Yellow Mixed Set Flashcards
On April 15, a seller entered into a valid written agreement to sell her home to a buyer for $175,000. The provisions of the agreement provided that closing would be at the buyer’s attorney’s office on May 15, and that the seller would deliver to the buyer marketable title, free and clear of all encumbrances.
On the date of closing, the seller offered to the buyer the deed to the house, but the buyer refused to go ahead with the purchase because his attorney told him that a contractor who had done work on the house had recorded a lis pendens on May 1 against the property regarding a $10,000 contract dispute he had with the seller. The seller indicated that she was unaware of the lien, but that she was willing to go ahead with the sale and set aside funds from the purchase price to cover the contractor’s claim until the dispute was resolved. The buyer still refused to proceed, stating that the seller had breached the contract.
If the seller brings an action against the buyer for specific performance, what is the probable result?
A
The buyer prevails, because the title to the property was not marketable as of the date of closing.
B
The buyer prevails, because an encumbrance was on the title as of the date of closing that was subject to litigation.
C
The seller prevails, because under the doctrine of equitable conversion, the buyer was the owner of the property when the lis pendens was recorded, and therefore it was invalid.
D
The seller prevails, because an implied term of their contract was that she could use the proceeds to clear any encumbrance on the title.
D
The seller prevails, because an implied term of their contract was that she could use the proceeds to clear any encumbrance on the title.
The seller will likely prevail because she is entitled to clear the encumbrance with the proceeds of the sale. In a contract for the sale of real property, the seller of the land is entitled to use the proceeds of the sale to clear title if she can ensure that the purchaser will be protected. The seller’s offer to escrow the funds in this case should act as such guarantee. Thus, (A) is incorrect. (B) is incorrect because, although there will be litigation over the contract dispute, the litigation will not affect the title to the land because the contractor is claiming only money damages and not an interest in the property. (C) is incorrect because the doctrine of equitable conversion is only applicable as against the seller and the buyer, and does not affect the right of some third party with regard to attaching property held in the name of a debtor.
A buyer entered into a written contract with a seller to purchase his commercial property for $100,000. The contract did not specify the quality of title to be conveyed, and made no mention of easements or reservations. The closing was set for November 25, three months from the signing of the contract. Shortly thereafter, the buyer obtained a survey of the property, which revealed that the city had an easement for the public sidewalk that ran in front of the store. Because this actually enhanced the value of the property, the buyer did not mention it to the seller.
Subsequently, the buyer found a better location for her business. On November 1, the buyer notified the seller that she no longer intended to purchase the property. The seller told her that he intended to hold her to her contract. At closing, the buyer refused to tender the purchase price, claiming that the seller’s title is unmarketable and citing the sidewalk easement as proof of that fact.
In a suit for specific performance, will the seller likely prevail?
A
Yes, because the contract did not specify the quality of title to be conveyed.
B
Yes, because the buyer was aware of the visible easement and it enhanced the value of the property.
C
No, because an easement not provided for in the contract renders title unmarketable.
D
No, because the buyer gave the seller sufficient notice of her change in plans and yet he made no effort to try to find another purchaser.
B
Yes, because the buyer was aware of the visible easement and it enhanced the value of the property.
The seller will prevail in his suit for specific performance because the easement was visible, the buyer was aware of it at the time she entered into the contract (i.e., she knew a public sidewalk ran in front of the store), and the easement enhanced the value of the property. There is an implied covenant in every land sale contract that, at closing, the seller will provide the buyer with marketable title. Marketable title is title reasonably free from doubt, which generally means free from encumbrances and with good record title. Easements are generally considered encumbrances that render title unmarketable; so if an easement is not provided for in the contract, it usually renders the seller’s title unmarketable. There is an exception, however. A majority of courts have held that a beneficial easement that was visible or known to the buyer does not constitute an encumbrance. In this case, the sidewalk was visible, known to the buyer, and beneficial to the property. Thus, the sidewalk easement does not impair the marketability of the seller’s title. Therefore, the buyer’s excuse for her nonperformance is not valid, and because land is involved, the seller can get specific performance of the contract for purchase of the property. (A) is wrong because, as noted above, the covenant that the seller will convey marketable title is implied in every land sale contract. So here, the fact that the contract did not specify the quality of title does not relieve the seller from providing marketable title. Thus, (A) reaches the correct result for the wrong reason. (C) is wrong because, as noted above, there is an exception to the general rule, stated in (C), for beneficial easements that are visible or known to the buyer. (D) is wrong because the buyer cannot escape the contract merely by giving notice of her intent to breach it. It apparently was a valid contract that can be enforced against her. Failure to mitigate damages might prevent the seller from recovering avoidable damages but would not negate the breach.
A seller owned a two-acre tract of land, on which he built a single-family residence. The seller entered into a contract to sell the land to a buyer for $200,000. One week before closing, the buyer had a survey of the property conducted. It revealed that a portion of the seller’s house was 5.98 feet from the sideline. The applicable zoning ordinance requires a six-foot sideline setback. The buyer refused to go ahead with the purchase of the land on the ground that the seller’s title was not marketable.
If the seller brings suit against the buyer for specific performance, will he prevail?
A
Yes, because any suit against the seller concerning the setback would be frivolous.
B
Yes, because the setback violation is de minimis.
C
No, because any variation, however small, amounts to a breach of contract.
D
No, because the seller’s title is unmarketable.
D
No, because the seller’s title is unmarketable.
The seller will not prevail because his title was unmarketable. There is an implied covenant in every land sale contract that at closing the seller will provide the buyer with title that is marketable. It need not be perfect title, but it must be free from questions that might present an unreasonable risk of litigation. Because the placement of the seller’s house violated the zoning ordinance, the buyer could be subject to suit. (A) is incorrect because the location of the house violates the ordinance, and the local government has the power to enforce the ordinance strictly. (B) is incorrect for the same reason. It is probably unlikely that the local government would insist on the strict enforcement of the zoning ordinance, but it has the power to do so, which makes title unmarketable, barring specific enforcement of the contract. As a practical matter, if the parties are acting in good faith, this problem would probably be dealt with by the seller applying to the zoning authority, usually a city or county zoning board, for a zoning variance. The board would probably grant a permanent variance, allowing this particular piece of property to violate the six-foot rule by a fraction of an inch. Once that variance is granted, title would be marketable because the property would no longer violate any zoning rules applicable to the property. This solution would take some time, but the parties could push the closing date back in order to make time. So, even though the de minimis nature of the setback violation would probably allow for a solution to the problem, it would not give the seller a right to specific performance. (C) is an incorrect statement of law. Building the house too close to the sideline did not breach a contract; it violated an ordinance.
The defendant was on trial for murder. The defendant called a witness to testify to an alibi. On cross-examination of the witness, the prosecutor asked, “Weren’t you on the jury that acquitted the defendant of another criminal charge?”
What is the best reason for sustaining an objection to this question?
A
The question goes beyond the scope of direct examination.
B
The probative value of the answer would be substantially outweighed by its tendency to mislead.
C
The question is a leading question.
D
Prior jury service in a case involving a party renders the witness incompetent.
B
The probative value of the answer would be substantially outweighed by its tendency to mislead.
This question raises several different issues: competency of witnesses, use of leading questions on cross-examination, the proper scope of cross-examination, and the probative value/prejudicial impact balancing test. Through a process of elimination, (B) emerges as the correct answer. (D) is incorrect. Under the Federal Rules, virtually all witnesses with personal knowledge are competent to testify. [Fed. R. Evid. 601] A witness is not rendered incompetent simply by having served on a jury in a prior case involving a party to the current suit. Such prior jury service might render the witness’s testimony unpersuasive, but it would not make it inadmissible. (C) is incorrect because ordinarily, leading questions are permitted on cross-examination. [Fed. R. Evid. 611(c)] The prosecutor’s question is a leading question, but that is perfectly permissible, especially in a case like this, where the alibi witness is not “friendly” toward the prosecution. (A) is incorrect because cross-examination is generally limited in scope to the subject matter of the direct examination and matters affecting the credibility of the witness [Fed. R. Evid. 611(b)], and the prosecutor’s question is, in a roundabout way, an attempt to impeach the witness’s credibility. The implication behind the question is that if the witness had served on a jury that acquitted the defendant of another criminal charge, the witness would be inclined to think the defendant innocent of the pending charge. Alternatively, the implication behind the question could be that the witness is the kind of person who is “soft on crime” and for that reason is not a credible witness. In either event, because the question is an attempt to impeach the witness’s testimony, it is within the proper scope of cross-examination. This leaves (B) as the remaining correct answer. (B) is not unquestionably correct, because the probative value/prejudicial impact balancing test found in Rule 403 is weighted heavily toward admission of evidence. For evidence to be excluded under this balancing test, its probative value must be substantially outweighed by its prejudicial impact. Nevertheless, in this case, a plausible reason for sustaining an objection to the prosecutor’s question is that the probative value of the answer would be substantially outweighed by its tendency to mislead. The question and answer would inevitably let the jury know that the defendant had been previously charged with a crime. This information could be highly prejudicial to his defense. Because the question and answer have little probative value (the negative inferences pertaining to the witness’s credibility being very weak), it is reasonable to sustain an objection to the question on the basis that its probative value is substantially outweighed by its prejudicial impact.
The federal government recently constructed a radio telescope in Puerto Rico. In addition to receiving radio signals, the telescope was set up to beam radio waves far out into space. As part of the bill providing for operational funding for the facility, Congress provided for a program to “inform any aliens who might be listening in outer space of the ‘American Way of Religion.’” A $10 million appropriation was provided; any religious group whose membership exceeded 500 members in the United States was permitted to prepare a five-minute presentation, and the federal government would pay for the recording of the presentations and broadcast them into space using the transmitter in Puerto Rico. The President signed the bill and it became law. A religious group with a large following in Europe, but only 100 members in the United States, protested and filed suit.
Will the court find the religious broadcasts to be constitutional?
A
Yes, because the power to regulate commerce with foreign nations and among the several states implies that commerce with outer space is included as well.
B
Yes, because the commerce power is not limited by First Amendment prohibitions.
C
No, because the requirement of a minimum number of members violates the First Amendment.
D
No, because the broadcasts are a waste of money and exceed the spending powers of Congress.
C
No, because the requirement of a minimum number of members violates the First Amendment.
The court will find that the requirement of a minimum number of members violates the Establishment Clause of the First Amendment. The Establishment Clause prohibits any law “respecting an establishment of religion.” While usually a three-part test based on Lemon v. Kurtzman is used to determine whether legislation creates improper government involvement with religion, the “compelling government interest” test is used if a law or government program discriminates among religions. Here, the law differentiates among different religious groups, allowing only those with larger memberships to record presentations. There is no compelling government interest for discriminating among the religious groups in this way; thus the legislation is unconstitutional. (A) is incorrect despite the fact that the federal power to regulate commerce could be interpreted as extending to commerce with outer space should the occasion arise. Nevertheless, the commerce power does not override independent constitutional restrictions (e.g., the Establishment Clause) on the conduct in question here. (B) is an incorrect statement of law. The federal commerce power cannot be used to abrogate freedom of speech or to discriminate in favor of religious groups. An exercise of the commerce power generally is subject to all limitations placed on government by the Constitution, including those of the First Amendment. (D) is incorrect. Regardless of merit, almost all expenditures made by Congress are permissible under its spending power. [U.S. Const. art. I, §8] Rather than limit the power only to spending for accomplishment of other enumerated powers, this provision grants Congress broad power to spend for the “general welfare” (i.e., any public purpose). As long as the expenditure is not conditioned on requiring a recipient to forgo an individual constitutional right, it is within the spending power of Congress.
On December 6, the owner of an electronics store sent a written request to a computer manufacturer asking for the price of a certain laptop computer. The manufacturer sent a written reply with a catalog listing the prices and descriptions of all of his available computers. The letter stated that the terms of sale were cash within 30 days of delivery. On December 14, by return letter, the store owner ordered the computer, enclosing a check for $4,000, the listed price. Immediately on receipt of the order and check, the manufacturer informed the store owner that there had been a pricing mistake in the catalog, which should have quoted the price as $4,300 for that computer. The store owner refused to pay the additional $300, arguing that his order of December 14 in which the $4,000 check was enclosed was a proper acceptance of the manufacturer’s offer.
In a suit for damages, will the manufacturer prevail?
A
Yes, because his first communication stated terms calling for cash within 30 days of delivery.
B
Yes, because of the mistake as to price.
C
Yes, because his first communication did not constitute an offer.
D
No, because the store owner’s December 14 letter was a proper acceptance of the manufacturer’s offer.
D
No, because the store owner’s December 14 letter was a proper acceptance of the manufacturer’s offer.
The store owner’s December 14 letter was an acceptance. Whether the letter was an acceptance depends on whether the manufacturer’s letter was an offer, because an acceptance is a manifestation of assent to an offer. For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. There must be a promise, undertaking, or commitment to enter into a contract with certain and definite terms. Courts usually hold that if a statement is made broadly, such as in an advertisement or catalog, it will not constitute an offer because it is not reasonable to expect that the sender intended to make offers to all who received the advertisement; rather, the courts usually find such advertisements to be invitations seeking offers. However, price quotations may be considered as offers if given in response to a specific inquiry. The courts will look to the surrounding circumstances, and here a court would probably determine that the catalog that the manufacturer sent was an offer because it was sent in response to the store owner’s specific inquiries about prices on a specific computer and it included delivery terms and conditions of sale. (A) is incorrect because although the letter called for payment in cash, tender by check is sufficient unless the seller demands legal tender and gives the buyer time to obtain cash. Moreover, because the contract called for payment within 30 days of delivery, even if the check was not sufficient, the store owner still had time under the contract to obtain cash. (B) is incorrect because the mistake was unilateral. Generally, a unilateral mistake will not be grounds to rescind a contract unless the nonmistaken party knew or should have known of the mistake. Here, nothing in the facts indicates that the store owner knew of the mistake, and the mistake was not so large that it could be said that he should have known of it. (C) is incorrect because, as explained above, the manufacturer’s catalog was sent in response to the store owner’s request for information and his terms for sale constituted an offer.
A city council passed an ordinance providing: “No person may contribute more than $100 annually to any group organized for the specific purpose of supporting or opposing referenda to be voted on by the city electorate or regularly engaging in such activities.”
If the ordinance is challenged in federal court, how should the court rule on the constitutionality of this ordinance?
A
Strike it down, because it violates First Amendment rights of free speech and freedom of association.
B
Strike it down as a violation of due process, because no hearing mechanism has been provided for.
C
Uphold it, because the city council has a legitimate interest in controlling such contributions.
D
Dismiss the case, because it involves a political question and is thus a nonjusticiable matter.
A
Strike it down, because it violates First Amendment rights of free speech and freedom of association.
The federal court should strike the ordinance for violating the First Amendment. While the government may limit the amount of contributions that an individual can contribute to a candidate’s campaign (to avoid corruption or the appearance of corruption), the government may not limit the contributions to a political committee that supports or opposes a ballot referendum, because such a law does not serve a sufficiently important interest to outweigh the restraints that it puts on the First Amendment freedoms of speech and association. (B) is incorrect because the Due Process Clause does not require that every law provide for a hearing, but rather only those laws involving the deprivation of life, liberty, or property of an individual. The law here does not involve a deprivation of life or property, and liberty is not being denied to individuals on a judicial basis (i.e., according to the facts of each case), but rather is being denied to all persons on a legislative basis. In such a case, individual hearings are not required to satisfy due process; as long as the law was lawfully adopted (e.g., with notice to all interested parties), the Due Process Clause has been satisfied. (C) is incorrect because a legitimate interest in controlling contributions to a political committee for ballot referendum is not enough. The statute must be “closely drawn” to match a “sufficiently important interest,” which is an intermediate scrutiny standard, and the Supreme Court has invalidated limitations on contributions to influence referendum elections. (D) is incorrect because political questions, which are nonjusticiable, arise when the issue is committed to another branch of the government by the Constitution or is incapable of resolution and enforcement by the judiciary. Determining whether a law is valid is within the realm of the judiciary and certainly is capable of resolution (i.e., the law could be invalidated). Thus, there is no political question here.
A plaintiff read of the success of a box-office hit movie about aardvarks in various entertainment journals. The movie was enormously popular among young children, and cartoon figures from the movie began appearing on T-shirts, soft drink mugs, and other novelties. The plaintiff filed suit against the studio alleging that the production company unlawfully used his ideas for the movie. The studio admitted that it had received a clay model of a cartoon animal from the plaintiff, but denied that the model had any substantial similarity to the now-famous aardvarks. The studio had returned the model to the plaintiff, but he had destroyed it.
For the plaintiff to testify at trial as to the appearance of the model, which of the following is true?
A
The plaintiff can testify as to the appearance of the model because he has personal knowledge of it.
B
The plaintiff must show that the destruction of the model was not committed in bad faith.
C
The plaintiff must introduce a photograph of the model, if one exists.
D
The plaintiff must give advance notice to the opposing party that he plans to use such oral testimony in his case.
A
The plaintiff can testify as to the appearance of the model because he has personal knowledge of it.
The plaintiff can testify as to the appearance of the model because he has personal knowledge of it. A witness must be competent to testify, which includes the requirement that he have personal knowledge of the matter he is to testify about. Here, the plaintiff has personal knowledge of the model, as he is the person that had submitted it to the studio. Thus, he is competent to testify as to the model’s appearance. (B) is wrong because it states the foundation requirement for the admissibility of secondary evidence under the best evidence rule (also called the original document rule), which does not apply under these circumstances. The best evidence rule covers writings and recordings, which are defined as “letters, words, numbers, or their equivalent, set down in any form.” A clay model clearly does not fit within that definition. Similarly, (C) states an acceptable form of secondary evidence under the best evidence rule, which does not apply here. Note, however, that under the Federal Rules (unlike most states), there are no degrees of secondary evidence. Therefore, this choice would be wrong even if the best evidence rule were applicable, because the plaintiff would not be limited to photographic evidence. (D) is wrong because it incorrectly assumes that notice must be given. This type of notice is not a prerequisite for the plaintiff’s testimony even had the best evidence rule been applicable.
A builder contracted to build a house for a newly married couple. Terms of the contract provided that the builder would receive the contract price when the building was fully completed. Just when the builder had completed one-half of the structure, a tornado struck the area and demolished the building.
What is the builder entitled to recover from the couple under the contract?
A
Nothing.
B
One-half of the contract price.
C
One-half of the fair market value of what remains of the house.
D
Cost of materials and reasonable labor costs.
A
Nothing.
The builder will not be able to recover anything from the couple under the contract because he has not performed his duty. Under the parties’ contract, the builder’s completion of the house was a condition precedent to the couple’s duty to pay. The condition precedent was not discharged by the destruction of the work in progress because construction has not been made impossible, but rather merely more costly—the builder can rebuild. Thus, he is not entitled to any recovery. Note, however, that a number of courts will excuse timely performance because the destruction was not the builder’s fault. (B) is incorrect because the contract is not divisible (i.e., it is not divided into an equal number of parts for each side, each part being the quid pro quo of the other); thus, completion of one-half of the house did not entitle the builder to one-half of the price. (C) is incorrect because it is not a correct measure of recovery. As stated above, the builder cannot recover under the contract. However, he could recover restitution if he determined that he could not perform under the contract by rebuilding. Restitution is a remedy that prevents unjust enrichment by imposing on a recipient of requested goods or services a duty to pay for the benefit received when there is a failed contract or no contractual relationship between the parties. The measure of recovery here would be the fair market value of what remains of the house because that is the benefit conferred—it would not be cut in half merely because the house was only half completed. (D) is an incorrect contract recovery because the builder has not fulfilled the condition precedent to the couple’s duty to pay. The only way the builder could recover anything would be in an action for restitution. Sometimes, in cases where there is little or no benefit to the other party, the measure of restitutionary recovery is the detriment suffered by the plaintiff. However, when the plaintiff is in breach, the courts that permit recovery limit it to the contract price less damages caused by the breach. Because the builder only did half of the work, he is in breach by not rebuilding the house. Hence, the couple’s damages, which involve building an entirely new house, outweigh any possible restitution to the builder.
A witness is called in a contract action between a plaintiff and a defendant. The witness takes his oath and testifies. During cross-examination, the defendant’s attorney asked the witness this question: “Isn’t it true that even though you took an oath to tell the truth so help you God, you are an atheist and don’t even believe in God?”
Upon the proper objection, will the judge require that the witness answer this question?
A
Yes, because the question is relevant to the witness’s character for truthfulness.
B
Yes, because instead of taking the oath, the witness could have requested to testify by affirmation without any reference to God.
C
No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.
D
No, because an attack on the competency of a witness must be made at the time the witness is sworn.
C
No, because evidence of the beliefs or opinions of a witness on matters of religion is not admissible to impair credibility.
The judge should not require that the witness answer the question because evidence of the religious beliefs of a witness is not admissible to challenge credibility. Lack of religious belief is no longer a basis for excluding a witness. Not only are a person’s religious convictions irrelevant in determining the competence of a witness, Federal Rule 610 provides that a witness’s religious beliefs or opinions are not admissible to show that the witness’s credibility is thereby impaired or enhanced. Thus, (C) is correct and (A) is incorrect. (B) is incorrect. While it is true that the witness could have requested a different type of oath, Rule 610 prohibits this type of question because it would have shown his lack of religious beliefs. (D) is incorrect because, as discussed above, lack of religious belief is no longer a basis for disqualification; thus, this would not constitute an attack on the witness’s competency.
A town in a rural state facing financial difficulties passed a variety of “sin taxes,” including one aimed at electronic game arcades frequented by local juveniles. The tax is a one cent per game tax imposed on the manufacturers of the games based on the estimated number of plays over a machine’s lifetime. There are no electronic game manufacturers in the state.
Which of the following constitutional provisions would support the best argument against enforcement of the tax?
A
The Equal Protection Clause.
B
Substantive due process.
C
The Privileges and Immunities Clause of Article IV.
D
The Commerce Clause.
D
The Commerce Clause.
The best argument against enforcement of the tax is that it violates the Commerce Clause. If Congress has not adopted laws regarding a subject, local governments are free to tax or regulate local aspects of the subject area as long as the tax or regulation does not discriminate against interstate commerce or unduly burden it. Here, the tax does not discriminate against interstate commerce, since it does not single out interstate commerce for taxation in order to benefit the local economy. However, it could be argued that the tax unduly burdens interstate commerce. A local tax will be held to unduly burden interstate commerce if the locality’s need for the revenue does not outweigh the burden on interstate commerce. The Supreme Court will consider whether there is a substantial nexus between the activity or property taxed and the taxing state, whether the tax is fairly apportioned, and whether there is a fair relationship between the tax and the benefit the taxed party receives from the state. Here, there is little nexus between the manufacturer and the town. The facts indicate that out-of-state manufacturers’ machines are used in the town, but do not indicate whether the manufacturers conduct any selling activity in the town. Similarly, nothing indicates that there is a relationship between the tax and any benefit that the manufacturers derive from the town. Thus, the tax would probably be unconstitutional under the Commerce Clause. (A) is not as good an argument as (D) because the Equal Protection Clause prohibits the states from treating similarly situated persons differently without sufficient justification. Where a classification does not involve a suspect or quasi-suspect class or a fundamental right, the classification will be upheld as long as it is rationally related to a legitimate government interest. While the tax here singles out arcade game manufacturers for special tax treatment, no suspect or quasi-suspect class is involved, nor is a fundamental right affected. Thus, the tax will be valid under the Equal Protection Clause because it is rationally related to the legitimate government interest of raising revenue. (B) is not a good argument because substantive due process requires that laws not be arbitrary. When laws do not involve a fundamental right, they will be held valid under the Due Process Clause as long as they are rationally related to a legitimate government interest. As established above, no fundamental right is involved and the tax is rationally related to a legitimate government interest. Thus, under the Due Process Clause the tax may be enforced. (C) is not a good argument because the Privileges and Immunities Clause of Article IV prohibits states from discriminating against out-of-state residents when a fundamental right is involved, and the tax here does not differentiate between residents and nonresidents.
A local news station broadcast a live interview with a bystander about his views concerning the state of local education. The bystander responded by saying that the principal of his daughter’s high school had been embezzling school funds for years. The principal saw the telecast and also recorded it. He sued the owner of the station for defamation. At trial, the principal sought to testify to the defamatory statement made in the interview.
Will the principal’s testimony likely be held to be admissible?
A
No, because the testimony would be hearsay not within any exception.
B
No, because a recording of the interview exists.
C
Yes, because the statement is being offered to show its effect on the principal.
D
Yes, because the principal personally saw the interview on television.
D
Yes, because the principal personally saw the interview on television.
Because the principal had firsthand knowledge that the statement was made, his testimony will be admissible unless there is a specific rule excluding the evidence. Witnesses are generally presumed competent to testify until the contrary is demonstrated. While a witness may not testify to a matter unless evidence is introduced to support a finding that the witness has personal knowledge of the matter, this evidence may consist of the witness’s own testimony. (A) is incorrect. Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. In a defamation action, evidence of the statement alleged to be defamatory is not hearsay because the evidence is by definition not offered to prove the truth of the matter asserted. It is offered only to show that the actionable statement was made. (B) is incorrect. Because the principal had firsthand knowledge of the event he can testify about the event, even though there might exist a recording that would be better proof of the event. The “best evidence rule” does not apply because the recording is not an essential repository of the facts recorded. (C) is incorrect. Although the statement is not hearsay, it is not being offered to show its effect on the hearer (e.g., knowledge, motive), but rather to show that the statement was made, as explained above.
As part of legislation enacted for the stated purpose of improving science skills of schoolchildren, Congress appropriated funds to permit public school teachers who had been certified by state school districts as science lab instructors to provide supplemental science instruction to any students in either public or private schools who did not have access to science lab resources. To help ensure content neutrality, the statute required the instructors coming to the private schools to use portable science labs supplied by the public school districts, which contained the equipment and experiments that the instructors used for the same purpose in the public schools. A citizens’ group filed suit in federal district court to challenge the constitutionality of funding the science teachers for private schools, alleging that most of the private schools covered by the statute were religiously affiliated schools. No members of the group have any children in either public schools or private schools affected by the statute.
How is the court likely to rule?
A
Dismiss the case on the pleadings, because the citizens’ group does not have a sufficient stake in the controversy to have standing to challenge Congress’s expenditure, which was authorized under its power to spend for the general welfare.
B
Decide the case on the merits in favor of the government, because the legislation defines the context in which instruction can be provided in private schools so as to avoid excessive government entanglement with religion.
C
Decide the case on the merits in favor of the citizens’ group, because the appropriation’s primary effect advances religion in violation of the Establishment Clause of the First Amendment.
D
Decide the case on the merits in favor of the citizens’ group, because the court will presume that any instruction provided on the premises of a religiously affiliated school will be influenced by religion.
B
Decide the case on the merits in favor of the government, because the legislation defines the context in which instruction can be provided in private schools so as to avoid excessive government entanglement with religion.
The court will probably decide in favor of the government on the merits. Programs of aid to religiously affiliated grade schools and high schools are subject to the same three-part test as are other laws under the Establishment Clause: The program must (i) have a secular purpose, (ii) have a primary effect that neither advances nor inhibits religion, and (iii) not produce excessive government entanglement with religion. With respect to the first prong of the test, most of the time such programs (including this one) will have a secular purpose-to aid education. With respect to the second prong, the program may be deemed to have a primary effect that advances religion if it results in governmental indoctrination of religion or defines its recipients by reference to religion. Here, the statute establishes a religiously neutral program that funds a supplemental service for the schools, and offers the instruction to all disadvantaged students regardless of whether they choose to attend public or private schools. [See Agostini v. Felton (1997)-government program providing remedial education services to all disadvantaged children at their schools, including children at parochial schools, held not to violate the Establishment Clause] Thus, (C) is incorrect. (D) is incorrect because the courts will not presume that the instruction provided by this program will be influenced by religion. Furthermore, with respect to the “excessive entanglement” prong of the test, there is no indication that the program requires detailed monitoring of the government employees to prevent them from incorporating religion in their instruction-the equipment and experiments that they use in the private schools are the same as they use in the public schools. (A) is incorrect because the citizens’ group has standing to challenge the expenditure on behalf of its members, who have a right to sue based on their status as federal taxpayers. The one recognized exception to the rule that people do not have standing as taxpayers to challenge the way tax dollars are spent by the federal government is if the expenditure was enacted under Congress’s taxing and spending power and allegedly exceeds the specific limitation on that power found in the Establishment Clause. That exception applies here because the citizens’ group is alleging that the federal appropriation is an unconstitutional attempt to provide government funds to religiously affiliated schools.
