MBE questions per topic Flashcards
Can government require licenses to ask for charity?
NO. The Supreme Court has held that a charitable appeal for funds involves a variety of speech interests protected by the First Amendment. In one case, an ordinance that prohibited door-to-door solicitation by organizations that did not use at least 75% of their receipts for charitable purposes was struck down by the Court.
Is this overbroad?
on public sidewalks or other public areas when foot traffic is sufficiently heavy and the manner of distribution of the pamphlets causes obstruction of the foot traffic so as to result in spillover onto public streets where vehicular traffic creates a danger to human life.
NO
When is regulation of lawful advertising ok?
Regulation of truthful advertising of a lawful activity is valid only if it serves a substantial government interest, directly advances that interest, and is narrowly tailored to achieve that interest
Is the government granting a franchise enough to amount to governmental action?
NOPE
The Supreme Court has ruled that the grant of a franchise is not sufficient to create state action. [Jackson v. Metropolitan Edison (1974)]
A city zoning board recently denied a request from the local library for a variance needed to expand the library building. An angry library patron went to the library, stood next to the front door, and handed each person entering a leaflet asking the person to contact each city zoning board member named in the leaflet and threaten to vote the member out of office unless the member changed his or her vote regarding the library’s request for a zoning variance. The head librarian noticed the patron handing out the leaflets and asked her to stop, correctly explaining that the distribution was in violation of a city ordinance. The patron refused to comply, and the head librarian summoned the police. When an officer arrived, the librarian again asked the patron to stop distributing leaflets, but the patron again refused. The officer then arrested the patron for violating a city ordinance. At trial, the patron defended against the charges by claiming a violation of her First Amendment rights.
Which of the following variations of fact would be most helpful to the patron’s First Amendment claim?
A The librarian did not repeat the “cease and desist” request in the police officer’s presence.
B The library is completely surrounded by public sidewalks.
C The librarian has permitted some people to distribute leaflets at the front door of the library at all hours.
D The leaflets also requested campaign contributions to be used to oppose board members who failed to change their vote.
The most helpful additional fact for the patron is that the head librarian allowed other people to distribute leaflets at all hours. Although the government may adopt reasonable time, place, and manner restrictions in public forums and designated public forums, such restrictions must be content-neutral, or else they will be subject to strict scrutiny. The head librarian’s allowing some people to distribute leaflets at all hours shows that the restriction here is probably being used as a content regulation, meaning that the restriction would be subject to strict scrutiny and likely invalidated. Additionally, if the head librarian is allowing others to distribute leaflets at all hours, the discriminatory application of the ordinance might also violate the Equal Protection Clause. (A) is not very helpful because the fact that the patron was informed once of the rule would be sufficient to give her notice that she was violating the law. There is no requirement that persons be warned twice that they are violating speech regulations.
A small town had a municipal auditorium that all groups were permitted to use. Lately, a local preacher has begun to hold recruiting seminars for his religious cult at the auditorium. Sensing the displeasure of the voting public and fearing that the auditorium would become a mecca for fringe religious groups, the town council adopted the following ordinance: “Effective immediately, no religious groups will be permitted to use the municipal auditorium for meetings, speeches, or other public gatherings.” The preacher, who was having great success recruiting followers in the town, challenged the constitutionality of the ordinance in federal court.
Based on the above facts, should his challenge succeed?
A No, because the ordinance treats all religions equally.
B No, because continuing to allow religious groups to use the auditorium would violate the Establishment Clause of the First Amendment.
C Yes, because “religious groups” is an unconstitutionally vague term.
D Yes, because the town cannot show that the ordinance serves a compelling government interest.
The preacher’s challenge should succeed. Having created a forum generally open for use by all groups, the town must justify its exclusions therefrom under applicable constitutional norms. To justify discriminatory exclusion from a public forum based on the religious content of a group’s intended speech, the town must show that the ordinance is necessary to serve a compelling state interest, and that it is narrowly drawn to achieve that end, and nothing in the facts indicates that the town will be able to do so. (B) suggests that the ordinance serves the compelling interest of maintaining separation of church and state. However, the former “equal access” policy did not offend the Establishment Clause. The former policy had a secular purpose (providing a forum in which citizens can exchange ideas); it avoided excessive entanglement with religion; and it did not have a primary effect of either advancing or inhibiting religion (permitting religious groups to use the auditorium would result in, at most, an incidental benefit). Thus, (B) is incorrect. (A) is incorrect because an unjustified content-based exclusion of religious speech is not made more acceptable by virtue of the fact that it treats all religions equally. (C) is incorrect because, although there is no authoritative constitutional definition of religion, it is unlikely that the term “religious groups” will be deemed to be impermissibly vague.
A homeowner owned a parcel of land on which she built a single-family residence. To pay for the construction, she obtained financing from a bank in exchange for a mortgage on the land. The bank promptly and properly recorded its mortgage. When the house was completed, except for the absence of an oven in the kitchen, the homeowner leased the house to a tenant for a three-year term. There was no provision in the lease agreement regarding kitchen appliances. The homeowner bought an oven from an appliance company and had it installed in the space provided around the built-in cabinets in the kitchen. To make the purchase, the homeowner signed a security agreement with the appliance company granting it a security interest in the oven in exchange for financing. The appliance company did not file or record its security interest in the oven.
By the end of the lease term, the homeowner was in serious default on her mortgage payments to the bank and to the appliance company. In preparing foreclosure proceedings against the homeowner, the bank learned that the tenant was planning to remove the oven and take it with him when he moved out within the next few weeks. The bank filed an action against the tenant claiming ownership of the oven, and joined the homeowner and the appliance company as parties.
Which party has a superior claim to the oven?
Correct
A The bank, because its mortgage interest attaches to all fixtures on the real estate and it has priority over the appliance company.
B The tenant, because removal of the oven will not cause substantial damage to the real estate.
C The homeowner, because the oven was annexed to the real estate after the mortgage was given.
D The appliance company, because it has a valid security interest in the oven even though it was not recorded.
The bank will win because it recorded its mortgage on the property. In a fixture case involving common ownership, the majority rule is that the annexor’s-intention test applies regardless of whether the owner makes the annexation before or after mortgaging the land. The mortgage attaches to all fixtures on the real estate in the absence of an agreement to the contrary. As between a mortgagee and the holder of a security interest in chattel affixed to the land, whichever interest is first recorded in the local real estate records wins. While a purchase money security interest can gain priority if it is recorded within 20 days after affixation, the appliance company never filed. (B) is wrong because it states the standard for divided ownership cases, i.e., cases in which the person who brings the chattel onto the land does not own the land. Here, the tenant has no interest in the oven; the competing interests are those of the homeowner and the creditors. (C) is wrong because, as discussed above, the mortgagee’s interest applies to the homeowner’s fixtures regardless of the time of affixation. (D) is wrong because, as discussed above, the appliance company did not record a fixture filing.
Trade fixtures
All of the items listed may be removed either because they were not affixed to the real property or because they were used in the tenant’s business and thus may properly be termed trade fixtures. As long as the tenant can remove trade fixtures with little damage to the real property, the tenant may always take them when the tenant moves.
What is the Full Faith and Credit Clause?
Under the Full Faith and Credit Clause of the United States Constitution, states must give full faith and credit to the judgment of another state if the judgment is final, on the merits, and rendered by a court with jurisdiction.
A state passed a law providing that legislative staff members in the state legislature were to receive an hourly wage that was less than the federal minimum wage. A legislative staff member filed suit in federal court challenging this state law.
Which of the following is the strongest argument in support of the staff member’s constitutional challenge?
A Congress may extend federal minimum wage requirements to legislative staff members by virtue of the Necessary and Proper Clause.
B The minimum wage law applies to private sector employees as well as state employees.
C Congress may extend federal minimum wage requirements to state legislative staff members as a means of guaranteeing a republican form of government.
D Congress has plenary power to extend federal minimum wage requirements under the General Welfare Clause.
The strongest argument is that the minimum wage law applies to both private sector and state employees. Generally, the Tenth Amendment provides that powers not delegated to the federal government are reserved to the states. Under the Tenth Amendment, the court will usually uphold federal legislation that applies both to the private sector and to state governments, but will generally not uphold attempts by Congress to regulate the states as states. Here, the federal minimum wage law applies to all private and government employers. Thus, it will be upheld. (C) is therefore incorrect because extending minimum wage laws to legislative staffers does not interfere with the Constitutional guarantee of a republican form of government. (A) is incorrect because the Necessary and Proper Clause alone does not furnish authorization for federal laws. Congress must be acting in the exercise of one of its express powers, and (A) only deals with the Necessary and Proper Clause. (D) is incorrect because the General Welfare Clause is a congressional taxing and spending authorization and is not related to minimum wage requirements.
What can passengers to the car argue against?
Each passenger in a car has standing to challenge a stop of the car. If a stop is invalid, under the fruit of the poisonous tree doctrine, evidence obtained as a result of the invalid stop will be suppressed. Here, the officer had a valid reason to stop the car.
What is duty of doctors to state what the risks of a medicine or treatment are?
(A) If the patient does not prevail, it will be because a reasonable person in the patient’s position would have used the cream even after being told of the potential side effects.
As part of the physician’s duty of care, a doctor proposing a course of treatment has a duty to provide the patient with enough information about its risks to enable the patient to make an informed consent to the treatment.
If an undisclosed risk was serious enough that a reasonable person in the patient’s position would have withheld consent to the treatment, the doctor has breached her duty
Do you apply the children standard to an 18 years old car driver?
NOPE you apply the normal standard.
If firefighter is struck by another vehicle when attending an accident site, is that part of the firefighter’s job?
Yes it is predictable
Majority and minority in negligent infliction of emotional distress?
A man was negligently driving down the road, not paying attention to where he was going. Because of this, he hit and seriously injured a pedestrian who was lawfully crossing the street. The accident was witnessed by the pedestrian’s friend who was standing on the sidewalk. The friend suffered extreme emotional distress that physically affected her nervous system. The friend brings suit against the driver for negligent infliction of emotional distress in a jurisdiction that has adopted the majority approach in bystander cases.
Will the friend prevail?
A Yes, because she witnessed the pedestrian being seriously injured by the driver.
B Yes, because severe shock to the nervous system constitutes a physical injury.
Incorrect
C No, because she was not crossing the street with the pedestrian.
Correct
D No, because she was not a close relative of the pedestrian.
The friend will lose because she was not a close relative of the pedestrian. If a bystander suffers distress from seeing injury to another, a majority of courts now allow recovery if (i) the plaintiff and the person injured by the defendant are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event. Here, the friend is not related to the pedestrian; hence, she cannot recover for her distress. (A) is incorrect because witnessing the injury to another is not sufficient. (B) is incorrect even though the friend did suffer physical symptoms from the distress. As discussed above, she has not met the requirements to recover. (C) is incorrect because the friend’s proximity to the pedestrian is only relevant in the minority of jurisdictions that have retained the “zone of danger” requirement for bystander recovery. Here, the jurisdiction has adopted the majority approach.
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An attorney was employed by the United States Department of Health and Human Services in a regional office located in a tobacco-growing state. A labor contract between the agency and the clerical workers union contained a policy providing for termination of union employees only for certain specified grounds. The attorney, however, was not a member of the union and not covered by such a policy. The attorney was angered by the regional director’s refusal to adopt a no-smoking policy for employees and visitors in the office. She posted a notice in the employee cafeteria ridiculing what she called the hypocrisy of an agency promoting health issues and nonsmoking programs while refusing to provide its employees with those same opportunities. The notice prompted a great deal of debate among the employees and was brought to the attention of the regional director, who was very displeased.
Which of the following statements is most accurate regarding the director’s right to dismiss the attorney?
A The attorney has a liberty interest in the exercise of her First Amendment rights that entitles her to a hearing to contest the grounds of her dismissal.
B The attorney has a property interest as a public employee that precludes her from being fired without notice and an opportunity to respond.
C The attorney has no right to a hearing because her statements were not an expression of views on public issues.
D The attorney has both a liberty interest and a property interest that entitles her to a pre-termination evidentiary hearing.
If the attorney is fired, she has a right to a hearing to determine whether her First Amendment rights were violated by her dismissal. Under the Due Process Clause of the Fifth Amendment, a person has a liberty interest in the exercise of specific rights provided by the Constitution, including freedom of speech. If a government employer seeks to fire an employee for speech-related conduct when the speech involved a matter of public concern but is not made pursuant to her official duties, the courts must carefully balance the employee’s rights as a citizen to comment on a matter of public concern against the government’s interest as an employer in the efficient performance of public service. Under the Court’s expansive interpretation of what is a public issue in this context [see Rankin v. McPherson (1987)], the attorney’s statement would probably qualify. At the very least, she can make a sufficient showing that her termination violates her free speech rights to be entitled to a hearing on the issue under procedural due process principles. [
What rights do you need to have been given if you had a right to government employment?
Under the Due Process Clause of the Fourteenth Amendment, a public employee who is subject to removal only for “cause” under a statute, ordinance, or personnel document has a property interest in continued employment that cannot be taken away without due process of law. The Court has held that such an employee generally must be given notice of the charges and a pretermination opportunity to respond to those charges. The employee must also be given a subsequent evidentiary hearing regarding the termination (with reinstatement if the employee prevails).
What due process stuff do you need when your driving license is automatically suspended?
Under the Due Process Clause, a party is generally entitled to notice and an opportunity to be heard before being deprived of liberty or property. The suspension of a driver’s license deprives a party of a property interest. For that reason, a state generally must afford a hearing before a driver’s license is suspended. However, the Supreme Court has held that a post-suspension hearing satisfies due process under the circumstances presented here, because the state has a compelling interest in highway safety, and a prompt post-suspension hearing is available
A state enacted health care legislation to provide comprehensive insurance coverage on prescription drugs for all of its citizens. The legislation provided state reimbursement for the cost of all prescription drugs with one exception-a drug commonly known as the “abortion pill,” which was prescribed to induce early term abortions without surgery. All other prescription drugs for pregnant women were covered. A pregnant woman who had received a prescription for the drug and was subsequently denied reimbursement filed suit in federal district court challenging the constitutionality of the legislation.
Which of the following best describes the appropriate standard by which the court should review the constitutionality of the state legislation?
Correct A Because the state legislation does not improperly discriminate against a suspect class or burden a fundamental right, the woman will have to show that the legislation is not rationally related to any legitimate state interest.
B Because the state legislation discriminates against women by not providing coverage for all of their prescription medications as it does for men, the state will have to demonstrate that the legislation is substantially related to an important government interest.
Incorrect
C Because the state legislation impinges on a woman’s constitutional right to choose whether to terminate her pregnancy, the state will have to show that the legislation does not constitute an undue burden on that right.
D Because the state legislation discriminates against women seeking to exercise their fundamental right to terminate their pregnancy in favor of women incurring the regular expenses of pregnancy, the state will have to demonstrate that the legislation is necessary to vindicate a compelling state interest.
The court should require the woman to show that the legislation is not rationally related to any legitimate state interest. The Supreme Court has held that the right of privacy includes the right of a woman to have an abortion under certain circumstances without undue interference from the government. However, neither federal nor state government is required to grant medical benefit payments for abortions, even if it grants benefits for childbirth services. The Court has held that a state’s failure to provide funding for a woman’s abortion decision does not constitute interference with her constitutional right to make that decision; hence, such legislation is valid unless the plaintiff can show that it is not rationally related to a legitimate state interest. [See Maher v. Roe (1977)] (B) is incorrect because the legislation does not create a gender-based classification that would require application of an intermediate scrutiny standard. The fact that the restriction applies to a drug prescribed only to women does not establish gender-based discrimination. [See Geduldig v. Aiello (1974)] (C) is wrong because, as discussed above, legislation excluding abortion-related expenses from government funding has been held not to constitute interference with a woman’s constitutional right to choose to have an abortion. Therefore, the undue burden test does not apply. (D) is incorrect for the same reason as in (C), and also because it does not state the standard that the Court uses to evaluate abortion regulations. Regulations restricting pre-viability abortions will be invalidated if they constitute an “undue burden” on a woman’s right to have an abortion. [Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)]
A city’s water board election laws provide that, although members of the board are elected at large, one member of the board is required to live within each of the five designated water districts within the city. The city’s population was more or less evenly distributed among the districts when this election law was enacted. A resident and registered voter of the city investigated the district residency requirement and discovered that most of the city’s newer residents had moved into the same two water districts, so that the city’s population was no longer evenly distributed among the five water districts. Instead, 80% of the city’s residents lived within its central and eastern water districts, while the other 20% of the city’s residents were scattered among its three other, more rural, districts.
If the resident files suit in federal court challenging the constitutionality of the residency requirement, how will the court most likely rule?
A The residency requirement is unconstitutional because it impairs the voters’ equal protection rights, in that it gives the voters in the less populous districts more effective representation on the water board.
B The residency requirement is unconstitutional because it violates the candidates’ equal protection rights.
C The residency requirement is constitutionally permissible because the water board members do not exercise legislative power.
Correct
D The residency requirement is constitutionally permissible because the water board members are elected at large.
The residency requirement is permissible because the water board is elected at large. The Equal Protection Clause prohibits state dilution of the right to vote, so that when a governmental body establishes voting districts for the election of representatives, the number of persons in each district may not vary significantly. This is known as the principle of “one person, one vote.” This principle applies to almost every election where a person is being elected to perform normal governmental functions (e.g., an election for trustees for a junior college district). However, the principle of one person, one vote generally is inapplicable where there is an at-large system of election (except where the system is adopted for discriminatory purposes). Here, the water board members are elected by all of the qualified voters in the city in an at-large system (rather than having the voters of each individual district select one board member apiece), and no discriminatory intent is evident. Thus, the statutory provision requiring board members to reside in each of the five districts does not result in an imbalance or a dilution of the voting rights of the citizens of the city. Consequently, (A) is incorrect, and (D) presents an accurate statement of the constitutionality of the residency requirement. (Note that the answer might be different under federal statute because the city would have to prove a valid, nondiscriminatory purpose.)
A city has many parks, as well as a country club with a golf course. While the city’s parks are accessible to all without a fee, the city charges a $1,000 application fee and $100 per month dues to belong to the country club. A resident of the city wishes to join the country club but cannot afford the application fee or monthly dues.
If the resident brings suit against the city on the ground that the fee and dues discriminate against the poor in violation of the Equal Protection Clause, who likely will prevail?
A The resident, because a person cannot be deprived of a public right or benefit on the basis of inability to pay.
B The resident, because the poor qualify as a protected class.
Incorrect
C The city, because only de jure discrimination against the poor has been held to violate the Equal Protection Clause.
Correct
D The city, because the membership privilege is not an important enough deprivation.
he city will prevail because the membership privilege is not a significant enough deprivation to implicate the Equal Protection Clause. Only the denial of particularly important rights (such as a marriage license) to those unable to pay for them has been held to violate equal protection. Therefore, (A) is wrong. (C) is wrong because a number of de facto discriminations against the poor have been held to violate equal protection. (B) is an incorrect statement of the law. The Supreme Court has never held that wealth alone is a suspect classification. Only when the lack of wealth prevents a person from exercising a fundamental constitutional right will equal protection issues be raised.
Is an automobile owner liable for torts of the one he lent it to?
NOPE under common law
The common law rule is that an automobile owner is not liable for torts committed by another person driving the automobile
PJ
A used car dealer in State A is profiled in an article in a newspaper with national circulation. The article states that the dealer never sells a car without rolling the odometer back at least 25,000 miles. In fact, the dealer is an honest businessperson who never changes odometers, so he sued the newspaper for libel in State A state court. The newspaper’s entire operation is conducted from its offices in State B, but it sells 5,000 copies in State A on an average day. In its initial pleading, the newspaper argues for dismissal based on lack of jurisdiction over the newspaper because of insufficient contacts.
What is the likely ruling of the court on this issue?
A Deny the motion because the newspaper’s contacts with State A were sufficient so it should reasonably anticipate being haled into court in State A.
B Deny the motion, unless State A lacks a “doing business” jurisdictional provision.
C Grant the motion, because selling 5,000 copies of a newspaper per day is not significant business.
D Grant the motion, unless State A has a long arm statute covering the newspaper’s conduct.
The court is likely to rule that the newspaper is subject to personal jurisdiction for a libel action in State A because it has sufficient minimum contacts with the state. The publisher should reasonably anticipate causing injury wherever the newspaper is sold, and so should reasonably anticipate being haled into court in each state. [Keeton v. Hustler Magazine, 465 U.S. 770 (1984); Calder v. Jones, 465 U.S. 783 (1984)]
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A town planned to build a new street through a parcel of vacant land on the edge of town. The land records show a deed dated October 5, 1947, to the current property owner, for whom an address is given in the capital city of the state. The town instituted an in rem condemnation action in state court, with notice to all interested parties published in the town newspaper. The property owner, who still resides at the address in the capital city, does not see the notice. The court allows the condemnation to proceed as requested by the town.
Is the condemnation valid as to the property owner?
A Yes, because a court has jurisdiction over the subject matter.
B Yes, because notice by publication was sufficient.
C No, because the property owner was required to be served by summons.
D No, because the property owner should have been mailed notice of the proceeding.
The condemnation is not valid because the property owner should have been mailed notice of the proceeding. In an in rem action, persons whose interests are known to be affected and whose addresses are known must be notified at least by ordinary mail. The town should at least have sent notice to the property owner at the address it had for him, even if it seemed unlikely that he would still be there
/When can silence be an acceptance
If an offeree silently takes offered benefits, the courts will often find acceptance, especially if prior dealings between the parties, or trade practices known to both parties, create a commercially reasonable expectation by the offeror that silence represents an acceptance; in such cases, the offeree is under a duty to notify the offeror if she does not intend to accept.
For a number of years, a leasing company has been in charge of leasing the luxury skyboxes at a local basketball stadium. During this time, it annually sent area businesses personalized “invitations” to lease skyboxes for the season. The invitations, which were always sent out several months before each season began, contained detailed price terms and language stating that the deadline for responding was 10 weeks before the start of the season and that all leases were subject to the approval of the management of the leasing company. A local advertising agency had always responded to their invitation immediately by registered mail because they found it very worthwhile to lease a skybox to entertain their clients. During the five years that they had responded affirmatively to the invitation, they never received any additional communications from the leasing company regarding approval, but the tickets and an invoice would arrive about a week before the season began.
Several months before the current season, the advertising agency received and immediately responded to its invitation. Two weeks before the season began, a stunning trade brought the league’s most popular star to the city’s basketball team, prompting a dramatic increase in the demand for tickets. A few days later, the advertising agency, which had already scheduled in a number of clients to attend games in its skybox, received a notice from the leasing company stating that management had not approved the agency’s lease of the skybox for this season. In a separate announcement to all area businesses, the leasing company announced that all available skyboxes would be leased for three- or five-year terms, and that an auction of the leases would be conducted if the demand exceeded the supply. The advertising agency decided that it was not financially feasible to commit itself to anything longer than a one-year lease. It sent a letter to the leasing company, stating that a contract was created between the parties and that the leasing company will be in breach if it does not perform.
Is the advertising agency correct in its assertions?
Correct
A Yes, because the leasing company’s failure to reject the advertising agency’s offer within a reasonable time constituted an acceptance under the circumstances.
B Yes, because the leasing company’s “invitation” to the advertising agency was an offer, which the agency accepted.
Incorrect
C No, because the leasing company was entitled to reject the agency’s offer when it did.
D No, but the advertising agency would be able to recover reliance damages from the leasing company under a quasi-contract theory.
The leasing company is contractually bound to lease the skybox to the advertising agency. Under certain circumstances, an executory bilateral contract may be formed without any communication of acceptance. A common example is where prior dealings between the parties, or trade practices known to both, create a commercially reasonable expectation by the offeror that silence represents an acceptance. In such a case, the offeree is under a duty to notify the offeror if it does not intend to accept. Here, despite the language in the invitation making leases subject to approval, the leasing company never sent any notification of approval prior to sending out the tickets and invoice right before the season would start. This course of dealing over the past five years gave the advertising agency reason to expect that the leasing company’s silence after the invitation was returned constituted an acceptance by the leasing company, regardless of the company’s actual intent. [See Restatement (Second) of Contracts �69, illus. 5] (B) is incorrect because the language stating that approval would be required precludes the invitation from constituting an offer. The advertising agency’s response constitutes the offer and incorporates the term relating to approval by management of the leasing company. Thus, the leasing company had the power to reject the advertising agency’s offer if it acted within a reasonable time. Its failure to do so, given the course of dealing between the parties, constituted an acceptance. (C) is incorrect because, as stated above, the leasing company had a duty to reject the advertising agency’s offer within a commercially reasonable time. Its delay of over two months before notifying the agency right before the season began, after the agency had scheduled clients to use the skybox, was not commercially reasonable under the circumstances. (D) is incorrect because the advertising agency would not have to rely on a quasi-contract theory to recover its reliance damages. As discussed above, the agency was correct in its assertion that a contract was created between the parties and that the leasing company would be in breach if it did not perform. The advertising agency would then be entitled to all appropriate contract remedies, including reliance damages.
When is a question leading?
A question is leading and generally objectionable when it suggests to the witness the fact that the examiner expects and wants to have confirmed.
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When can you use an unresponsive answer
An unresponsive answer by a witness is subject to a motion to strike by examining counsel, but not by opposing counse
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Can a court call its own witness as long as opposing has opportunity to cross examine.
ederal Rule 614 specifically provides that when a court calls a witness, each party is entitled to cross-examine the witness. Because the judge immediately dismissed the witness without allowing the parties’ attorneys to question the witness, the objection is likely to succeed. (B) is incorrect. A court may call a witness at a party’s request or on its own initiative. Thus, it is immaterial that neither party asked the court to call the witness. (C) is incorrect. The court does have the power to call witnesses, either on its own initiative or at the request of a party. The court may also examine any witness who has already been called by a party.
Where does the best evidence rule apply?
best evidence rule applies only when the writing or recording is a legally operative or dispositive instrument or the knowledge of the witness comes from reading the document or listening to the recording. The best evidence rule does not apply where, as here, the fact to be proved exists independently of any writing or recording, and the witness testifying to the fact has knowledge of the fact independent of the audio recording or the transcription.
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what counts as a medical examination for doctor client privilege?
The physician’s testimony regarding the plaintiff’s statement is admissible because an examination for insurance purposes is not considered to be for diagnosis and treatment.
Could a bribe count as being opposing party statement?
YUP:
Under the Federal Rules, a statement made by a party and offered against that party (commonly called an admission) is not hearsay. Various kinds of conduct, including attempts to bribe witnesses, may be held to manifest an awareness of liability or guilt. Because the defendant’s liability is the issue (i.e., a relevant fact) in the case, his attempt to bribe the witness is admissible as a statement of a party-opponent.
[LOOK AT THIS!!]
Finally found the unborn widow stuff
Under the Federal Rules, a statement made by a party and offered against that party (commonly called an admission) is not hearsay. Various kinds of conduct, including attempts to bribe witnesses, may be held to manifest an awareness of liability or guilt. Because the defendant’s liability is the issue (i.e., a relevant fact) in the case, his attempt to bribe the witness is admissible as a statement of a party-opponent.
The sister owns the ranch, because the gift over to the son’s widow’s descendants was void. This is the case of the unborn widow. Remember, the Rule Against Perpetuities is measured and enforced at the time of the grant, not later. If there is any way, at the time of the grant, that a gift over may vest later than any life in being plus 21 years, it is void. Take the grants one at a time, in order. The gift to the son is valid; he was alive at the time of the grant. The gift to the son’s widow also is valid. Although her life estate is a contingent remainder (because we would not know the identity of the son’s widow until the son dies), we would know her identity (and thus the remainder will become vested) at the moment of the son’s death, clearly within the time period of the Rule. But the gift to the widow’s descendants violates the Rule Against Perpetuities. The son’s widow was not necessarily born and in existence at the time of the conveyance, and we will not know who the widow’s descendants are until she dies, which may be well outside the lives in being at the time of the rancher’s transfer, plus 21 years. Since the gift to the widow’s descendants is void, the grant effectively reads: “to my son for life, then to my son’s widow for life.” That would have left a reversion in the rancher, which the sister inherited under the rancher’s will. The fact that the son’s widow was in fact alive at the time of the rancher’s grant does not matter because the Rule Against Perpetuities is applied at the time of the grant. Subsequent facts are irrelevant. (A) is incorrect. If we cared what actually happened after the grant in question, this might be a good answer, but we do not. The validity of interests is measured as of the time of the conveyance, and if it later turns out that the facts show a vesting within the Rule, it does not matter if there was any way that the interests could vest outside the Rule at the moment the interests were created.
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Assignees and subsequent assignemtns. Are assigness liable?
The landlord cannot bring suit against the sorority sister. Absent an express assumption, an assignee is not liable on the original covenants once she reassigns.
[Didn’t know this!]
When recuperating chattel, are you liable for damages to other person property?
Unlike an entry onto the land of an innocent party, reasonable entry onto the land of a wrongdoer is completely privileged; i.e., the chattel owner does not have to pay for any actual damage caused by the entry
Strict liabiltiy - tell me elements and whether each is a question of law or question of fact
Whether an activity is abnormally dangerous is a question of law that the court can decide on a motion for a directed verdict.
[just an interesting little question]
A leading computer supply retailer contacted a manufacturer of flash drives on October 25 to supplement the supply of flash drives at the retailer’s area stores. In response, the manufacturer offered to supply 50 boxes of flash drives at $200 a box, for a total price of $10,000, delivery one week after acceptance, and sent a letter containing those contractual terms to the retailer on October 26. The president of the retailer signed the letter on October 27 without making any changes to it and sent it back to the manufacturer by first class mail. The next day, having not heard from the retailer, the manufacturer’s sales manager contacted the president of the retailer and informed him that, if the retailer accepted by the end of the month, it would receive a 1% discount on the total price. When the retailer’s president responded that he had already sent the acceptance, the sales manager assured him that the discount would still apply. On October 31, the retailer received a circular from a competing source offering comparable flash drives for 5% less than the manufacturer’s price. The retailer immediately faxed a rejection to the manufacturer. The manufacturer received the rejection immediately but took no action on it. The next day, November 1, the manufacturer received the signed contract from the retailer.
What is the status of the parties’ agreement?
Incorrect
A An enforceable contract was formed for $9,900 because the retailer accepted before October 31 and needed no additional consideration for the oral modification.
B An enforceable contract was formed for $10,000 because the parol evidence rule precludes the retailer from offering evidence of the telephone conversation.
Correct
C An enforceable contract was formed for $10,000 because, even though the retailer accepted before October 31, the Statute of Frauds makes the oral modification between the parties unenforceable.
D An enforceable contract was not formed because the retailer’s rejection was received before its acceptance.
A contract was formed for $10,000 because the oral modification is unenforceable under the Statute of Frauds. Under the UCC, a contract for the sale of goods priced at $500 or more is not enforceable unless evidenced by a writing. Furthermore, contract modifications must also meet the Statute of Frauds requirement if the contract as modified is within the Statute’s provisions. Here, the Statute of Frauds is applicable to both the original contract and the contract as modified. Since the modification was not in writing, it is not enforceable; hence, the terms of the original contract, which satisfies Statute of Frauds requirements, are effective. (A) is wrong even though the retailer did accept before October 31 and no additional consideration was needed for the oral modification. Because the Statute of Frauds is applicable to the modification, the 1% discount is not effective. (B) is wrong because the parol evidence rule is applicable only to oral expressions made prior to or contemporaneous with the written contract; parol evidence can be offered to show subsequent modifications of a written contract. Since the contract was created when the retailer dispatched the letter (as discussed below), the agreement regarding the 1% discount is a subsequent modification and therefore unaffected by the parol evidence rule. (D) is wrong because the mailbox rule is applicable to the facts here; the acceptance was effective on dispatch. If the retailer had sent its rejection before its acceptance, the mailbox rule would not apply and the rejection would take effect because it arrived before the acceptance. However, since the retailer sent its acceptance first and then its rejection, and the manufacturer did not change its position in reliance on the rejection, the mailbox rule is applicable and the acceptance was effective when it was sent.
