MPQ II

Question 1

Torts- Defamation

Answer 1

Candidate for public office, as such, to recover he must establish (i) falsity, and (ii) “actual malice”- i.e. knowledge of falsity or reckless disregard of truth or falsity.

Question 2

Criminal law- attempt

Answer 2

An attempt of a strict liability crime requires proof that the defendant acted with the intent to bring about the proscribed result.

Question 3

Contracts/ Sale- parol evidence rule

Answer 3

Where a dispute exists as to the meaning of a written agreement’s terms, parol evidence can be received to aid the fact finder in reaching a correct interpretation of the agreement. The UCC follows the modern approach that permits evidence of interpretation even when the terms are not patently ambiguous.

Question 4

Constitutional Law- state regulation of commerce

Answer 4

The state may “within the proper purpose of the exercise of its police powers” require licensing of anyone who deals with the public in general. The Supreme Court has been particularly liberal when the state is attempting legislation that is remedial in effect to cure a social evil that exists within the state.

Question 5

Constitutional Law- equal protection clause

Answer 5

State alienage classifications are suspect and will be upheld only if necessary to promote a compelling state interest.

Question 6

Evidence- hearsay rule

Answer 6

Unavailable declarant’s statements made in a deposition are admissible under the former testimony exception but they must be made under oath. A statement not specifically covered under the specific hearsay exceptions but having equivalent guarantees of trustworthiness is admissible if: (i) it is offered as evidence of a material fact, (ii) it is more probative of the issue than any other evidence the proponent cant procure with reasonable efforts, (iii) the purposes of the rules of evidence and the interests of justice will be best served by admission of the statement, and (iv) the proponent gives the adverse party sufficient notice of his intention to use the statement and the statement’s particulars.

Question 7

Real Property- statute of frauds

Answer 7

The statute of frauds requires that any transfer of an interest in land be in writing. To create a joint tenancy with right of survivorship, the unities of time, title, interest, and possession must be present; i.e. a tenancy in common cannot be converted to a joint tenancy by agreement.

Question 8

Constitutional Law- equal protection

Answer 8

The Equal protection Clause requires that similarly situated persons not be discriminated against unreasonably. Where a suspect class is involved, ti is unreasonable to discriminate unless the government can show that the discrimination is narrowly tailored to achieve a compelling governmental interest. As to state government regulation, alienage is a suspect class.

Question 9

Tors- strict liability

Answer 9

The general rule is that one who possesses an animal not customarily domesticated int aht are is strictly liable for all harm done by the animal as a result of its harmful or dangerous characteristics. For trespassers, however, strict liability is not imposed against landowners. Trespassers cannot recover for injuries inflicted by the landowner’s wild animals in the absence of negligence, such as where the landowner knows that trespassers are on the land and fails to warn them of the animal.

Question 10

Evidence- lay opinions

Answer 10

Aural voice identification is not a subject of expert testimony, lay opinion is sufficient. Familiarity with the voice may be acquired before or after the speaking that is the subject of the identification.

Question 11

Criminal Law- arson

Answer 11

Arson at common law consists of the malicious burning of the dwelling of another. All that malice requires is that the defendant acted with the intent or knowledge that the structure would burn, or with reckless disregard of an obvious risk that the structure would burn. The requirement that the building be “of another” pertains to possession rather than ownership.

Question 12

Criminal Law- robbery

Answer 12

Robbery consists of a taking of personal property of another from the other’s person or presence by force or intimidation with the intent to permanently deprive him of it. The force must be used either to gain possession of the property or to retain possession immediately after such possession has been accomplished, but the defendant need not have intended to use force to compete the crime; the only intent required is the intent to permanently deprive the victim of his property.

Question 13

Contracts- implied-in-fact contract

Answer 13

An implied-in-fact contract is a contract formed by manifestations of assent other than oral or written language (i.e., by conduct). Even if there is no subjective “meeting of the minds,” the parties will be bound if their conduct objectively appears to manifest a contractual intent. Where an offeree silently takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation, the offeree’s inaction may constitute an acceptance.

Question 14

Real Property- easements/ marketable title

Answer 14

Marketable titel means that the title must be free from questions that present an unreasonable risk of litigation. If a use exists on the “servient” part of the tract that is reasonably necessary for the enjoyment of the “dominant” part, and a court determines that the parties intended the use to continue after division of the property, an easement will be implied.

Question 15

Torts- proximate case

Answer 15

Where a defendant’s conduct creates an unreasonable risk of injury to person in the position of the plaintiff, the general duty of care extends form the defendant to the plaintiff. However, no duty is imposed on a person to take precautions against events that cannot be reasonably foreseen. An in terms of proximate cause, intervening forces that produce unforeseeable results (results not within the increased risk created by the defendant’s negligence) will be deemed to be unforeseeable and superseding, and thus break the causal connection between the defendant’s negligent act and the ultimate injury.

Question 16

Contracts- consequential damages

Answer 16

Consequential damages may be awarded for further losses resulting form the breach that any reasonable person would have foreseen would occur from a breach at the time of entry into the contract.

Question 17

Contracts- offer and acceptance

Answer 17

Notice to an offeree that the offeror has made an inconsistent contract with a third party operates as a revocation of the offer.

Question 18

Contracts- offer and acceptance

Answer 18

For impossibility of performance- the impossibility must be “objective” (the duties could not be performed by anyone. Also, the impossibility must arise after the contract has been entered into.

Question 19

Constitutional Law- individual rights

Answer 19

A bill of attainder is a legislative act that inflicts punishment without a judicial trial on individuals who are designated either by name or in terms of past conduct. Past conduct acts to define who those particular persons are. The prohibition against bills of attainder mandates that the use of judicial machinery for trial and punishment of crimes as well as the drafting of the definition of criminal conduct in such general terms that it will not single out a particular individual or small group for punishment because of past behavior.

Question 20

Evidence- privileged communications/ admissions

Answer 20

A statement by a party-opponent is a statement made or an act done that amounts to a prior acknowledgment by one of the parties to an action of one of the relevant facts in dispute.

Question 21

Torts- duty of innkeepers

Answer 21

Innkeepers have a duty to use a high degree of care to aid or assist their guests and to prevent injury to them from third persons. Including taking reasonable precautions against foreseeable criminal acts of third parties.

Question 22

Torts- invasion of privacy

Answer 22

Invasion of privacy. Just because the plaintiff may have been engaging in illegal adulterous conduct does not justify a private individual’s intrusion on his solitude. The situation might be different if the detective were a law enforcement officer acting pursuant to previously obtained judicial authorization.

Question 23

Real Property- rule against perpetuities

Answer 23

The Rule Against Perpetuities makes class gifts entirely void unless it is certain that the gift will vest or fail as to all members of the calls within the perpetuities period. It must vest or fail within “lives in being” and 21 years.

Question 24

Criminal Law/ Procedure- search and seizure

Answer 24

To have a Fourth Amendment right, a defendant must have a legitimate expectation of privacy in the object seized. A person does not have such an expectation in objects held out to the public, such as account records held by a bank.

Question 25

Torts- false imprisonment

Answer 25

A prima facie case for false imprisonment consists of: an act or omission to act by the defendant that confines or restrains the plaintiff; intent on the part of the defendant to confine; and causation. Under the general rule, confinement is not present unless the plaintiff is aware of the confinement at the time. However, most courts recognize an exception to the awareness requirement if the plaintiff is actually injured by the confinement.

Question 26

Evidence- impeachment

Answer 26

A witness’s statement on a collateral matter may be impeached only by cross-examination. A collateral matter is one that is not directly relevant to the issues int he case.

Question 27

Constitutional Law- executive power

Answer 27

The President has no power to refuse to spend appropriated funds when Congress has expressly mandated that they be spent. Congress has the power to spend money for the general welfare under Article I.

Question 28

Real Property- recording

Answer 28

A quitclaim deed merely means the seller is not making any warranties of title.

Question 29

Contracts- mistake

Answer 29

Under the preexisting legal duty rule, past consideration is valid consideration if there is an honest dispute as to duty owed.

Question 30

Torts- indemnity

Answer 30

Generally a joint tortfeasor may recover indemnification from another joint tortfeasor where there is a considerable difference int he degree of fault.

Question 31

Criminal Law/ Procedure- burden of proof

Answer 31

The Due Process Clause has been interpreted as requiring the prosecution to prove each element of the crime charged beyond a reasonable doubt. The “malice aforethought” element of murder has traditionally been defined as encompassing the absence of provocation engendering a passion. Putting the burden of persuasion as to the existence of provocation as passion on the defendant relieves the prosecution of its burden as to their absence.

Question 32

Criminal Law/ Procedure- search and seizure

Answer 32

Putting trash cans next to a back window to climb upon and peering into the window through a narrow opening eight feet above the ground would be considered a violation of the defendant’s Fourth Amendment rights and not a “plain view” of criminal activity.

Question 33

Evidence- impeachment/ bias

Answer 33

Evidence that a witness is biased tends to show that the witness has a motive to lie. A witness may always be impeached by extrinsic evidence fo bias, provided a proper foundation is laid. Bias may be shown by evidence of business relationship or friendship with a part.

Question 34

Contracts- measure of damages

Answer 34

Where the builder breaches after partially performing, the owner of the land is entitled to the cost of completion plus reasonable compensation for any delay in performance. Courts generally allow the builder to offset or recover for work performed to date to avoid the unjust enrichment of the owner.

Question 35

Contracts- consideration

Answer 35

There was an enforceable contract for the lot at $5,000, so there was no consideration for the buyer’s agreeing to pay more for that lot, so the promise is unenforceable.

Question 36

Contracts- discharge of duties

Answer 36

When a condition or duty of performance is broken, the beneficiary of the condition or duty has an election: it may (i) terminated its liability; or (ii) continue under the contract. If it chooses the latter course, it will be deemed to have waived the condition or duty.

Question 37

Real Property- covenants for life

Answer 37

Covenants for title are not like real covenants; they are not characterized as personal or running with the land. Covenants for title are either present or future.

Question 38

Constitutional Law- standing

Answer 38

Even if a federal court has jurisdiction over the subject matter of a case, it will not decide a constitutional challenge to a government action unless the part challenging the action has “standing” to raise the constitutional issue (i.e., a concrete stake in the outcome in the controversy). This requires the plaintiff to show an injury in fact- caused by the government- that will e remedied by a decision in its favor.

Question 39

Torts- comparative negligence

Answer 39

You should assume pure comparative negligence is the rule unless the question specifies otherwise- the plaintiff may recover no matter how great her negligence. Absent a statute damages are not reduced or mitigated because of benefits received from collateral sources. Plaintiff may recover only the amount minus her percentage of damages.

Question 40

Real Property- marketable title

Answer 40

The law will not protect a party who failed to protect themselves (when they had ample opportunity to inspect and discover the condition and fail to do so). The landowner, in the absence of a fiduciary relationship with the developer or of any affirmative representations that the landowner knows or discovers to have been false, has no duty to disclose the existence of a conduit excepts (in some jurisdictions) if he knows that the developer is laboring under a misapprehension as to the basic assumption and the act of nondisclosure is made in bad faith.

Question 41

Criminal Law- burglary/ impossibility

Answer 41

Burglary requires a breaking and entering with the intent to commit a felony therein.

Question 42

Torts- negligent infliction of emotional distress

Answer 42

If a bystander suffers distress from seeing injury to another, a majority of courts now allow recover if (i) the plaintiff and the person injured by the defendant are closely related, (ii) the plaintiff was present at the scene of the injury, and (iii) the plaintiff personally observed or perceived the event.

Question 43

Evidence- hearsay rule

Answer 43

The Federal Rules allow the admission of statements not only of past symptoms and medical history, but also of the cause or source of the condition as reasonably pertinent to diagnosis or treatment.

Question 44

Constitutional Law- fundamental rights

Answer 44

If a law burdens a fundamental right, the state must demonstrate that the law is necessary to promote a compelling state interest. In all other cases, a law is valid if it rationally relates to a legitimate end of government. Where the rational basis test applies, the law is presumed valid and the burden is on the challenging party to prove its invalidity.

Question 45

Criminal Law- felony murder

Answer 45

A conviction for felony murder requires that the defendant have had the intent to commit the underlying felony. (If the defendant rightfully believes the money she was taking was hers, then she did not have the intent to permanently deprive the store of their money).

Question 46

Criminal Law/Procedure- right to counsel

Answer 46

A criminal defendant does not have the right to counsel during a photo identification, during a taking of a voice exemplar or during a blood sampling. But does have the right to be represented during a post-charge line up.

Question 47

Evidence- character evidence

Answer 47

A criminal defendant may introduce evidence of a pertinent character trait because it may tend to show that he did not commit the crime charged.

Question 48

Real Property- executory interests

Answer 48

The right to take minerals is an incident of a fee simple interest. The owner of a defeasible fee has the same right to possession and privileges of use as the owner of fee simple absolute. Only unconscionable conduct by the owner that substantially reduces the value of the land could possibly be enjoined by the person who would take the land should the current owner’s estate terminate.

Question 49

Torts- defamation

Answer 49

A former employer responding to quires of a prospective employer about a job applicant, there is a qualified privilege. Although this privilege is not absolute; it exists only if exercised in a reasonable manner and for a proper purpose. The privilege may be lost if the speaker mad a statement not within the scope of the privilege or if the speaker acted with “malice.”

Question 50

Real Property- marketable title

Answer 50

Marketable title is one that is free form reasonable doubt in fact or in law. If something is unclear about possible restrictions, it is unmarketable.