Mixed Questions - Set 11 Flashcards
The plaintiff is suing the defendant for personal injuries suffered when she was struck by the defendant’s car. The plaintiff testified regarding the extent of her injuries. The defendant seeks to testify that when she visited the plaintiff in the hospital, the plaintiff said that if the defendant paid all of her medical bills and gave her $25,000, she would not institute legal proceedings. The plaintiff’s attorney objects to the offered testimony.
How should the judge rule on the admissibility of the testimony?
A Inadmissible, because it is hearsay.
B Inadmissible, because it was an offer of compromise.
C Admissible, because it is a statement against interest and, thus, an exception to the hearsay rule.
D Admissible, because it is relevant to show that the plaintiff tried to “blackmail” the defendant, and does not really have a claim.
B
The judge should rule the testimony inadmissible. Evidence of compromises or offers to compromise is inadmissible to prove or disprove the validity or amount of a disputed claim. (A) is incorrect; the evidence is not hearsay because it is a statement made by and offered against a party. (C) is incorrect because the statement against interest exception requires that the witness be unavailable. Here, the plaintiff is available to testify. (D) may be relevant, but the facts show that it was merely an offer to compromise a disputed claim, and therefore public policy encouraging settlements precludes the introduction of such evidence. Thus, (B) is correct.
A state’s department of education provides musical equipment to any public or private school in the state that requests it. A private religious school applied for and received musical equipment under this program. The school exclusively uses the equipment to teach its students to perform religious music.
Which of the following is the best argument supporting the constitutionality of the state’s policy of providing musical equipment to this private religious school?
A The teaching of religious music in private schools is not constitutionally prohibited.
B The purpose and effect of the music program is secular and does not entangle government and religion.
C Private religious schools fulfill an important educational function.
D The state’s refusal to provide musical equipment to private religious schools would violate the Free Exercise Clause of the First Amendment by discriminating against their students in favor of students in public schools.
B
The strongest argument would be that the program has a secular purpose and does not entangle government with religion. The Establishment Clause prohibits the government from taking action respecting the establishment of religion. Where no sect preference is involved, government action will be upheld if it serves a secular purpose, its primary effect neither advances nor inhibits religion, and it does not produce excessive government entanglements with religion. (A) is a true statement—it is not unconstitutional to teach religious music in private schools—but the Constitution prohibits government from providing such aid to religious schools. (C) is irrelevant for similar reasons—although private religious schools might fulfill an important educational function, they still will run afoul of the Constitution unless the above three-part test is met. (D) is incorrect because the state is compelled by the Establishment Clause not to provide certain types of aid to religious schools; in such cases, the Free Exercise Clause is not violated so long as the law is general in nature, which is the case here.
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.
B
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. (A) is wrong because the remainder is vested, not contingent; i.e., it is not subject to a condition precedent, and the beneficiaries are ascertainable. (C) is not the best answer because it is incomplete. The vested remainder here is also subject to total divestment. (D) is wrong because the children’s interest does not divest the daughter’s estate, which would indicate an executory interest. Rather, their interest is capable of taking in possession on the natural termination of the daughter’s estate, and thus is a remainder.
An electronics company sued a competitor in federal court for patent infringement, alleging that the competitor had copied several aspects of the electronic company’s latest smartphone model. The competitor plans to defend the lawsuit but is worried about being forced to reveal confidential research and development information. The parties scheduled a conference under Rule 26(f) of the Federal Rules of Civil Procedure. At the conference, the parties are to discuss whether they need a court order protecting trade secrets and other related confidential information.
Is this a proper discussion for a Rule 26(f) conference?
A Yes, because the parties must discuss their discovery plan during a Rule 26(f) conference.
B Yes, because the sole purpose of a Rule 26(f) conference is to give the parties an opportunity to ask the court for protective orders.
C No, because at a Rule 26(f) conference the parties should discuss only their claims and defenses.
D No, because a Rule 26(f) conference is used to formulate a plan for trial.
A
This is a proper discussion for a Rule 26(f) conference because the parties must develop a discovery plan. At a Rule 26(f) conference, the parties must confer to consider their claims and defenses, the possibility of settlement, initial disclosures, and a discovery plan. The parties then must submit a proposed discovery plan to the court, and the plan must address the timing and form of required disclosures, the subjects on which discovery may be needed, the timing of and limitations on discovery, and relevant orders that may be required of the court. (B) and (C) are incorrect because the purpose of a Rule 26(f) conference is for the parties to discuss the topics listed above. (D) is incorrect because a final pretrial conference is used to formulate a plan for trial.
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.
A
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. (B) is a false statement of the law—freedom of the press is not absolute and does not allow the press unlimited access to any hearing of interest to the public; the hearing may be closed where an overriding interest in protecting the privacy of the parties is established. (C) is not as good an argument as (A) because, while closure here would amount to a prior restraint (a court order or administrative system that keeps speech from occurring), the prior restraint would be justified if the government proves that it was narrowly tailored to achieve a compelling interest. The argument in (A) negates this possibility and so is a better argument. (D) is incorrect because the fairness doctrine is irrelevant to the issue of whether a hearing should be open to the public. It was a rule of the Federal Communications Commission that required, among other things, that the media give political candidates an opportunity to oppose candidates or views endorsed by the media.
A mother was in a nursing home and asked her attorney to draft a deed that would give her farm to her son. The attorney drew up the deed, had the mother properly execute it, and thereafter properly recorded the deed. The attorney then told the son what she had done. The son immediately went to the nursing home and told the mother that he did not want the farm so she should take back the deed. A week later, the mother returned home to the farm. Shortly thereafter, the son died without a will, leaving his wife as his only heir. The mother has brought an action against the wife to quiet her title to the farm.
If the mother is successful in this action, what is the likely reason?
A The son’s statement to the mother was a constructive reconveyance of the farm.
B The attorney’s recording of the deed had no effect because the son was unaware of what was happening.
C The wife is subject to a constructive trust to carry out the son’s intent.
D The son never effectively accepted delivery of the deed.
D
If the mother prevails, it will be because the son never effectively accepted delivery. A deed is not effective to transfer an interest in realty unless it has been delivered, and there must be acceptance by the grantee to complete the conveyance. (D) is the best answer because even though most states presume acceptance, the presumption is rebutted when the grantee expressly refuses to accept the conveyance. (A) is wrong because there is no such thing as a “constructive reconveyance” of land. (B) may look good at first, but it is a minority rule. In most states, acceptance is presumed if the conveyance is beneficial to the grantee, regardless of whether the grantee has knowledge of the conveyance. (C) is wrong because neither the son nor the wife is guilty of any wrongdoing and there is no ground to impose a constructive trust.
A businesswoman entered into a written contract with a general contractor to build a studio and broadcast transmitter for $3 million by July 1. Among his tasks, the contractor was to install underground cables and fiberoptic lines necessary to broadcast.
When digging the deep trench necessary to lay the conduit containing the fiberoptic lines, the contractor encountered a stretch of extremely soggy soil. This was an indication that an offshoot of the nearby city’s aquifer underlay the property. This was not indicated on any of the geological survey maps available in the office of the county recorder of deeds. The contractor told the businesswoman that it would cost an additional $50,000 to lay the conduit through that stretch of soil. The businesswoman had already launched an advertising campaign indicating that the station would begin broadcasting on July 4, which was rapidly approaching. Therefore, when the contractor threatened to quit the job without the additional $50,000, the businesswoman reluctantly agreed orally to the contractor’s demand as long as he promised that all of the work would be completed by the middle of June. The contractor agreed, proceeded to lay the conduit, and completed building the studio and transmitter by June 15. The businesswoman paid the contractor $3 million, but when the contractor demanded $50,000 more, she refused to pay it. The contractor sues the businesswoman for the $50,000.
Who will prevail?
A The businesswoman, because the oral modification was not effective to alter the prior written agreement.
B The businesswoman, because no valid consideration was provided for the agreement to pay the additional $50,000.
C The contractor, because the modification was supported by consideration.
D The contractor, because he detrimentally relied on the businesswoman’s promise to pay the additional $50,000.
C
The original contract was modified by the parties, and this modification discharged the payment term of the original contract ($3 million) and replaced it with a new payment term ($3,050,000). If a contract is subsequently modified by the parties, this will serve to discharge those terms of the original contract that are the subject of the modification. Generally, a modifying agreement must be mutually assented to and supported by consideration. In most cases, consideration is found to be present in that each party has limited her right to enforce the original contract as is. Generally, if a modification will benefit only one of the parties, it may be unenforceable without some consideration being given to the other party. If, however, a promisee has given something in addition to what he already owes in return for the promise he now seeks to enforce, or has in some way agreed to vary his preexisting duty, there is consideration. Here, the businesswoman agreed to pay the contractor an additional $50,000 and the contractor agreed to complete the work early—by mid-June instead of July 1. Thus, there was sufficient consideration to support the modification. Note that this modification may have been enforceable without consideration. Under the modern view, a modification is enforceable without consideration if the modification is fair and equitable in view of the unanticipated circumstances. Here, the aquifer did not appear on city surveys, so the soggy soil was not anticipated. The $50,000 represented the electrician’s additional cost, so the modification seems fair. (A) is incorrect because neither the Statute of Frauds nor the parol evidence rule affects the validity of the oral modification. The Statute of Frauds does not require a writing for the modification of a construction contract, and parol evidence can be offered to show subsequent modifications of a written contract. (B) is incorrect because, as explained above, the contractor’s agreement to vary his contractual duty by promising to perform all of the work by a date earlier than that originally agreed to constitutes consideration sufficient to support the businesswoman’s promise to pay the additional $50,000. (D) is incorrect because the electrician was already obligated to perform; i.e., he was already obligated to do the job he did in reliance on the businesswoman’s promise. Therefore, fulfilling his duty cannot be detrimental reliance.
After drinking at his favorite bar all day long and becoming very intoxicated, the defendant pulled out a gun to reenact a scene from a movie he had seen the other day. Pointing his gun at a bystander, he slurred a line from the movie and pulled the trigger. He was shocked to see the bystander fall down dead with a bullet in him. Due to his intoxicated state, the defendant cannot remember pulling out or firing the gun.
A state statute defines all murders as second degree murders unless deliberation and premeditation can be shown, in which case the crime is elevated to first degree murder.
The crimes below are listed in descending order of seriousness.
What is the most serious crime of which the defendant may be convicted?
A First degree murder.
B Second degree murder.
C Manslaughter.
D No crime.
B
The defendant may be convicted of second degree murder. In states that divide murder into degrees, evidence that the defendant was intoxicated may be used to show that the defendant was unable to premeditate and deliberate on the idea of killing, making (A) incorrect. In such jurisdictions, however, the fact that the defendant was intoxicated may not further reduce the killing from second degree murder to manslaughter, given that second degree murder encompasses common law murder and thus includes depraved heart murder. Carrying and firing a gun while intoxicated certainly shows a reckless indifference to an unjustifiably high risk to human life, thus meeting the definition of second degree murder. This makes (B) correct and (C) and (D) incorrect.
To satisfy a debt owed to a creditor, a son executed and delivered to the creditor a warranty deed to a large tract of undeveloped land. The creditor promptly recorded the deed. Shortly thereafter, she built a house on the property and has lived there ever since. The son never actually owned the land. It belonged to his father, but the father had promised to leave the property to the son.
Later, the father died and his will devised the property to the son. Pressed for money, the son then sold the land to an investor by warranty deed, which the investor promptly recorded. Although the investor paid full value for the property, he purchased it strictly for investment and never visited the site. He therefore did not realize that the creditor was living there, and knew nothing of the son’s earlier deed to the creditor.
The jurisdiction in which the land is located has the following statute: “A conveyance of an estate in land (other than a lease for less than one year) shall not be valid against any subsequent purchaser for value without notice thereof unless the conveyance is recorded.”
Which of the following is the most likely outcome of a quiet title action brought by the creditor against the investor?
A The creditor prevails, because the son had no title to convey to the investor.
B The creditor prevails, because the investor was not a purchaser for value without notice of the creditor’s interest.
C The investor prevails, because under the doctrine of estoppel by deed, title inures to the benefit of the original grantee only as against the grantor.
D The investor prevails, because under the recording acts, the deed from the son to the creditor was not in the chain of title and hence did not constitute notice to the investor.
B
The creditor will prevail in a suit to quiet title because the investor had notice of the creditor’s interest in the property and, thus, is not a bona fide purchaser for value. When a grantor purports to convey property that he does not own, his subsequent acquisition of title to that property vests in the grantee under the doctrine of estoppel by deed. Most courts, however, hold that this is personal estoppel, which means that title inures to the grantee’s benefit only as against the grantor, not a subsequent bona fide purchaser. If the grantor transfers his after-acquired title to an innocent purchaser for value, the bona fide purchaser gets good title. There is a split of authority as to whether the original grantee’s recordation of the deed imparts sufficient notice to prevent a subsequent purchaser from being a bona fide purchaser, but the majority view is that it does not because it is not in his chain of title. Thus, it is not the fact that the creditor recorded that prevents the investor from being a bona fide purchaser. The fact that the creditor built a home and was living on the property gave the investor constructive notice of her interest. A title search is not complete without an examination of possession. If the possession is unexplained by the record, the subsequent purchaser is charged with knowledge of whatever an inspection of the property would have disclosed and anything that would have been disclosed by inquiring of the possessor. Therefore, the investor is charged with knowledge of the creditor’s possession and with what the creditor would have told him about her possession; i.e., that the property was conveyed to her by the son prior to his conveyance to the investor. Consequently, the investor does not qualify as a bona fide purchaser, and (C) is an incorrect choice. (A) is incorrect because, although the son is estopped to deny that he acquired title for the benefit of the creditor, he could have conveyed valid title to a subsequent purchaser for value who had no notice of the creditor’s interest. Therefore, it is not exactly correct to say that the son had no title to convey. (D) is incorrect because the investor will not prevail. It is true that under the recording acts the creditor’s deed was not in the chain of title, but the investor still does not qualify as a bona fide purchaser. The investor is on inquiry notice arising from the creditor’s possession of the property.
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?
A A contingent remainder.
B A vested remainder.
C A shifting executory interest.
D Void, as violating the Rule Against Perpetuities.
A
The children have a contingent remainder. A remainder is a future interest created in a transferee that is capable of taking in present possession on the natural termination of the preceding estate created in the same disposition. Note that, as a rule of thumb, remainders always follow life estates. A remainder will be classified as contingent if its taking is subject to a condition precedent, or it is created in favor of unborn or unascertained persons. Here, the interest in the children follows a life estate and is a remainder because it is capable of taking in possession on the natural termination of the preceding estate. It is subject to the condition precedent of surviving the landowner’s widow and, additionally, is in favor of unascertained persons (the children who survive the landowner’s widow will not be ascertained until her death). Thus, the interest is a contingent remainder. (B) is incorrect because a vested remainder can be created in and held only by ascertained persons in being, and cannot be subject to a condition precedent. As discussed above, the will provision clearly does not satisfy these requirements because the takers are not ascertained and their interest is subject to a condition of survival. (C) is incorrect because a shifting executory interest is one that divests the interest of another transferee; i.e., it cuts short a prior estate created by the same conveyance. The gift to the children does not divest the interest of the widow; she retains a life estate in the property. The children’s interest takes in possession only on the natural termination of the widow’s estate (i.e., at her death). (D) is incorrect because the interest does not violate the Rule Against Perpetuities. The children’s interest will vest, if at all, not later than 21 years after the lives in being. The landowner’s widow and the children themselves are lives in being. There is no unborn widow problem because the instrument takes effect on the landowner’s death and the gift is to his own widow. She must be in being at his death. Likewise, his children would be in being at his death. Thus, the vesting will be within the period of the Rule.
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.
C
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) is incorrect. Since the museum’s agent was responsible for transporting the bills, the museum clearly assumed the risk that the bills were too brittle for the type of transport. (B) is incorrect because this is a fact occurring after the contract was made. When both parties entering into a contract are mistaken about existing facts (not future happenings) relating to the agreement, the contract may be voidable by the adversely affected party. Here, the subsequent change in price cannot be considered a mistake that was made at the time the parties entered into their contract. (D) is incorrect because the circumstances do not satisfy the requirements for discharge by frustration. Frustration will exist where the purpose of the contract has become valueless by virtue of some supervening event not the fault of the party seeking discharge. To establish frustration, the following must be shown: (i) there is some supervening act or event leading to the frustration; (ii) at the time of entering into the contract, the parties did not reasonably foresee the act or event occurring; (iii) the purpose of the contract has been completely or almost completely destroyed by this act or event; and (iv) the purpose of the contract was realized by both parties at the time of making the contract. Here, the salvage company thought that the purchasing agent was purchasing the bills for himself; thus, it did not realize at the time the contract was made that the purpose of the contract was to procure the bills for the museum that was subsequently destroyed. Therefore, frustration will not be available as a ground for rescission here.
A vintner divided his vineyard into two parcels, drawing the boundaries so that the single well that had irrigated the entire vineyard fell on the border of the two properties. The vintner then conveyed the eastern parcel to his friend by a deed that contained the following covenant:
“If the well located on the boundary of the eastern and western parcels continues to be used for irrigation purposes and becomes in need of repair or replacement, the grantee, his heirs, and assigns and the grantor, his heirs, and assigns each promise to pay one-half of the cost of such repair or replacement. This covenant shall run with the land.”
The deed from the vintner to the friend was not recorded, and the vintner did not record a copy of the deed with the records for the western parcel.
The friend later sold the eastern parcel to a farmer. The farmer’s deed did not contain the covenant about the well. After 15 years of use by the owners of both the eastern and western parcels, the well began to fail. The farmer took it upon himself to have the well repaired at a cost of $30,000. About two weeks later, the farmer discovered the deed from the vintner to the friend in some old files. By this time, the western parcel had passed to the vintner’s son by inheritance and again to the son’s daughter by inheritance from the now-deceased son. The daughter knew nothing of the covenant concerning the well. The farmer presented the daughter with the bill for the well repair with a copy of the vintner/friend deed and a note that said he expected to be reimbursed for $15,000. The daughter refuses to pay, and the farmer sues.
The jurisdiction has a 10-year statute of limitations for acquiring property by adverse possession, and the following recording statute: “Any conveyance of an interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.”
For whom is the court most likely to rule?
A The daughter, because the deed from the vintner to the friend was never recorded.
B The daughter, because the farmer has acquired the well by adverse possession.
C The farmer, because the covenant runs with the land.
D The farmer, because he is a bona fide purchaser.
C
The farmer will most likely prevail in his suit for one-half the cost of the well repairs because the covenant runs with the land. When a covenant runs with the land, subsequent owners of the land may enforce or be burdened by the covenant. If all of the requirements for the burden to run are met, the successor in interest to the burdened estate will be bound by the arrangement as effectively as if he had himself expressly agreed to be bound. To be bound: (i) the parties must have intended that the covenant run with the land; (ii) the original parties must have been in horizontal privity; (iii) the succeeding party must be in vertical privity with the original promisor; (iv) the covenant must touch and concern the land; and (v) generally, the burdened party must have actual or constructive notice of the covenant. Here, the intent is shown by the express language of the covenant, which says that it is intended to run with the land. Even without that language, the use of the words “heirs” and “assigns” would show the intent for the covenant to run. The original parties were in horizontal privity because at the time the vintner entered into the covenant, he and the friend shared an interest in the land independent of the covenant—as grantor and grantee. The daughter is in vertical privity with the vintner because she holds the entire interest in the western parcel held by the vintner. The covenant touches and concerns the land because promises to pay money to be used in a way connected with the land are held to touch and concern the property. Because the daughter was unaware of the covenant, the required notice seems to be missing. While it is generally true that the owner of the burdened land must have notice, it should be remembered that the requirement is a function of the recording statute. (At common law, the covenant was enforceable in an action for damages regardless of notice; this was changed by the recording statutes.) However, because the daughter is a donee (an heir) and not a bona fide purchaser, she is not protected by the recording statute and thus is subject to the covenant even without notice. For that reason, (A) is wrong. (B) is wrong because the farmer’s possession does not satisfy several of the requirements for adverse possession. Because the farmer had a legal right to use the well, his use was not adverse or hostile to the rights of the vintner’s son and the son’s daughter, but was rather permissive. The farmer’s possession also fails the exclusivity requirement because the facts state that the well was used to irrigate both parcels for most of the statutory period. (D) is wrong because the farmer’s status as a bona fide purchaser has no effect on his ability to enforce the covenant. A successor in interest to the original promisee may enforce the covenant (enjoy the benefit) if there was intent and vertical privity, and the covenant touches and concerns the land. Notice is not required for the benefit to run. Thus, because the above requirements are met here, the farmer may enforce the covenant regardless of his status as a bona fide purchaser. Had the farmer taken the property as a donee, the above analysis would be the same.
Adherents of a particular religion whose tenets focused mostly on business practices forbade women from studying their sacred texts. A group of college students who were adherents of that religion applied to use an empty room at their state college to study sacred texts. The school permitted numerous student groups to use its facilities for extracurricular activities during times when classes were not in session. However, the school administration denied the requests from the group in question, claiming that it would be in violation of a state statute forbidding any group using public facilities to discriminate on the basis of race or gender. The students brought an action in federal court challenging application of the statute to them by the school administration.
If the court finds the actions of the school valid, what is the most likely reason?
A Permitting the religious group to hold the meeting in a public school facility would violate the Establishment Clause, applicable to the state under the Fourteenth Amendment.
B The statute is the least restrictive means of advancing the state’s compelling interest in ending discrimination by groups using public facilities.
C Allowing student groups to use classroom facilities when classes are not in session does not constitute state action for purposes of the Fourteenth Amendment.
D The right of freedom of association does not apply to groups involved in business and commercial activities.
B
If the school’s action is valid, it will be because the state statute is the least restrictive means of advancing the state’s compelling interest in ending discrimination by groups using public facilities. While schools are generally not public forums, they may become a designated public forum by being held open to student groups for meetings. In that case, the First Amendment may be violated if a college restricts use of its classrooms based on the content of a student group’s speech. To justify content-based regulation of otherwise protected speech, the government must show that the regulation is necessary to achieve a compelling state interest that cannot be satisfied by less restrictive means. Similarly, the right to associate for expressive purposes is not absolute. At the very least, the right may be infringed to serve a compelling government interest, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms. Here, the state’s interest in not allowing its facilities to be used by groups practicing discrimination of various types is compelling. [See Roberts v. United States Jaycees (1984)] The denial of access to the student group based on the students’ religious principles, while it may be viewed as content-based discrimination, is the most narrowly drawn means of advancing the state’s interest. [See Bob Jones University v. United States (1983)] (A) is incorrect because a school does not violate the Establishment Clause by permitting a religious student group the same after-class access to its facilities that other student groups have. [Good News Club v. Milford Central School (2001)] (C) is incorrect because the actions of administrators of a state college in allowing or denying access to its facilities is clearly state action that brings the Fourteenth Amendment into play. (D) is incorrect. While the right to join together for expressive or political activity, which is protected by the First Amendment, may be less strong for large organizations that engage in both commercial and expressive activity than for smaller and more selective groups, it is still a recognized right. [See Roberts v. United States Jaycees, supra] Furthermore, the student group’s discussion of business activity in this case is tied to its religion. Hence, the association rights of the student group are based on freedom of religion as well as freedom of expression. The state would probably have to show a compelling interest to support a restriction on the group’s association rights.
A plaintiff sued an auto manufacturer for negligence after a car accident involving the plaintiff’s car that was made by the auto manufacturer. Sixty days after service of the complaint and 40 days after service of the manufacturer’s answer that contained no counterclaim, the plaintiff filed a motion seeking to file an amended complaint adding a claim for strict products liability against the auto manufacturer stemming from the same incident. The statute of limitations for strict products liability claims expired one week before the motion was filed.
How should the court rule on the plaintiff’s motion?
A Grant the motion, because every party is entitled to amend once as a matter of course.
B Grant the motion, because the amended complaint relates back.
C Deny the motion, because, while the motion is timely, the proposed claim is futile because the statute of limitations has run.
D Deny the motion, because it is not timely.
B
The court should grant the motion. Federal Rule of Civil Procedure 15 states that leave of court (to grant motions to amend) is to be “freely given when justice so requires.” The rule does not provide any clear date when amendments are no longer permissible, although later amendments obviously would be less fair and less likely to be considered in the interest of justice. Additionally, for statute of limitations purposes, proposed claims may be considered to “relate back” to the date of the original pleading in which the claim was made under Rule 15(c). That is critical here because, although the statute of limitations for the proposed products liability claim had expired at the time the motion was made, the amended complaint asserting a products liability claim relates back to the original filing because that claim stems from the same facts alleged in the original complaint, and the statute of limitations had not expired at the time of the original filing. (A) is incorrect because a plaintiff may amend the complaint once as a matter of course (i.e., without court intervention) not later than 21 days after service of the auto manufacturer’s answer. Here, 40 days have passed since the auto manufacturer filed its answer, so amending as a matter of course is not permitted. (C) is incorrect. Although the proposed claim would be futile if filed in an original complaint, here, because the claim can relate back to a complaint filed at a time when the proposed claim was still viable, the proposed claim is not considered futile. (D) is incorrect by suggesting that the motion is not timely. Although plaintiff can no longer amend as a matter of course, there is no absolute date pursuant to which a motion to amend is untimely.
Small, prolific mussels called zebra mussels were first introduced into the Great Lakes by a foreign cargo ship. They became a serious problem because they attached themselves to smooth, hard surfaces, and often clogged water intake pipes. Congress determined that zebra mussels posed a great threat to the economic welfare of the Great Lakes region and passed a statute requiring all Great Lakes water intakes to be coated with a special chemical compound that repels zebra mussels. Studies by biologists at a major state university showed that while the special chemical compound that the federal government has required was effective, it also was toxic to other aquatic life. The biologists recommended that Great Lakes intake pipes be coated with a less toxic and less expensive copper-based paint. On the basis of those studies and the recommendation, three Great Lakes states adopted laws permitting municipal water districts to coat their intake pipes with copper paint.
Can municipalities using copper-based paint on their intake pipes successfully be prosecuted for violating the federal law?
A No, because the Tenth Amendment prevents Congress from interfering with integral government functions.
B No, because the municipalities are taking effective steps to combat zebra mussels in compliance with the spirit and purpose of the federal law.
C Yes, because Congress is in a better position to regulate the entire Great Lakes region than the individual states.
D Yes, because Congress may adopt laws regulating navigable waters.
D
The cities can be prosecuted because state or local government action that conflicts with valid federal laws is invalid under the Supremacy Clause. The federal law here could be found valid as an exercise of the commerce power (Congress can regulate any activity that either in itself or in combination with other activities has a substantial economic effect on interstate commerce) or under the admiralty power (Congress can regulate all navigable waterways). The action of the municipalities directly conflicts with the directives of the federal law and can therefore be stopped. (B) is incorrect because the fact that the copper paint may be as effective as the special compound does not change the result. The action by the municipalities can be prohibited under the Supremacy Clause. (A) is incorrect because for regulations that apply to both the public sector and the private sector, the Supreme Court has held that states’ Tenth Amendment rights are best protected by the states’ representation in Congress; hence, the Tenth Amendment is not a likely ground for striking this federal legislation because it is not directed only at state or local governments. (C) is incorrect because it is irrelevant; the federal law is superior to the states’ laws because it is within Congress’s power, not because Congress is in a better position than the states to adopt the legislation involved.
