practice 200 question MBE important concepts

Question 1

What prohibits states from interfering with federal detention by issuing habeas writs?

Answer 1

Supremacy Clause

Question 2

The retailer’s order constituted an offer. Under UCC § 2-206, an offer made by an order of goods may be accepted by what methods?

Answer 2

the shipment of goods or by a prompt promise to ship.

Question 3

T or F A company is not liability and has no duty to protect people from being injured by third parties who intentionally misuse its site, if the company merely provides a platform for transactions between individuals.

Answer 3

True

Question 4

T or F a defendant’s attempt to flee the country to escape a pending criminal trial is admissible to show his consciousness of guilt and makes his guilt more probable than it would be without the evidence.

Answer 4

True

Question 5

As long as a plaintiff presents a colorable claim under federal law, would it be sufficient to support supplemental jurisdiction over state-law claims that form part of the same case or controversy if the court dismisses the federal claim? Why or why not?

Answer 5

Yes it would be sufficient because the dismissal of the federal-law claim does not divest the court of supplemental jurisdiction. However, but the court can rely on the dismissal of the federal anchor claim.

Question 6

T or F freedom of the press protected by the First Amendment exempts press activities from laws of general application such as contract law.

Answer 6

False, it does not protect them

Question 7

If a document is inadvertently disclosed during discovery, does the the waiver of an attorney client privilege extend to additional undisclosed communications even if related?

Answer 7

No, it does not

Question 8

When is removal to a federal court not barred by the forum-defendant rule? when is it barred?

Answer 8

A removal is not barred by the forum-defendant rule (D is domiciled in state where forum court sits) if the claim is a federal question claim. The rule that bars removal applies only when diversity is the only basis for federal jurisdiction.

Question 9

preliminary questions such as the sufficiency of the expert’s basis for her opinion and the reliability of the expert’s methodology—are for the court to determine by what standard?

Answer 9

a preponderance of the evidence.

Question 10

A person who hires an independent contractor ordinarily is not liable for injury to a third party caused by the contractor’s negligence. What is the exception to this general rule regarding the person hiring the independent contractor directly influences the manner in which the contractor performs the work?

Answer 10

An exception to this rule when the person directly influences the manner in which the contractor performs the work so as to contribute to the creation of the danger that causes the third party’s injury.

Question 11

Service within 100 miles of the courthouse where an action is pending is effective to establish personal jurisdiction only over what kind of defendants joined to a lawsuit? hint not original defendants.

Answer 11

under Rule 14 (impleader) or Rule 19 (compulsory joinder) not original defendants.

Question 12

T or F litigants are permitted to raise personal-jurisdiction challenges for the first time in an answer that is amended as a matter of course.

Answer 12

True

Question 13

Why is a “lifetime” employment agreement not subject to the statute of frauds?

Answer 13

A “lifetime” employment agreement is not subject to the statute of frauds, because it could be performed within a year if the employee dies within that time period.

Question 14

What does the best evidence rule require?

Answer 14

the best evidence rule requires an original or duplicate of the letter to prove the letter’s contents.

Question 15

inter branch disputes involving foreign affairs are not subject to the political question doctrine when they concern?

Answer 15

the validity of a federal statute.

Question 16

If a bank teller steals money from the bank is she guilty of larceny or embezzlement? If the president of the bank steals money is he guilty of larceny or embezzlement? why?

Answer 16

bank teller guilty of larceny

if bank president, guilty of embezzlement because he actually had lawful possession of the money.

Question 17

What are the elements of embezzlement?

What is a defense to embezzlement?

Answer 17

1. fraudulent 2. conversion 3. of another’s property 4 by a person in lawful possession with intent to defraud.

Defense: if there is intent to restore the EXACT property that was taken, the person is not guilty of embezzlement.

Question 18

T or F, intent to restore substantially similar property including money is a defense to embezzlement

Answer 18

false, it is not a defense because money is only substantially similar property and not exact property

Question 19

What is an implied in fact contract?

Answer 19

implied-in-fact contract is a contract where the mutual promises are inferred from conduct.

Question 20

T or F Without a waiver of formal service, the plaintiff must formally serve the defendant before the defendant would have an obligation to respond for purposes of a default judgment.

Answer 20

True

Question 21

the unfair prejudice from the evidence for FRE 403 must ____________ outweigh its probative value.

Answer 21

substantially

Question 22

T or F A witness’s testimony is sufficient to authenticate a photograph

Answer 22

True, a witness is required to authenticate it

Question 23

T or F Conversion occurs when an actor intentionally interacts with an item that is the personal property of another so as to permanently deprive the other of possession. This is true regardless of whether the actor knows that the item is in another’s possession.

Answer 23

True

Question 24

A judge find the threshold requirements for forfeiture of objections by what standard? What standard applies on preliminary questions of admissibility?

Answer 24

The federal courts have held that a trial judge may find the threshold requirements for forfeiture of objections by a preponderance of the evidence.

Further, the preponderance standard applies to the trial judge’s determinations on preliminary questions of admissibility under FRE 104(a).

Question 25

In order to forfeit either a hearsay objection under FRE 804(b)(6) or a confrontation clause objection, a defendant must have engaged in wrongful conduct for the purpose of?

Answer 25

preventing the declarant from testifying.

Question 26

The Supreme Court has upheld the power of Congress to remove certain types of federal officials, such as

Answer 26

those serving as members of the governing bodies of regulatory agencies and inferior officers in agencies where the head of the agency is removable by the President at will.

Question 27

T or F Congress cannot play any role in the removal of executive officers,

Answer 27

True

Question 28

Does the parol evidence rule bar the introduction of evidence to prove that an agreed-upon term was mistakenly omitted from the writing?

Answer 28

No

Question 29

When the written contract fails to express the actual agreement because of a mistake of both parties, the court may

Answer 29

reform the writing to accurately express the agreement.

Question 30

Where a deed is delivered to secure a loan to buy land, a deed is treated as a _________ if doing so accomplishes the parties’ intent.

Answer 30

mortgage

Question 31

A TRO must state the specific reasons why it was issued and must also?

Answer 31

detail the acts to be restrained

Question 32

When an offer can be accepted either by promise or by performance, what can constitute acceptance?

Answer 32

the beginning of performance acts as an acceptance that completes the process of mutual assent and binds both parties since consideration also is present. Also a promise can act as acceptance

Question 33

what is the rule regarding punitive damages awards in tort?

Answer 33

punitive damages awards are not authorized unless there is proof of willful or wanton misconduct on the defendant’s part.

Question 34

to permit relation back, the failure to name a party in the original complaint must have been due to a

Answer 34

mistake of identity,

Question 35

Where a mistake is mutual, the loss falls on the party who

Answer 35

bore the risk of mistake.

Question 36

T or F when is “of the essence” when the closing date was changes. It is irrelevant why the buyer did not appear at the rescheduled closing.

Answer 36

surprisingly True

Question 37

If a commission exercises significant legal authority and are under the power of no other federal agency, they are considered officers of the United States. Accordingly since they are not considered inferior officers, how must they constitutionally be appointed?

Answer 37

since they are not considered inferior officers, they must therefore be appointed by the President with the advice and consent of the Senate.

Question 38

If a defendant does not object to any of the jury instructions, Federal Rule of Civil Procedure 51(d)(2) provides that the defendant’s appeal can only be successful if?

Answer 38

the instruction affected the defendant’s substantial rights, which is the standard for plain error.

Question 39

The production of evidence “___________ (standard) “ that the evidence is what the proponent (here the prosecution) claims it to be is the proper standard for authentication

Answer 39

sufficient to support a finding

Question 40

T or F A state tax is valid if it is nondiscriminatory and does not apply directly to the federal government

Answer 40

True

Question 41

Even a nondiscriminatory state law may be unconstitutional if the? (hint balancing test)

Answer 41

burden on interstate commerce clearly outweighs the state’s interest in regulation.

Question 42

While an offeror generally has the power to revoke an offer up until the moment of acceptance, detrimental reliance by the offeree can make an offer irrevocable by transforming it into an _______ _________.

Answer 42

option contract,

Question 43

When may the defense offer extrinsic evidence to impeach a witness?

Answer 43

The defense may offer extrinsic evidence of a witness’s prior inconsistent statement for the limited non-hearsay purpose of impeaching the witness after the witness has been given an opportunity to explain or deny the statement.

Question 44

what is necessary to dismiss an action voluntarily on stipulation?

Answer 44

To dismiss an action voluntarily on stipulation requires the assent of all parties who have appeared in the action.

Question 45

What response would be proper to achieve a delay of the courts’ consideration of the Summary judgment motion in order to allow further discovery?
What response is proper if the Plaintiff wants to refile?

Answer 45

Submitting such an affidavit would be a proper response to achieve a delay of the court’s consideration of the summary judgment motion in order to allow the woman further discovery.

voluntary dismissal is appropriate if the P wants to refile the action

Question 46

T or F Nondisclosure of a fact is the equivalent of a misrepresentation when a person knows that disclosure of the fact is necessary to prevent some previous assertion from being a misrepresentation.

Answer 46

True

Question 47

T or F rules on the attorney client privilege do not apply to all stages of a case, including grand jury proceedings.

Answer 47

False they do apply to every single stage

Question 48

An easement appurtenant passes with the title why is it allowed to?

Answer 48

due to the benefit of the easement.

Question 49

T or F a non-unanimous verdict in a civil case is allowed if the parties so stipulate,

Answer 49

True

Question 50

What is the traditional assumption of the risk view?

Answer 50

The traditional assumption-of-risk defense is a complete defense to any recovery.

Question 51

For a tenancy in common To avoid foreclosure, payment must be made to the bank. What is each co-tenant’s responsibility to the mortgage?

Answer 51

as co-tenants, each is responsible for his or her share of the mortgage payment.

Question 52

The witness would testify about the defendant’s out-of-court statement, and the defense is offering that statement for the truth of the matter asserted: that the Is there any hearsay exception that applies to admit the statement?

Answer 52

NO

Question 53

If a written agreement fails to include a term of the agreement due to both parties’ mistake, what is the appropriate remedy?

Answer 53

the writing may be reformed to express the actual agreement.

Question 54

A restrictive covenant makes title unmarketable unless

Answer 54

the covenant is excepted in the contract.

Question 55

The Strickland standard does not require the presentation of all mitigating evidence, or of any particular mitigating evidence. It rather requires counsel to?

if they dont follow this step what could be the consequences? why?

Answer 55

engage in a reasonable investigation into mitigating evidence, so that counsel can then employ a reasonable strategy in presenting such evidence.

If they fail to they could be found to have rendered ineffective counsel because the outcome of the sentencing may have been different if an investigation led to mitigating factors to be presented during sentencing.

Question 56

When are goods identified to the contract?

Answer 56

Goods are identified to the contract when the seller ships, marks, or otherwise designates them as goods to which the contract refers

Question 57

T or F state law governs privilege (eg. patient - doctor privilege) in a diversity action

Answer 57

True

Question 58

T or F The “safe harbor” requirement in Rule 11 applies only when a party moves for sanctions, not when the court acts on its own initiative.

Answer 58

True

Question 59

A party may avoid a contract if their assent was induced by either a ________ or _________misrepresentation.

Answer 59

fraudulent or a material

Question 60

can illegal activity be considered a regularly conducted activity for purposes of the business records exception?

Answer 60

The federal courts have uniformly held that illegal activity can be considered a regularly conducted activity for purposes of the business records exception and that the regularly maintained records of a criminal enterprise may be admitted through the business records exception when all foundational requirements are demonstrated.

Question 61

The Supreme Court has held that durational residency requirements burden the fundamental right to travel, and thus they receive ______ scrutiny,

Answer 61

strict scrutiny

Question 62

what is the court’s last resort to address ambiguous language in a K?

Answer 62

he canon of construction known as contra proferentem—that a writing will be construed against the drafter—applies only as a last resort to address ambiguous language.

Question 63

T or F When the parties have left gaps in an agreement that is otherwise enforceable, a court may supply a term that is reasonable in the circumstances.

Answer 63

True

Question 64

T or F the trial judge has broad discretion to control the order of presentation of witnesses during the trial even during the prosecution’s case in chief

Answer 64

true

Question 65

in order to have a scheduling order modified, the moving party must show “good cause.” what does this mean?

Answer 65

This requires a showing that the party acted diligently to try to meet the original deadline.

Question 66

When does voluntary cessation exception does NOT apply to challenged conduct?

Answer 66

when it is unreasonable to expect that the allegedly unlawful conduct will recur

Question 67

When is a person considered to be in custody?

Are parolees determined to be in custody?

Answer 67

a person is “in custody” only when under “formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.”

no

Question 68

T or F the rules of evidence do NOT apply to grand jury proceedings

Answer 68

True

Question 69

a judgment on the pleadings may be made after the pleadings are _______.

can a counterclaim keep them open?

Answer 69

closed

Yes

Question 70

Expectation damages are ONLY a remedy for?

Answer 70

breach of contract

Question 71

T or F a warrant is required to collect extensive historical site-location data from a cell-phone provider. Even in a situation where the phone number may be widely accessible, that fact does not create a right of access to historical cell-phone site-location data (which is created by the cell-phone provider) or to the contents of the phone itself.

Answer 71

True

Question 72

are statements made during settlement negotiations in a private civil action admissible in a subsequent criminal proceeding? Explain

Answer 72

No, statements made during settlement negotiations in a private civil action—negotiations not involving a public office—are NOT admissible in a subsequent criminal case arising out of the same incident.

Question 73

In determining whether to grant judgment as a matter of law, the court..

Answer 73

is not to weigh the evidence but rather is to determine whether there is legally sufficient evidence to support a verdict for the party who bears the burden of proof at trial, in this case the nonmoving party.

Question 74

Normally additional consideration is required to modify a contract under the common law. What is an exception to this rule for modification?

Answer 74

a modification is binding “if the modification is fair and equitable in view of circumstances not anticipated by the parties when the contract was made.”

Question 75

Fraud in the execution of a deed is the equivalent of a forged deed; as a result, the deed is _______.

Answer 75

void

Question 76

what are the 4 privacy invasion torts

Answer 76

Intrusion upon seclusion,
public disclosure of private facts,
false light
and misappropriation of name and likeness

Question 77

Can a deadline for a renewed JMOL motion be extended?

What is the deadline

Answer 77

NO, because the deadline for filing a renewed JMOL motion cannot be extended.

28 days

Question 78

A law that increases the punishment for a crime after the crime was committed violates the _______clause

Answer 78

ex post facto

Question 79

explain objective theory of contracts

Answer 79

The objective theory means that a party to a contract is bound by a contract term even if that party is not subjectively aware of the term;

Question 80

explain The principle of reasonable expectations

Answer 80

parties should not be bound by terms that they would not expect to find in a contract unless those terms were called to their attention

Question 81

What are the required elements for a constitutional content-neutral restriction on speech?

Answer 81

The regulation must be content neutral.

It must be narrowly tailored to serve a significant governmental interest.

It must leave open ample alternative channels for communicating the speaker’s message.

Question 82

In contracts for the sale of goods, unless otherwise agreed, what are the duties of the parties?

what happens if neither party fails to perform under the UCC for the sale of goods?

Answer 82

the seller’s tender of delivery is a condition to the buyer’s duty to accept and pay for goods, and the buyer’s tender of payment is a condition to the seller’s duty to tender delivery.

If neither party performed the contract is discharged.

Question 83

When a real estate contract does not mention which items will stay with the house, the law of fixtures applies. Define law of fixtures

Answer 83

A fixture is an item that has been attached to the land, is appropriate to be so attached, and is intended to be part of the land and cannot be removed under the law of fixtures

Question 84

To obtain a discretionary interlocutory appeal, the party seeking to appeal must

Answer 84

apply to both the district and appellate courts to meet the statutory standards

Question 85

T or F Negligently caused emotional distress is ordinarily not actionable unless connected to a physical injury

Answer 85

True

Question 86

if seller said that it would not perform if the buyer did not agree to the price increase, is that considered a repudiation of the K?

Answer 86

Yes

Question 87

what are the elements for a fraud claim?

Answer 87

an intentional and material misrepresentation,

made for the purpose of deceiving the plaintiff,

on which misrepresentation the plaintiff actually and

reasonably relied to its detriment.

Question 88

When a federal rule is valid and on point in a federal court action, it controls over a conflicting state rule. What is an example of such

Answer 88

whether a class action may proceed in federal court

Question 89

T or F The deed in lieu of foreclosure does not extinguish the subsequent mortgage on the property. A mortgagor’s later-executed mortgage generally can be extinguished only by foreclosure.

Answer 89

True

Question 90

when is ordinance considered overbroad for purposes of 1st amendment?

Answer 90

overbroad because prohibiting all First Amendment activities on the beach restricts substantially more speech than the First Amendment allows to be restricted.

Question 91

which amendment and clause prohibits imposing the death penalty on a person with severe intellectual disability?

Answer 91

The cruel and unusual punishment clause of the 8th amendment as held in prohibits imposition of the death penalty on a person with a severe intellectual disability

Question 92

Define the rule of divisible contract.

Answer 92

According to the rule of divisible contract, when performance under a contract can be divided into multiple tasks, each with a corresponding price that the other party must pay when the task is completed, one party’s performance of a task triggers the other party’s duty to pay for it, even when the performing party breaches another part of the contract.

Question 93

a final pretrial order may be amended only to prevent _________ __________.

Answer 93

manifest injustice.

Question 94

T or F A jury’s conviction on a lesser charge constitutes an implied acquittal of a greater charge, thus barring retrial on that greater charge

Answer 94

True

Question 95

strict products liability does not apply when a defective product causes only ________ loss, as opposed to personal injury or property damage.

Answer 95

economic loss

Question 96

A title insurance policy is a contract of indemnity and insures the named insured in the policy and his heirs and devisees so long as

Answer 96

the named insured or his heirs or devisees own the insured property.

Question 97

T or F A party that materially breaches a contract is not entitled to recover under a theory of restitution the amount of the value of the benefit that the breaching party’s part performance conferred on the victim of the breach.

Answer 97

False, a party that materially breaches a contract is entitled to recover restitution

Question 98

a person will not be granted a variance from a zoning regulation when?

Answer 98

they are responsible for creating the hardship

Question 99

Extrinsic evidence of a witness’s earlier statement may be admitted for the purpose of impeaching her direct testimony only if

Answer 99

the witness was given an opportunity to explain or deny the statement.

Question 100

A motion under Federal Rule of Civil Procedure 60(b)(1) relief from a judgment must be made within _______ _____ from the entry of judgment

Answer 100

made within one year from the entry of judgment

Question 101

T or F ban on nude dancing is considered content neutral speech and not subject to strict scrutiny

Answer 101

True, it is subject to intermediate scrutiny