PRACTICE MBE Q + A Flashcards
During a 2010 a series of arsons occurred in a city. In early 2011 the city council adopted this resolution:
The city will pay $10,000 for the arrest and conviction of anyone guilty of any of the 2010 arsons committed here.”
The foregoing was telecast by the city’s sole television station once daily for one week. In which way could the city’s reward offer be effectively accepted?
By an offeree’s supplying information leading to arrest and conviction of an arsonist within the scope of that offer.
The reason why the offeree does not have to personally make the arrest was because the ad was broadcast to the entire public, so the city council could not possibly have meant for anyone in the public to make an arrest and conviction. It calls for interpretation of the phrase “for the arrest and conviction” because it is a UNILATERAL contract that can be accepted only by return performance. In this case, it is not reasonable to expect the return performance include citizens arresting and trying others.
A farm conveyed to a man and a woman by a deed that, in the jdxn in which the farm is situated, created a cotenancy in equal shares and with the right of survivorship. The jdxn has no statute directly applicable to any of the problems posed.
The woman, by deed, conveyed “my undivided 1/2 interest” in the farm to a purchaser. The woman has since died. In an appropriate action between the purchaser and the man in which title to the farm is at issue, THE MAN WILL:
PREVAIL, if but only if, the cotenancy created in the man and the woman was a tenancy by the entirety.
*The reason why it is significant that the tenancy be a tenancy by the entirety (as opposed to joint tenancy), is because a tenancy by the entirety CANNOT be destroyed by severance, whereas a JT can convey his interest away, and in doing so, leaves a tenancy in common between the conveyee and other tenants.
A storekeeper of a hardware store sells power saws…takes old power saws as trade-ins on new ones…and rebuilds them with new bearings by the storekeeper’s employees and sold by the storekeeper as “reconditioned saws.”
A purchaser picked out a saw that he wanted to cut plywood. The storekeeper exchanged blades (course for fine teeth). The new blade was manufactured by a saw blade company and contained defects. The reconditioned saw had been manufactured by a power-saw company.
An employee using the saw was severely cut by the defective blade…
If the employee asserts a claim based on strict liability against the power saw company, will the employee recover?
NO. Because the saw had been rebuilt by the storekeeper.
The only way the defendant could be liable is if:
- the product was defective
- when it left the defendant’s control (defendant can be liable even if he did not cause the defect)
- Product must not be expected to undergo significant changes before it gets to the user/consumer (or not actually undergo the changes)
- The seller must be in the business of selling the product (meaning-NO CASUAL SELLERS!)
- Damage must result from the defect;
- And the duty extends to anyone foreseeably endangered by the product (meaning, there’s no privity requirement).
Here, the storekeeper completely dissassembles the power saws, taking liability of the power saw company off the table (see #3).
Common Law Modification
At common law, in order to be effective, a modification must be supported by consideration. An attempted modification (a change that appears to modify one’s duty, without supporting consideration) under the pre-existing duty rule will be ineffective and the other contracting party may choose to enforce the original contract as written.
*In general, modifications do not need to be written in order to be enforceable. the exception is if a modification is within, or brings the contract within the Statute of Frauds, then it must be in writing.
The childhood home of a former US president is part of a national park located in a city. The National Park Service entered into a contract with an independent antiques collector to acquire items owned by the residents of the city during the president’s lifetime.
Purchases are normally subject to state sales tax. The collector files suit to enjoin the state sales tax to apply to his purchases, claiming that the sales tax is unconstitutional as applied to them. Should the state issue the injunction?
NO. Because the collector is NOT the federal government, and is therefore not exempt from state taxation. The federal government and its agencies are immune from state taxation.
**Think: Independent Contractor/Private Contractor: federal government can tax a private or independent contractor; the fed. gov. cannot collect sales tax on the sales made by someone else to the fed gov/agency.
Admissibility of Learned Treatise
A jury may consider only passages (of a Learned Treatise or otherwise) that are read to it by counsel or witness.
Strict Liability in Products Liability Context
**Remember that in order to succeed in a SL case for a defective product, the claim must be against someone who is in the regular business of selling such products.
i.e. A dentist using a defective needle to inject patients with Novacane is not liable under SL because he does not usually sell needles. In that case, the manufacturer would be the proper party held liable if the product was defective when it left the shelves, etc.
A woman who was wanted in America for a crime was kidnapped from Mexico and brought back to the US. Afterwards, police went to her accomplice’s house in TX who had a current indictment for the crime.
Both parties file a motion to dismiss on the grounds that the arrests violated their 4th amendment rights. Should the indictments be dismissed?
NO. The indictments preceded the [illegal] arrests.
*The SCOTUS in Ker v. Illinois stated that “forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence.”
*The SCOTUS in Gerstein v. Pugh stated that “illegal arrest does not void a subsequent prosecution.”
**NOTE: if an indictment or charge existed prior to an illegal arrest, the defendant(s) is/are still subject to a trial on the indictment/charge regardless of the manner of arrest.
Article 3: Congress’ limit jxdn of Federal Courts
An act of Congress provides that “no federal court shall order the implementation of a public school desegregation plan that would require the transportation of any student to a school other than the school closest or next closest to his place of residence.”
**Article 3 allows Congress to restrict the jurisdiction of the federal courts, and this is a strong argument as to why this law is constitutional.
Easement by Prescription
Does not require that the use be Exclusive or even Hostile (it is enough that the use is without the owner’s permission-the owner’s knowledge of it is not necessary).
Defeating Negligence Per Se
When a party is successfully able to present a prima facie case of Negligence Per Se (ordinance was violated; injured party was a member of the class aimed to be protected under the statute; the type of harm that occurred was the type of harm that the statute aims to protect against) it can still be rebutted with a showing of excuse.
Proc. Due Process example: A teacher (without tenure) relied on the belief that his 1 year contract would be renewed, and he bought a house. The teacher is fired before reaching tenure. An applicable statute says that teachers cannot be fired at will after tenure. The teacher did not have an explanation as to why he was let go.
Best argument for having an explanation as to why he was fired/wrongful termination/etc.
There is no property interest in employment (at least not for MBE purposes) unless a statute grants it-here the statute states that an interest vests after tenure. The teacher here did not have tenure, therefore no interest in employment. There is no PDP violation here.
**however, because the teacher relied on the belief (maybe even oral assertion) that he would be rehired, and bought a house, he can assert a contract claim of detrimental reliance-that he relied to his detriment and therefore the employer should be estopped from asserting no contract/no claim.
**promissory estoppel is a substitution for consideration. There may not be a valid contract because of a lack of consideration, but if one party reasonably relies to his detriment on the words/assertion of another, then the other will be estopped from claiming that there is no contract, etc.
The only chance this teacher has for having any right in his employment is an estoppel claim.
Pre-Trial Identification
Procedure only violates DP if two elements satisfied:
- The identification must be unnecessarily suggestive
- There must be a substantial likelihood of irreparable mistaken identification
**A suspect does NOT have a right to counsel at a photographic identification. US v. Ash.
A prior identification:
- Is not hearsay (hearsay exclusion) under FRE 801 if;
- The identification was made prior by a presently testifying witness
Anticipatory Repudiation (land sale example):
Seller and Buyer had a written/signed contract to purchase a lot of land on July 1. The Seller repudiated before July 1. The Buyer bought a second tract of land on reliance of the repudiation. The Buyer later retracted his repudiation. The Buyer refused to buy the lot of land. He then sued for breach. Will the Buyer be successful?
YES. Because even though the Seller retracted his repudiation before time of performance was due, Buyer materially changed his position due to the repudiation.
**NOTE that the party generally can retract its repudiation anytime up until performance is due, however his right to retract ends once the party has materially changed his position on the repudiation.
Defamation hierarchy
- If a plaintiff is a public figure and the issue is public the plaintiff must prove malice.
- If a plaintiff is a public figure but the issue is a private matter (personal life), then the plaintiff need only prove negligence-not malice.
- If a plaintiff is a private figure, the plaintiff need only prove negligence-not malice.
- Regardless of whether plaintiff is public/private, if the item is newsworthy, malice MUST be proven
