MBE wrong 3 Flashcards
Which statement concerning impeachment by evidence of bias is true?
response - incorrect
A A witness’s bias may be shown only by cross-examination, not by extrinsic evidence.
B The evidence of bias must be substantively admissible in the case (not just offered for impeachment purposes).
Correct
C A party is not permitted to show that a witness’s bias is justified.
Incorrect
D A party may introduce extrinsic evidence of a witness’s bias prior to the witness’s testimony.
Although a party is permitted to show a witness’s bias or interest, another party may not subsequently show that the witness’s bias is justified. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid. Even evidence that is substantively inadmissible may be admitted for impeachment purposes if relevant to show bias or interest. Extrinsic evidence of a witness’s bias prior to the witness’s testimony would not be allowed because of foundational requirements. The party must ask the witness about the facts that show bias or interest on cross-examination. If the witness admits those facts, the court then decides whether to allow extrinsic evidence of bias.
Prior statements by a witness that are consistent with the witness’s testimony at trial are sometimes used to rehabilitate a witness who has been impeached. A party may rehabilitate his witness by introducing a prior consistent statement EXCEPT when:
response - incorrect
A the witness has been impeached by evidence of her prior inconsistent statement on the same subject
Correct
B the witness has been impeached with evidence of a prior criminal conviction
C the witness’s sensory deficiencies have been impeached
Incorrect
D the witness has been impeached by a charge that the witness is lying because of some motive, and the prior consistent statement was made before that motive existed
A prior consistent statement cannot be used to rehabilitate a witness whose general character for truthfulness has been impeached, such as by prior criminal convictions or acts of misconduct. On the other hand, prior consistent statements are admissible when the opposing counsel has impeached the credibility of a witness by making an express or an implied charge that the witness is lying or exaggerating because of some motive (e.g., bias), if the prior consistent statement was made by the witness before the time of the alleged motive to lie or exaggerate. Also, when opposing counsel has impeached the credibility of a witness on some non-character ground, such as an alleged inconsistency or sensory deficiency, counsel may introduce a prior consistent statement if, under the circumstances, it has a special tendency to rehabilitate the witness’s credibility.
A victim and his former business partner, the defendant, had a bitter falling out after the victim accused the defendant of embezzling company funds. The defendant threatened to get even. Shortly thereafter, while driving on the expressway, a car swerved suddenly in front of the victim’s car. Although the victim applied the brakes immediately, his car failed to stop. To avoid colliding with the car ahead of him, he swerved to the right and smashed into a concrete retaining wall. A passing motorist stopped and came to the aid of the victim. Bleeding profusely from a head wound, and rapidly losing consciousness, the victim said, “I don’t think I’m going to make it. I tried to slow down, but my brakes didn’t work. My former partner must have tampered with them to get back at me.” With that, the victim lapsed into unconsciousness, and has been in a coma and on life support ever since. A personal injury suit has been filed on his behalf by a court-appointed guardian against the defendant.
At trial, can the motorist testify as to the statement made by the victim?
A No, because the victim did not know that the defendant tampered with the brakes.
B No, because the victim is still alive.
C Yes, because the victim thought he was about to die.
D Yes, because this is a civil case.
Testimony as to the statement made by the victim is inadmissible as a statement under belief of impending death, because the victim did not actually have firsthand knowledge that the defendant was responsible for the collision. The statement is hearsay because it is a statement made by the declarant (the victim), other than while testifying, offered to prove the truth of the matter asserted therein. Here, the plaintiff wants to present this testimony to prove the truth of the statement that the defendant was responsible for the brake failure, and will argue that the statement falls under the hearsay exception for dying declarations. In a civil case or a homicide prosecution, a statement made by a now unavailable declarant while believing his death to be imminent, that concerns the cause or circumstances of what he believed to be his impending death, is admissible. [Fed. R. Evid. 804(b)(2)] For this exception to apply, the declarant need not actually die. Rather, the declarant must be “unavailable” when the statement is offered. A declarant is unavailable if he: (i) is exempted from testifying on the ground of privilege, (ii) refuses to testify despite a court order, (iii) testifies to lack of memory of the subject matter of the statement, (iv) cannot be present or testify because of death or physical or mental illness, or (v) is beyond the reach of the court’s subpoena and the statement’s proponent has been unable to procure his attendance or testimony by process or other reasonable means. Regarding the statement at issue here, the victim certainly thought he was about to die from his injuries. In addition, he is unavailable, as his physical condition prevents him from testifying. However, the victim’s statement represents a mere suspicion that the defendant tampered with the brakes. As well-founded as such a suspicion may be (given the history between the victim and the defendant), a statement based on mere suspicion rather than actual knowledge does not constitute a statement concerning the cause or circumstances of an “impending death” for purposes of the dying declarations exception.
A wife is on trial for the murder of her husband. She is accused of pushing him from the window of their 13th floor apartment; she claims he committed suicide. The wife called an operator for a suicide-prevention clinic to testify that the deceased husband had called the clinic on more than one occasion, each time telling the operator that he wanted to “end it all.”
Is the testimony admissible?
Yes, under state of mind
A plaintiff sued a chimney sweeping company for personal injury and property damages resulting from an explosion in her chimney the evening after the company had cleaned it. The explosion, which occurred when the plaintiff lit a fire in the fireplace, caused minor damage to the chimney, roof, and to the plaintiff, who was hit by falling bricks. As evidence that she assumed the risk of injury, the company offers to have its foreman testify that he had told the plaintiff not to use the fireplace for 24 hours to allow certain chemicals to evaporate.
Is the foreman’s proposed testimony hearsay?
A No, because the declarant is testifying as a witness at the hearing.
B No, because the statement is not offered for its truth.
C Yes, but it should be admitted under the hearsay exception for present sense impressions.
D Yes, but it should be admitted under the present state of mind exception to the hearsay rule.
The evidence is not hearsay because the statement is not offered for its truth; the statement is offered to show its effect on the plaintiff. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] If a statement is hearsay, and no exception to the hearsay rule is applicable, the evidence must be excluded upon appropriate objection to its admission. [Fed. R. Evid. 802] A statement that would be inadmissible hearsay to prove the truth of the statement may be admitted to show the statement’s effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a statement of warning is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, the defense of assumption of the risk has been raised. Whether the plaintiff knew of the danger involved in lighting a fire within 24 hours of the chimney cleaning is an issue. Consequently, the statement of the foreman is admissible to show that the plaintiff had knowledge of the possible danger. The statement is not hearsay because it is not offered to prove that it was in fact dangerous for the plaintiff to light a fire. (A) incorrectly states that the reason the statement is not hearsay is that the declarant is testifying as a witness. The fact that the declarant is now testifying does not alter the hearsay nature of a statement. Any out-of-court statement offered for its truth is hearsay in most jurisdictions (the Federal Rules have a few specific statements characterized as nonhearsay) regardless of whether the declarant is testifying. The reason hearsay is excluded is that there is no opportunity for cross-examination at the time the statement was made. The key in this case is not that the declarant is testifying, but that the statement is not being offered for its truth. (C) characterizes the testimony as hearsay, which is incorrect because it is not being offered for its truth. Even if this testimony were hearsay, it is incorrect to state that it falls under the hearsay exception for present sense impressions, which are statements made contemporaneously with perceiving some event. The testimony of the foreman would not come within this exception.
The owner of a small business was injured in a traffic accident. A month after the accident, the owner asked an employee to take a photograph of the intersection where the accident occurred. The employee took the photograph and gave it to the owner, who in turn gave it to his lawyer. The lawyer wishes to introduce the photograph into evidence at trial of the owner’s lawsuit against the defendant. The lawyer plans to have the employee testify that he took the photograph. The lawyer also plans to call a witness who lives in the neighborhood of the accident scene and arrived at the intersection shortly after the accident occurred. The witness is willing to testify that the scene in the photograph is in fact the intersection where the accident happened.
Whose testimony is necessary to introduce the photograph into evidence?
response - incorrect
A The employee’s testimony is necessary and the witness’s is unnecessary.
Correct
B The witness’s testimony is necessary and the employee’s is unnecessary.
Incorrect
C The testimonies of both the employee and the witness are necessary.
D The picture is inadmissible.
nly the witness’s testimony is necessary to introduce the photograph. To be admissible, a photograph must be identified by a witness as a portrayal of certain facts relevant to the issue, and verified by the witness as a correct representation of those facts. It is sufficient if the witness who identifies the photograph is familiar with the scene or object depicted. It is not necessary to call the photographer to authenticate the photograph. Here, the actual physical appearance of the intersection is most likely relevant to the manner in which the accident occurred. As a resident of the neighborhood in which the accident took place, and as someone who was at the scene of the accident shortly after its occurrence, the witness is sufficiently familiar with the scene to testify that the photograph is an accurate representation of the accident scene. Such identification by the witness is needed for the photograph to be admissible.
(C) is incorrect because, as stated above, the testimony of the employee, the photographer, is not necessary. (D) is incorrect because the photograph is admissible if properly identified by the witness.
A landowner validly conveyed a small office building to the Green Party “as long as they use it for operating quarters until the next presidential election.” After the next presidential election, which was in three years, the building would go to a private organization that monitors and prepares comprehensive listings of gas prices throughout the country. A year after the conveyance, the landowner died, validly devising all of her property to her son. Although this jurisdiction is a common law jurisdiction with respect to all real property considerations, the state’s probate laws provide that future interests or estates in real property may be passed by will or descent in the same manner as present or possessory interests. Last week, the Green Party and the gas monitoring organization joined together to sell the office building in fee simple absolute to a developer. The son filed suit to prevent the sale of the property to the developer.
In this action, who should prevail?
A The Green Party and the gas monitoring organization, because together they own a fee simple absolute in the building.
B The Green Party and the gas monitoring organization, because the attempted restrictions on the use of the property violate the Rule Against Perpetuities.
C The Green Party and the gas monitoring organization, because the deed restriction was an unlawful restraint on alienation.
D The son, because he did not sign the contract of sale.
The son may enjoin the sale because he has an interest in the property. A fee simple determinable is an estate that automatically terminates on the happening of a stated event. The Green Party’s interest in the office building is a fee simple determinable because it lasts as long as the Party is using the building for operating quarters. However, the grant does not provide for the contingency of the Green Party ceasing to use the building as operating quarters before the next presidential election. This gap would be filled by a possibility of reverter retained by the landowner. Because the landowner passed that interest to her son in her will, there can be no contract to sell the property without his signature. Note: Although the gas monitoring organization appears to have an indefeasibly vested remainder (i.e., it is created in an ascertained company, is certain to become possessory, and is not subject to being defeated, divested, or diminished in size), its interest is not capable of taking on the natural termination of the preceding estate and so is characterized as a springing executory interest. (A) is wrong because the son also has an interest in the land
Several members of a small terrorist group are on trial in federal court for conspiring to bomb a military installation. The prosecution would like to introduce the testimony of a military guard at one of the installation’s gates. The guard had been present when a bomb that was being planted by a member of the group had exploded prematurely. The guard will testify that she ran over to administer first aid to the member, who in great pain told her that his group was in the process of planting three other bombs in other areas of the military installation and was going to detonate them all at the same time to get publicity for their cause. The guard will also testify that the member disclosed the locations of the other bombs and the names of two other members of the group. The authorities were able to prevent the other bombings and arrest the other members of the group. The member died from his injuries.
What is the best basis for allowing the guard to testify as to the member’s statements?
A As a vicarious admission of a co-conspirator.
B As a statement against interest.
C As a statement of present state of mind.
D As a dying declaration.
The member’s statements are admissible as a statement against interest. Under the Federal Rules, statements of a person, now unavailable as a witness, against that person’s pecuniary, proprietary, or penal interest when made are admissible as an exception to the hearsay rule. Here, the member’s statements implicating himself in the bombing conspiracy were against his penal interest when he made them; hence, they are probably admissible under that exception. (A) is wrong because for a statement to qualify under the Federal Rules as a vicarious admission of another member of the conspiracy, the admission must have been in furtherance of the conspiracy by a participant in it. Here, the member’s statements were not made in furtherance of the conspiracy but instead served to thwart its success.
A plaintiff sued a defendant for damages suffered when a load of bricks fell off the defendant’s truck directly in front of the plaintiff while she was driving on a highway. The plaintiff charged that the defendant was negligent in supplying his truck with a defective load chain clamp, which helped tie the load to the bed of the truck, and in failing to secure the load properly on the truck. The plaintiff calls a witness who testifies that he was formerly employed as a truck driver and is an acquaintance of the defendant. The witness further testifies that immediately prior to the accident he had coffee with the defendant at a cafe, and mentioned to the defendant that the tie chains holding the load of bricks looked kind of loose.
Assuming proper objection by the defendant’s attorney, how should the court rule on the admissibility of such testimony?
A Admissible under an exception to the hearsay rule.
B Admissible nonhearsay.
C Inadmissible hearsay.
D Inadmissible opinion evidence.
The witness’s testimony is admissible nonhearsay. The statement by the witness is not being offered to prove the truth of the matter asserted therein and thus is not hearsay. Hearsay is a statement made out of court by the declarant, offered in evidence to prove the truth of the matter asserted. [Fed. R. Evid. 801(c)] Although hearsay is inadmissible (unless an exception to the hearsay rule is applicable), a statement that would be inadmissible hearsay to prove the truth thereof may be admitted to show the statement’s effect on the listener or reader. Thus, in a negligence case, where knowledge of a danger is at issue, a person’s warning statement is admissible for the limited purpose of showing knowledge or notice on the part of a listener. Here, one of the theories of recovery underlying the plaintiff’s lawsuit is that the defendant negligently failed to secure the load. Therefore, the plaintiff must show that the defendant either knew or should have known that the load was not properly secured. Consequently, the witness’s statement that the chains looked loose is admissible to show that the defendant had notice of the possible danger. If this same out-of-court statement were offered to show that its contents were true (i.e., that the chains were in fact loose), then it would constitute hearsay, but because the statement is offered to show notice to the defendant of a possible danger, it is nonhearsa
A defendant is on trial for manslaughter after he hit a victim in a bar, causing the victim to fall and hit his head on the marble bar top. The defendant claims that he hit the victim in self-defense after the victim lunged at him with a knife. During the prosecution’s case, a witness testifies that she heard the victim’s friend shout at the defendant, “You just killed a helpless man!” A defense witness is called to testify that he was there and does not remember hearing the victim’s friend say anything.
Should the defense witness’s testimony be admitted?
A No, it is irrelevant to any issue in the case.
B Yes, it is proper impeachment of the prosecution’s witness.
C No, it is improper impeachment of the prosecution’s witness because it relates to a collateral matter.
D No, it is improper impeachment because it does not positively controvert the prosecution witness’s testimony, as the defense witness merely says he does not remember.
The defense witness’s testimony should be admitted as proper impeachment of the prosecution’s witness. Impeachment is the casting of an adverse reflection on the veracity of a witness. A witness may be impeached by either cross-examination or extrinsic evidence, such as by putting other witnesses on the stand who contradict the witness’s testimony. Here, the defense is using the testimony of its witness to impeach the prosecution witness’s testimony as to what the victim’s friend said. This is proper. (A) is wrong because a witness’s credibility is always relevant. Furthermore, the defense witness’s testimony relates to a crucial issue in the case; i.e., whether the victim was armed with a knife or was “helpless.” Thus, the testimony is relevant.
Do you need physical harm in negligent infliction of emotional distress?
Yes and no. is incorrect because physical impact is not required for this tort; the threat of impact is enough. Therefore, even in the absence of impact, the owner could recover if she had been within the zone of danger from the tenant’s negligence.
A beneficiary has filed a petition in the probate court to contest the validity of a testator’s will. The beneficiary contends that when the testator executed the will eight years before, he had a severe mental illness and was incapable of forming a valid testamentary intent. In support of this contention, the beneficiary seeks to offer an affidavit prepared by the testator’s former attorney, which states that she was asked to prepare a will for the testator just four months before this will was made. The attorney had refused to do so because it was her opinion that the testator seemed incoherent and paranoid. is there attorney client privilege?
NO, the observations of the attorney would not be deemed a “communication received from the client.” Also, while the attorney-client privilege generally survives the client’s death, it does not apply to communications relevant to an issue between parties who are claiming through the same deceased client, such as in the probate proceedings here.
A seeks compensatory and NOT punitive damages. A asks B in discovery for net worth. OK?
NO, not worth not relevant when seeking compensatory only.
A salvage company offered for sale Confederate dollars that had been recovered when the company recently raised a shipwreck off the coast of South Carolina. A purchasing agent for a private west coast museum purchased the bills, but he had represented that he was buying them for himself in hopes of obtaining a lower price.
After purchasing the bills, the agent carefully packaged them and had them shipped to his museum. While the bills were in transit, the museum burned to the ground and its owner decided that she would not rebuild because most of her collections had been destroyed.
When the bills arrived after the fire, the owner opened the package only to discover that the bills were too brittle for shipping by this method—three bills had disintegrated in transit. Undaunted, the owner took the remaining nine bills and had them mounted behind a glass frame so she could display them in her study. While the bills were being framed, the owner read on the Internet that a large cache of similar bills had just been discovered, and the market price for such bills had just been cut in half.
Frustrated but still undaunted, the owner hung the framed bills in her study. Unfortunately, the salt water had reacted with the pigments in the bills in such a way that shortly after they had been exposed to indirect sunlight, all of the color in the bills faded almost completely away. No other Confederate bills raised from the ocean before had similar reactions; these bills appear to have been printed using substandard dyes.
Which of the following facts would give the museum owner the best basis for rescinding the contract with the salvage company?
A The bills were too brittle for transport.
B The discovery of a large cache of similar bills a few days after the sale.
C The bills’ unusual reaction to indirect sunlight.
D The destruction of the museum before the bills arrived.
The circumstances of (C) offer the best grounds for rescinding the contract based on mutual mistake. When both parties entering into a contract are mistaken about existing facts relating to the agreement, the contract may be voidable by the adversely affected party if (i) the mistake concerns a basic assumption on which the contract is made; (ii) the mistake has a material effect on the agreed-upon exchange; and (iii) the party seeking avoidance did not assume the risk of the mistake. Here, both parties probably believed that the bills would be suitable for display, like other bills that had been raised from the ocean. They had no reason to suspect that the bills would discolor when exposed to indirect sunlight. This occurrence probably rendered the bills nearly worthless, creating a material imbalance in the exchange. Finally, there is nothing to indicate that the museum owner/purchasing agent assumed the risk of what occurred
A landowner included in his will a provision giving “all of my property, both real and personal, wherever situated, to my widow for life, and after her death to any of our children who may survive her.”
What is the gift to the children?
Contingetn remainder — contingent upon surviving
A father executed a deed to his art gallery “to my daughter for her life, and on my daughter’s death to her children; provided, however, that if my daughter stops painting, to my brother.” The daughter has two children and is still painting.
At the time of the grant, what is the best description of the interest of the daughter’s two children?
A A contingent remainder.
B A vested remainder subject to open and to total divestment.
C A vested remainder subject to open.
D An executory interest.
The daughter’s two children have a vested remainder subject to open and subject to complete divestment. A remainder is a future interest created in a transferee that is capable of taking in possession on the natural termination of the preceding estate. A remainder is vested if the beneficiaries are ascertainable and their taking in possession is not subject to a condition precedent. A vested remainder created in a class of persons that is certain to take but is subject to diminution by reason of others becoming entitled to take is a vested remainder subject to open. Vested remainders may be subject to total divestment if possession is subject to being defeated by the happening of a condition subsequent. Here, the daughter’s two children have a remainder because, on the expiration of the daughter’s life estate, they will be entitled to possession of the property. The remainder is not subject to a condition precedent and the beneficiaries are in existence and ascertained, so the remainder is vested, not contingent. The remainder is subject to open because the daughter may have more children. Finally, the remainder is subject to total divestment because the daughter’s children’s right to possession is subject to being defeated by the daughter’s ceasing to paint.
An automotive engineer announced that he had developed a carburetor that will enable cars to achieve 100 miles per gallon of fuel, and that he will allow the carburetor to be inspected next month. Soon after, a former employer of the engineer brought an action to prohibit the engineer from displaying the carburetor, claiming that the engineer probably had stolen the carburetor’s design from the employer. The court granted the employer a temporary restraining order prohibiting the engineer from disclosing any mechanical details of his carburetor, and ordered a hearing to be held in one week to determine whether a preliminary injunction should be issued. Because each party would have to reveal the mechanical details of his designs at the hearing, the employer requested that the hearing be closed to the public and that the record be sealed to avoid revelation of his designs. The court granted the request. A reporter for a monthly automobile magazine heard about the case and wanted to attend the hearing. When he was told that the hearing would be closed, he filed an action to have it opened.
What is the reporter’s best argument for opening the hearing?
A Closure is not necessary to preserve an overriding interest here.
B The right of freedom of the press is extensive and allows the press to attend all hearings of interest to the public.
C Closure here amounts to a prior restraint.
D Under the fairness doctrine, the magazine will be required to give each litigant an opportunity to present his side of the case.
The reporter’s best argument is that the closure here is not necessary to preserve an overriding interest because trials and pretrial hearings generally must be open to the public. The Supreme Court has held, at least in the context of criminal cases, that trials and pretrial proceedings can be closed only if closure is necessary to preserve an overriding interest and the closure order is narrowly tailored to serve the overriding interest. While the Court has not yet established the standard for civil matters such as the case here, several Justices and commentators have suggested that the same standard will be applied in civil cases since they too have historically been open to the public.
While fleeing from an armed robbery he had just committed, a man struck a pedestrian with his car, seriously injuring the pedestrian. The robber was soon apprehended and charged with armed robbery and reckless driving, both felonies. Just prior to trial, the pedestrian died from his injuries. The trial on the robbery and driving charges proceeded, and the robber was convicted of the armed robbery charge and acquitted of the reckless driving charge. The robber was then indicted under the jurisdiction’s felony murder statute for causing the death of the pedestrian during the course of committing an armed robbery. The robber moved to dismiss the indictment on the ground that a second trial would violate double jeopardy.
Is the robber’s claim correct?
A Yes, because he was acquitted of the reckless driving charge.
B Yes, because the pedestrian died before the robber’s first trial had begun.
C No, because he was convicted of the armed robbery charge.
D No, because felony murder requires proof of an additional element not required by the felony itself.
The robber’s claim is correct because the victim died before jeopardy attached for trial on the lesser included offense. The Fifth Amendment right to be free of double jeopardy provides that once jeopardy attaches for an offense, the defendant may not be retried for the same offense. Under the Blockburger test, two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require. Under this test, a lesser included offense and the greater offense would be considered the “same offense,” because the lesser included offense consists entirely of some, but not all, elements of the greater crime. Hence, under double jeopardy rules, attachment of jeopardy for the greater offense bars retrial for lesser included offenses, and attachment of jeopardy for a lesser included offense generally bars retrial for the greater offense.
An exception to this latter rule exists if all of the elements for the greater offense had not occurred at the time of prosecution for the lesser offense, but in this case the final element for the felony murder charge—the death of the victim—occurred before jeopardy had attached in the first trial, so the prosecution could have added a charge of felony murder prior to proceeding with the first trial. Thus, the underlying felony of armed robbery was a lesser included offense of the felony murder and the robber’s being placed in jeopardy for it bars the subsequent trial for the felony murder.
On April 10, the owner of a small farm mailed a letter to a new resident of the area who had expressed an interest in buying the farm. In this letter, the farm owner offered to sell the farm to the resident for $100,000. The offer expressly stated that the offer expires on June 1, “if acceptance by the offeree has not been received by the offeror on or before that date.”
On the morning of June 1, the resident sent a written acceptance to the farm owner by messenger. However, through negligence of the messenger company, the acceptance was not delivered to the farm owner until June 2. On June 4, the farm owner entered into a contract to sell the farm to another buyer for more money but did not inform the resident of the transaction. When the resident followed up by phone on June 10, the farm owner told him that he had sold the farm to another buyer.
Which of the following is the most correct statement?
A No contract between the farm owner and the resident arose on June 2.
B An enforceable contract arose on June 1.
C The farm owner’s silence constituted an acceptance of the resident’s message on June 2.
D A voidable contract arose on June 1.
Mailbox rule does not apply if contract says otherwise
No contract arose on June 2 because the farm owner’s offer expired on June 1, when the farm owner did not receive the resident’s acceptance. If a period of acceptance is stated in an offer, the offeree must accept within that period to create a contract. Failure to timely accept terminates the power of acceptance in the offeree (i.e., a late acceptance will not be effective and will not create a contract). Under the mailbox rule, an acceptance generally is effective upon dispatch (i.e., the acceptance creates a contract at the moment it is mailed or given to the delivery company). However, the mailbox rule does not apply where the offer states that acceptance will not be effective until received. In the latter case, acceptance is effective only upon receipt. Here, the farm owner’s offer specifically stated that the acceptance must be received by June 1 to be effective. Thus, the farm owner opted out of the mailbox rule, and no contract was created by delivery of the acceptance on June 2. Note that the resident will not be able to successfully argue that the acceptance was valid because the late delivery was the messenger company’s fault. This would be a valid argument if the mailbox rule applied here, because the acceptance would have been effective on June 1, when the message was given to the messenger company. However, by opting out of the mailbox rule, the farm owner put the burden of any negligence in delivery on the resident. Thus, there was no valid acceptance
Dramshop act
A pedestrian was struck and seriously injured by a car driven by an intoxicated driver. The driver had been served several alcoholic drinks by a bartender at a local bar. The pedestrian sued the bartender in a jurisdiction that does not have a dramshop act.
Is the bartender vicariously liable for the pedestrian’s injuries?
A No, because the driver acted recklessly by driving while intoxicated.
B No, because there is no dramshop act in the jurisdiction to impose liability.
C Yes, because there is no dramshop act in the jurisdiction to limit liability.
D Yes, because the intoxicated driver caused the pedestrian to suffer personal injuries.
Because the jurisdiction does not have a dramshop statute, the bartender will not be liable for the injuries caused to the pedestrian by the intoxicated driver. At common law, no liability was imposed on vendors of intoxicating beverages for injuries resulting from the vendee’s intoxication, whether the injuries were sustained by the vendee or by a third person as a result of the vendee’s conduct. Many states, in order to avoid this common law rule, have enacted “dramshop acts.” Such acts create a cause of action in favor of any third person injured by the intoxicated vendee. Without a dramshop act, the bartender will not be vicariously liable. (A) is incorrect because it implies that the bartender would be vicariously liable if the driver was not reckless. Without a dramshop act, however, there can be no vicarious liability imposed on the bartender regardless of whether the driver’s actions are characterized as reckless or simply negligent.
The President of the United States issued an executive order banning conversation by all executive employees with members of the press unless prior permission had been obtained from a supervisor. Executive Department employees were subject to dismissal for violation of the order. An employee of the United States Department of Agriculture spoke to a reporter and told the reporter that the USDA sanctioned the approval of a dangerous pesticide because of payoffs made by lobbyists to a high-ranking USDA official. The newspaper printed the story and quoted the employee by name. After a hearing in line with civil service regulations, the employee was found to have violated the executive order barring unauthorized conversations with news media reporters, and the employee was fired. The employee brought suit in federal court for reinstatement, back pay, and other benefits and also prayed that the court should strike down the executive order as unconstitutional.
If the employee’s case reaches the United States Supreme Court, how should the Court rule?
A The executive order is constitutional, because the President has plenary power to control Executive Department employees.
B The executive order is constitutional, because government employment is a privilege and not a right.
C The executive order is unconstitutional, because Congress, rather than the President, has authority to set the terms of federal employment.
D The executive order is unconstitutional, because the President cannot broadly limit all executive employees’ freedom of speech and association.
The President’s order is unconstitutional because it is too broad a limit on the freedom of speech and association of government employees. No government employees were allowed to have even a conversation with the press without the permission of a supervisor. Thus, it is unconstitutional. (A) is incorrect because the President’s plenary power to control executive employees is limited by the Constitution. For example, the President cannot violate the First Amendment (or other constitutional guarantees) in regulating federal employees. (B) is incorrect because the Court no longer draws a distinction between rights and privileges. Furthermore, government employees would retain their First Amendment rights even if government employment were termed a “privilege.” (C) is incorrect because the President has authority to enact some regulations for federal employees. The problem with this regulation is that it unduly restricts freedom of speech.
P has introduced part of a record. Can D ask P to produce the rest?
YES.
(B) The defendant may compel the plaintiff to introduce the remainder of the record. When part of an act, conversation, or writing is introduced into evidence, the Federal Rules provide that the adverse party may compel the proponent of the evidence to introduce any part thereof that ought, in fairness, to be considered at the same time. Here, the remainder of the shipping record that supports the defendant’s position should be introduced at the same time as the part introduced by the plaintiff. Answer (A) is incorrect because no foundation need be laid for another part of a record that has already been introduced
