Final MBE stuff to know Flashcards

Question

[comes up a lot] A man who owned a business believed that one of his employees was stealing computer equipment from the business. He decided to break into the employee's house one night, when he knew that the employee and her family would be away, to try to find and retrieve the equipment. The man had brought a picklock to open the employee's back door, but when he tried the door, he found that it was unlocked, so he entered. As the man was looking around the house, he heard sounds outside and became afraid. He left the house but was arrested by police on neighborhood patrol. What is the man's strongest defense to a burglary charge? A The back door to the house was unlocked. B The burglary was abandoned. C The house was not occupied at the time of his entry. D The man did not intend to commit a crime inside the house.

Answer 1

(D) is correct. Burglary is the breaking and entering of the dwelling of another at nighttime with the intent to commit a felony therein. Here, the man intended to retrieve the computer equipment that he thought the employee was stealing from his business. Since the man only wanted to take back property that was rightfully his, he did not have the intent to commit a crime. Thus, his strongest defense to burglary is that he did not intend to commit a crime inside the house. (A) is incorrect. The breaking necessary for burglary requires some use of force to gain entry, but minimal force is sufficient. Opening a closed but unlocked door constitutes a breaking. Here, the man opened the unlocked back door, so his actions are sufficient for burglary. (B) is incorrect. Burglary requires that the defendant have the intent to commit a felony at the time of entering the dwelling, but it is not necessary that the felony be completed or even attempted. Here, the man intended to retrieve computer equipment, but he got scared and left the house without taking anything. The fact that he did not go through with his plan does not affect his culpability for burglary. (C) is incorrect. A structure is a dwelling if it is used with regularity for sleeping purposes. The occupants do not have to be present during the burglary, and the occupants' temporary absence does not deprive the structure of its character as a dwelling. Here, the employee and her family lived in the house and were away that night. Their temporary absence did not affect the house's status as a dwelling.

Answer 2

If the writing is only a partial integration, and not a complete embodiment of the parties' intentions, under the parol evidence rule, it cannot be contradicted, but it may be supplemented by proving up consistent additional terms.

Answer 3

(B) is correct. The offer was accepted before the collector's death. The collector's letter was an offer. It created a reasonable expectation in the expert that the collector was willing to enter into a contract on the basis of the offered terms. Unless an offer specifically provides that it may be accepted only through performance, it will be construed as an offer to enter into a bilateral contract and may be accepted either by a promise to perform or by the beginning of performance. Here, the expert began performance and, thus, accepted the offer when he began restoring the toy on June 4 - two days before the collector died on June 6th. (A) is incorrect. The collector's offer was accepted on June 4 when the expert began performance. Whether the expert knew of the collector's death on June 7 is not relevant. Indeed, if the expert had not already accepted the offer before the collector's death, the offer would have terminated on the collector's death by operation of law, even if the expert did not know of the death. (C) is incorrect. The June 7 note was not an acceptance. The acceptance had already occurred on June 4 when the expert began performance by beginning to restore the toy. (D) is incorrect. If either of the parties to a proposed contract dies prior to acceptance, the offer is terminated. Here the collector's offer had already been accepted at the time of the collector's death. Thus, there was no lapse.

Answer 4

(D) is correct. Although as a general rule a joint tenant's interest is freely alienable during his or her lifetime without the consent of the other joint tenant, that interest cannot be devised in a will. In this case, on the death of the husband, the wife's interest in the joint tenancy immediately expanded and she became the sole owner of the land as the surviving joint tenant. (A) is incorrect. As a general rule, a joint tenant's interest is freely alienable during his or her lifetime without the consent of the other joint tenant. However, as stated above, a joint tenant's interest cannot be devised in a will. In this case, on the death of the husband, the wife became the sole owner of the land as the surviving joint tenant. (B) is incorrect. The doctrine of ademption applies only when an individual dies testate and attempts to devise land that the testator no longer owns. That doctrine is not applicable here because the wife became the sole owner of the land as the surviving joint tenant. (C) is incorrect. The doctrine of after-acquired title, or estoppel by deed, applies when an individual attempts to convey title (usually by warranty deed) at a time when the individual does not have title to the land but later acquires title to the land. In this case, the husband had an interest in the land but did not have the power to devise it in a will, so the doctrine does not apply.

Answer 5

(B) is correct. The grant here gave a life estate to the friend and a remainder in fee simple to the neighbor. It is a remainder because on the friend's death (the natural termination of the preceding estate), the neighbor has the right to possession. The remainder is vested because it was granted to an ascertainable person in being (the neighbor) and there were no conditions to prevent it from becoming possessory. A vested remainder is devisable by will; so when the neighbor devised her estate to the local charity, the charity took her vested remainder interest. (A) is incorrect. Whenever the same person acquires all of the existing interests in land, present and future, a merger occurs, and that person then holds a fee simple absolute. Here, however, the daughter had nothing to convey to the friend. The woman conveyed a vested remainder in fee simple to the neighbor. That vested remainder is devisable, and the neighbor properly devised it by will to the local charity. The daughter, as an intestate heir, would have taken no interest in the property. A quitclaim deed conveys only the interest the grantor has, and in this case, that was nothing. Therefore, there was no merger. The daughter's deed conveyed no interest to the friend, and the friend has only his life estate. (C) is incorrect. The phrase in the grant "and her heirs" indicates that a fee simple interest was being granted; it does not give the heirs any rights in the property. Thus, as discussed, the daughter acquired no interest in the remainder. (D) is incorrect. The Rule Against Perpetuities states that no interest in property is valid unless it must vest, if at all, within 21 years after a life in being at the creation of the interest. Here, the neighbor's interest is already vested on creation; she has a vested remainder. Her estate is a vested remainder because it followed the natural termination of the preceding estate, and it was granted to an ascertainable person in being without any conditions to prevent it from becoming possessory. Because it is a vested remainder, it is valid under the Rule.

Answer 6

(B) is correct. The court should instruct the jury on murder and voluntary manslaughter. Murder is the unlawful killing of another human being with malice aforethought. Malice aforethought exists if the defendant has one of the following states of mind: (i) the intent to kill, (ii) the intent to inflict great bodily injury, (iii) reckless indifference to an unjustifiably high risk to human life, or (iv) the intent to commit a felony. Here, the man grabbed a gun and shot and killed the neighbor. A jury could find that he had the intent to kill, or at least the intent to inflict great bodily injury. The court should therefore instruct the jury on murder. Voluntary manslaughter is a killing that would otherwise be murder but is distinguishable from murder by the existence of adequate provocation. Provocation will reduce a killing to voluntary manslaughter if it meets four tests: (i) the provocation must have been one that would arouse sudden and intense passion in the mind of an ordinary person such as to cause him to lose his self-control; (ii) the defendant must have in fact been provoked; (iii) there must not have been a sufficient time between the provocation and the killing for the passions of a reasonable person to cool; and (iv) the defendant in fact did not cool off between the provocation and the killing. Adequate provocation is frequently recognized in the case of one spouse discovering the other in bed with another person. Here, the man's actions meet the requirements for voluntary manslaughter. He caught his wife in bed with the neighbor, which would provoke an ordinary person and provoked the man himself. It appears that there were only a few seconds between the provocation and killing, which would be insufficient time for a reasonable person to cool, and nothing indicates that the man cooled off. Because the man's actions fit the requirements for voluntary manslaughter, the jury should be instructed on that crime. If the jury were to find that this killing did not qualify as voluntary manslaughter, the man would be guilty of common law murder. Thus the jury should be instructed on both crimes. (A) is incorrect. The killing does not meet the requirements of involuntary manslaughter. There are two types of involuntary manslaughter: (i) a death caused by criminal negligence and (ii) a killing caused by an unlawful act, either a misdemeanor or a felony not included in felony murder. Here, there is no indication that the man was negligent; his actions appear to be intentional. Also, the man did not cause the neighbor's death while committing an unlawful act; he merely came home early from work. Because the killing does not fit into the definitions of involuntary manslaughter, the court should not instruct the jury on it. (C) is incorrect. As discussed above, the killing does not meet the requirements for involuntary manslaughter, and the jury should not be instructed on it. (D) is incorrect. As explained above, the court should instruct the jury on murder but not on involuntary manslaughter.

Answer 7

(A) is correct. With certain exceptions by rule or statute, only final judgments may be appealed. A final judgment is one that disposes of the whole case on its merits. Since the case was still pending after the denial of a motion to dismiss on the basis of a lack of personal jurisdiction, the judgment here was not a final judgment and thus was not appealable. (B) is incorrect because an order determining personal jurisdiction may be appealed (and is not within the sole discretion of the district court), but the order must be "final" (that is, it must dispose of all claims by all parties). (C) is an incorrect statement of law and the final order rule. The order must be "final" at the trial court level, not be potentially made final by an appellate court ruling. (D) again is an incorrect statement of law. The final order rule may not be circumvented by the mere raising of a constitutional issue.

Answer 8

(C) is correct. A cumulative zoning ordinance creates a hierarchy of uses of land, and land that is zoned for a particular use may be used for the stated purpose or for any higher use. A residential use is higher than a nonresidential use. Here, the building was in an area originally zoned for nonresidential use. The daughter and her parents used the property for a business and their residence. This was appropriate under the cumulative zoning ordinance as the family's uses met or exceeded the zoned use. Later, the area was rezoned for single-family residential use, which is a higher use than the shoe store. However, a use that exists at the time of passage of a zoning ordinance and that does not conform cannot be eliminated at once. Generally, the nonconforming use may continue indefinitely, but any change in the use must comply with the zoning ordinance. Because the shoe store existed at the time of the rezoning, the daughter may continue to operate the shoe store as a nonconforming use. (A) is incorrect. Generally, the nonconforming use may continue indefinitely. The key is the use of the property and not the ownership. The parents' deaths do not affect the zoning status of the building. Thus, the daughter may live in the building and operate the shoe store. (B) is incorrect. The zoning power is limited by the "no taking without just compensation" clause of the Fifth Amendment. Nevertheless, zoning is generally not a "taking" unless it amounts to a physical appropriation of the property or denies the owner of all economic use, which would not be the case here (the daughter could use the property as a single-family residence). Because the property is a nonconforming use, she will be allowed to continue that use. (D) is incorrect. A cumulative zoning ordinance creates a hierarchy of uses of land, and land that is zoned for a particular use may be used for the stated purpose or for any higher use. A single-family home is a higher use than an apartment building or a commercial use such as a shoe store. Because the shoe store is a lower use than a single-family residence, it would not be allowed in this area. Nor would the daughter's apartment above the store. The store and apartment are allowed only because they are a nonconforming use.

Answer 9

D) is correct. Solicitation consists of inciting, advising, or inducing another to commit a crime with the specific intent that the person solicited commit the crime. Here, the man asked the pool cleaner to disarm the alarm and leave a side door unlocked so that he could enter the house and steal the coin collection, and he offered her part of the proceeds from selling the collection. This was clearly an inducement for the cleaner to commit a crime, and the man had the specific intent that the cleaner commit the crime. He has therefore committed solicitation. C) is incorrect. Conspiracy consists of an agreement between two or more persons, an intent to enter into an agreement, and an intent to achieve the objective of the agreement. Under the bilateral approach, at least two guilty minds are required for a conspiracy. If one person in a two-party agreement is only feigning agreement, the other party cannot be convicted of conspiracy. Here, the cleaner outwardly agreed to the man's plan, but she was only pretending and immediately contacted the police. Because she did not intend to enter into an agreement with the man and did not intend to help him steal the coin collection, she did not have a guilty mind. The man therefore cannot be convicted of conspiracy.

Answer 10

As TIC NOT JT

Answer 11

NO not for Miranda anyways.

Answer 12

(D) is correct. Jury selection is a critical stage of trial at which the defendant is entitled to be present. (A) may be true, but it is also off point. The problem here is not a confrontation right, but rather the right to participate in one's own case. (B) is incorrect because it does not present a proper legal standard. There is no "good cause" which would permit a judge to violate a defendant's constitutional guarantees regarding the right to a jury. (C) is incorrect because nothing in the facts present an issue regarding the presumption of innocence.

Answer 13

[where there is an issue of authenticity, the jury is the one that has to decide] The court should admit the letter and instruct the jury that it is up to them to decide whether the letter is authentic. Before a writing may be received in evidence, it must be authenticated by proof showing that the writing is what the proponent claims it is. All that is necessary is proof sufficient to support a jury finding of genuineness. The authenticity of a document is a preliminary fact to be decided by the jury. Here, the horse breeder’s testimony that he is familiar with the neighbor’s handwriting and that he recognizes the signature on the letter to be that of the neighbor is sufficient to support a jury finding of genuineness. Thus, the letter should be admitted and authenticity should be left to the jury to decide. (C) is wrong because, as noted above, where there is a dispute as to the authenticity of a document, the issue of authenticity is a fact determination for the jury, not the judge, to decide.

Answer 14

Yes for things like teachers (PRIMARY and SECONDARY ONLY), police officers or probation officer.

Answer 15

The electrician's best argument is that the gas worker's claim against the electrician is not a proper third-party claim. Under Rule 14, a defendant may assert a third-party claim against "a nonparty who is or may be liable to it for all or part of the claim against it." In other words, a third-party claim must be a derivative claim; the third-party plaintiff must be seeking indemnification or contribution from the third-party defendant. Here, the gas worker's claim is not that the electrician must indemnify him or that the electrician is a joint tortfeasor who may be jointly liable under principles of contribution. Rather, the gas worker is alleging that he (the gas worker) is not liable and that the electrician is. Because the claim is not derivative, it is not properly asserted as a third-party claim under Rule 14. (A) is incorrect. A defendant may serve a third-party complaint as of right within 14 days of serving his original answer. Thereafter, he must make a motion to serve the complaint, and it is within the trial court's discretion whether to grant or deny the motion. Here, it is unlikely that a court would deny a defendant's motion to serve a third-party complaint at such an early stage of the proceeding.

Answer 16

The locksmith cannot be convicted as an accomplice because he did not have the requisite intent for attempted murder. To be convicted as an accomplice under the prevailing rule, a person must have given aid, counsel, or encouragement with the intent to aid or encourage the principal and the intent that the principal commit the substantive offense. Mere knowledge that a crime would result from the aid provided is generally insufficient for accomplice liability. Here, the locksmith did not provide the tools to the friend with the intent that he kill the rival. His knowledge that the friend might be intending harm to the rival is not sufficient to establish the intent to kill required for attempted murder. (A) is incorrect because even if the locksmith’s conduct constituted reckless disregard of high risk to human life, that state of mind is not sufficient for attempted murder. Unlike murder, attempted murder is a specific intent crime and requires the intent to kill. (B) is incorrect. Although the locksmith’s attempt to neutralize his assistance would not have been enough to raise the defense of withdrawal if he had incurred liability as an accomplice, here he did not have the requisite intent for accomplice liability. (D) is an incorrect statement of law; the degree of liability of a principal is irrelevant to the potential liability of an accomplice. If the locksmith had had the intent to aid his friend in killing the rival, the fact that the friend could show adequate provocation to reduce his offense to attempted voluntary manslaughter would have no effect on the locksmith’s liability for attempted murder.

Answer 17

The court will likely find the legislation to be a constitutional regulation of obscenity. Obscenity, which is not protected speech under the First Amendment, is defined by the Supreme Court as a description or depiction of sexual conduct that, taken as a whole, by the average person, applying contemporary community standards, appeals to the prurient interest in sex, portrays sex in a patently offensive way, and—using a national reasonable person standard—does not have serious literary, artistic, political, or scientific value. Thus, the legislation here is constitutional because it uses a reasonable person standard, rather than a community standard, for determining the value of the work. (B) is incorrect because while a statewide standard for determining whether the material is patently offensive is permissible, it is not mandatory. A state may use a “community standard” for making this determination. (C) is incorrect because, again, a statewide standard for determining whether the material is patently offensive is permissible. Only the “social value” element of the obscenity test requires a national standard. (D) is incorrect because the legislation is valid regardless of whether it is necessary to achieve the state’s compelling interest in reducing violent crime. Speech that falls within the definition of obscenity is unprotected speech; the government does not need a specific compelling interest to ban it.

Answer 18

The defendant must disclose the existence of the insurance policy under the Federal Rules, which expressly permit discovery of insurance agreements as an initial disclosure. (1) the names, addresses, and phone numbers of individuals who contributed to the discovery, (2) a duplicate description of all related paperwork, compilation of all information pertaining to the invention, and publicly owned tangible objects, objects in custody, (3) a computation of damages, and (4) any related insurance coverage agreements.

Answer 19

First of all here they treat creditors as bona fide purchasers Also purchase money mortgage CAN be inferior to mortgage that became senior through a recording statutte. f a court finds that the buyer took title subject to the creditor’s mortgage, it will be because the creditor’s mortgage was senior to the bank’s purchase money mortgage (“PMM”). A PMM is a mortgage typically given to a third-party lender, who is lending the funds to allow the buyer to purchase the property. A PMM, whether recorded or not, has priority over mortgages, liens, and other claims against the mortgagor that arise prior to the mortgagor’s acquisition of title. However, PMM priority is subject to being defeated by subsequent mortgages or liens by operation of the recording acts. Here, the creditor’s mortgage has priority over the bank’s PMM under the jurisdiction’s notice statute because the creditor had no notice of the bank’s interest at the time of the loan. Because foreclosure does not affect any interest senior to the mortgage being foreclosed, the buyer takes title subject to the creditor’s mortgage. (B) is incorrect because, although failure to join a necessary party results in the preservation of that party’s interest despite foreclosure and sale, the creditor’s mortgage was senior to the bank’s mortgage, and thus it was not a necessary party.

Answer 20

The defense witness's testimony is admissible character evidence because the plaintiff's character is directly in issue in the case. As a general rule, evidence of character to prove the conduct of a person in the litigated event is not admissible in a civil case. However, when proof of a person's character, as a matter of substantive law, is an essential element of a claim or defense in a civil action, character evidence is admissible because it is the best method of proving the issue. Under the Federal Rules, any of the types of evidence-reputation, opinion, or specific acts-may be used. Here, character is an issue in the plaintiff's defamation action because the defendant has pleaded as an affirmative defense that his statement claiming that the plaintiff is a thief is the truth. The defense witness's testimony that he saw the plaintiff take the money from the cash register is relevant because it tends to show that the defendant spoke the truth. Hence, it should be allowed. (B) is incorrect because the fact that the theft here could be considered a crime of dishonesty would be relevant only if the plaintiff's credibility were being impeached, and only then if proof of an actual conviction were provided. Here, the testimony is admissible because it is being offered as substantive evidence of an aspect of the plaintiff's character that is an essential element of a defense in the case.

Answer 21

The insurance company can bring the interpleader action in federal court. The Federal Interpleader Act provides special rules for dealing with subject matter jurisdiction, personal jurisdiction, and venue. Under the act, interpleader can be brought if any two claimants are citizens of different states and the amount in controversy is $500 or more. Complete diversity is not required. Here, the mother is a State B resident, and the former girlfriend is a State A resident. Thus, both claimants are diverse from one another, and the $70,000 amount in controversy exceeds the $500 minimum. (A) is wrong because it states the general diversity of citizenship subject matter jurisdiction requirements that would be applicable to Rule interpleader. Statutory interpleader has different requirements. (B) is wrong because the Federal Interpleader Act permits the federal court to serve process anywhere in the United States. Therefore, as long as all the claimants reside or can be found anywhere in the country, the federal court can exercise personal jurisdiction over them. (C) is wrong because the Federal Interpleader Statute does not require complete diversity. It only requires diversity between the two contending claimants, which exists in this case because the mother is a State B resident and the former girlfriend is a State A resident.

Answer 22

The tax unconstitutionally burdens the freedom of the press. Press and broadcasting companies can be subject to general business taxes, but a tax applicable only to the press or based on the content of a publication will not be upheld absent a compelling justification. Mere need for revenue probably is not a sufficiently compelling interest. (A) is incorrect because there is no unconstitutional burden on interstate commerce here. The law treats all businesses subject to the tax (namely breweries and distilleries) equally, and so is not protecting local business against out-of-state competition. The fact that the law treats breweries and distilleries differently from wineries and that the state has no breweries or distilleries but does have wineries probably does not change this, because a court will probably find these to be distinct businesses for purposes of advertising. (C) is incorrect. When a sales tax is imposed on a sale taking place entirely within one state, there is no apportionment problem because the sale cannot be taxed by any other state (because no other state has a sufficient nexus).

Answer 23

Although the woman may have been guilty of murder had the pedestrian been killed, it does not necessarily follow that she is guilty of attempted murder when she almost killed the pedestrian. Murder does not require the intent to kill; an awareness of an unjustifiably high risk to human life will suffice. Like all attempt crimes, attempted murder is a specific intent crime. Thus, the intent to kill is required. Because the woman did not intend to kill the pedestrian, she cannot be convicted of attempted murder. (B) is wrong because, although the woman can avoid guilt for attempted murder, she cannot do so for the reason given here. Attempt requires an act beyond mere preparation for the offense. If the woman had the required intent to kill, her act of running down the pedestrian would be sufficient for attempted murder. (C) is wrong. It is often loosely said that one is presumed to intend the natural and probable consequences of her act. This is not to be taken literally. It means that if a particular result is a natural and probable consequence of what a defendant does, the fact finder may draw the inference from such circumstance that the defendant intended that result. Here, however, it is likely that the jury would infer that the woman, who wanted to keep a doctor's appointment, never intended to kill a pedestrian. (D) is wrong for the same reason. It is simply another phrasing of (C). But, as explained above, attempted murder requires an actual intent to kill, not a fictitious, imputed, or constructive one

Answer 24

The destination tax will likely be held constitutional under Congress's taxing power. Congress has the power to lay taxes under Article I, Section 8, and a tax measure will usually be upheld if it bears some reasonable relationship to revenue production or if Congress has the power to regulate the taxed activity. Despite the protest from the officials of the affected locations, the tax here does appear to be related to revenue production and so will be upheld. (C) is incorrect because it is based on the wrong standard-the compelling interest test does not apply here. (A) is incorrect because the extent of the right to travel is not clearly defined. The Supreme Court has established that the right to travel from state to state is a fundamental right that may be violated by state laws designed to deter persons from moving into a state; however, the Court has not specifically applied this rule to the federal government or to the type of tax legislation present here. The state cases involved treating old vs. new residents differently for purposes of voting or some government benefit, which may have violated the Privileges or Immunities Clause of the Fourteenth Amendment, or treating outsiders differently from residents, which may have violated the Equal Protection Clause of the Fourteenth Amendment. Neither clause is applicable to the federal government, so neither analysis is appropriate. (

Answer 25

The neighbor has delegated her duties under the agreement with the seller to her friend, and the friend has agreed to assume the duties by agreeing to make the installment payments to the seller. Where a delegate's promise to perform the delegated duty is supported by consideration, there results a third-party beneficiary situation, so that the nondelegating party to the contract can compel performance or bring suit for nonperformance. The friend's promise to make the payments to the seller, totaling $180, was given in exchange for the neighbor's promise to forgive the $200 debt owed by the friend to her. The neighbor thus relinquished her right to take action against her friend for the full amount owed, thereby incurring legal detriment. Consequently, the promise of the friend was supported by consideration, and a situation arose in which the seller became a third-party beneficiary of the agreement between the neighbor and her friend, and able to enforce performance of the friend's promise to pay. (C) is incorrect because, as explained above, the friend's promise to the neighbor was supported by consideration.

Answer 26

negligent misrepresentation is not supported by these facts. Negligent misrepresentation requires (i) a misrepresentation made by defendant in a business or professional capacity, (ii) breach of duty toward that particular plaintiff, (iii) causation, (iv) justifiable reliance, and (v) damages. Here, even though the investor was involved in a business transaction, the attorney was not

Answer 27

If a deed is given for security purposes rather than as an outright transfer of the property, it will be treated as an "equitable" mortgage and the creditor will be required to foreclose it by judicial action like any other mortgage. In determining whether an absolute deed is really a mortgage, the court considers the following factors: (i) the existence of a debt or promise of payment by the deed's grantor; (ii) the grantee's promise to return the land if the debt is paid; (iii) the fact that the amount advanced to the grantor/debtor was much lower than the value of the property; (iv) the degree of the grantor's financial distress; and (v) the parties' prior negotiations.

Answer 28

Does NOT apply wherethe statement was made in confidence but in a social situation.

Answer 29

Although the validity of religious beliefs cannot be questioned, the role a belief system plays in a person's life can be examined to determine whether the beliefs are indeed religious. The Free Exercise Clause of the First Amendment, applicable to the states through the Fourteenth Amendment, prohibits punishing people for their religious beliefs. When a person claims that he is being punished for his religious beliefs, the court may consider whether the person challenging the law sincerely holds those beliefs. Thus, the court may consider whether the parents' beliefs play a role in their lives similar to that of orthodox religious beliefs. (A) is incorrect because religious beliefs do not have to be related to an organized group to be considered religious. (B) is incorrect because the Free Exercise Clause protects all sincerely held religious beliefs, regardless of whether a specific religion is deemed to be "established" or "traditional." (C) is incorrect because religious beliefs need not involve belief in a supreme being to qualify for constitutional protection. An asserted religious belief must occupy a place in the believer's life parallel to that occupied by orthodox religious beliefs. Even an internally derived belief is entitled to protection.

Answer 30

The parties to a contract may stipulate what damages are to be paid in the event of a breach if (i) damages are difficult to ascertain at the time the contract is formed, and (ii) the amount agreed on is a reasonable forecast of compensatory damages in the case of a breach. These conditions have been met here.

Answer 31

The cashier can be convicted of conspiracy in a unilateral jurisdiction even though the minor can be convicted of neither solicitation nor conspiracy. Under the unilateral approach adopted by the Model Penal Code, the crime of conspiracy requires that only one party have genuine criminal intent, and may be shown by proof that the defendant agreed with another to commit a crime, even if the other person does not share the commitment. Thus, the fact that no other party to the conspiracy could be found guilty does not prevent the defendant from being convicted of conspiracy. Here, the fact that the minor is a member of the class that the statute was designed to protect prevents him from being found guilty of conspiracy.

Answer 32

The construction company is entitled to compensation because it has a property right to enter and remove minerals. Like an easement, a profit is a nonpossessory interest in land. The holder of the profit is entitled to enter on the servient tenement and take the soil or the substance of the soil (e.g., minerals, timber, oil, or game). When an owner grants the sole right to take a resource from her land, the grantee takes an exclusive profit and is solely entitled to the resources, even to the exclusion of the owner of the servient estate. By contrast, when a profit is nonexclusive, the owner of the servient estate may grant similar rights to others or take the resources herself. Although here the profit is nonexclusive, it is nevertheless an interest in property for which the company is entitled to compensation in any condemnation proceeding. (A) is incorrect because a license is merely revocable permission to enter on another's land. Unlike a profit, a license is not an interest in land; it is merely a privilege, ordinarily terminable at the will of the licensor. (B) is incorrect because a profit is the right to take something from another person's land; it has a value apart from the land itself and is alienable. (D) is incorrect because a license coupled with an interest has the effect of making the license irrevocable, but it does not convert the license into an interest in land for which compensation is required.

Answer 33

The Federal Rules conform to the existing state rules governing judicial notice. Federal Rule 201(b) defines a fact that may be noticed as "one not subject to reasonable dispute in that it is either (i) generally known within the territorial jurisdiction of the trial court, or (ii) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." To be considered generally known within the community, the fact must be something that well-informed people generally know and accept. Although usually facts of common knowledge are known everywhere, it is sufficient for judicial notice if they are known in the community where the court is sitting.

Answer 34

The paper manufacturer is liable for damages if the lumber processing plant fails to deliver paper to the publisher. Because delivery of paper is not personal in nature, that duty can be delegated. The quantity will be measured by the paper manufacturer's original output. However, when a duty is delegated to a delegate, the delegator remains liable should the delegate fail to perform. (A) is incorrect because the contract was for five years, and five years have not yet elapsed. (C) is wrong because a delegator remains liable. (C) would be correct only if the paper manufacturer went out of business without delegating its duties to another by selling the other the business, not the case here. (D) is wrong because, as indicated above, such a delegation is proper

Answer 35

The man will not prevail in his motion to suppress. To be reasonable under the Fourth Amendment, most searches must be pursuant to a warrant. However, several types of inspections and searches do not require a warrant or even probable cause. The Supreme Court has held that the Fourth Amendment is not violated by a statute authorizing warrantless searches of a parolee's home-even absent probable cause-if a statute provides for such searches. The Court reasoned that in such circumstances, the parolee has a diminished expectation of privacy and the government has a heightened need for searching parolees; thus the search is reasonable in a constitutional sense. (A) is incorrect because while probable cause may be based on this type of tip under the "totality of the circumstances" test, probable cause is not necessary to establish the validity of the search based on the above discussion. (B) is incorrect because a search warrant is not required for a search of a parolee's home that otherwise complies with procedures. (D) is incorrect because this was not a search incident to a constitutionally valid arrest. There was no basis for an arrest until after the search occurred; if the search were not otherwise independently valid, the fact that the man was arrested after the search revealed the drugs would not make the search valid.

Answer 36

Absent a court order, no execution on judgments is allowed for 30 days after entry except for injunctions or receiverships, which are not held up unless otherwise ordered by a court.

Answer 37

The requested relief will be denied because the friend did not join in the contract of sale. The conveyance purported to create a fee simple determinable in the veterinarian subject to an executory interest in the American Cancer Society. A fee simple determinable subject to an executory interest is an estate that, on the happening of a stated event, is automatically divested in favor of a third person, who holds the executory interest. However, the executory interest in the American Cancer Society is void under the Rule Against Perpetuities because it might vest beyond lives in being plus 21 years. The charity-to-charity exception to the Rule does not apply because the veterinarian is not a charitable organization. Because any interest that violates the Rule is void and stricken from the instrument, what is left is a fee simple determinable in the veterinarian and a possibility of reverter in the landowner. On the landowner's death, the possibility of reverter passed to the friend. (A) is incorrect because the American Cancer Society does not have any interest in the land. (C) is incorrect because, although the veterinarian had the power to sell his interest, he did not own a fee simple absolute. (D) is incorrect because the daughter does not have any interest in the land. Even if she did, the merger doctrine-which provides that whenever the same person acquires all of the existing interests in land, present and future, a merger occurs and that person holds a fee simple absolute-would not apply because the friend also has an interest in the land.

Answer 38

The statute is an unconstitutional violation of the Commerce Clause. Regulation of foreign commerce is exclusively a federal power because of the need for the federal government to speak with one voice when regulating commercial relations with foreign governments. The existence of legitimate state interests underlying state legislation will not justify state regulation of foreign commerce. The state statute, in imposing requirements for a license costing $50 and for a clear marking of goods as being from a foreign country, clearly is an attempt by the state to restrict or even eliminate the flow of such goods in foreign commerce. Thus, the statute is unconstitutional. (A) is incorrect because even if the $50 fee represents a reasonable inspection fee, the fee would still constitute an interference with foreign commerce. In addition, the facts do not indicate that the license fee has anything to do with inspection, or that the amount of the fee bears any relation to legitimate inspection purposes. (B) is incorrect because the labeling requirement imposes a burden on goods that flow in the stream of foreign commerce. Although this burden may be relatively small, it is still impermissible in light of the exclusive power held in this area by the federal government.

Answer 39

In federal civil cases, a verdict must be unanimous unless the parties agree to the contrary

Answer 40

All witnesses are competent unless physically or mentally impaired in some fashion not applicable here, or unless they are too young to understand the oath and the need to testify truthfully.

Answer 41

Under Federal Rule of Civil Procedure 41, dismissals for lack of prosecution are with prejudice and operate as an adjudication on the merits unless the court designates otherwise.

Answer 42

Short answer: title was unmarketable beacuse the future interest could apply to nephews that are yet to be born before sister's death. Rule: Title may be unmarketable where the owners of the present and future interests attempt to convey a fee simple absolute title if the future interests are held by persons who are unborn or unascertainable The sister and the brother's son will not prevail in a suit against the buyer for specific performance because title is unmarketable. Marketable title is title reasonably free from doubt, i.e., title that a reasonably prudent buyer would be willing to accept. Title may be unmarketable where the owners of the present and future interests attempt to convey a fee simple absolute title if the future interests are held by persons who are unborn or unascertainable. Here, the sister has a life estate, and the brother's son has a vested remainder subject to open because there may be other nieces and nephews born during the sister's life who become entitled to share in the remainder. Life estates and vested remainders are freely transferable, which means that the sister and the brother's son together can transfer the land to a purchaser, but the title is not marketable. It may turn out that the sister has a child, who is entitled to share in the remainder, but who did not join in the conveyance to the buyer. Because the child would not be bound by the conveyance, he would own an interest in the land. Thus, although the interests are considered alienable, the sister and the brother's son cannot convey good title because there are outstanding interests in the unborn nieces and nephews.

Answer 43

In the common law of England, the doctrine of worthier title was a legal doctrine that preferred taking title to real estate by descent over taking title by devise or by purchase. It essentially provides that a remainder cannot be created in the grantor's heirs, at least not by those words

Answer 44

A dead man's statute, also known as a dead man act or dead man's rule, is a statute designed to prevent perjury in a civil case by prohibiting a witness who is an interested party from testifying about communications or transactions with a deceased person against the decedent unless there is a waiver.

Answer 45

Short answer: arson is not speicifc intent you only need to intend to create a fire hazard not burn down the whole thing. The shoplifter's conduct satisfies the mens rea of "malice" required for arson. At common law, arson was defined as the malicious burning of the dwelling of another. The mens rea required for arson is malice, which is broader than the intent required for specific intent crimes and has nothing to do with ill will or evil motive. The defendant need not have intended to burn down the building; it is sufficient if he intended a burning that creates an obvious fire hazard to the building. Here, the shoplifter knew that the store had an automatic sprinkler system, and he was not motivated by an intent to burn down the building. Nevertheless, he intended to start a fire with reckless disregard of a high risk that it would cause damage to the building. The risk or hazard is not that the building will burn down, merely that damage to the structure from a burning will occur. The "burning" required for arson means a "charring" of the combustible material; mere "scorching" is insufficient. Here, the wall next to the trash basket was charred. This satisfies the "burning" requirement. The common law requirement that the structure be a dwelling has been broadened by the statute in this question to include other buildings. Thus, the shoplifter's conduct satisfies all of the elements of the crime of arson. (A) is incorrect because the mens rea for arson can be satisfied even in the absence of a specific intent to burn the building. He acted with the requisite intent-malice-by intentionally starting a fire that created a high risk that a burning of the structure would occur.

Answer 46

An entry of default may be set aside for "good cause shown." Although not specifically required by the Federal Rules, a majority of courts also will require some showing of a meritorious defense. (A) is incorrect because the grounds are not limited to the grounds required for setting aside regular court judgments. (B) is incorrect because that answer is also too limiting on the concept of "good cause shown." For example, a default might result from an honest mistake of the attorney, but the entry of default may nonetheless be set aside if the attorney acts promptly to correct the mistake. (D) is incorrect because a majority of courts will also require a showing of a meritorious defense.

Answer 47

Short answer: florist should joint everyone in the scheme because they could all be potential plaintiffs enforcing the equitable servitude (does not matter if they would likely not succeed). The florist should join all of the landowners in the subdivision in a suit to terminate the servitude on the grounds of abandonment. If a covenant in a subdivision deed is silent as to who holds its benefit, any neighbor in the subdivision will be entitled to enforce the covenant if a general scheme or plan is found to have existed at the time she purchased her lot. In addition, a prior purchaser can enforce a restriction in a subsequent deed from a common grantor under either a third-party beneficiary theory or an implied reciprocal servitude theory. Under the implied reciprocal servitude theory, an implied reciprocal servitude attaches to the grantor's retained land at the moment she deeds a lot with the restriction. Thus, all of the other landowners in the subdivision could potentially enforce the covenant as an equitable servitude against the florist. All parties would probably fail in an attempt to enforce the servitude, but the florist should join them now to avoid multiple litigation. (Note that had the other landowners tried to enforce the equitable servitude against the florist, they would all have been subject to the equitable defense of acquiescence, which provides that if a benefited party acquiesces in a violation of the servitude by one burdened party, he may be deemed to have abandoned the servitude as to other burdened parties. In addition, the other commercial users are subject to the defense of unclean hands. It is important to remember that these are defenses and do not terminate the servitude; therefore, it would be best for the florist to join all possible complainants in a suit to have the servitude declared extinguished.)

Answer 48

The court should sustain the objection because the records are hearsay not within any recognized exception. Hearsay is a statement, other than one made by the declarant while testifying, offered into evidence to prove the truth of the matter asserted. Here, the records are being offered to prove that the employer sexually harassed other employees, to support the plaintiff's contention that the employer sexually harassed her. Because the statements are offered to prove the truth of the matter asserted, they are hearsay, and because there is no recognized exception that would allow the records to be admitted, they must be excluded. Therefore, (D) is incorrect. (B) is incorrect. The business records exception applies to records or writings made in the course of a regularly conducted business activity by one who was under a duty to do so. Here, because the employees were not under a business duty to file their claims, the business records exception does not apply to their statements.

Answer 49

NO, not covered by Federal Law Rule on judicial notice.

Answer 50

Even absent that suspicion, police may set up roadblocks to stop cars if (i) the cars are stopped on the basis of some neutral, articulable standard, and (ii) the stops are designed to serve a purpose closely related to a particular problem arising from automobiles and their mobility. [See Indianapolis v. Edmund (2000)] The use of a checkpoint to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety is unconstitutional.

Answer 51

The power company received an express easement entitling it to flood the farmer’s property. To create an easement by express grant, there must be a writing signed by the grantor. If validly created, an easement is presumed to be of perpetual duration. No facts suggest that this easement was impliedly created or prematurely terminated. (B) is incorrect because the requirements for extinguishing an easement by adverse use for the prescriptive period have not been fulfilled. To extinguish an easement by prescription, the owner of the servient tenement must so interfere with the easement as to create a cause of action in favor of the easement holder. The interference must be open, notorious, continuous, and nonpermissive for the prescriptive period. The farmer has done nothing (such as using his land in a different manner) that would indicate an interference with the power company’s easement so as to give rise to a cause of action in favor of the company D) is incorrect because improper recordation does not affect the rights of the original parties to the transaction. To be properly recorded, an instrument generally must be acknowledged before a notary public. Although an unacknowledged instrument does not impart constructive notice to subsequent purchasers, it has absolutely no effect on the validity of the easement as between the original parties.

Answer 52

C: The court should rule in favor of the contractor because the pursuit of a livelihood is a right protected by the Privileges and Immunities Clause, and the requirement here substantially interferes with that right. The Privileges and Immunities Clause of Article IV prohibits states and municipalities from discriminating against residents of other states. Not all discrimination is prohibited—only that which substantially interferes with important commercial activities or civil liberties. The Supreme Court has held that the right to pursue a livelihood is a right protected by the Privileges and Immunities Clause, and also has held that a requirement that private contractors on city projects employ a certain percentage of city residents substantially interferes with the right. [See United Building & Construction Trades Council v. Mayor of Camden (1984)] (A) is incorrect because there is no market participant exception under the Privileges and Immunities Clause. The market participant exception arises from the Commerce Clause and is not appropriate in privileges and immunities analysis. [See United Building & Construction Trades Council v. Mayor of Camden, supra]

Answer 53

The power to investigate to secure information as a basis for potential legislation is very broad, but the investigation must be for purposes within the scope of Congress's power.

Answer 54

(a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present.

Answer 55

NO therefore if we are talking about UCC the sending of non conforming goods + this letter is not enough to make it a counter-offer.

Answer 56

NO a dead person cannot be defamed

Answer 57

UCC requires perfect tender, which means that the goods and their delivery must conform to the contract in every way or there is a breach. Here, the brewery breached the contract by delivering the beer late. When a delivery is nonconforming, the buyer may: (i) reject the goods and cancel the contract or sue for damages; or (ii) accept any commercial units, reject the rest, and sue for damages. Once the goods are accepted, the buyer generally is bound on the contract and it is too late to cancel; however, the buyer retains the right to sue for damages for any nonconformity. When the tavern owner accepted the beer, he became bound under the contract to pay for the beer. Nevertheless, he can sue for damages that arose from the late delivery.

Answer 58

C becasue D (restitution) applies only when a) there is no contract and b) when there has been an unjust enrichment by D. Under the doctrine of substantial performance, contracts governed by the common law are enforceable despite minor breaches. The contract here—to build a manufacturing plant—is governed by the common law. In determining whether a breach is minor or substantial, courts look to whether the party received the substantial benefit of the bargain. Here, the manufacturer got a plant that was, perhaps, better than the one called for in the contract. Therefore, the contract will be enforceable under the doctrine of substantial performance. (A) is incorrect because the perfect tender doctrine applies only to contracts for the sale of goods—not to common law contracts. D) is incorrect because quasi-contract provides a remedy in some situations in which a contract fails (or is absent) and the defendant would be unjustly enriched as a result. The doctrine is not applicable here because, as discussed above, the contract will not fail due to a minor breach.

Answer 59

The man has the option of defending in equity under a specific performance theory or waiting until his colleague obtains a judgment against him and then suing her for breach. He has either option available because his colleague is in breach of their accord agreement. An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that she is supposed to receive from the other party, some other, different performance. The accord must be supported by consideration, but the consideration is sufficient if it is of a different type than called for under the original contract, even if the substituted consideration is of less value. An accord suspends the right to enforce the original agreement. Performance of the accord (i.e., satisfaction) cuts off the parties’ rights to enforce the original contract and discharges the accord. Here, the accord was supported by sufficient consideration because the man was giving a ring in lieu of some cash. The man’s duties under the accord were discharged when he timely tendered delivery of the ring and cash. By refusing the ring and filing suit for the part of the original debt that has not been paid, the colleague has breached the accord agreement. If a creditor breaches an accord agreement, the debtor has the option of either raising the accord agreement as an equitable defense in the creditor’s action and asking that it be dismissed, or waiting until he is damaged (i.e., until the creditor is successful in an action on the original contract) and then bringing an action at law for damages for breach of the accord contract. (A) is incorrect because the amount of the debt does not have to be in dispute to have an enforceable accord, as long as there was some alteration in the debtor’s consideration, as discussed above. (B) is incorrect because the colleague would have the right to enforce the original contract only if the man had breached the accord agreement. Here, the man’s tender of the ring discharged his duty under the accord agreement, precluding his colleague from suing on the original contract. (C) is incorrect because the man has both a breach of contract remedy and an equitable defense option available to him. Also, whether the ring is unique does not affect his right to specific performance of the accord agreement; he is simply raising the agreement as an equitable defense to prevent the colleague from continuing with her suit on the original contract.

Answer 60

A: The winery may refuse the shipment if notice of termination is given but will not recover damages for breach. This problem is governed by UCC sections 2-613, 2-615 and 2-616. When crops are destroyed in the case of a farmer who has contracted to sell crops from a designated tract of land, the loss may be governed either by UCC section 2-613 (casualty to identified goods) or section 2-615 (failure of presupposed conditions/commercial impracticability). The result is the same under either section. Under section 2-613, if goods identified when the contract is made suffer casualty without fault of either party before the risk of loss passes to the buyer, the contract may be avoided. If the loss is partial, the buyer may treat the contract as avoided or accept the goods with allowance from the price for the deficiency. The buyer does not have any further rights against the seller and thus cannot sue the seller for breach. Under section 2-615, a crop failure resulting from an unexpected cause excuses a farmer’s obligation to deliver the full amount as long as he makes a fair and reasonable allocation among his buyers. The grape grower has done this by allocating pro rata between the winery and the vineyard. Nevertheless, under UCC section 2-616, the buyer may either accept the proposed modification or terminate the contract. Under either provision, the winery is free to reject the 250 tons of grapes

Answer 61

C: The dentist will not prevail because the contractual duty was discharged by an accord and satisfaction. An accord is an agreement in which one party to an existing contract agrees to accept, in lieu of the performance that she is supposed to receive from the other party, some other, different performance. Satisfaction is the performance of the accord agreement. The effect of this performance is to discharge both the accord agreement and the original contract. An accord and satisfaction may be accomplished by a good faith tender and acceptance of a check conspicuously marked “payment in full” where there is a bona fide dispute as to the amount owed. The dentist and the patient agreed that the dentist would perform the dental work needed by the patient in return for the patient’s promise to pay “about $3,500.” The facts indicate that, following the actual dental work, there ensued a good faith dispute as to whether the patient owed only $3,500 or the additional $600 as well. The patient in good faith tendered to the dentist a check marked “payment in full,” which notation the dentist saw before he deposited the check into his account. The dentist’s acceptance of the patient’s check gives rise to an accord and satisfaction with regard to the disputed original debt. Thus, the dentist is deemed to have accepted the amount tendered by the patient as full payment for the dental services performed, and the patient’s duty to pay for the services is discharged. (

Answer 62

Court will not take judicial notice of the birthdate. A birthdate (other than that of a famous person such as George Washignton) is not the type of fact that a court will not recognize as true without formal presentation of evidence (ex. presentation of a certified copy of a birth certificate). Under the Federa; Rules courts may judicial notice of a) facts generally known within the territorial jurisdiction of the court or ii) capable of accurate and ready determination by resort to sources who accurate cannot reasonably be questioned. Record of state or federal court judicially noticable. Rained: ok Indipendence Day: OK

Answer 63

A stupid Federal venue in civil actions is proper in a) the district where any D resides, IF ALL D are residents of the state in which the district is located, and b) the district in which a substantial part of the events or omissions givigin rise to the claim occurred. Here, the defendants do not reside in the same state. Therefore venue cannot be based on the resident of the defendants. However, the accidentoccurred in the Middle Distrct of State A which is a proper venue under prong ii.

Answer 64

A Because the firned recorded prior to the subsequent conveyance, she has the superior right to title regardless fo the typ of recording statute. A conveyance that is recorded can never be divested by a subsequent conveyance through operation of the recording statutes. By recording, the grantee gives a subsequent conveyance through operation of the recording statutes. By recording, the grantee gives constructive (or record) notice to everyone. Hence, proper recording prevents anyone from becoming a subsequent bona fide purchase. Because the landowner's conveyance to the friend was recorded at the time of the landowner's conveyance to the investor, the investor cannot previal. The investor will clearly lose under a pure race statute because the friend recorded first. THe investor will also lose under notice an drace notice statute because the conveyance to the friend was recorded at the time of the conveyance to the investor. The investor therefore had record notice and cannot claim the protection that these types of statutes provide for subsequent purchasers for value who take without.

Answer 65

Remember that the oral agreement was a valid subsequent medication because the parties may orally waive the contract provision limiting amendment to a writing. Therefore B correct, because contracts for services may be orally modified if consideration present despite the existence of no oral modification clasue.

Answer 66

C) the neighbor as third party creditor beneficiary of the agreement to repair the fence has an action against the contractor. A third party is a creditor beneficiary of a contract if the promisee's primary intent in contracting is to discharge an obligation to the third party. Here ht efahter bargained with the contractor to do repair work on the neighbor s fence in discharge of an obligation that the father had to the neighbor. THerefore the neighbor was the thrid party creditor beneficiary of the agreement to repair the fence and could sue the contractor on this agreement.

Answer 67

A: The appe;ate court should reverse because prosecution of the murder charge does not violate the Double Jeopardy Clause. The Fifth Amendment right to be gree from double Jeopardy for the same offense precludes retrial for a greater offense once jeopardy has attached for a lesser included offense, as well as the imposition of multiple punishments for the same offense. However, a state may continue to prosecute a charge offence, despite the defendant's guilty plea to a lesser included or "allied" offense arising from the SAME incident. The acceptance of a guilyu plea on the lseer included offenses while eht charges not eh greater offence remain pending has none of the implications of an "implied acquirral" that results from a guilty verdict on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. Nothwithstanding the trail court's acceptance of the defendant's guilyu pleas, the defendant is not entitled to use the Double Jeopardy Clause as a sword to prevent the prosecution from continuing to pursue the remaining charge of murder. Hence, the trial court should be reversed.

Answer 68

A: The buyer cannot obtain specific performance against the moeowner because the absence of a written memorandum signed by the homeowner and containing the essential terms of an agreement between the buyer and the homeowner means that there is no enofceable contract. To obtain specific performance there must be an enforceable contract between the parties.

Answer 69

YES. Because testator did not retain a right to revoke the escrow his delivery of the deed to his cousin completes the conveyance. Title passes to the brother automaticall on the testato'r death and "realtes back" to the date of delivery to the cousin. Thus, the testator's home was not his property at his death and it cannot pass to the sister.

Answer 70

B: the defendant may be sentenced under both statutes. Double jeopardy does not prohibit the imposition of cumulative sentences for two or more statutorily defined offenses specifically intended by the legislature to carry separate punishments, even though constitution the "same" crime under the Blockburger test (each offense does not require proof of some additional fact that the other does not) when the punishments are imposed at a single trial. Absent a clear intention, it is presumed that multiple punishments are not intended for offenses constituting the same crime under Blockburger. HERE IT IS CLEAR THAT CONGRESS IN ENACTING THE STATUTE, INTENDED THAT CERTAIN OFFENSES USCH AS INTERSTATE DISTRIBUTION OF COCAINE BE SUBJECT TO SEPARATE PUNISHEMTNS.

Answer 71

The survey.The plat is onyl intended to be a representation of the actual survey as made on the land itself. THe play is in the nature of a certified copy of an instrument that will be controlled by the original. Where a survey as made and marked on the ground conflicts with the play the survey prevails.

Answer 72

A The father's negligence will have no effect because a parent's contributory negligence is not imputed to the child. Nor is the father's negligence imputed to the mother because the contributory negligence of one spouse is not imputed to the other spouse. B and D are incorrect beuacse the parent child immunity would be relevant only if the child were suing a parent for negligence - it is inapplicable here

Answer 73

C: the defendant will be found guilty of larceny. The only value the tickets will have to anyone is if they are used d for admission to the basketball game. Consequently beaucse the defendant did NOT itnend to return the tickets to hos old roommate until after the fame, the defendant intended to depirve his old roommate of the value of the tickets for an unreasonable amount of time, and thus most likely would be found fuitly of larceny. B is a tempting answer but it is to the most likely. There are no facts that indicate the relative value of the tickets to the money that the defendant claims his old roommate owes him.

Answer 74

Payment of a smaller sum that due will not be sufficient consideration for a promise by a creditor to discharge a debt unless the consideration is in some way new or different (ex. payment before maturity or to one other than the creditor) or the amount of debt is subject to an honest dispute (and so the parties are giving up the right to litigate the amount which is consideration sufficient to support a modification in and of itself.

Answer 75

To establish a prima facie case of intentional misrepresentation (deceit), a plaintiff must establish a) a misrepresentation made by the defendant, b) scienter, c) an intent to induce plaintiff's reliance on the misrepresentation, d) causation (actual reliance), e) justifiable reliance and f) damages. And no, not "reasonable reliance

Answer 76

B: The motion to suppress the evidence will be granted because the police did not have probable cause to search the car. When the police place the driver of an automobile under arrest, there are a number of alternatives with respect to a search of the car: a) they may conduct a search of the passenger compartnermet incident to arrest if the search is contemporaneous with the arrest and either the arrestee may still access the vehicle or the police reasonable believe that the vehicle contains evidence of the crime for which the arrest was made. Here the search was not contemporary and nothing indicates that either of the other two conditions was satisfied. ii) if the police have probable cause to search the car. (reasonable grounds for believing that a legitimate item of seizure is in the car) a search of the entire car can be made without a warrant. THe search based on probable cause can be made at the time of the arrest or at a later time. In this question the search of the car at the police station would have been valid IF the police had probable cause to search the car. The question does not provide any facts that could form the basis for probable cause to search. Thus the motion to suppress will be granted because of the lack of probable casue. iii) If the police take the car under their control for an administrative reason (such as car to get off the highway) they can "investor" the items in the car under certain circumstances. In this question the car had not been impounded by the police nor would it need to be because the passenger could drive it home.

Answer 77

Under the Federal Rule, information in treatises can be read into evidence if the treatise is relied upon by the expert OR is called to his attention during cross examination and established as reliable by the witness another expert or judicial notcie

Answer 78

The prevailing rule is that in performing services of designing and constructing improvements on property eventually deeded to the city a developer must accept responsibility fro prededication negligence.

Answer 79

THe court mut impose sanctions on the beneficiary or her lawyer. If a party fails to respond to a request for inspection, the opposing party may move for immediate sanctions. The motion must certify that the moving party has made a good faith attempt to obtain a response. The court has discretion to choose from a variety of sanctions, but the court must require the party that failed to respond to discovery, the party attorney or both to pay the movant's reasonable expenses caused by that failure.

Answer 80

A The landlord liekly will prevail. In a partial condemnation case the landlord tenant relationship continues a does the tenant' s obligation to pay the entire rent for the remaining lease term C is wrong because the covenant of quiet enjoyment can be breached only by actions of the landlord and not those of a third party such as government.

Answer 81

A: the employees organization likely will prevail. The Constitution prohibits the impairment of contractual obligations by a state except in certain narrow circusmtnaces. THe sort of "emergency" normally required for such state action is arguable present here, given the loss in tax revenues. But it is unliekylt that the state would prevail because the termination of annual cost of living adjustments is permanent and appears to be the sort of self interest driven choice to reduce the state's contractual burdens that the Court has found suspect in comparable case.s

Answer 82

A: the employees organization likely will prevail. The Constitution prohibits the impairment of contractual obligations by a state except in certain narrow circusmtnaces. THe sort of "emergency" normally required for such state action is arguable present here, given the loss in tax revenues. But it is unliekylt that the state would prevail because the termination of annual cost of living adjustments is permanent and appears to be the sort of self interest driven choice to reduce the state's contractual burdens that the Court has found suspect in comparable case.s B is wrong because federal coruts do not have jurisdiction to decide questions regarding an individual state's own constitution.

Answer 83

A party may obtain without a court order and without showing need and hardship a copy of any statement or recording previously made by that party.

Answer 84

The loyalty oath is constitutional, but the membership oath is unconstitutional. The First Amendment protects the rights of association and speech. State infringements on these rights must serve a compelling government interest, unrelated to the suppression of ideas. In the area of public employment, neither standards of conduct nor loyalty oaths may be vague or overbroad. Precision is required because of the potential chilling effect on First Amendment rights. Here, the investigator is not applying for public employment, but the state is requiring him to take the oaths to obtain a state license, which involves the same First Amendment issues. The loyalty oath is virtually identical to oaths that have been held to be constitutional. The state has a compelling interest in seeing that both constitutions are upheld and there is nothing vague about the oath. Oaths similar to the membership oath, however, have been struck down as overbroad. The state has a compelling interest only in preventing knowing membership with the specific intent to further unlawful aims. Persons cannot be denied a license because of mere membership in a particular group, and the state statute here addresses mere membership. Thus, (B) is correct

Answer 85

A The anti-littering ordinance will be upheld because it furthers an important government interest unrelated to the content of the communication and is narrowly tailored to the furtherance of that interest. As a general rule, conduct that is intended to communicate is not immune from reasonable government regulation, even though it takes place in a public forum such as a park. The noncommunicative impact of speech-related conduct in a public forum can be regulated to further an important government interest independent of the speech aspects of the conduct as long as the incidental restriction on the ability to communicate that message is narrowly tailored to further the interest in question, so that alternative channels for communicating the message are available. The prevention of litter, as a means of maintaining public facilities in usable condition and protecting property values, is an important enough government interest to allow some type of regulation. The ban on littering is narrowly tailored to accomplish its purpose, unlike, for example, a ban on distributing leaflets that may end up on the ground. The regulation probably would not have precluded the defendant even from dumping the barrel if she had picked up the trash after her speech was over.

Answer 86

The loyalty oath is valid if it merely requires the candidate to affirm that she will oppose the violent overthrow of the government. The government may require employees and other public officers to take a loyalty oath. Such an oath must not be overbroad, so as to prohibit constitutionally protected activities, nor can it be vague. An oath has been upheld that requires state employees to oppose the overthrow of the government by force, violence, or by an illegal or unconstitutional method. [Cole v. Richardson (1972)] This type of oath (which is virtually the same as that set forth in (B)) was deemed to be similar to an oath requiring the taker simply to commit herself to live by the constitutional processes of our system. (D) is incorrect because, as noted above, a requirement for a loyalty oath as a condition of holding public office or employment is valid, as long as the oath is within constitutionally acceptable limits. (A) is incorrect because it has been held that a loyalty oath that disavows advocating the violent overthrow of the government as an abstract doctrine is invalid. The First Amendment prohibits statutes regulating advocacy that are not limited to advocacy of action. [Communist Party v. Whitcomb (1974)] The oath in (A) appears to be overbroad in that it regulates mere advocacy of violent overthrow of the government, rather than regulating only advocacy of action. Therefore, the oath is invalid. (C) is incorrect because only knowing membership in an organization with specific intent to further unlawful aims is unprotected by the First Amendment. [Keyishian v. Board of Regents (1967)] The oath in (C) would in effect punish mere membership in an organization, without showing knowledge of, or a specific intent to further, any unlawful aims of the organization.

Answer 87

B: The search of the glove compartment would not be valid if the officer had placed the driver under arrest and secured him in the back of the squad car. After arresting the occupant of a vehicle, the police may search the interior of the vehicle incident to the arrest if a) the arrestee is unsecured and still may ain access to the interior of the vehicle or b) the p;police reasonably believe that evidence of the offense for which the person arrested may be found in the vehicle. Here, if the officer secured the arrested driver in th ebacl of the squad car the first basis for permitting the search incident to arrest no longer app;ies (and there are no facts to support the second basis). Hence, there would be no ground under (B)to support the search of the glove compartment. A) is incorrect because under the stop and frisk exception an officer may order the occupant of a vehic;e out of the car and search the passenger compartment of the officer reasonably believes that the occupant may be dangerous

Answer 88

D) THe civil attorney is correct. The Supreme Court has rules that a defendant's guilty plea neither admits the legality of the incriminating search nor waived Fourth Amendment claims in a subsequent civil damages action challenging the constitutionality of the incriminating search. Therefore, although the drug dealer pled guilty, he may still bring civil claims challenging the constitutionality of the search performed by police officers. A) is wrong. If the guilty plea was not voluntary, the plea itself would be invalid by it would have no bearing on the drug dealer's ability to bring a civil claim for 4th A violations

Answer 89

D) the casino owner cannot collect from the gambler. There was a valid accord and satisfaction, discharging the gambler's obligations under the contract. An accord is the agreement under which one party agrees to accept some other, different performance from the other party that he would have received under the existing contract. An accord, like other contracts, must be support by consideration. The casino owner's willingness to take ea lesser amount in exchange for an earlier repayment of a mutually agreed upon amount is sufficient as mutual consideration. Payment of a smaller sum that due is sufficient consideration for a promise by a creditor to discharge a debt because the consideration was DIFFERENT (ex. immediate payment before the last payment was due). Thus there was consideration supporting the accord. The satisfaction of the accord occurred on the payment of the $15,000 cash. Satisfaction discharges both the accord and the original contract.

Answer 90

A) hte buyer must provide a copy of the emials as part of its initial disclosures. Without waiting for a discovery request, a party must provide to the other parties copies or descriptions of electronically stored information that is in the disclosing party's oissesuib it cibtrik and that get discloaing party may use to support its claims or defenses

Answer 91

NOPE. The Senator will not success beacsue she lacks standing to challenge the statute. The Supreme Court has held that member of Congress lack standing to challenge a law authorizing the President to exercise a line item very (such as the statute her), reasoning that the injury is not concrete and personal but rather is institutional in that it is shared by all members of Congress.

Answer 92

B 'cause the other party knew

Answer 93

YUP! | Larceny is a crime against possession NOT ownership.

Answer 94

NO Congress can't just create standing, we still have to go through everything.

Answer 95

B: Venue is proper in the Central District of State A and the Southern District of State A. Federal venue in civil actions is proper in a) the district where any defendant resides, if all defendants are residents of the state in which the district is located, and b) the district in which a substantial part of the events or omissions giving rise to the claim occurred. If there is NOT district anywhere in the US that satisfied a or B, the action my be brought in a judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action. A corporate defendant is deemed to reside in each district with which it has sufficient contacts to justify personal jurisdiction with respect to the action. The retail corporation thus resides, among other places, in the Southern Distrct of State A, where it is subject to personal jurisdiction with respect to the action based on a specific jurisdiction theory. (Its commission would be used in the "fairness and reasonableness" assessment). The truck drive is domiciled in the Cnetral District of State A. Given that both defendants reside in State A, any State A district an incorrect answer choice in that the truck driver's domicile in the Central District is not taken into account.

Answer 96

While it may seem that starting a legislative meeting with a prayer would not pass the Lemon test, the Supreme Court has held that because of the long history of legislative prayer in America, such prayers do not constitute an establishment of religion, and it is permissible for a legislative body, including a municipality, to invite members of the clergy to begin session with a prayer.

Answer 97

B) The defendant must reveal the identity of the eyewitness if either the defendant may call the witness at trial or if the plaintiff requests the eyewitness's identity. As part of required initial disclosures, a party must provide the identities of individuals likely to have discoverable information that the disclosing party may use to support its claim or defenses. Therefore , if the defendant may use the eyewitness to support his claims or defenses, he must disclose the eyewitness's identity to the plaintiff. If the defendant is not using the eyewitness to support his claims or defenses he must nevertheless disclose the eyewitness to support his claims or defenses he must nevertheless disclose the eyewitness's identity if the plaintiff properly requests it because discovery may be had of any nonprivileged matter that is relevant to any party's claim or defense including individual switch knowledge of any discoverable matter.

Answer 98

C: The court shoudl rule for hte friend because the option is enforceable. The RAP provides that no interest in property is valid unless it mus vest, if at all, no later than 21 years after one or more lives in being at the creation of the interest. OPtions to purchase generally are considered to be assignable and thus subject to the Rule, so that an option that might be exercised later than the end of the perpetuities period is void. however, the Rule doe snot apply to options connected to leasehold. Thus the option does not violate the Rule and A is incorrect.

Answer 99

D The court should award the manufacturer $3000 as lost profits. When a buyer anticipatorily breaches a contract for the sale of goods the seller's basic damages are either the difference between the contract price and the market price as of the time for performance or the difference between the contract price and reslae price. If neither of these measures puts the seller in as good position as performance would have, and the seller is a lost volume seller, the seller may recover lost profits plus incidental damages. Here, the manufacturer, by virtue of the fact that it can manufacture as many widgets as it can sell and has ample investonry on hand, is a lost volume seller. The difference between the contract price and the market price on May 1 (the time for perofmrance) was $2000. The difference between the contract price and the resale price is $0 because it sold them for more than the contract price. Neither fo those measures puts the manufacturer in as good a position as it would have been had the retailer performed under the contract. In that case, the manufacturer would have had $3000 profit from the sale to the retailer as well as a $4000 profit from the sale to the subsequent buyer. The facts state that there are no incidental damages. Thus the manufacturer should be awarded the $3000 in lost profit as damages. A) is incorrect because it is base don the difference between the contract price and the resale price. Because the manufacturer sold the widgets for more than the contract price, its damages would be 0 under this calculation. The manufacturer however is a lost volute seller and this measure of damages doe snot put the manufacturer is as good a position as it would have been had the retailer performed. Thus, the manufacturer is entitled lost profits.

Answer 100

NOPE. if it is overbroad that is the end of it.