Missed MBE

Question 1

Why is an allegedly defamatory statement not considered hearsay in a defamation action?

Answer 1

• not offered for TOMA; but rather to show that the statement was made

Question 2

When does an offer create a binding contract if it does not specify a method of acceptance?

Answer 2

• A contract is formed when the offer is accepted by
• either performance or a promise to perform
• unless the offer clearly limits the method of acceptance

Question 3

When a buyer places an order for goods, what is the legal significance of that action?

Answer 3

• Placing an order is usually considered an offer to buy,
• which must be accepted before a contract is formed.
• order can be accepted by seller shipping or promising to ship

Question 4

How can a seller accept a buyer’s offer in a sales contract?

Answer 4

A seller can accept by shipping the goods or explicitly promising to fulfill the order, unless the offer requires a specific method of acceptance.

Question 5

What is the test for determining if a government action violates the Establishment Clause?

Answer 5

A state action passes the Establishment Clause test if:

• It is neutral with regard to religion; or
• it aligns with historical practices/Founding Fathers.

Question 6

When do taxpayers have standing to challenge government expenditures?

Answer 6

• Taxpayers generally lack standing to challenge federal expenditures
• except when:
• challeneged expenditure enacted under Congress taxing and spending power and**
• challenege alleges violation of establishment clause*

Question 7

Can a criminal defendant introduce evidence of a victim’s specific bad acts to prove the victim’s character?

Answer 7

• Evidence of the victim’s character trait may be introduced, but only through reputation or opinion testimony—not specific acts
• unless the acts are relevant to an issue other than the victim’s character disposition (e.g., motive, intent, or identity).

Question 8

What level of scrutiny applies to government action that limits a fundamental right v. nonfundamental right under substantive due process?

Answer 8

If a fundamental right is limited, the government must prove the action is necessary to achieve a compelling interest (strict scrutiny).

If no fundamental right is involved, the challenger must prove the law is not rationally related to a legitimate government interest (rational basis review), which is very deferential to the government.

Question 9

When can a person outside the zone of danger recover for negligent infliction of emotional distress (NIED)?

Answer 9

Most states allow recovery only if:

• closely related
• present at the scene of the injury, and
• personally observed or perceived the event

Question 10

What kind of evidence is the judge not allowed to consider when deciding a motion for summary judgment

Answer 10

• Hearsay evidence is inadmissible and cannot create a genuine issue of fact.

Question 11

What are the six covenants of warranty and when do they attach?

under warranty deed

Answer 11

Present Warranties:
- I have title that I say I do (seisin)
- I have the right to convey the property
- there are no encumbrances to my knowlege (Covenant against Encumbrances) (easements, profits, mortgages, etc)

Future Warranties:
- I promise you won’t be bothered by claims in the future (Quiet Enjoyment)
- if you are, I’ll defend you (Warranty)
- I’ll also do whatever it takes to fix the problem (further assurances)