MBE Subjects for MEE

Question 1

Whether the ordinance amounts to a taking under the Fifth Amendment?

Answer 1

The Fifth Amendment to the US Constitution prohibits the government from taking private property for public use without just compensation (“the Takings Clause”). The Fifth Amendment is applicable to local governments through the Due Process Clause of the Fourteenth Amendment.

Under the Fifth Amendment, a taking can arise from any physical invasion or appropriation of property, or from a regulation. A physical invasion or appropriation generally constitutes a per se taking, no matter how small the area appropriated or occupied. For example, the Supreme Court found a taking where an ordinance required apartment owners to allow cable companies to install cables.

Further, under the Fifth Amendment, a taking proper only if it is for a public use. The Supreme Court has defined the term “public use” very broadly. For example, taking private property to turn over to a private developer in order to stimulate the local economy has been found to be a “public use.”

However, there is an exception to the general rule for emergency situations—no compensation is due when property is appropriated or physically invaded to combat an emergency. In the past, the Supreme Court has applied this exception to destruction of diseased trees to prevent the spread of the disease and the destruction of oil wells during war to prevent them from falling into enemy hands.

Question 2

Whether an ordinance impermissibly punishes religious practices under the First Amendment?

Answer 2

The Free Exercise Clause of the First Amendment applies to the states and their political subdivisions through the Due Process Clause of the Fourteenth Amendment. The Clause generally prevents government entities from imposing burdens on individuals on the basis of their religious beliefs. However, a neutral law of general applicability will not be struck down merely because it has an incidental effect on a religious practice. Such a law, like any other law, will be upheld if it has a rational basis. The Free Exercise Clause does not relieve individuals from their obligations to comply with valid and neutral laws of general applicability on the ground that the law proscribes (or prescribes) conduct that the religion prescribes (or proscribes).

b. A law is not neutral if its object is to infringe on or restrict religious practices. A law is not of general applicability if it specifically targets only religious services. A law that is not a neutral law of general applicability must pass strict scrutiny: it must be narrowly tailored to achieve a compelling state interest.

Question 3

Defamation and Malice:

Answer 3

At common law, a plaintiff may bring a defamation action against a defendant who makes a false statement about the plaintiff. However, the First Amendment limits common law suits brought by public figures. Such persons cannot recover for defamation unless he can show that the statement was made with malice. Malice will be found where the statement is made with knowledge that it is false or with reckless disregard of its truth or falsity.

Question 4

Trespass

Answer 4

Trespass in an intentional physical invasion of a plaintiff’s real property caused by the defendant. Moreover, the First Amendment does not provide the press with any special right to trespass—even if the trespass was done in order to investigate a story about a public figure or a matter of public concern.

Question 5

Invasion of Privacy

Answer 5

Generally, it is a tort to publish private information about a person—even if it is true –if a reasonable person would object to having the information made public. However, if the matter is one of legitimate public interest, its publication is privileged if it is made without malice, especially if the information was obtained legitimately, such as a picture taken in public.

Question 6

Imminent Lawless Action

Answer 6

The First Amendment generally prohibits the government from restricting the content of speech unless the restriction is necessary to achieve a compelling government interest. However, there are certain categories of speech that are not protected by the First Amendment, including speech that incites imminent lawless action and “fighting words.”

Generally, a regulation of speech will not be upheld if it is overbroad—i.e., prohibits substantially more speech than is necessary. If a regulation punishes a substantial amount of protected speech judged in relation to its legitimate sweep, it is facially invalid and cannot be enforced against anyone, including a person engaging in constitutionally unprotected speech, unless a court has limited construction of the restriction so as to remove the threat to constitutionally protected speech.

Question 7

Fighting Words

Answer 7

The term “fighting words” has been defined as personally abusive epithets that, when addressed to an ordinary person, are likely to incite immediate physical retaliation.

Question 8

Whether a municipality can have a total ban on leafleting in a traditional public forum?

Answer 8

The First Amendment to the US Constitution guarantees the freedom of speech. The amendment is applicable to the state through the Due Process Clause of the Fourteenth Amendment. Under the First Amendment, regulations on the content of speech generally are invalid. However, government may regulate the conduct of speech a bit more with time, place and manner regulations. A time, place, and manner regulations of speech in a public forum will be found to be valid only if it is content neutral, is narrowly tailored to serve a significant government interest, and leaves open alternative avenues of communications.

Question 9

Whether a school can prohibit religious clubs from using public property thrown open for public use?

Answer 9

School classrooms are not traditional public forums and generally are not available for the exercise of First Amendment rights. However, if a school chooses to throw open its facilities for public use when the rooms are not being used for school purposes, the facilities become designated public forums. At the times designated public forums are open for speech activities, their use may be limited only by regulations that would be allowed in public forums: The regulation must be content neutral, be narrowly tailored to serve a significant government interest, and leave open alternative avenues of communication.

Question 10

Whether a government can restrict speech activities in a nonpublic forum?

Answer 10

A person does not have any right to access nonpublic forums for speech activities, and speech can be regulated in such forums by reasonable laws not aimed at the suppression of speech.

Question 11

Equal Protection

Answer 11

The Fourteenth Amendment Equal Protection Clause prohibits states and subsidiary state governments and entities from treating similarly situated people in a dissimilar manner without adequate justification. This proscription generally does not apply to private action. However, there are some situations in which private action can constitute state action, and in such cases, the private actor’s action is subject to equal protection.

Private action will constitute state action when: (i) the private actor is performing a traditional and exclusive state function, or (ii) the state is significantly involved in the private action. Thus far, the Supreme Court has found only running a town or an election to be a traditional and exclusive public function. The Court has found significant state involvement when enforcement of the private action involves use of the courts (e.g., a significant state involvement would be found if a court were to enforce a restrictive covenant or a preemptory challenge) or where private entities are entwined with government entities (e.g., a high school athletic association: (i) to which most schools in a state belong, (ii) made up mostly of state employees who meet during hours of their employment in school buildings, and (iii) funded by ticket receipts from the school sporting events). On the other hand, the Court has found that state regulation of an industry—even heavy regulation—does not make the industry’s action state action. Neither does licensing or providing essential services, such as police or fire protection. Indeed, the Court has found that regulation of a private school does not make the school’s action state action.

Question 12

Sex Discrimination

Answer 12

When a law discriminates on the basis of sex, the Court applies intermediate scrutiny—the discrimination will be upheld only if the government can prove that the discrimination is substantially related to an important government interest. An exceedingly persuasive justification is need. The interest must be genuine and not hypothesized for litigation, and the government may not rely on overbroad generalizations about males and females.

Question 13

Acceptance of an Offer

Answer 13

A contract requires mutual asset (offer and acceptance), consideration, and the absence of any formation defenses. An offer is an expression of promise, undertaking, or commitment to enter into a contract. It contains terms that are definite and certain and is communicated to the offeree. Once an offer is made, it may be accepted or rejected until and unless it is termination. At common law, which governs contracts for services, an offeree may accept an offer expressly or by other means, or reject the offer. An acceptance is a manifestation of assent to the terms of the offer in the manner prescribed or authorized by the offer. Under the “mailbox rule,” an acceptance is effective at the moment of dispatch. Rejection of an offer may be made expressly or by making a counteroffer, i.e., an offer that contains the same subject matter as the original offer but that differs in its terms. A counteroffer is both a rejection of the original offer, which terminates the offer, and a new offer. A mere inquiry is not a counteroffer. A rejection is effective upon receipt. Note that the mailbox rule does not apply if an offeree sends a rejection and then sends an acceptance—in that case, whichever is received first is effective.

Question 14

Statute of Frauds:

Answer 14

Under the Statute, contracts that cannot by their terms be performed within a year are unenforceable unless they are evidenced by a writing or writings signed by the party to be bound and containing the contract’s essential terms, including the identity of the party to be charged and a description of the contract’s subject matter.

Question 15

Specific Performance:

Answer 15

A court will not order specific performance of a contract for services, both because of difficulties in enforcing such an order and because it may constitute involuntary servitude.

Question 16

Contract Damages

Answer 16

For breach of contract, the injured party may be entitled to expectation damages. These damages are intended to put the injured party in the same position as if the contract had been performed. In a case of willful breach, where only the completion of the contract will enable the nonbreaching party to use the land for its intended purposes, the cost of completion will be considered the appropriate damage award.

Question 17

Contract Damages: Foreseeable, Ascertainable and Accounting for Costs and Mitigation.

Answer 17

Contact damages must be foreseeable to be recoverable. Damages are foreseeable if a reasonable person in the position of the breaching party would have known at the time the contract was made that the damages were likely to occur as a result of the breach.

Contract damages must also be ascertainable with reasonable certainty to be recoverable. When it comes to new businesses, while most states no longer apply a per se rule denying recovery to all new businesses, courts still are reluctant to award lost profits to new businesses, because such profits are regarded as being “too remote, contingent, and speculative to meet the standard of reasonable certainty.

Contract damage awards must take into account costs avoided because of the breach.

The nonbreaching party has a duty to mitigate damages.

Question 18

Consideration, Exception to Bargained-for exchange and Promissory Estoppel

Answer 18

Courts will enforce a promise as a contract only if it is supported by consideration. Consideration is a bargained-for exchange that has legal value. Legal value is usually considered to be either a benefit to the promisor or a detriment to the promisee. Most courts focus on the detriment element. The promise must induce the detriment and the detriment must induce the promise. There is no bargain when one party gives a gift to another.

While the general rule is that something already given or performed cannot be consideration, some courts have created exceptions. Under a modern trend, some courts will enforce a promise if: (i) it is based on a material benefit that was previously conferred by the promisee on the promisor, and (ii) the promisee did not intend to confer the benefit as a gift. The Second Restatement, which follows this view, also includes the limitation that the promise is unenforceable to the extent it is disproportionate to the benefit conferred.

If necessary to avoid injustice, a court will enforce a promise without consideration if: (i) the promisor should have expected the promisee to change his position in reliance on the promise; (ii) the promisee did change his position; and (ii) the change in position was to the promisee’s detriment.

Question 19

Breach of Warranty

Answer 19

Implied warranties, such as the implied warranty of merchantability, apply only to contracts by merchants who deal in goods of the kind sold.

Express warranties are any affirmation or promise made by the seller to the buyer or any description of the goods creates an express warranty if it is part of the basis of the bargain. To be part of the basis of the bargain, the statement need only come at such a time that the buyer could have relied on it when he entered into the contract.

Question 20

Revocation of Acceptance

Answer 20

Under Article 2, if goods fail to conform to the contract in any way, the buyer may reject them. Once goods are accepted, the buyer’s power to reject them is generally terminated, and the buyer is obligated to pay the price less any damages from the seller’s breach. However, a buyer may revoke an acceptance if the goods have a defect that substantially impairs their value to him and he accepted them because of the difficultly of discovering the defects or because of the seller’s assurance that the goods conformed to the contract. To effectuate this revocation, the buyer must notify the seller of it within a reasonable time after discovering the defect and before any substantial change in the goods occurs that is not caused by the defect.

Question 21

Misrepresentation

Answer 21

If a party induces another to enter into a contract by using fraudulent misrepresentation (by asserting information he knows it untrue), the contract is voidable by the innocent party if he justifiably relied on the misrepresentation.

Question 22

Second Degree Murder

Answer 22

Murder is defined in common law as a “killing with malice aforethought,” with second degree murder being defined as “all murder that is not deliberate or premeditated.” Thus, second degree murder is a killing done with a reckless indifference to an unjustifiably high risk to human life (or with the intent to commit a felony or to inflict great bodily injury).

Question 23

Proximate Cause

Answer 23

“But for” the defendant’s conduct, the victim would not have died. An intervening act will shield the defendant from criminal liability when the intervening act is mere coincidence or unforeseeable. The intervening act will then be deemed to be the actual, proximate cause of the victim’s death.

Question 24

Motion to Suppress due to Unreasonable Search or Seizure and Standing

Answer 24

The Fourth Amendment to the US Constitution provides that people are to be free from unreasonable searches and seizure. Generally, to be reasonable, a search or seizure must be pursuant to a warrant, although there are a number of exceptions to this general rule. However, in any case, before a person may claim that evidence was seized in an unconstitutional manner, he must show that he has standing—i.e., that his own constitutional rights were violated. To have standing, a person must show that he had a reasonable expectation of privacy that was violated. Such an expectation arises when the place searched is a person’s home, or even if the person was an overnight guest in the home searched.

Question 25

Motion for Judgment of Acquittal on Attempt

Answer 25

You must show that you have the specific intent to complete the crime and took a step towards completing the crime. As to the step toward completing the crime, most courts use some sort of “substantial step” test similar to the MPC in determining whether the defendant took a sufficient step toward completing the crime; i.e., the defendant must have taken some step beyond mere preparation toward completing the crime. Under a traditional approach, the courts used a proximity test; i.e., the acts committed by the defendant must come dangerously close to completing the crime.

Question 26

Whether abandonment is a defense to a criminal charge of attempt?

Answer 26

Once a defendant has performed sufficient acts to be criminally liable for an attempt, an abandonment of the criminal attempt would not be a defense. Some jurisdictions and the MPC, recognize abandonment as a defense if it is fully voluntary (and not due to the difficulty in completing the crime or to the increased risk of being caught) and complete (and not a mere postponement)

Question 27

Larceny by false pretenses:

Answer 27

The offense of false pretenses generally consists of: (i) obtaining title, (ii) to the property of another; (iii) by a knowing (or in some states, intentional) false statement of past or existing fact; (iv) with the intent to defraud another. For the crime of false pretenses, title must pass (if title doesn’t pass, the crime will be larceny by trick). In most states, the “knowing” element can be proved by showing that the defendant had notice of a high probability of the statement’s falsity and a deliberate decision to avoid learning the truth. On the other hand, if the defendant believes the statement to be true, he has not committed false pretenses (even if his belief is unreasonable). Intent to defraud can be proved by showing that the defendant intended for the victim to rely on the misrepresentation.

Question 28

Stop and Arrest:

Answer 28

A police officer may stop a car if the officer has probable cause to believe that the driver has committed a traffic violation. It does not matter that the police officer’s motive for the stop was to investigate something other than the traffic violation (i.e., that the traffic violation was a mere pretext for the stop).

Question 29

Whether viewing of an interior car violates a suspect’s constitutional rights?

Answer 29

The plain view exception applies to the warrant requirement. Under the plain view exception, a police officer may make a warrantless seizure of evidence if the officer is in a place he lawfully is allowed to be and sees in plain view items that he has immediate probable cause to believe are contraband or evidence, instrumentalities, or fruits of a crime.

Question 30

Questions and Miranda Rights:

Answer 30

The Supreme Court has held that in order to protect the Fifth Amendment privilege against self-incrimination, which also is applicable to the states through the Due Process Clause of the Fourteenth Amendment, a person in police custody must be given certain warnings (the Miranda warnings) before a police officer may conduct a custodial interrogation. Any statement, question, or conduct by the police designed to elicit an incriminating response will be considered interrogation.

Question 31

Fruit of the Poisonous Tree:

Answer 31

Evidence obtained in violation of a person’s constitutional rights generally will be excluded from admission into evidence at trial. An under the fruit of the poisonous tree doctrine, the exclusionary effect is applied not only to the unconstitutionally obtained evidence, but also to evidence derived from the unconstitutionally obtained evidence. However, this rule does not always apply to Miranda violations. The Supreme Court has indicated that if police obtain an unwarned confession from a suspect, warn the suspect, and then requestion the suspect in a question first, warn later scheme to get around the Miranda requirements, confessions obtained during both interrogations should be suppressed. But if the unwarned questioning and the warned questioning do not appear to be part of such a scheme, incriminating statements obtained during the warned questioning session need not be suppressed.

Question 32

Right to Counsel:

Answer 32

Under Miranda, if a suspect clearly and unambiguously requests counsel, all questioning must stop until the suspect meets with an attorney. However, this rule applies only if the request is clear and ambiguous. Moreover, the police have no duty to seek a clarification of an ambiguous request.