt to prove that the defendant acted in a particular way on one occasion in conformity with his reputation as to that behavior. * It was error to admit the reputation evidence from the co-worker because, in civil trials, character evidence is inadmissible to prove that the litigant acted in conformity with that character. An exception exists when the litigant's character is directly in issue (e.g., in a defamation action), but that is not the case here.

Answer 48

Yes, it is hearsay within an exception, and thus admissible. * The evidence is admissible because it is a declaration of the defendant's present state of mind, offered as circumstantial evidence that he carried out his intent to go to his mother-in-law's house. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. One exception to the hearsay rule is for statements of present state of mind. Declarations of an existing state of mind are admissible not only when the declarant's state of mind is directly in issue and material to the controversy, but also when the declarant's state of mind is not directly in issue, but the declarations of intent are offered to show subsequent acts of the declarant; i.e., a declaration of intent to do something in the future is offered as circumstantial evidence tending to show that the intent was carried out. The defendant's statement that he was going to his mother-in-law's house is a statement made by the declarant out of court. This statement is offered to prove the truth of the matter asserted therein: that on the day of the alleged armed robbery, the defendant intended to go to his mother-in-law's house. This is being offered as circumstantial evidence that he did go to his mother-in-law's house. Thus, the statement is hearsay. However, the statement does come within the present state of mind exception. Although the defendant's state of mind is not directly in issue, his statement is a declaration of intent to do something offered to show that such intent was in fact carried out. Therefore, the statement is admissible under the present state of mind exception to the hearsay rule. [See Mutual Life Insurance Co. v. Hillmon (1892)]

Answer 49

D: In-court comparison by the friend, a nonexpert, of the letter with another letter that the employee has admitted writing. * The friend's comparison of the letters is not a proper basis for authenticating the employee's letter. Before a writing may be received into evidence, the writing must be authenticated by proof showing that the writing is what the proponent claims it is. The Federal Rules list several examples of proper methods of authentication through evidence of the genuineness of the handwriting of a letter writer. None of them, however, would permit an in-court comparison by the friend of the contested letter with another letter established to be the employee's. Under Federal Rule of Evidence 901(b), an expert witness or the trier of fact can determine the genuineness of a writing by comparing the questioned writing with another writing proved to be genuine. Thus, (C) would be a proper basis for admitting the employee's letter, because the jury, as the trier of fact, can compare the letter with another letter that the employee has admitted writing. The friend, however, cannot undertake that comparison because he is not an expert witness. While Rule 901 does not limit the methods of authentication, the rule governing opinion testimony by lay witnesses [Fed. R. Evid. 701] would preclude the friend's in-court comparison. To be admissible, opinion testimony by lay witnesses must be (i) rationally based on the perception of the witness; (ii) helpful to a clear understanding of his testimony or to determination of a fact in issue; and (iii) not based on scientific, technical, or other specialized knowledge. Here, the friend can add nothing to the jury's determination of the authenticity of the letter because the jury can compare for itself that letter with a letter the employee has admitted writing. Because the friend's in-court comparison would not be helpful to the jury here, it would not be a proper basis for authenticating the employee's letter. (A) is incorrect because a lay witness who has personal knowledge of the handwriting of the supposed writer may state her opinion as to whether the document is in that person's handwriting. Therefore, the employee's wife could properly authenticate the letter by testifying that she recognizes his handwriting. (B) is incorrect because the friend's testimony is proper circumstantial evidence of authentication under the reply letter doctrine. Under this doctrine, a letter may be authenticated by evidence that it was written in response to a communication sent to the claimed author. The content of the letter must make it unlikely that it was written by anyone other than the claimed author of the writing. Here, the employee's letter to the friend can be properly authenticated by the friend's testimony that it was a reply to a letter that he sent to the employee.

Answer 50

No, because the evidence is not a proper means for proving good character. * The cashier's testimony is not admissible to prove good character. Generally, a criminal defendant can introduce evidence of her good character to show that she did not commit the crime charged. This is accomplished through the reputation or opinion testimony of a witness. The testimony must relate to the trait involved in the case and the witness cannot testify to specific acts of conduct. Here, the defendant is entitled to call the restaurant cashier to the stand to testify to her good character, but she can do so only by giving her personal opinion or by testifying to the defendant's reputation concerning honesty (the trait involved in a shoplifting case). The cashier's testimony in this case is impermissible because she is attempting to testify to the defendant's history of correcting undercharges on her bill, which are specific acts of conduct. Thus, her testimony is inadmissible.

Answer 51

Yes, for the purpose of impeachment only. * The evidence is admissible for impeachment purposes as an inconsistent statement of a hearsay declarant. Because the credibility of a hearsay declarant is as much at issue as the credibility of an in-court witness, Federal Rule 806 allows statements of a hearsay declarant to be impeached to the same extent as those of an in-court witness. Thus, a statement of the declarant made at any time that is inconsistent with his hearsay statement may be offered into evidence for impeachment purposes. Here, the eyewitness's hearsay statement (which probably qualified as an excited utterance) was testified to by the pedestrian. The eyewitness's subsequent statement to his brother is inconsistent with his hearsay statement and is therefore admissible to discredit that statement.

Answer 52

No, because the date of purchase is a collateral matter. * Testimony as to the date of purchase of the sculpture should not be admitted because its minimal relevance is substantially outweighed by considerations of waste of time and confusion of the issues under Rule 403. Whether the plaintiff actually purchased the sculpture one week sooner than the date testified to by him has no bearing on the amount he should have been charged, which is the issue in controversy. The only relevance of the clerk's testimony is to cast doubt on the plaintiff's credibility, but it is not admissible for impeachment purposes either. When a witness makes a statement not directly relevant to the issues in the case, the rule against impeachment on a collateral matter bars his opponent from proving the statement untrue either by extrinsic evidence or by a prior inconsistent statement. As noted previously, the plaintiff's statement as to the date on which he purchased the sculpture is not directly relevant to any other issue in the case. Thus, the defendant is not permitted to prove the statement untrue by means of the clerk's testimony that the plaintiff made the purchase on a different day.

Answer 53

D: She can testify to the drug sale that she observed in 2011 if she desires. * The defendant's wife can testify about the drug sale in 2011 if she wants to. The federal courts recognize two separate and distinct privileges related to marriage. First, in a criminal case, a spouse can testify if she wants to testify, but the spouse cannot be compelled to testify. The privilege applies to all information that the spouse has gained before or during the marriage. This privilege ends when the marriage ends. Second, in any type of case, a spouse can refuse to disclose, or prevent a spouse from disclosing, confidential communications made between the spouses during the marriage. While the defendant can object to his wife's testimony concerning confidential communications during the marriage, he has no privilege to object to other testimony by her. It is clear that the 2011 drug transaction was not a confidential communication, since the defendant was not aware of her presence.

Answer 54

The coat is admissible based on the plaintiff's testimony. * The court should admit the coat based on the plaintiff's testimony. Federal Rule of Evidence 402 provides that all relevant evidence is admissible unless a specific rule keeps the evidence out or limits its admissibility. In the case of real evidence, the object at issue is presented for inspection by the trier of fact. Such evidence can be presented to any of the senses of the jury from which the jury can obtain relevant information. Clearly the odor of the coat is a central issue in the case and the jury would obtain relevant evidence on that issue by smelling the coat. Admitting the coat for the stated purpose would violate no other rules of evidence.

Answer 55

Yes, because it is a statement by an opposing party. * The statement by the defendant, who is one of the parties to the action, is admissible as a statement by an opposing party (commonly called an admission). Federal Rule 801(d)(2) provides that a statement offered against a party that is the party's own statement is not hearsay and therefore cannot be excluded by the rule against hearsay. Assuming that it is relevant and not barred by other rules, the statement is admissible. Here, the defendant's statement is being offered against him at trial. It is relevant because it can be interpreted as a prior acknowledgment by the defendant that he was not totally blameless in the accident, which is undoubtedly inconsistent with his contentions at trial. The statement does not violate Federal Rule 408, which makes offers to compromise a disputed claim inadmissible to prove or disprove the validity or amount of a disputed claim, because it was made by the defendant before the plaintiff made any claim; i.e., there was not yet an actual dispute between the parties. Nor does the statement violate Rule 411, which bars evidence that a person has liability insurance when offered to show fault or ability to pay, because the defendant's reference to his insurance was an intrinsic part of his admission and could not be readily severed from it. No other rules barring relevant evidence apply, so the statement should be admitted.

Answer 56

C: A record of an arrest one week ago for embezzlement. * A record of an arrest, even for a crime such as embezzlement, cannot be used to impeach the credibility of a witness. Since there was no criminal conviction, this would be classified as evidence of a prior bad act that demonstrates dishonesty. Federal Rule of Evidence 608 would allow an inquiry into such a prior bad act during cross-examination of the witness being impeached, but extrinsic evidence of such acts is not allowed under Rule 608, even if the witness denies the act on cross-examination. (A) might be admissible to impeach. Under Federal Rule 609, a prior felony conviction for crimes that do not involve dishonesty can be used to impeach, although the trial judge has discretion to exclude the evidence if its probative value is substantially outweighed by unfair prejudice or other Rule 403 considerations. (B) represents an acceptable method of impeachment. Prior inconsistent statements can be introduced to show that the witness's testimony is not credible. (D) is an acceptable impeachment method. Under Rule 608, a witness may be interrogated on cross-examination with respect to any act of misconduct that is probative of truthfulness (i.e., demonstrates dishonesty). Lying on an expense report would be such an act.

Answer 57

As superior to Owen's rights in Backacre, inferior to Carl's rights in Frontacre, and subject to Bank's mortgage on Backacre. * Alice has title to Backacre subject to Bank's mortgage, and Alice has no rights in Frontacre. The recording statute in the question is a pure notice statute, which allows subsequent purchasers for value and without notice of a prior conveyance to prevail over the prior transferee, regardless of whether the subsequent purchaser records. In addition, the "shelter rule" allows a person who takes from a bona fide purchaser to prevail against any interest that the transferor-bona fide purchaser would have prevailed against, even if the transferee had actual knowledge of the prior unrecorded interest. Thus, Carl would prevail over Alice even though Carl was aware of Alice's interest in the parcel, because Carl obtained title from Bert, a bona fide purchaser. Thus, Alice's rights in Frontacre are extinguished. With regard to Backacre, Alice has superior title to it over Owen, but takes subject to the mortgage on it by Bank because mortgagees for value are treated as "purchasers" under recording statutes and because Bank had no notice of Alice's interest.

Answer 58

Both the homeowner and the buyer. * Both the homeowner and the buyer are liable for the deficiency. If a sale of foreclosed property does not bring enough to satisfy the mortgage debt, the mortgagee/lender can bring a personal action against the mortgagor/debtor for the deficiency (as long as the jurisdiction does not bar deficiency judgments). When the mortgagor sells the mortgaged property and gives a deed, the grantee takes subject to the mortgage, which remains on the land. If the grantee does not sign an agreement to assume the mortgage, he does not become personally liable on the loan, and the original mortgagor remains personally liable. If the grantee does sign an assumption agreement, however, the lender is considered a third-party beneficiary of the agreement, and hence may recover from the assuming grantee, who is primarily liable, or the original mortgagor, who is secondarily liable. Here, the buyer signed the recital providing for the assumption, so she will be personally liable on the loan.

Answer 59

The buyer holds the property subject to both mortgages, and the bank's mortgage is subordinate to the finance company's mortgage. * The buyer holds the property subject to both mortgages, and the bank's mortgage is subordinate to the finance company's mortgage. The jurisdiction's recording act is a race-notice statute. Under this statute, a bona fide purchaser is protected only if he records before the prior transferee or mortgagee records. Here, the buyer had record notice of the finance company's mortgage, so he was not a bona fide purchaser protected by the recording statute as to that mortgage. As to the bank's mortgage, the buyer was a bona fide purchaser because he had no notice of that mortgage executed by the owner, but he did not record until after that mortgage was recorded. Hence, the buyer holds the property subject to both mortgages. The bank's mortgage is subordinate to the finance company's mortgage because mortgagees for value are treated as "purchasers" under the recording statutes, and the finance company executed its mortgage without notice of the bank's prior mortgage and recorded it before the bank recorded its mortgage.

Answer 60

Yes, for the full contract price. * The seller will most likely prevail for the full contract price. Although jurisdictions differ as to which party has the risk of loss, the majority rule is that where property subject to an enforceable contract for sale is destroyed without the fault of either party before the date set for closing, the risk of loss is on the buyer. Thus, the buyer must pay the contract price despite a loss due to fire, unless the contract provides otherwise. Here, the house was destroyed by fire after the seller and buyer entered into their contract for the sale of the house, but before the closing date. The contract was silent regarding the risk of loss. Thus, under the majority rule, the risk of loss is on the buyer. As a result, the seller is entitled to receive specific performance of the contract, meaning that the buyer must pay the full contract price.

Answer 61

The nephew's easement is a legal interest that the developer has record notice of, even though there is no tract index. * The nephew should prevail because his interest is a legal interest in the property and could have been discovered by the developer in the grantor-grantee index. The owner granted the buyer an easement by express grant. The easement was properly recorded with the buyer's deed, and because it contained no limitation, it is perpetual. The easement here is appurtenant (i.e., one benefiting the holder of the easement), because it benefits the buyer's land (the dominant tenement) and burdens the owner's land (the servient tenement). Where there is an easement appurtenant, it passes with a transfer of the dominant tenement, even though it is an interest in the servient tenement. Thus, the buyer's easement passed to his nephew. Because the easement is perpetual, it is binding on all of the owner's subsequent transferees regardless of whether the conveyance refers to the easement, as long as the transferees have notice of it. Many courts will find record or constructive notice here because the nephew's property is adjacent to the developer's property, is deeded from a common grantor (the owner), and includes the easement in the original deed from the owner.

Answer 62

Yes, the finance company may pay off the bank's mortgage to preserve its own interest on the land. * The finance company may pay off the bank's mortgage to preserve its own mortgage interest on the land. Because foreclosure will destroy all interests that are junior to the mortgage being foreclosed, the junior mortgagee has the right to pay it off (i.e., redeem it) to avoid being wiped out by its foreclosure. Hence, the finance company may pay off the outstanding balance of the bank's mortgage and be subrogated to the bank's rights against the mortgagor. (B) is incorrect because the junior lienholder's right is not dependent on the statutory right of redemption. A statutory right of redemption, available in about half the states, gives the mortgagor and sometimes junior lienholders a statutory right to redeem for some fixed period after the foreclosure sale has occurred; the amount to be paid is generally the foreclosure sale price, rather than the amount of the original debt. Here, regardless of the statute, the finance company has the right to pay off the bank's mortgage before the foreclosure sale to protect its interest.

Answer 63

A: A profit appurtenant. * (A) If the court rules for the landowner, it will be because the neighbor's right to hunt and fish on the western parcel is a profit appurtenant. A profit is a nonpossessory interest in land that entitles the holder of the profit to enter on the servient tenement and take something off of the land (e.g., minerals, timber, oil, or game). Like an easement, a profit may be appurtenant or in gross. If the profit exists to serve a dominant estate, the profit is appurtenant and can only be transferred along with the dominant estate. Conversely, if the profit does not exist to serve a dominant estate, it is a profit in gross and may be transferred separate and apart from the dominant estate. Here, the neighbor has a profit with respect to the game on the western parcel. Because the profit is "for the benefit of the resort" on the eastern parcel, it is appurtenant rather than in gross because it serves the dominant estate (the eastern parcel). Thus, the neighbor's assignment of the profit to the hunter is void.

Answer 64

The friend has a fee simple determinable and the niece has a possibility of reverter. * The friend will have a fee simple determinable and the niece will have a possibility of reverter on the owner's death. A fee simple determinable is an estate that automatically terminates on the happening of a stated event and goes back to the grantor. The interest that is left in a grantor who conveys a fee simple determinable is a possibility of reverter, which arises automatically in the grantor and can be devised by will in almost all jurisdictions. Here, the friend has a fee simple that is subject to automatic termination if dogs are no longer kept on the property. As discussed below, the ASPCA's interest is stricken because it violates the Rule Against Perpetuities. This leaves a possibility of reverter in the niece as the owner's residuary devisee.

Answer 65

The daughter's child and the son's wife each own an undivided one-half interest in the land. * The daughter's child and the son's wife each own an undivided one-half interest in the land. At common law, if a will beneficiary died before the testator, the gift to the beneficiary was void. However, this jurisdiction has an anti-lapse statute, which saves the gift for the predeceasing beneficiary's descendants if the beneficiary herself is a descendant of the testator. Here, when the daughter died, her one-half interest in the land passed to her child under the anti-lapse statute. When the son died, his one-half interest in the land, to which he was entitled on the father's death when the father's will took effect, passed through the son's estate (not the anti-lapse statute) to his wife. Moreover, a conveyance to two or more persons is presumed to create a tenancy in common rather than a joint tenancy unless an intention to create a right of survivorship is clearly expressed. Each co-tenant has the right to possess all portions of the property; no co-tenant has the right to exclusive possession of any part. Therefore, the daughter's child and the son's wife each own an undivided one-half interest in the land as tenants in common.

Answer 66

The home is not part of the estate and thus is not subject to the claim. * The home is not subject to the judgment lien even though the niece never recorded the deed. Under the recording acts, a subsequent mortgagee or bona fide purchaser for value generally prevails over the grantee of a prior unrecorded conveyance. However, most recording statutes do not protect subsequent judgment creditors on the theory that the creditor is not offering consideration at the time its lien is created, and the language of the recording statute generally extends protection to "purchasers," defined as those obtaining an interest in exchange for consideration. Also, courts generally interpret a judgment lien statute like the one in the question to apply to "any land" actually owned by the judgment debtor rather than any land for which the judgment debtor has record title.

Answer 67

A year-to-year tenancy at $600 per month. * The tenant is bound to a year-to-year tenancy at $600 per month, which, absent six months' notice to terminate, will automatically renew on the following September 30. When a tenant continues in possession after the termination of his right to possession, the landlord may evict him or bind him to a new periodic tenancy. In a commercial lease, if the original lease term was for a year or more, a year-to-year tenancy results. If, prior to the termination of the original tenancy, the landlord notifies the tenant that occupancy after termination will be at an increased rent, the tenant will be held to have acquiesced to the new terms if he does not surrender. A periodic tenancy is automatically renewed until proper notice is given. Proper notice for a year-to-year tenancy is six months' notice at common law (one month's notice under the modern Restatement view). In this case, the tenant's lease expired on September 30. Prior to that expiration, the landlord notified him that any continued tenancy would be at $600 per month. Thus, when the tenant remained in possession after September 30, the landlord could choose to hold him to a year-to-year tenancy (because the original term was five years) at $600 per month. Because the new tenancy is a periodic tenancy, it will be automatically renewed on the following September 30 unless one of the parties gives six months' notice of termination

Answer 68

The grocer and the florist jointly and severally for $10,000, and the grocer and the barber jointly and severally for $10,000. * The landowner can recover against the grocer and the florist jointly and severally for $10,000 and against the grocer and the barber jointly and severally for $10,000. If a tenant makes a complete transfer of the entire remaining term of his leasehold interest, he has made an assignment. In an assignment, the assignee and the landlord are in privity of estate, and each is liable to the other on all covenants in the lease that run with the land. Because the covenant to pay rent runs with the land, an assignee owes the rent directly to the landlord during the time that she is in privity of estate with the landlord. If the assignee reassigns the leasehold interest, her privity of estate with the landlord ends, and she is not liable for the subsequent assignee's failure to pay rent. Hence, the florist is liable to the landowner for the one year of rent while she was in privity of estate with her, but not for the year that the barber did not pay rent. The barber is liable for the one year of rent while he was in privity of estate with the landowner. The grocer continues to be liable for rent, even though he is no longer in privity of estate with the landowner, based on the contractual obligation in the lease to pay rent, i.e., on privity of contract grounds. For each of the two years of rent, the two liable parties are jointly and severally liable for the rent. Joint liability means both parties can be liable for the whole. Several liability means that each party is only responsible for his share (i.e., he can seek contribution for the portion that he is not responsible for). (A) is wrong because, as discussed above, the barber also is liable for the final year of rent payments because he was in privity of estate with the landowner.

Answer 69

The nephew, because the developer began constructing multi-family dwellings on the land and the nephew brought an action for ejectment. * The nephew has ownership of the land because he has exercised his power to terminate the developer's fee simple subject to condition subsequent in the land. A fee simple subject to a condition subsequent is created when the grantor retains the power to terminate the estate of the grantee on the happening of a specified event. On the happening of that event, the estate of the grantee continues until the grantor exercises her power of termination (right of entry) by bringing suit or making reentry. Here, the landowner conveyed a fee simple subject to a restriction against constructing multi-family dwellings, retaining a right of entry. She devised this interest to the nephew in her will, as the statute permitted, and the nephew exercised this right by bringing an ejectment action against the developer after the condition was violated. Hence, the nephew will have ownership of the land.

Answer 70

For the sister, because she has a valid right of first refusal. * The court should rule for the sister because she has a valid right of first refusal that she is entitled to exercise. A joint tenancy is a type of concurrent ownership of a parcel of land that is distinguished primarily by the right of survivorship; i.e., when one joint tenant dies, the property is freed of her concurrent interest and the survivor retains an undivided right in the property that is no longer subject to the interest of the deceased co-tenant. To create a joint tenancy, a grantor must explicitly indicate in the conveyance that the parties are to hold as joint tenants. If one joint tenant conveys her interest, the joint tenancy is severed. The new tenant holds as a tenant in common with the remaining joint tenant, so that there is no longer a right of survivorship. Here, the father, the grantor of the property, expressly indicated in the conveyance that the son and the daughter were to take the property as joint tenants with right of survivorship. When the daughter quitclaimed her interest in the property to the purchaser, the joint tenancy between the daughter and the son was severed (despite the fact that the son did not know of the conveyance to the purchaser). However, the daughter's conveyance triggered the sister's right of first refusal. A right of first refusal gives its holder the preemptive right to meet any third party's offer to purchase real estate. Thus, the sister should have been given the opportunity to meet the purchaser's offer. Because the purchaser's interest in the property is no greater than the daughter's interest, the sister may enforce her right of first refusal against the purchaser.

Answer 71

He can demand conveyance of the property and compel the daughter to pay the purchase price.

Answer 72

The deed is valid, and the buyer is the owner of 229 acres. * The deed is valid and the buyer owns 229 acres. When there is a mistake or inconsistency in the description of property in the deed, one of the rules of construction is that the physical description takes precedence over the quantity description unless there are grounds for reformation of the deed. Reformation is an equitable action in which the court rewrites the deed to make it conform to the intention of the parties. It is granted when the deed does not express the agreement of the parties due to mutual mistake or a scrivener's error, and may also be granted when there is a unilateral mistake if misrepresentation is involved. Here, the facts indicate that the seller and the buyer were bargaining for a specific physical location ("the western half of the parcel from the western boundary to the grove of apple trees") and not for a specific number of acres. Thus, there appear to be no grounds for reformation. A conflict in description does not invalidate a deed.

Answer 73

Yes, because the electric company used unreasonable force to protect its property. * The trespasser will prevail against the electric company because it did not have the right to use deadly force to protect its property. As a general rule, one may use reasonable force to prevent the commission of a tort against one's property. However, force that is likely to cause death or serious bodily harm is not permitted when the invasion is threatening property alone. Furthermore, one may not use indirect deadly force when such force could not lawfully be directly used. Because the trespasser was threatening only the property interest of the electric company, the use of deadly force would not be privileged against him. By leaving the power on to prevent theft, the electric company was using indirect deadly force to defend its property where such force could not lawfully be directly used. Hence, it will be liable to the trespasser for his injuries.

Answer 74

$300, but the homeowner will keep the leaf blower. * The neighbor is entitled to $300, but the homeowner will keep the leaf blower. If the plaintiff is successful in a conversion action, the measure of damages is the fair market value of the chattel converted. This value is generally computed as of the time and place of the conversion. The defendant is given title upon satisfaction of the judgment so that, in effect, there is a forced sale of the chattel. (Note that even if the defendant wishes to return the item, the plaintiff is not obligated to take it back once it has been converted.) Here, the value of the leaf blower at the time the homeowner took it was $300, so that is what the neighbor is entitled to.

Answer 75

He can recover from either the driver or the cabbie for the injury to his left leg and recover from the driver only for the injury to his right ankle. * The bicyclist can recover from either party for the left leg injury but only from the driver for the right ankle injury. When two or more tortious acts combine to proximately cause an indivisible injury to a plaintiff, each tortfeasor is jointly and severally liable to the plaintiff for the entire damage incurred. Joint and several liability applies even though each tortfeasor acted entirely independently. However, if the actions are independent, plaintiff's injury is divisible, and it is possible to identify the portion of injuries caused by each defendant, then each will be liable only for the identifiable portion. Here, the cabbie would not be liable for the injury to the right ankle, because the cabbie did not cause the injury.

Answer 76

C: The backpacker did not conduct himself as a reasonably prudent person in carrying out the rescue of the hiker. If the backpacker undertakes to rescue the hiker, he must be reasonably prudent in doing so. The general rule in tort law is that no legal duty is imposed on any person to affirmatively act for the benefit of others. However, one who gratuitously acts for the benefit of another is then under a duty to act reasonably. If he acts negligently, he will be liable for damage caused thereby.

Answer 77

Grant the motion, because there is no evidence that the agency or its employees operated the train negligently. * The court should grant the agency's motion because the passenger has not established a prima facie case of negligence against the agency. To establish a prima facie case for negligence, a plaintiff must show: (i) a duty of care, (ii) breach of that duty, (iii) actual and proximate cause, and (iv) damages. As a common carrier, the agency may have owed the passenger a high duty of care, and therefore would be liable for slight negligence. However, the passenger has offered no evidence to establish that the agency breached its duty, and res ipsa loquitur is not applicable to these facts because the rocking motion of a train is not the type of event that would occur only as a result of negligence. Because the passenger failed to establish a breach of duty, the court should grant the agency a directed verdict.

Answer 78

Yes, because a reasonable employer would have discovered the guard's prior convictions. * The agency is likely to be liable to the patron's survivors because it should have known of the guard's prior convictions. Under the doctrine of respondeat superior, an employer is not vicariously liable for the acts of an employee outside the scope of his employment. However, the employer may be liable for its own negligent selection if it has some reason to be on notice that the actions that resulted in harm were likely to occur. Thus, because the plaintiffs can show that a reasonable employer could have learned of the guard's violent crimes from public records, the agency likely did not act with reasonable care by not even investigating the guard's statements on his application (and hiring someone as an armed guard who was barred by law from that type of job), and then giving him a gun that he could carry off duty.

Answer 79

The engineer knew of a better design that he could have used that would have prevented the failure. * If the plaintiff prevails, it will be because the engineer did not use a better design that would have prevented the failure. A person who is a professional is required to exercise such superior judgment, skill, and knowledge as he actually possesses. If the engineer knew of and could have used a better design for the aeration system, he has breached his duty as a professional. If the better design would have prevented the failure of the aeration system, as choice (A) states, this breach was an actual and proximate cause of the damage suffered by the plaintiff.

Answer 80

Yes, because the factory owner intended to conduct the activities that caused the particles to fall on the farmer's land. * The farmer can recover damages for trespass to land because the factory owner intended to conduct the activities that caused the trespass. To establish a prima facie case for trespass to land, plaintiff must prove: (i) an act of physical invasion of plaintiff's real property by defendant; (ii) intent on defendant's part to bring about the physical invasion; and (iii) causation. Here, flakes of the chemical byproduct of the factory owner's soap factory physically invaded the farmer's property when the wind blew. The factory owner intended to bring about the trespass because, after the farmer had complained, the factory owner knew with substantial certainty that the flakes would continue to fall on the farm whenever the wind was right. Finally, the factory owner's operation of the soap factory was the cause of the flakes settling on the farmer's strawberries, completing the prima facie case of trespass to land.

Answer 81

That the steering mechanism was in a defective condition unreasonably dangerous to users, and the defect could have been discovered and corrected if the component manufacturer had exercised reasonable care in its quality control process. * The plaintiff will prevail against the snowmobile manufacturer if the component manufacturer was negligent in not discovering and correcting the defect. To establish a prima facie case of negligence in a products liability case, the plaintiff must show: (i) the existence of a legal duty owed by the defendant to that particular plaintiff; (ii) breach of that duty; (iii) actual and proximate cause; and (iv) damages. The duty of care arises when the defendant acts as a commercial supplier of products. A commercial supplier who assembles a product from components manufactured by others is subject to the same liability as the manufacturer of the defective component. To prove breach of duty, the plaintiff must show (i) negligent conduct by the defendant that leads to (ii) the supplying of a defective product. Here, because the snowmobile manufacturer assembled the snowmobile from component parts, including the steering mechanism manufactured by the component manufacturer, and sold the snowmobile as its own product, it will be liable for the negligence of the component manufacturer.

Answer 82

The failure of the machinery company to inspect the tunnel has no legal effect on the electronics company's liability. * While the facts do not indicate that a reasonable inspection by the machinery company would have disclosed any defects, even if an inspection would have disclosed the defect, the machinery company's failure to do so would have no legal effect on the electronics company's liability. Regardless of whether the technician's survivors are using a negligence theory or a strict liability theory (both theories must be considered because the call of the question does not supply the theory of liability), an intermediary's negligent failure to discover a defect is not a superseding cause, and the defendant who supplied the defective product will be held liable along with the intermediary. Thus, even if the machinery company's failure to inspect were negligent, it would not relieve the electronics company of liability.

Answer 83

Yes, because the woman knew that there was a high likelihood that the roommate would suffer severe emotional distress. * The roommate is likely to prevail because the woman acted in reckless disregard of a high probability that emotional distress would result. To establish a prima facie case for intentional infliction of emotional distress, plaintiff must show: (i) an act by defendant amounting to extreme and outrageous conduct, (ii) intent on the part of defendant to cause plaintiff to suffer severe emotional distress, or recklessness as to the effect of defendant's conduct, (iii) causation, and (iv) damages-severe emotional distress. Here, the woman's conduct was extreme and outrageous, and she caused the roommate to suffer severe emotional distress. The facts indicate that she wanted to make a lasting impression on her roommate, so she knew that there was a high likelihood that the roommate would suffer severe distress; hence, she has acted with the mental state of recklessness, and the roommate can establish the prima facie case for this tort.

MBE Questions Flashcards

(107 cards)