MBE QUESTIONS + ANSWER Flashcards
The landowner is privileged to protect her property from intrusion by a means not intended or likely to cause death or serious bodily harm. The fact that the barbed wire presents its own warning and is not a hidden trap makes it a reasonable device for discouraging trespassers.
A landowner who owned a large tract of land in the mountains sought to protect a herd of wild deer that lived on part of the land. Although the landowner had posted signs that said, “No Hunting-No Trespassing,” hunters frequently intruded to kill the deer. Recently, the landowner built an eight-foot-high chain-link fence, topped by three strands of barbed wire, across a gully on her land that provided the only access to the area where the deer lived. A wildlife photographer asked the landowner for permission to enter the land to photograph the deer. Because the landowner feared that any publicity would encourage further intrusions by hunters, she denied the photographer’s request. Frustrated, the photographer attempted to climb the fence. He became entangled in the barbed wire and suffered extensive lacerations. The wounds became infected and ultimately caused his death. The photographer’s personal representative has sued the landowner. Is the personal representative likely to prevail? No, because the potential for harm created by the presence of the barbed wire was apparent.
Once a trial judge has definitively ruled on an evidentiary motion in limine, either ruling to admit or to deny evidence, the issue of the evidence’s admissibility is preserved for appeal and need not be raised again at trial. See Fed. R. Evid. 103(a), advisory committee’s note. However, when a trial judge makes a preliminary evidentiary ruling that is contingent on some showing being made at trial, the failure to object at trial effectively waives the issue on appeal. See Wilson v. Williams, 182 F.3d 562, 565-66 (7th Cir. 1999).
A plaintiff brought a diversity action in federal court, seeking to recover damages for an injury he sustained in a car accident with the defendant. In a pretrial motion, the defendant’s attorney argued that the trial judge should exclude evidence of an incriminating statement made by the defendant at the scene of the accident. The plaintiff objected to the exclusion of this evidence, and the parties fully briefed the issue. The trial judge considered the parties’ briefs and issued a preliminary ruling denying the defendant’s motion to exclude and allowing the evidence to be admitted. The judge’s ruling cautioned the plaintiff that, before introducing the statement at trial, the plaintiff would have to first introduce certain other foundational evidence as a condition to the statement’s admissibility. At trial, the plaintiff first introduced the foundational evidence and then introduced the defendant’s incriminating statement, without which there turned out to be little evidence of the defendant’s liability. The defendant’s attorney did not object to the admission of the statement or otherwise reassert the defendant’s pretrial evidentiary argument. The defendant was found liable to the plaintiff and then appealed the judgment based on the pretrial ruling allowing the statement to be admitted. Is the appellate court likely to hear the appeal? No, because the defendant’s attorney did not object to the admission of the incriminating statement at trial in order to preserve the issue for appeal.
Whether a battery defendant’s conduct was reasonable under the circumstances is irrelevant if in fact the defendant intended to make a harmful or offensive contact with the plaintiff. It would be relevant in a negligence action, but not in a battery action.
An ordinance in a small town required all restaurants to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker’s table was in the smoking section, and the nonsmoker’s table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker’s request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke. The nonsmoker brought a battery action against the smoker. Which of the following questions will NOT be an issue in the battery action? Was the smoker’s conduct unreasonable under the circumstances?
A performance that is subject to an express condition cannot become due unless the condition occurs or its nonoccurrence is excused. The detective’s entitlement to the reward was subject to two conditions-the arrest and the conviction of the fugitive. The first condition was satisfied when the detective delivered the fugitive to the authorities. The second condition did not occur, but its nonoccurrence is excused under the doctrine of prevention, which requires that a party refrain from conduct that prevents or hinders the occurrence of a condition. In this case, the authorities themselves prevented the conviction from occurring.
A fugitive was wanted for murder. The authorities offered the following reward: “$20,000 to anyone who provides information leading to the arrest and conviction of this fugitive.” A private detective knew of the reward, located the fugitive, and brought him to the authorities, who arrested him. The authorities then determined that while the fugitive had, in fact, committed the crime, he had been directed to commit the crime by his boss. The authorities and the fugitive then agreed that in exchange for the fugitive’s testimony against his boss, all charges against the fugitive would be dropped. The fugitive testified and was released. The authorities refused to pay the reward to the private detective on the ground that the fugitive was never convicted. Would the private detective be likely to prevail in a breach of contract action against the authorities? Yes, because the authorities themselves prevented the conviction of the fugitive.
A confession made by a person under arrest and subjected to interrogation can be admitted into evidence at trial only if Miranda warnings were properly given beforehand. Because the defendant contends that no Miranda warnings were given, she is entitled to a hearing on the issue. Under Rule 104(c)(1) of the Federal Rules of Evidence, the hearing must be conducted so that the jury cannot hear it.
A defendant was on trial for burglary. The prosecutor called the arresting officer to testify that shortly after her arrest and interrogation, the defendant had orally admitted her guilt to the officer. Before the officer testified, the defendant objected that no Miranda warnings had been given to her, and she requested a hearing outside the presence of the jury to hear evidence on that issue. How should the court proceed? The court should grant the request, because the hearing on the admissibility of the confession must be conducted outside the presence of the jury.
Four elements are required to bar subsequent claims under the doctrine of res judicata: (1) there must be a final judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) involving the same parties (or parties in privity), and (4) involving the same claims (which includes the same transaction, incident, or nucleus of operative facts). Here, the nucleus of operative facts was identical in both actions, i.e., the car accident that injured the plaintiff gave rise to both claims. The subsequent change in the plaintiff’s prognosis does not alter the original facts related to the car accident, which facts would have to be relitigated in the negligence action to establish the manufacturer’s liability.
A plaintiff brought a products liability action against an automotive parts manufacturer, alleging that the manufacturer produced a defective automotive part that caused an automobile accident. The plaintiff sought damages relating to injuries that she sustained in the accident. The plaintiff’s injuries included a head injury from which the plaintiff’s doctor, who testified at trial, believed she would ultimately make a full recovery. The action resulted in a final judgment and damages award for the plaintiff. Three years later, the plaintiff was still experiencing headaches and blurred vision from the head injury that she sustained in the accident. She went to a new doctor, an expert in head injuries, who believed that she would experience these symptoms for the rest of her life. If the plaintiff brings a negligence action against the defendant manufacturer and seeks additional damages because of her chronic condition, is the subsequent action likely to be barred by the doctrine of res judicata? Yes, because the nucleus of operative facts giving rise to the plaintiff’s chronic condition is identical to the facts that gave rise to the previous action.
The space on city buses used for the posting of placards qualifies as a designated public forum because it is public property that the city has decided to open for an expressive use. The organization’s placard was consistent with the city’s designated use of the forum. The city administrator’s denial of space to the organization was based on the content of the placard and therefore triggered strict scrutiny, which requires that the denial be necessary to serve a compelling government interest. The reasons cited for the city’s denial of the organization’s request do not implicate compelling government interests that would justify a content-based speech restriction.
A city owned and operated a municipal bus system. The city sold space on its buses for the posting of placards. Under the relevant city ordinance, the administrator of the bus system had sole discretion to decide which placards could be posted on the buses, and the administrator’s decision was final. Although most of the placards that appeared on city buses were commercial advertisements, the administrator had often sold space on the buses for placards promoting various political, charitable, and religious causes. After a circus bought space on the buses for placards advertising its upcoming performances, an animal rights organization asked to buy space for a placard with photographs showing the mistreatment of animals in circus shows. The administrator denied the organization’s request, stating that the proposed placard would be offensive to the circus, which had paid a substantial sum to place its placards on the buses, and that a circus employee had told her that none of the photographs on the organization’s placard depicted animals belonging to this particular circus. The organization sued the administrator in an appropriate court for a declaration that her denial of the organization’s request for placard space for the reasons she gave violated the First Amendment as made applicable to the states by the Fourteenth Amendment. Is the organization likely to prevail? Yes, because a public official may not refuse to permit the dissemination of a message in a public forum solely on the basis of its content unless that denial is necessary to serve a compelling government interest.
There has been no finding of negligence on the part of the government. The trier of fact found that the government had selected a reliable manufacturer for the component part and could not have anticipated or prevented the malfunction. Res ipsa loquitur applies only to situations in which a lay jury could say that the accident would not ordinarily occur in the absence of the defendant’s negligence. This is not such a situation because a nuclear reactor is complex machinery beyond the ordinary expertise of a lay jury. Also, another potential defendant (the engineering company) is involved, and the findings are inconsistent with a conclusion that this is the sort of accident that would not ordinarily occur in the absence of the government’s negligence.
Under the Federal Tort Claims Act, with certain exceptions not relevant here, the federal government is liable only for negligence. A federally owned and operated nuclear reactor emitted substantial quantities of radioactive matter that settled on a nearby dairy farm, killing the dairy herd and contaminating the soil. At the trial of an action brought against the federal government by the farm’s owner, the trier of fact found the following: (1) the nuclear plant had a sound design, but a valve made by an engineering company had malfunctioned and allowed the radioactive matter to escape; (2) the engineering company was universally regarded as a quality manufacturer of components for nuclear plants; and (3) there was no way the federal government could have anticipated or prevented the emission of the radioactive matter. If there is no other applicable statute, for which party should the court enter judgment? The government, on the ground that a case under the Federal Tort Claims Act has not been proved.
The law regulates only commercial speech, and the First Amendment invalidates any law regulating such speech unless the law is narrowly tailored to serve a substantial government interest. The U.S. Supreme Court has held that a law barring the solicitation of accident victims within a limited time period following an accident was narrowly tailored to serve the state’s substantial interest in protecting the privacy of the victims. The law at issue is not a time, place, and manner regulation because it restricts speech based on its content. Because the law is a content-based regulation of commercial speech, it is valid only if it is narrowly tailored to serve a substantial government interest.
A state legislature received complaints from traffic accident victims who, in the days immediately following their accidents, had received unwelcome and occasionally misleading telephone calls on behalf of medical care providers. The callers warned of the risks of not obtaining prompt medical evaluation to detect injuries resulting from accidents and offered free examinations to determine whether the victims had suffered any compensable injuries. In response to these complaints, the legislature enacted a law prohibiting medical care providers from soliciting any accident victim by telephone within 30 days of his or her accident. Which of the following arguments would be most helpful to the state in defending the constitutionality of the law? The state has substantial interests in protecting the privacy of accident victims and in regulating the practice of medical care providers, and the law is narrowly tailored to achieve the state’s objectives.
Under the Model Penal Code, a negligent homicide occurs because of the defendant’s disregard of a risk of which the defendant should have been aware. Here, the driver should have been aware of the danger of taking her eyes off the road. The remaining answer options are incorrect because the facts do not support a finding of intent, recklessness, or gross negligence. Involuntary manslaughter requires either a reckless or grossly negligent act, or the commission of a misdemeanor. Here, there is no indication that the defendant consciously disregarded a known risk (and thus acted recklessly) or that the defendant did anything illegal. Instead, the most serious supportable homicide charge is negligent homicide under the Model Penal Code. Under the Model Penal Code, a negligent homicide occurs because of the defendant’s disregard of a risk of which the defendant should have been aware. Here, the driver should have been aware of the danger of taking her eyes off the road.
A driver accidentally spilled some coffee in her lap while driving on a low-congestion suburban street. While glancing down at the spill, the driver failed to notice a pedestrian step into the road. The driver hit and killed the pedestrian. Which of the following is the most serious supportable homicide charge against the driver? Negligent homicide under the Model Penal Code
Under Rule 411 of the Federal Rules of Evidence it is true that evidence that a person was insured is generally not admissible to prove that the person acted negligently or otherwise wrongfully. However, such evidence may be received for other purposes, and proof of motive is such a purpose. In this respect, Rule 411 is similar to Rule 404(b), under which evidence of past conduct cannot be admitted to prove a propensity to engage in such conduct but can be admitted on the issue of motive.
A defendant’s house was destroyed by fire, and she was charged with arson. To prove that the defendant had a motive to burn down her house, the government offered evidence that the defendant had fully insured the house and its contents. Should the court admit this evidence? Yes, because evidence of insurance on the house has a tendency to show that the defendant had a motive to burn down the house.
UCC § 2-613 provides that where goods identified at the time the contract was made are totally destroyed before the risk of their loss has passed to the buyer and without the fault of either party, the contract is avoided and each party is relieved of its respective obligation to perform. Under UCC § 2-501, the goods were identified at the time of contract formation because the parties agreed to the delivery of a specific automobile. In addition, the car was destroyed without the fault of either party and before the risk of loss had passed. Therefore the contract is avoided. Because each party’s performance is discharged, neither party can assert a valid claim against the other. UCC § 2-613 provides that where goods identified at the time the contract was made are totally destroyed before the risk of their loss has passed to the buyer and without the fault of either party, the contract is avoided and each party is relieved of its respective obligation to perform. The avoidance of the contract excused both parties’ performance obligations. Consequently neither party has a claim against the other.
On June 1, a seller agreed to sell an antique car to a buyer for $20,000, in a writing signed by both the seller and the buyer. At the time, the car was on display in a museum in a different city and was to be delivered to the buyer on August 1. On July 15, before the risk of loss had passed to the buyer, the car was destroyed by fire without fault of either party. Subsequent to the contract but before the fire, the car had increased in value to $30,000. The seller sued the buyer for the contract price of $20,000, and the buyer counterclaimed for $30,000. What is the likely outcome of this suit? Both claims will fail.
A bill of attainder is a legislative act that singles out particular individuals for punishment without a trial; bills of attainder are explicitly prohibited by the Constitution. In United States v. Lovett, 328 U.S. 303 (1946), the U.S. Supreme Court held that a statute barring particular individuals from government employment qualified as punishment within the meaning of the constitutional provision prohibiting bills of attainder. Although due process entitles an individual to notice and a hearing before being deprived of an interest in liberty or property, these requirements do not apply to legislative acts. It is the bill of attainder clause that imposes these requirements on Congress. In United States v. Lovett, 328 U.S. 303 (1946), the U.S. Supreme Court held that a statute barring particular individuals from government employment qualified as punishment within the meaning of the constitutional provision prohibiting bills of attainder.
A Senate investigative committee released a report identifying three U.S. citizens as individuals who were organizing support for terrorist activities. All three were employed by the U.S. government as park rangers. In response, Congress enacted a statute naming these three individuals and providing that they could not hold any position of employment with the federal government. Which of the following constitutional provisions provides the best means for challenging the constitutionality of the statute? The bill of attainder clause.
The warrant was valid, but its validity was triggered by and limited to the delivered package. Accordingly, once the only object of that search was discovered, the warrant did not authorize a further exploratory search of the house. The search warrant was valid, but its validity was triggered by and limited to the delivered package. Accordingly, once the only object of that search—the package—was discovered, the warrant did not authorize a further exploratory search of the house.
United States customs officials received an anonymous tip that heroin would be found inside a distinctively marked red package mailed from a foreign country to a particular address in the United States. Pursuant to this tip, United States customs officers intercepted and opened the red package and found heroin inside. They then resealed the package and left the heroin inside it. The FBI was notified and, as agents watched, the package was delivered to the address. The FBI then secured a warrant to search the house for the package. About two hours after the package was delivered, agents executed the warrant at the house. The man who opened the door was arrested, and the agents found the package, unopened, in an upstairs bedroom closet. After seizing the package, the agents looked through the rest of the house. They found a machine gun in a footlocker in the basement. The man was charged with unlawful possession of the machine gun, among other crimes. He moved to suppress the use of the gun as evidence. Should the court grant the motion to suppress the machine gun?
A deceased person cannot take and hold title to property. If a named beneficiary predeceases the testator and there is no provision in the will for what happens to the gift in that case, the gift to that beneficiary lapses. In this case, the gift to the friend lapsed. The gift of the residence was a specific gift, and the lapse of this specific gift passes the residence through the residuary clause of the will. The charity is the residuary taker. There is no applicable anti-lapse statute which might have substituted the friend’s child as the beneficiary of the bequest if the friend were a protected beneficiary under the statute.
A man died testate. The man’s estate consisted of a residence as well as significant personal property. By his duly probated will, the man devised the residence to a friend, who was specifically identified in the will. The residue of the estate was given to a stated charity. The man’s friend, although alive at the time the man executed the will, had predeceased the man. The friend’s wife and their child, who has a disability, both survived the man. The value of the residence has increased significantly because of recent zoning changes. There is credible extrinsic evidence that the man wanted his friend to own the residence after the man’s death so that the friend and his wife could care for their child there. There is no applicable statute. If both the charity and the child claim the residence, to whom should the estate distribute the residence? The charity, because the devise to the friend lapsed.
The court will exercise strict scrutiny only if the challenger can show that the government action targeted the religious practice in question. A court typically invalidates government action at strict scrutiny. A simple benefit-burden balance of the government action at issue does not establish a violation of the free exercise clause. In order to establish a free exercise violation, the challenger must show that the government action targeted the religious practice in question.
Several sites on a mountain within federal public lands are regarded as sacred to a group of people that has gathered there for years to perform religious ceremonies. The United States Forest Service recently issued a permit to a private developer to construct a ski facility in an area that includes the sites that are sacred to the group. The group has filed suit in federal district court against the Forest Service to force cancellation of the permit, claiming solely that the permit violates its First Amendment right to the free exercise of religion. The Forest Service has conceded that the group’s religious beliefs are sincere and that construction of the ski facility will adversely affect the group’s religious practices. What must the group show to prevail on its First Amendment claim? The permit issued by the government is aimed at suppressing the religious practices of the group.
Rule 15 of the Federal Rules of Civil Procedure (FRCP) provides that a party may amend its pleading “once as a matter of course” before trial within either: (1) 21 days after serving it, or (2) if the pleading sought to be amended is one that requires the opposing party’s response, then 21 days after the responsive pleading is served or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Generally, a motion that attacks and challenges a pleading is not a “responsive pleading” as defined under Rule 7. However, Rule 15 names three types of pre-answer motions that are treated like responsive pleadings, which will mark the beginning of the 21-day period during which the opposing party has the right to amend: (1) a motion to dismiss under Rule 12(b); (2) a motion for a more definite statement under Rule 12(e); and (3) a motion to strike under Rule 12(f). SeeFRCP 15(a)(1)(B). Here, the plaintiff filed a motion to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1). The plaintiff’s motion is one of the three types of motions under Rule 15(a)(1)(B) that start the clock on the defendant’s 21-day period to amend as a matter of course. See FRCP 15(a)(1)(B); see alsoFRCP 15, advisory committee’s notes (2009). Because the defendant filed an amendment within 21 days of the plaintiff’s motion to dismiss, the amendment is proper.
A plaintiff sued a defendant for trademark infringement in federal court. The defendant answered the complaint, denying all allegations and asserting a counterclaim against the plaintiff. Four days later, the plaintiff moved to dismiss the counterclaim for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure. Twenty days after the plaintiff filed his motion to dismiss and while the motion was still pending, the defendant amended his counterclaim without leave of court. Is the defendant’s amendment proper under the Federal Rules of Civil Procedure? Yes, because it was filed within 21 days of the plaintiff’s motion to dismiss.
When changing the name of a party, Rule 15(c)(1)(C) of the Federal Rules of Civil Procedure provides that an amendment relates back to the date of the original filing if both of the following occur within the period allowed for serving the summons: (1) the proposed new defending party must receive sufficient notice of the lawsuit, so that it will not be materially hindered in defending itself on the merits if the amendment is allowed to relate back; and (2) the proposed new defending party must have known, or have had reason to know, that the plaintiff made a mistake as to the identity of the true defendant, and that it would have been sued initially if not for the mistake.
A shopper tripped and fell over a broken curb in a shopping center parking lot. A large sign in the parking lot identified a limited liability company named Avenue, LLC (the LLC) that operated and maintained the lot. A large construction corporation named Avenue Corporation (the corporation) wholly owned the LLC and had the same business address, principals, managers, and lawyers. The shopper mistakenly sued the corporation just one day before the statute of limitations on her claim expired. The shopper’s attorney had seen the sign in the parking lot, but made a mistake when listing the name of the defendant in the shopper’s complaint. The shopper’s attorney served the summons and complaint on both the corporation and the LLC. The LLC realized immediately that the shopper had made a mistake. A week later, the shopper amended her complaint. The amended complaint changed the name of the defendant to Avenue, LLC. The applicable statute that defines the statute of limitations would allow the amendment. Nevertheless, the LLC opposed the amendment and argued that the claims against it should not relate back to the original filing date. What is the most likely outcome? The court will allow the amendment to relate back to the original filing date, because the LLC received notice of the lawsuit, would not be hindered in defending itself, and knew or had reason to know that it would have been sued initially, but for the mistake in identifying the corporation as the defendant.
UCC § 2-206(1)(b) provides that a seller’s shipment of nonconforming goods with a notice of accommodation does not constitute an acceptance and breach, but rather a counteroffer, which the buyer is free to either accept or reject. Section 2-206(1)(b) also provides, however, that a contract calling for prompt shipment can be accepted either by a prompt promise to ship or by the prompt shipment of goods. The seller accepted the buyer’s offer by a promise to ship when he mailed his June 2 letter. UCC § 2-601 allows a buyer to accept or reject nonconforming goods and, in either event, to recover damages. The buyer has an action for breach because the computer shipped on June 3 failed to conform to the contract formed on June 2 when the seller mailed his letter of acceptance. The mailing of the notice of accommodation is irrelevant because the seller accepted the buyer’s offer by promising, in his June 2 letter, to ship the computer. The buyer can accept or reject the nonconforming computer and can recover damages, if any, for breach.
On June 1, a seller received a mail order from a buyer requesting prompt shipment of a specified computer model at the seller’s current catalog price. On June 2, the seller mailed to the buyer a letter accepting the order and assuring the buyer that the computer would be shipped on June 3. On June 3, the seller realized that he was out of that computer model, shipped a different computer model to the buyer, and mailed a separate notice of accommodation. On June 5, the buyer received the seller’s June 2 letter and the different computer model, but not the notice of accommodation. On June 5, which of the following is a correct statement of the parties’ legal rights and duties? The buyer can either accept or reject the different computer model and, in either event, recover damages, if any, for breach of contract.
A federal jury must begin with six to 12 members, selected from a fair cross-section of the community. A verdict must be returned by a jury of at least six members. The verdict must be unanimous unless the parties stipulate otherwise. Here, the verdict must be unanimous because the defendant has not agreed otherwise. Note that it is the unanimity of the jurors causing an issue in this case, not the total number of jurors approving the verdict. If only six jurors had been impaneled, it would be proper for the jury to return a unanimous verdict by those six jurors. A federal jury must begin with six to 12 members, selected from a fair cross-section of the community. A verdict must be returned by a jury of at least six members. The verdict must be unanimous unless the parties stipulate otherwise. Here, the verdict must be unanimous because the defendant has not agreed otherwise.
A plaintiff brought an employment discrimination action in federal court against her former employer, alleging that the defendant had terminated the plaintiff on the basis of her age. The plaintiff sought $500,000 in damages. Following voir dire, and with no objections from either party, the judge impaneled a jury of eight people. During trial, at the close of the evidence, the plaintiff requested that the judge instruct the jury that it could return a verdict for the plaintiff if six or more of the eight jurors found that the defendant was liable. Would such an instruction be proper over the defendant’s objection? No, because a federal jury must return a unanimous verdict unless the parties stipulate otherwise.
The usual rule prohibiting Congress from enacting a statute overruling a constitutional decision of the U.S. Supreme Court does not apply to enactments based on Congress’s commerce power because the Constitution gives Congress plenary authority to regulate conduct that is within the commerce power. The statute permitting any state to regulate the degree of light reflectiveness of the exteriors of commercial trucks using the state’s highways is a valid enactment of the commerce power because commercial trucks are instrumentalities of interstate commerce.
A state legislature conducted an investigation into a series of fatal accidents in the state involving commercial trucks with exteriors made of polished aluminum. The investigation revealed that the sun’s glare reflecting off these trucks blinded the drivers of other vehicles. In response, the state’s legislature enacted a law prohibiting commercial trucks with polished aluminum exteriors from traveling on the state’s highways. Litigation over the state law resulted in a final decision by the United States Supreme Court that the law impermissibly burdened interstate commerce and therefore was unconstitutional. Congress later enacted a statute permitting any state to enact a law regulating the degree of light reflectiveness of the exteriors of commercial trucks using the state’s highways. Is this federal statute constitutional? Yes, because Article I, Section 8 grants Congress authority to enact statutes authorizing states to impose burdens on interstate commerce that would otherwise be prohibited.
The law supports the settlement of debts and claims. However, consideration is required for a settlement to be enforceable. Under the preexisting duty rule, the creditor’s promise to forbear from suing to collect was not supported by consideration from the debtor, because the amount due was liquidated and the debtor promised to do nothing more than he was already obligated to do. The creditor’s promise was not supported by consideration from the debtor because it allowed for payment of an undisputed amount, $1,000, after the time for payment of the debt had passed.
A debtor’s liquidated and undisputed $1,000 debt to a creditor was due on March 1. When the debt was still unpaid on March 15, the creditor told the debtor that if the debtor promised to pay the $1,000 on or before December 1, then the creditor would not sue to collect the debt. The debtor orally agreed. On April 1, the creditor sued the debtor to collect the debt that had become due on March 1. The debtor moved to dismiss the creditor’s complaint. Should the court grant the debtor’s motion? No, because there was no consideration to support the creditor’s promise not to sue.
Whether an invasion constitutes a nuisance turns on whether it causes significant harm of a kind that would be suffered by a normal member of the community. Here, only one abnormally sensitive person was disturbed by the chimes.
A recently established law school constructed its building in a quiet residential neighborhood. The law school had obtained all the necessary municipal permits for the construction of the building, which included a large clock tower whose clock chimed every hour. The chimes disturbed only one homeowner in the neighborhood, who had purchased her house prior to the construction of the building. The homeowner was abnormally sensitive to ringing sounds, such as bells and sirens, and found the chimes to be extremely annoying. In a nuisance action by the homeowner against the law school, will the homeowner be likely to prevail? No, because the chimes do not disturb the other residents of the neighborhood.
The woman cannot be found guilty of murder, because the hit man did not cause the neighbor’s death, but she can be convicted of attempted murder. The woman properly could be convicted of attempted murder. Accordingly, conspiracy is not the most serious crime of which she could be convicted.
A woman promised to pay $10,000 to a hit man if he would kill her neighbor in any manner that could not be traced to her. The hit man bought a gun and watched the neighbor’s house for an opportunity to shoot him. One evening, unaware of the hit man’s presence, the neighbor tripped as he was walking toward his house, falling and hitting his head against the front steps. Believing that the neighbor was unconscious, the hit man ran over to him and shot him twice in the chest. When the woman learned of the neighbor’s death, she paid the hit man $10,000. A medical examiner determined that the neighbor was already dead when the hit man shot him. The crimes below are listed in descending order of seriousness. What is the most serious crime of which the woman properly could be convicted? Attempted murder.
The law does not trigger heightened judicial scrutiny, because it neither classifies regulatory subjects on a constitutionally suspect basis nor unduly burdens the exercise of a fundamental right. The appropriate constitutional standard of review therefore is whether the law is rationally related to a legitimate government interest. The apparent legislative judgment that diagnostic centers not affiliated with hospitals would be less reliable than hospitals is rational, regardless of whether it is in fact correct.
In one state, certain advanced diagnostic medical technologies were located only in hospitals, where they provided a major source of revenue. In many other states, such technologies were also available at “diagnostic centers” that were not affiliated with hospitals. A group of physicians announced its plan to immediately open in the state a diagnostic center that would not be affiliated with a hospital. The state hospital association argued to the state legislature that only hospitals could reliably handle advanced diagnostic medical technologies. The legislature then enacted a law prohibiting the operation in the state of diagnostic centers that were not affiliated with hospitals. The group of physicians filed suit challenging the constitutionality of the state law. What action should the court take? Uphold the law, because the legislature could rationally believe that diagnostic centers not affiliated with hospitals would be less reliable than hospitals.
If a party destroys evidence, it is proper for the jury to draw an inference that the evidence was adverse to that party’s case. It is also proper for the jury to draw an adverse inference in a civil case from a party’s assertion of the privilege against self-incrimination. Thus, the court should allow the question to be asked, because it is proper regardless of how the defendant responds.
A plaintiff sued an individual defendant for injuries suffered in a collision between the plaintiff’s car and the defendant’s truck while the defendant’s employee was driving the truck. The plaintiff sought discovery of any accident report the employee might have made to the defendant, but the defendant responded that no such report existed. Before trial, the defendant moved to preclude the plaintiff from asking the defendant in the presence of the jury whether he had destroyed such a report, because the defendant would then invoke his privilege against self-incrimination. Should the court allow the plaintiff to ask the defendant about the destruction of the report? Yes, because the defendant’s destruction of the report would serve as the basis of an inference adverse to the defendant. NOT, because a party in a civil action may not invoke the privilege against self-incrimination. - The privilege against self-incrimination may be asserted in both civil and criminal cases so long as the statement made in response to the question posed could tend to incriminate the person in a criminal prosecution.
Rule 12 of the Federal Rules of Civil Procedure (FRCP) provides that if a pre-answer motion asserting any waivable defense is filed, all waivable defenses must be raised in the same motion. After filing a pre-answer motion, a defendant is not permitted to make another pre-answer motion asserting any waivable defenses. See FRCP 12(g)(2); 12(h)(1). Here, the defendant filed a pre-answer motion, which was denied by the court. The defendant’s failure to raise the defense of insufficient service of process in the previously filed pre-answer motion effectively waived the defendant’s right to raise that defense.
A plaintiff brought a diversity action against a defendant in federal court. The plaintiff served the defendant with a copy of the summons and complaint by leaving a copy of the pleadings at the defendant’s home with the defendant’s housemaid, just as she was leaving to go home at the end of her shift. The complaint asserted negligence as the grounds for relief, and stated some facts as a basis for the claim, but the defendant had no recollection of being involved in any of the stated facts and was confused by the pleadings. The defendant filed a pretrial motion to dismiss for failure to state a claim or, alternatively, for a more definite statement. The court denied the motion. Thereafter, the defendant immediately, without filing an answer, moved to dismiss for insufficient service of process. Is the defendant’s motion to dismiss likely to succeed? No, because the defendant waived the opportunity to raise an insufficient service of process defense.
Lack of access may render title unmarketable under a contract of sale; however, the time to challenge marketable title is prior to the acceptance of the deed. Under the doctrine of merger, the remedy, if any, would be under one of the title covenants in the deed. Lack of access does not violate any of the title covenants. The colleague received the title the niece said she had. No one had a superior title and thus the covenants of seisin, right to convey, quiet enjoyment, and general warranty were not breached. The covenant against encumbrances provides protection for interests held by third parties such as easements for access. The land was not subject to an express easement nor may any easement be implied based on either prior use or necessity because the lands were never held in common ownership. The statute of frauds does require that an agreement to sell land be in writing. Nonetheless, if the parties have both fully performed under an oral contract, the relationship is the same as if the parties had fully complied with the statute initially. It is too late for the colleague, having accepted the deed, to now assert that the statute of frauds invalidates the oral agreement.
A niece inherited vacant land from her uncle. She lived in a distant state and decided to sell the land to a colleague who was interested in purchasing the land as an investment. They orally agreed upon a price, and, at the colleague’s insistence, the niece agreed to provide him with a warranty deed without any exceptions. The price was paid, the warranty deed was delivered, and the deed was promptly recorded. Neither the niece nor the colleague had, at that point, ever seen the land. After recording the deed, the colleague visited the land for the first time and discovered that it had no access to any public right-of-way and that none of the surrounding lands had ever been held in common ownership with any previous owner of the land. The colleague sued the niece for damages. For whom will the court find? The niece, because no title covenants were breached
This evidence has some probative value because it links the knife in the defendant’s possession to the type of knife that could have caused the victim’s wound. The evidence is not very strong, because other knives could also have caused the wound. But how much weight to give to the evidence is a decision for the jury. Rule 401 of the Federal Rules of Evidence requires only that evidence have any tendency to make the existence of any fact of consequence more or less probable than it would be without the evidence. Thus, to be relevant, evidence need only have some probative value in establishing a fact.
In a prosecution for aggravated battery, a police officer testified that when he arrested the defendant, he took a knife from the defendant and delivered it to the medical examiner. The medical examiner testified that the knife blade was consistent with the victim’s wound but admitted on cross-examination that any number of other knives could also have caused the wound. Should the judge grant a motion to strike the medical examiner’s testimony? No, because the probative worth of this evidence is for the jury to assess.
This statement is admissible both to impeach the defendant’s testimony as a prior inconsistent statement and as substantive evidence, because it is an admission of a party-opponent under Rule 801(d)(2)(A) of the Federal Rules of Evidence.
A defendant was charged with perjury for having falsely testified in an earlier civil case that he knew nothing about a business fraud. In the perjury trial, the defendant again testified that he knew nothing about the business fraud. In rebuttal, the prosecutor has called a witness to testify that after the civil trial was over, the defendant admitted to the witness privately that he had known about the fraud. Is the witness’s testimony in the perjury trial admissible? Yes, both to impeach the defendant’s testimony and as substantive evidence of the perjury.
The man is claiming a right to use a portion of the neighbor’s land, which is an easement. An easement by prescription requires that the use be without the owner’s permission for the requisite period of time. The man has used the path for the past 15 years without the neighbor’s permission. His use was open and notorious in that the neighbor could have seen him, it was continuous and without interruption by the neighbor, and it was actual. An easement acquired by prescription need not be exclusive. With an easement, the owner may make any use of the easement area that does not interfere with the use made by the easement holder, unless the easement is expressly noted as exclusive. The use by the neighbor’s tenants, the hunters, did not interfere with the man’s use, nor did his use interfere with theirs.
A man contacted his lawyer regarding his right to use a path that was on his neighbor’s vacant land. Fifteen years ago, after part of a path located on his land and connecting his cabin to the public highway washed out, the man cleared a small part of his neighbor’s land and rerouted a section of the path through the neighbor’s land. Twelve years ago, the neighbor leased her land to some hunters. For the next 12 years, the hunters and the man who had rerouted the path used the path for access to the highway. A month ago, the neighbor discovered that part of the path was on her land. The neighbor told the man that she had not given him permission to cross her land and that she would be closing the rerouted path after 90 days. The man’s land and the neighbor’s land have never been in common ownership. The period of time necessary to acquire rights by prescription in the jurisdiction is 10 years. The period of time necessary to acquire title by adverse possession in the jurisdiction is 10 years. What should the lawyer tell the man concerning his right to use the rerouted path on the neighbor’s land? The man has an easement by prescription to use the path.
The scope of cross-examination for all witnesses is controlled by Rule 611(b) of the Federal Rules of Evidence. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
A plaintiff sued a defendant for injuries allegedly suffered when he slipped and fell on the defendant’s business property. At trial, without asking that the defendant’s property manager be declared a hostile witness, the plaintiff called him solely to establish that the defendant was the owner of the property where the plaintiff fell. On cross-examination of the manager, the defendant’s attorney sought to establish that the defendant had taken reasonable precautions to make the property safe for business invitees. Should the defendant’s cross-examination of the manager be permitted over the plaintiff’s objection? No, because cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.
Under the theory of res ipsa loquitur, the jury can infer negligence where an accident would not ordinarily have occurred in the absence of negligence and the defendant is responsible for the instrumentality that inflicted the injury. The supermarket is responsible for maintenance of the door under the lease and also is legally responsible for negligence as a land occupier because it invited the public to enter the store to shop.
As a shopper was leaving a supermarket, an automatic door that should have opened outward opened inward, striking and breaking the shopper’s nose. The owner of the building had installed the automatic door. The lease, pursuant to which the supermarket occupied the building, provided that the supermarket was responsible for all maintenance of the premises. The shopper sued the supermarket. At trial, neither the shopper nor the supermarket offered any testimony, expert or otherwise, as to why the door had opened inward. At the close of evidence, both the shopper and the supermarket moved for judgment as a matter of law. How should the trial judge rule? Submit the case to the jury, because on these facts negligence may be inferred.
The tort of intentional infliction of emotional distress allows recovery for personal injury despite the absence of physical injury or touching of the plaintiff. On these facts, the neighbor was aware that his conduct would cause severe emotional distress, and he could be held liable for the man’s emotional suffering, as well as for the value of the cat. The standard remedy in conversion is a forced sale, so the man could recover no more than $25, the value of the cat. An action establishing intentional infliction of emotional distress would result in a larger recovery.
A man owned a much-loved cat, worth about $25, that frequently trespassed on a neighbor’s property. The neighbor repeatedly asked the man to keep the cat on his own property, but the trespasses did not diminish. Aware of the man’s long-standing attachment to the cat, the neighbor killed the cat with a shotgun in full view of the man. As a consequence, the man suffered great emotional distress. In an action by the man against the neighbor, which of the following claims would be likely to result in the greatest monetary recovery? Intentional infliction of emotional distress.
In New York v. United States, 505 U.S. 144 (1992), the U.S. Supreme Court held that the concept of federalism embedded in the Tenth Amendment disables Congress from requiring states to enact laws or to administer federal law.
National statistics revealed a dramatic increase in the number of elementary and secondary school students bringing controlled substances to school for sale. In response, Congress enacted a statute requiring each state’s legislature to enact a law making it a crime for any person to sell, within 1,000 feet of any elementary or secondary school, any controlled substance that had previously been transported in interstate commerce. Is the federal statute constitutional? No, because Congress has no authority to require a state legislature to enact any specified legislation.
If a party moves for summary judgment, the nonmoving party must provide enough evidence to raise a minimally reasonable inference in his or her favor. See Wright, et. al., 10A Fed. Prac. & Proc. Civ. § 2725 (3d ed.). Here, the expert’s testimony that the video appears tampered with would meet that requirement. Do not want ambiguities - ambiguities are usually drawn in favor of the nonmoving party - so this answer is a no: Deny the motion, because ambiguities in the evidence are drawn in favor of the moving party.
A man brought a diversity action in federal court against a woman, seeking to recover for an injury he sustained at a youth lacrosse game when the woman hit him with a lacrosse stick. The only issue in the man’s action, which was based on a common law battery theory, was whether the woman actually hit him. After discovery, the man filed a motion for summary judgment. In support of his motion, he provided a witness’s cellphone video that clearly showed the woman hitting the man with a lacrosse stick. In opposition to the motion, the woman provided the sworn affidavit of an expert, who claimed that he would testify that the cellphone video appeared to have been tampered with. Assume that it is appropriate for the judge to consider the expert’s affidavit under Rule 56 of the Federal Rules of Civil Procedure. How should the court rule on the summary judgment motion? Deny the motion, because the woman submitted enough evidence to raise a minimally reasonable inference in her favor.
The power of the bookkeeper and the accountant to modify their duties by subsequent agreement was terminated when the clerk, an intended beneficiary of their contract, materially relied on their promised performance by purchasing the retirement home.
An accountant and a bookkeeper, as part of a contract dissolving their accounting business, agreed that each would contribute $100,000 to fund an annuity for a clerk who was a longtime employee of the business. The clerk’s position would be terminated at the dissolution, and he did not have a retirement plan. The accountant and the bookkeeper informed the clerk of their plan to fund an annuity for him. The clerk, confident about his financial future because of the promised annuity, purchased a retirement home. The accountant later contributed his $100,000 to fund the annuity, but the bookkeeper stated that he could afford to contribute only $50,000. The accountant agreed in writing that the bookkeeper should contribute only Does the clerk have a valid basis for an action against the bookkeeper for the unpaid $50,000? Yes, because the clerk’s reliance on the promised annuity prevented the parties from changing the terms of the contract.
The friend does not have an enforceable lien. The friend did have a lien on the lot when the investor granted the friend a mortgage. The friend, however, did not record the mortgage. The investor then sold the lot to the buyer. The buyer had no actual notice of the mortgage to the friend. The buyer had no notice based on possession because the lot was vacant. The buyer had no constructive notice of the mortgage because the mortgage to the friend had not been recorded when the buyer received title. The lot is located in a notice jurisdiction. Thus, the buyer took the lot free of any prior unrecorded interests. The buyer was an innocent purchaser for value at the time the buyer received title. Later notice to the buyer and the later recording of the friend’s mortgage are irrelevant.
Five years ago, an investor who owned a vacant lot in a residential area borrowed $25,000 from a friend and gave the friend a note for $25,000 due in five years, secured by a mortgage on the lot. The friend neglected to record the mortgage. The fair market value of the lot was then $25,000. Three years ago, the investor discovered that the friend had not recorded his mortgage and in consideration of $50,000 conveyed the lot to a buyer. The fair market value of the lot was then $50,000. The buyer knew nothing of the friend’s mortgage. One month thereafter, the friend discovered the sale to the buyer, recorded his $25,000 mortgage, and notified the buyer that he held a $25,000 mortgage on the lot. Two years ago, the buyer needed funds. Although she told her bank of the mortgage claimed by the investor’s friend, the bank loaned her $15,000, and she gave the bank a note for $15,000 due in two years secured by a mortgage on the lot. The bank promptly recorded the mortgage. At that time, the fair market value of the lot was $75,000. The recording act of the jurisdiction provides: “No conveyance or mortgage of real property shall be good against subsequent purchasers for value and without notice unless the same be recorded according to law.” Both notes are now due, and both the investor and the buyer have refused to pay. The lot is now worth only $50,000. What are the rights of the investor’s friend and the bank in the lot? Only the bank’s mortgage is an enforceable lien, because the buyer was an innocent purchaser for value.
A seller can treat a buyer’s failure to specify as a breach only if the buyer’s failure to specify materially impacts the seller’s performance. The seller had an available supply of candy bars and had entered into no new contracts. These facts support the conclusion that the buyer’s failure to select did not materially impact the seller’s performance. Therefore the seller unjustifiably refused to accept the buyer’s selection of goods. UCC § 2-311.
A seller and a buyer entered into a written agreement providing that the seller was to deliver 1,000 cases of candy bars to the buyer during the months of May and June. Under the agreement, the buyer was obligated to make a selection by March 1 of the quantities of the various candy bars to be delivered under the contract. The buyer did not make the selection by March 1, and on March 2, the seller notified the buyer that because of the buyer’s failure to select, the seller would not deliver the candy bars. The seller had all of the necessary candy bars on hand on March 1 and made no additional sales or purchases on March 1 or March 2. On March 2, after receiving the seller’s notice that it would not perform, the buyer notified the seller of its selection and insisted that the seller perform. The seller refused. If the buyer sues the seller for breach of contract, is the buyer likely to prevail? Yes, because the delay of one day in making the selection did not have a material effect on the seller.
Fifteen years ago, each of the parties granted a reciprocal right of first refusal (or a preemptive right) to the other. A right of first refusal is a conditional option. It provides that if the owner ever decides to sell the property, the person or entity holding the right of first refusal has the right to purchase the property on specified terms. In this case, the purchase price was to be set by three qualified expert independent real estate appraisers and was thus fair. These rights of first refusal, however, violate the common law Rule Against Perpetuities. The right to purchase is triggered by the decision to sell the land. In this case, that decision might occur more than 21 years after a life in being at the time the right was granted. Thus, under the common law, this right of first refusal is struck ab initio. The question notes that the common law Rule Against Perpetuities is unmodified in this jurisdiction. Thus, there are no applicable statutory reforms to the rule. And because the daughter prevails, there must be no applicable exceptions to the common law rule.
A grantor owned two tracts of land, one of 15 acres and another of 5 acres. The two tracts were a mile apart. Fifteen years ago, the grantor conveyed the smaller tract to a grantee. The grantor retained the larger tract. The deed to the grantee contained, in addition to proper legal descriptions of both properties and identifications of the parties, the following language: “I, the grantor, bind myself and my heirs and assigns that in the event that the larger tract that I now retain is ever offered for sale, I will notify the grantee and his heirs and assigns in writing, and the grantee and his heirs and assigns shall have the right to purchase the larger tract for its fair market value as determined by a board consisting of three qualified expert independent real estate appraisers.” With appropriate references to the other property and the parties, there followed a reciprocal provision that conferred upon the grantor and her heirs and assigns a similar right to purchase the smaller tract, purportedly binding the grantee and his heirs and assigns. Ten years ago, a corporation acquired the larger tract from the grantor. At that time, the grantee had no interest in acquiring the larger tract and by an appropriate written document released any interest he or his heirs or assigns might have had in the larger tract. Last year, the grantee died. The smaller tract passed by the grantee’s will to his daughter. She has decided to sell the smaller tract. However, because she believes that the corporation has been a very poor steward of the larger tract, she refuses to sell the smaller tract to the corporation even though she has offered it for sale in the local real estate market. The corporation has brought an appropriate action for specific performance of the right of first refusal after taking all of the necessary preliminary steps in its effort to exercise its right to purchase the smaller tract. The daughter has asserted all possible defenses. The common law Rule Against Perpetuities is unmodified in the jurisdiction, and there are no applicable statutes. If the court rules for the daughter, what will be the likely reason? The provision setting out the right to purchase violates the Rule Against Perpetuities.
Use and derivative use immunity sufficiently protects the constitutional privilege against self-incrimination in this situation. derivative use immunity is more common (used by both state and federal prosecutors) and narrower than transactional immunity. It prevents the prosecution from using the witness’s statements (“use”) or any evidence derived from those statements (“derivative use”) against the witness in a criminal prosecution.
A state grand jury investigating a murder learned that the key suspect might have kept a diary. The grand jury issued a subpoena duces tecum requiring the suspect to produce any diary. The subpoena made clear that the grand jury was seeking only the diary and not any testimony from the suspect. The suspect refused to produce the diary, citing his Fifth Amendment privilege against self-incrimination. Under what circumstances, if any, may the grand jury compel production of the diary over the suspect’s assertion of his Fifth Amendment privilege? It may compel production only if the suspect is granted use and derivative use immunity from the act of production.
The court must have applied strict liability to convict the clerk (who did not act knowingly, and arguably not even negligently) and vicarious liability to convict the store owner for the sale by the clerk.
A state statute provides: “The sale of an alcoholic beverage to any person under the age of 21 is a misdemeanor.” A woman who was 20 years old, but who looked older and who had a very convincing fake driver’s license indicating that she was 24, entered a convenience store, picked up a six-pack of beer, and placed the beer on the counter. The store clerk, after examining the driver’s license, rang up the purchase. Both the clerk and the store owner have been charged with violating the state statute. If the court finds both the clerk and the store owner guilty, what standard of liability must the court have interpreted the statute to impose? Both strict and vicarious liability.
Pursuant to 28 U.S.C. § 1441(b)(2), where a lawsuit is removable only on the basis of diversity jurisdiction, it cannot be removed if any defendant in the case is a citizen of the state where the lawsuit was brought. This is known as the forum-defendant rule. Here, the only basis for removal is diversity jurisdiction, and the second defendant is a citizen of the state where the complaint was filed (Oklahoma). Accordingly, the forum-defendant rule prevents the defendant from removing the case from state court in Oklahoma to federal court in Oklahoma. Answer option C is incorrect because a plaintiff’s consent is not required to remove a case from state court to federal court. A defendant only needs the consent of any other defendants that have been served.
A plaintiff filed a complaint in Oklahoma state court against two defendants, alleging a state-law claim of negligence and seeking over $100,000 in damages. The plaintiff is a citizen of Colorado, the first defendant is a citizen of Iowa, and the second defendant is a citizen of Oklahoma. Twenty-five days after being served, the second defendant, with the consent of the first defendant, filed a notice of removal in federal district court in Oklahoma, on the basis of diversity jurisdiction. What is the plaintiff’s best argument in seeking to remand the case to state court? The second defendant failed to get the plaintiff’s consent to remove the case to federal court.
An assignee succeeds to a contract as the contract stands at the time of the assignment. In this case, the parties had modified the contract as to when the payments were due. (Note that there was consideration for the promise to accept payments later; the consideration was the debtor’s promise to make future payments by cashier’s check.) Accordingly, the debtor can insist that the payments be due on the fifth of each month. no such rule that contract modification is not binding on an assignee who had no knowledge of the modification.
On January 5, a creditor loaned $1,000 to a debtor under a contract calling for the debtor to repay the loan at the rate of $100 per month payable on the first day of each month. On February 1, at the debtor’s request, the creditor agreed to permit payment on February 5. On March 1, the debtor requested a similar time extension and the creditor replied, “Don’t bother me each month. Just change the date of payment to the fifth of the month. But you must now make the payments by cashier’s check.” The debtor said, “Okay,” and made payments on March 5 and April 5 by cashier’s check. On April 6, the creditor sold the loan contract to a bank but did not tell the bank about the agreement permitting payments on the fifth of the month. On April 6, the bank wrote to the debtor: “Your debt to [the creditor] has been assigned to us. We hereby inform you that all payments must be made on the first day of the month.” Can the debtor justifiably insist that the payment date for the rest of the installments is the fifth of each month? Yes, because the creditor could assign to the bank only those rights the creditor had in the contract at the time of the assignment.
The Supreme Court may not review a judgment by the highest court of a state if that judgment is supported entirely by state law and is wholly independent of the interpretation and application of federal law. In this case, although the defendant claimed a violation of the Sixth Amendment to the U.S. Constitution, the state’s highest court based its decision entirely on the state constitution without addressing the federal constitutional issue.
A state constitution provides that in every criminal trial “the accused shall have the right to confront all witnesses against him face to face.” A defendant was convicted in state court of child abuse based on testimony from a six-year-old child. The child testified while she was seated behind one-way glass, which allowed the defendant to see the child but did not allow the child to see the defendant. The defendant appealed to the state’s highest court, claiming that the inability of the child to see the defendant while she testified violated both the United States Constitution and the state constitution. Without addressing the federal constitutional issue, the state’s highest court reversed the defendant’s conviction and ordered a new trial. The court held that “the constitution of this state is clear, and it requires that while testifying in a criminal trial, a witness must be able to see the defendant.” The state petitioned the United States Supreme Court for a writ of certiorari. On which ground should the United States Supreme Court DENY the state’s petition? The decision of the state’s highest court was based on an adequate and independent state ground.
vidence of the defendant’s prior conviction is certainly relevant to the current charge of being a felon in possession of a firearm, because the previous conviction is the predicate for the offense with which the defendant is charged. Accordingly, the relevance of the evidence is not in question and would support admission rather than exclusion of the evidence. The concepts listed in the remaining answer options—probative value, unfair prejudice, and waste of time—all would lend more support to a decision to exclude the evidence.
A defendant was on trial for being a felon in possession of a firearm. The defendant wished to stipulate to the fact that he was previously convicted of a felony, rather than have the jury hear evidence about his prior felony conviction for kidnapping. The prosecution nevertheless sought to introduce the details of the prior conviction. Which of the following is the WEAKEST argument for excluding the evidence? The prior conviction is not relevant to the current charge.
An easement confers a limited right to use or enjoy the land of another. An affirmative easement gives the holder the right to enter the servient estate to do something (e.g., use a walking path across the servient estate). A negative easement gives the holder the right to prevent a specified use of the servient estate (e.g., blocking light or air). An easement may be created by express grant in a written instrument; by reservation as part of a conveyance; by necessity; or by prescription where a trespasser openly, notoriously, and adversely uses the servient estate for a prescribed period of time. Only affirmative easements can arise from prescription. Here, the astronomer has not entered the neighbor’s property but seeks to prevent the neighbor from blocking his view of the sky, suggesting a negative easement. However, there is no indication in the facts that the neighbor ever expressly granted such an easement or that it was otherwise reserved in a previous conveyance. Because a negative easement may not be created by prescription, it is irrelevant whether the astronomer has been stargazing openly, notoriously, and adversely for the time period required to obtain an easement by prescription. The astronomer has no easement and will not be successful in halting the neighbor’s construction.
An astronomer used a number of telescopes to track the position of planets and stars from his home’s deck. The astronomer engaged in this stargazing activity four to five nights a week for 15 years, during which time his neighbor regularly saw him using the telescopes and frequently came outside to chat with him about his findings. Recently, the neighbor began construction on a second story for his house, which had always been a single-story residence. The second story will block most of the astronomer’s view of the sky from his deck. The period for obtaining an easement by prescription in the jurisdiction is 10 years. If the astronomer seeks to halt the neighbor’s construction project, is the astronomer likely to prevail? No, because a negative easement may not be created by prescription.
An easement confers a limited right to use or enjoy the land of another. An affirmative easement gives the holder the right to enter the servient estate to do something (e.g., use a walking path across the servient estate). A negative easement gives the holder the right to prevent a specified use of the servient estate (e.g., blocking light or air). An easement may be created by express grant in a written instrument; by reservation as part of a conveyance; by necessity; or by prescription where a trespasser openly, notoriously, and adversely uses the servient estate for a prescribed period of time. Only affirmative easements can arise from prescription. Here, the neighbor has entered the investor’s property regularly for the prescribed period, and the investor knew of the neighbor’s ongoing use. Although the investor never expressly granted the neighbor an easement, the neighbor has been openly, notoriously, and adversely using the pier for the time period required to obtain an easement by prescription.
An investor owned a lakefront vacation home that she visited two to three days per month. During one of her visits, the investor saw a neighbor fishing on her pier. She was annoyed but said nothing to the neighbor. Over the course of the next ten years, the investor occasionally found evidence of her neighbor’s continued use of the pier, and the neighbor occasionally emailed her a photo of himself on the pier with one of his larger catches. The period for obtaining an easement by prescription in the jurisdiction is 10 years.
Is the neighbor entitled to continue using the investor’s pier?
Yes, because the neighbor has acquired an affirmative easement by prescription.
Although a defendant’s statement obtained in violation of his Sixth Amendment rights may generally be used to impeach the defendant’s inconsistent testimony at trial, this impeachment exception does not extend to the impeachment of other defense witnesses or to the rehabilitation of prosecution witnesses. See James v. Illinois, 493 U.S. 307, 310 (1990). Answer option C is incorrect because, although the confession is inadmissible in the given scenario, unlawfully obtained confessions may be used under certain circumstances, such as to impeach a defendant’s own inconsistent testimony.
A criminal defendant was arrested on a charge of bank robbery. At the police station following the defendant’s arrest, officers interrogated the defendant without advising him of his right to counsel. The defendant answered the officers’ questions truthfully and confessed to the burglary. Defense counsel later moved to suppress the confession on Sixth Amendment grounds, and the court granted the motion. At trial, a witness for the prosecution testified that she had been at the bank at the time of the robbery, and identified the defendant as the robber. On cross-examination, defense counsel elicited damaging information from the witness regarding inconsistencies in where she was standing at the time of the robbery, her line of sight to the robber, and her recollection of other details relating to the scene of the crime. On redirect, the prosecution sought to rehabilitate the witness’s testimony with evidence of the defendant’s confession. Defense counsel objected.
Will the court allow the prosecution to use the defendant’s confession to rehabilitate the witness’s testimony?
No, because an unlawfully obtained confession may only be used to impeach a defendant’s own testimony.
NOT - No, because an unlawfully obtained confession may not be introduced at trial for any purpose.
Because the pedestrian was in the path of the truck, he was under a direct physical threat from the driver’s negligence. He could recover for the emotional distress that he suffered as a result of his fear for his own safety, and many courts would also allow him to recover for all other emotional distress that he suffered in connection with the event.
A pedestrian was crossing a street in a crosswalk when a woman walking just ahead of him was hit by a truck. The pedestrian, who had jumped out of the way of the truck, administered CPR to the woman, who was a stranger. The woman bled profusely, and the pedestrian was covered in blood. The woman died in the ambulance on the way to the hospital. The pedestrian became very depressed immediately after the incident and developed physical symptoms as a result of his emotional distress. The pedestrian has brought an action against the driver of the truck for negligent infliction of emotional distress. In her defense, the driver asserts that she should not be held liable, because the pedestrian’s emotional distress and resulting physical symptoms are not compensable.
What is the strongest argument that the pedestrian can make in response to the driver’s defense?
The pedestrian was in the zone of danger.
Rule 15(a) of the Federal Rules of Civil Procedure (FRCP) provides that a court should give liberal leave to amend absent limited circumstances where denial of leave to amend is justified (e.g., if the motion is made in bad faith, would cause undue delay, or would prejudice the opposing party). Here, there is no indication of special circumstances that would warrant a denial of the plaintiff’s motion to amend; accordingly, the court will likely grant the plaintiff’s motion.
A prison inmate filed a pro se civil rights complaint alleging that the defendant prison guards had beaten him. The inmate did not identify any specific guard who was involved and did not provide dates or details of where the beatings took place. The defendants moved to dismiss the complaint, arguing that the complaint and its allegations were insufficiently pled. The inmate moved to amend his complaint.
Is the court likely to grant the defendants’ motion to dismiss?
No, because the court must be liberal in allowing the parties to amend their pleadings where there is a possibility that amendment will be fruitful.
NOT - Yes, because a plaintiff’s complaint is only properly amended prior to the defendant’s answer or pre-answer motion.
