KNS - MBE Questions Missed Flashcards
Does the Constitution expressly give Congress the power to dispose of property of the United States?
Yes, the Constitution does give this power expressly. THEY DO NOT NEED ANYONE’s permission to exercise this power (AKA don’t need to get the president’s permission, etc.)
The missed Q was about an old navy ship being turned into a cruise ship. Article IV, Section 3 of the Constitution gives Congress the power to dispose of all property belonging to the federal government. There are no express limits placed on this power, and a disposal has never been invalidated on the ground that it places a competitor of the purchaser at a disadvantage.
A plaintiff sued a defendant for fraud. After a verdict for the plaintiff, the defendant talked with a juror about the trial. The juror informed the defendant that, during the trial, (i) he had misunderstood the judge’s instructions concerning the standard of proof in a fraud case, (ii) he was feeling ill and needed to get home quickly, (iii) he had relied on testimony that the judge had stricken and ordered the jury to disregard, and (iv) he had learned from a court clerk that the defendant had been accused of fraud in several recent lawsuits. Hoping to receive a new trial, the defendant wants the juror to testify as to these facts in a post-verdict hearing.
About which of these facts will the juror most likely be allowed to testify? ..
A) He had misunderstood the judges instructions concerning the standard of proof in a fraud case.
B) He was feeling ill and needed to get home quickly.
C) He had relied on testimony that the judge had stricken and ordered the jury to disregard.
D) He had learned from a court clerk that the defendant had been accused of fraud in several recent lawsuits.
(D) is correct. Under the Federal Rules of Evidence, a juror generally may not testify in post-verdict proceedings as to matters or statements occurring during the course of jury deliberations. However, a juror may testify as to whether extraneous prejudicial information or any outside influence was improperly brought to bear on any juror. The fact that a juror received evidence about the defendant’s involvement in similar lawsuits from an improper source is considered extraneous prejudicial information.
In a real property dispute over a decedent’s vacation home, the plaintiff offers a deed to show that the home had been transferred to her two months before the decedent died. The defendant, the decedent’s heir, disputes the plaintiff’s claim and alleges that the decedent’s signature on the deed was forged. The defendant testifies that he is familiar with the decedent’s signature and the signature on the deed is not his.
How should the judge rule on this testimony?..
A) Inadmissible because the defendant is not a handwriting expert.
B) Inadmissible because the defendant has a stake in the outcome and his opinion is unreliable.
C) Admissible, because the defendant knows the decedent’s signature.
D) Admissible, because he is disputing the genuineness of the document, not seeking to establish it.
The correct answer is C. The judge should rule this testimony admissible because the defendant knows the decedent’s signature. Lay opinion testimony is permissible and often essential to identify telephone voices and handwriting. Any lay witness who is familiar with the signature of a person may testify as to his opinion as to its genuineness. In such a case, a foundation must first be laid to show familiarity with the handwriting, as was done here by the defendant’s testimony.
Therefore, (A) is wrong. (B) is wrong because it goes to the weight of the testimony, not the admissibility. (D) is wrong because the lay witness may testify in support of, or against, the genuineness
In a civil case, a plaintiff must demonstrate that gold is denser than silver. After consulting a textbook on metallurgy, the judge took judicial notice of the fact at the plaintiff’s request.
What is the effect of the judge’s ruling?
The fact is conclusively established. The fact that gold is denser than silver is an appropriate subject for judicial notice because it is a fact capable of accurate and ready determination by resorting to sources that have unquestionable accuracy (i.e., the metallurgy textbook).
A plaintiff purchased a new car manufactured by an automotive corporation. While the plaintiff was driving home from the local dealership, she stopped at a stop sign. She was struck from behind by a jeep driven by a driver who had negligently failed to stop. On impact, the plaintiff was injured when she hit her head on the front windshield. The car’s airbag should have prevented this, but the airbag was defective and failed to inflate. Assume that a state law requires all automobiles to be equipped with airbags that will prevent drivers from hitting their heads on windshields on impact.
If the plaintiff asserts a claim against the driver, will the plaintiff prevail?…
A) Yes, unless the corporation was negligent in the manufacture of the car the plaintiff was driving.
B) Yes, because the driver’s negligent driving was a cause in fact of the collision.
C) No, because the airbag in plaintiff’s car violated a state law.
D) No, because the plaintiff would not have been injured but for the failure of the airbag.
B is correct. The plaintiff will prevail because the driver’s negligence was a cause in fact of the plaintiff’s injuries. But for the driver’s negligent act of colliding with the plaintiff’s car, the plaintiff would not have been injured, regardless of the fact that the airbag was defective. Note that there can be more than one cause in fact of an injury.
Why is A incorrect? - A) Yes, unless the corporation was negligent in the manufacture of the car the plaintiff was driving.
(A) is incorrect because the corporation’s negligence would not qualify as an intervening act, because it occurred earlier in time than the driver’s. An intervening force comes into motion after the time of the defendant’s negligent act and combines with it to cause injury to the plaintiff.
Why is C incorrect?
C) No, because the airbag in plaintiff’s car violated a state law.
(C) is incorrect because the fact that the defective airbag violated a statute may establish a breach of duty by the corporation, but it does not relieve the driver from liability for negligence.
Why is D incorrect?
D) No, because the plaintiff would not have been injured but for the failure of the airbag.
(D) is incorrect because the “but for” test is used to establish liability in concurrent cause cases, not limit another’s liability. As stated above, there may be more than one cause in fact of an injury.
Are parents vicariously liable for the intentional torts of their children at common law?
Parents are not vicariously liable at common law for the intentional torts of their children (although many states have imposed limited liability for certain conduct by statute).
However, a parent (or anyone else having care or custody of a child) can be held liable for injuries caused by the child where the parent herself was negligent.
For example, the parent may be liable for failing to exercise reasonable care to protect against the child’s known dangerous tendencies.
Is there a First Amendment exception to copyright laws?
No, there is no first amendment exception to copyright laws. Thus, magazines, newspapers, etc. have no right to publish copyrighted material without permission beyond the statutory fair use exception, if it applies.
Do newspapers have an ABSOLUTE right under the First Amendment to print whatever information they receive?
NO - the press generally has no greater freedom to speak than does the public. So the restrictions that apply to the public typically apply to the press as well.
A federal statute authorized the President to designate countries as state sponsors of terrorism and impose economic sanctions on them. When a new President took office, he declared numerous traditional U.S. allies state sponsors of terrorism and imposed sanctions on them. In response, Congress passed a joint resolution, identifying many of the allies as non-sponsors of terrorism and reinstating previously existing trade agreements with those countries.
If the President seeks to enforce the sanctions, are they valid?…
YES BECAUSE the joint resolution passed by Congress was not signed by the president.
The president’s action is valid because it complied with a valid statute, and the joint resolution did nothing to change the statute. To modify a statute, Congress must enact a new law, passed by both houses and signed by the President. A joint resolution passed by both houses but not signed by the President has no legal impact.
True or False - Congress has the power to regulate domestic commerce, but not foreign commerce.
False - Congress has power to regulate both domestic commerce and commerce with other countries. Congress must pass laws to exercise its power to regulate foreign commerce.
A store security guard who reasonably but mistakenly thought that a shopper had tried to steal a scarf directed her to accompany him to the manager’s office, which had an interior window overlooking the sales floor. Because the blinds were up on the window, the occupants of the office could be seen from the sales floor. After the security guard described what he had seen, the manager began to berate her for trying to steal the scarf and threatened to prosecute her as a shoplifter. However, the manager had neglected to make sure that the public address system that he used to announce specials was turned off, and his statements were broadcast to everyone in the store.
In an action against the store for defamation, will the shopper likely recover?..
The shopper can recover against the store for defamation because the store manager negligently communicated his defamatory statements to third persons. A prima facie case for defamation at common law consists of (i) defamatory language by defendant (ii) of or concerning the plaintiff, (iii) publication of the defamatory language by the defendant to a third person, and (iv) damage to the reputation of the plaintiff. The publication requirement is satisfied when there is a communication of the defamatory statement to a third person who understood it. The communication to the third person may be made either intentionally or negligently. Here, the store manager’s statements were defamatory, they were of or concerning the shopper because those hearing the statement could see that the manager was talking to her, and damage to the shopper’s reputation is presumed by law because the allegation that she was a thief is slanderous per se. Because the manager neglected to check that the public address system was not on, his broadcasting of the statements to third persons was negligent. Hence, the publication requirement is satisfied. The store, as the employer of the store manager, will be vicariously liable for the manager’s defamation because it was committed within the scope of his employment.
With defamation, does a publication need to be intentional, or does negligence suffice?
Negligence will suffice.
In matters not of public concern defamation cases, does whether the speaker thinks he is telling the truth matter? Is that a defense?
NO! A reasonable belief in the truth of your statements is irrelevant in a common law defamation action that does not involve a matter of public concern. In this situation not involving a matter of public concern, the plaintiff does not need to establish that the defendant was negligent in his belief as to the truth or falsity of the statements.
Is assumption of the risk a defense in any tort?
NO! - Assumption of the risk is a defense applicable only in negligence.
The police received an anonymous phone call that a man was illegally growing marijuana in a back room of his house. One evening, the police set up a thermal imaging device on the outside wall of the back room. After gathering sufficient evidence that marijuana was being grown, the police entered the home without an arrest warrant. They placed the man under arrest and seized the marijuana.
The evidence was presented before a grand jury which returned an indictment for unlawful possession of marijuana. Before the man was brought to trial, his attorney moved to dismiss the indictment, claiming the man’s arrest and the seizure violated the man’s Fourth Amendment rights.
Will the defense motion be likely to succeed? …
NO because the indictment was properly issued!
(D) is correct. The defense motion to dismiss the indictment will not likely succeed, because the indictment was properly issued. The exclusionary rule does not apply when evidence is presented before a grand jury. Therefore, (A) and (B) are incorrect, because whether the police violated the Fourth Amendment (by searching without probable cause and/or a warrant) is irrelevant to the question presented. (C) is incorrect because the police did not have a warrant to arrest the man in his home, and, therefore, the marijuana was not seized incident to a valid arrest
Is scorching sufficient for arson?
No - Scorching is not sufficient for arson.
A state study indicated that an inordinately high percentage of homeless in the state were afflicted by alcoholism or addiction to illegal drugs. The legislature therefore decided to levy a special tax, with all proceeds marked for rehabilitative services for the homeless. However, the legislators determined that direct taxes on alcoholic beverages would be resented by the citizenry. Lobbyists from the state’s growing wine industry also objected to anything that would retard the industry’s development. There were no breweries or distilleries within the state. Thus, a tax was eventually passed requiring newspapers and magazines of general circulation published in the state to be taxed at a rate of 20% on all advertising space sold for beer or distilled spirits promotions.
For certain historical reasons, a high proportion of the advertising revenue of a particular small newspaper within the state came from beer and wine ads. The publisher of the small paper filed suit to have the tax declared unconstitutional. A major wholesale beer and liquor distributor located within the state and several out-of-state brewers and distillers who sold and advertised their products in the state also joined in the suit as plaintiffs.
If the tax is declared unconstitutional, what is the most likely reason?…
The best answer choice was that this tax infringes on freedom of the press, which is guaranteed by the first and fourteenth amendments. 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.
I ANSWERED WRONG - I said that the tax was not okay because it burdens interstate commerce. this is wrong 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.
Does the tort of conversion require that the defendant damage or permanently deprive the owner of the chattel? (Car driven 900 miles by friend question that you were surprised by). Answer to this Q is she could recover the fair market value of the car.
The tort of conversion does not require that the defendant damage the chattel or permanently deprive the owner of the chattel. All that is required is that defendant’s volitional conduct result in a serious invasion of the chattel interest of another in some manner. In this case the friend could be considered the bailee of the woman’s car. A bailee is liable to the owner for conversion if the bailee uses the chattel in such a manner as to constitute a material breach of the bailment agreement. A substantial interference with the woman’s possession, such as is shown by the facts in this question, would constitute a material breach.
How is an implied in fact contract formed? The answer to the question about the sneaky woman letting the guy work on her well when she must have known it was an accident and just didn’t say anything to him was that he could argue it was an implied in fact contract.
An implied-in-fact contract is formed by manifestations of assent other than oral or written language, i.e., by conduct. Where a person knowingly accepts offered benefits, such conduct, viewed objectively, may be said to manifest an agreement to the conferral of such benefits, resulting in a contract implied in fact. While generally an acceptance must be communicated to an offeror to be effective, courts will often find an acceptance where an offeree silently accepts offered benefits.
In contract law, what is mistake a defense to?
MISTAKE IS A DEFENSE ONLY TO FORMATION of a contract. FORMATION only!
A jogger not paying attention to where he was going collided with an elderly woman in a wheelchair, injuring her. The woman, who was mentally incapacitated, was being pushed down the sidewalk by her daughter, who was also her legal guardian. After the accident, the daughter did not take the woman to the doctor for treatment because the daughter had an unreasonable fear of catching a virus at the doctor’s office. As a result, the woman’s wounds became infected and took longer to heal.
What argument provides the woman with her best chance to recover against the jogger for all of her injuries?
A) The doctrine of mitigation of damages does not bar recovery for the original injuries caused by the jogger.
B) Any unreasonable conduct on her daughter’s part is not to be imputed to the woman.
C) Neither the woman nor her daughter were contributorily negligent in causing the collision.
D) Defendants must take their victims as they find them, including the unreasonable behavior of their legal guardians.
B is Correct. The woman’s best argument is that her daughter’s refusal to take her to a physician, if deemed to be negligent, is not imputed to her. A plaintiff has a duty to take reasonable steps to mitigate damages. Thus, in personal injury cases, there is a duty to seek appropriate treatment to effect healing and to prevent aggravation. Failure to do so will preclude recovery for any particular item of injury that occurs or is aggravated due to the failure to mitigate. Thus, the woman’s not consulting a doctor could limit her recovery to the damages for the original injury only. However, she is incapacitated and in the care and control of a legal guardian (her daughter), who decided not to bring her to a doctor. In actions against a third party, a legal guardian’s negligence is not imputed to the person under her care. Thus, using the argument in choice (B) that any negligence on the part of the woman’s daughter will not be imputed to her, she should receive a full recovery for all of her injuries if she prevails in an action against the jogger.
Why is answer choice A wrong? (This is the answer you selected):
A) The doctrine of mitigation of damages does not bar recovery for the original injuries caused by the jogger.
(A) is incorrect even though it is a true statement. The doctrine of mitigation of damages requires a plaintiff to take reasonable steps to mitigate damages, which in personal injury cases means seeking appropriate treatment to effect a cure or healing and to prevent aggravation. Hence, it does not bar recovery for the plaintiff’s original injuries. However, choice (B) gives her a chance to recover for all of her injuries, and choice (A) does not
Why is choice C wrong?
C) Neither the woman nor her daughter were contributorily negligent in causing the collision.
(C) is incorrect because a plaintiff’s contributory negligence as to the accident itself is relevant only as to the amount of damages recoverable for the original injury; it does not affect the rule that a plaintiff must take all reasonable measures to mitigate damages after the original injury is inflicted.
Why is choice D wrong - pay attention - YOU almost chose this one, you weren’t sure how legal guardians impact eggshell plaintiff.
D) Defendants must take their victims as they find them, including the unreasonable behavior of their legal guardians.
(D) is incorrect because it misstates the concept of “taking your victim as you find her.” This concept refers to the physical or mental condition of the victim at the time of the injury (e.g., the “eggshell skull plaintiff”); it does not cover the victim’s relationship to others and their attitudes or actions. Thus, the attitude of a victim’s legal guardian toward medical treatment is not included in “taking your victim as you find her.”
A homeowner heard a loud bang against his window one evening. He looked out the window and saw a 12-year-old boy from the neighborhood packing a large snowball. Fearful that he would break the window with another throw, the homeowner went outside and said, “Come here, I want to talk to you.” The boy ran in the other direction and jumped over the fence belonging to a neighbor. Because it was dark, the boy landed on a birdbath and knocked it over, breaking it. The neighbor brought an action against the homeowner for trespass.
If the homeowner prevails, what is the most likely reason?
A) the homeowner confronted the boy in order to defend his property.
B) The homeowner did not enter onto the neighbor’s land.
C) The boy was the one who made the decision to jump over the fence.
D) The homeowner did not intend to frighten the boy onto the neighbor’s property.
The correct answer is D.
D is Correct. The best basis for the homeowner to prevail is that he did not intend to frighten the boy onto the neighbor’s property. For the neighbor to succeed in his trespass suit, he must show that the homeowner intended to bring about a physical invasion of the neighbor’s property. The homeowner did not chase the boy onto the neighbor’s yard, nor did the homeowner intend or know with substantial certainty that the boy would enter onto the neighbor’s yard as a result of the homeowner’s actions.
Why is answer choice A incorrect?
A) the homeowner confronted the boy in order to defend his property.
(A) is incorrect because a landowner is not automatically privileged to chase or otherwise cause third persons to enter onto another’s land to prevent the commission of a tort against his property. While the landowner may have a qualified defense if the trespass was reasonable and apparently necessary to protect his property from destruction or serious injury, the interference with the neighbor’s property here did not result from necessity.
Why is answer choice B incorrect?
B) The homeowner did not enter onto the neighbor’s land.
(B) is incorrect because it is not necessary to establish a prima facie case for trespass to land that the defendant personally came onto the land; e.g., trespass exists where the defendant floods the plaintiff’s land, throws rocks onto it, or chases third persons upon it.
Why is answer choice C incorrect?
C) The boy was the one who made the decision to jump over the fence.
(C) is incorrect because even though the boy made the decision to go over the fence, the homeowner could still be liable for trespass if the homeowner acted with the intention of causing the boy to enter onto the neighbor’s land.
A sporting goods retailer whose tent stock was running low saw a listing for the tent she wanted priced at $90 in the catalog of a large camping goods manufacturer. The retailer phoned the manufacturer and placed her order for 10 tents on May 1. The next day, the manufacturer mailed the retailer a letter informing her that the tents were now $92 and that they would be shipped to her on May 16. The retailer received the letter on May 4, but never responded. On May 15, the retailer received a catalog from another company showing tents similar to the ones that she ordered, but for a cost of $70. She immediately called the manufacturer to cancel her order. Nevertheless, the manufacturer shipped the tents to the retailer on May 16.
Assuming that the parties’ communications were sufficient to form a contract, on what day was the contract formed?
A) May 1
B) May 2
C) May 4
D) May 16
B is Correct. The contract was formed on May 2. An offer to buy goods for shipment is generally construed as inviting acceptance either by a promise to ship or by shipment. Here, the letter constitutes a promise to ship and thus is an acceptance. The rule for acceptances is that they are effective as soon as they are dispatched, which was May 2. Thus, (B) is correct. (C) is incorrect because, under the mailbox rule, a letter of acceptance creates a contract at the moment of dispatch, not on the day that the offeree receives it. (A) is wrong because the order was an offer, not an acceptance of the catalog listing. Catalogs containing price quotations are generally construed as invitations to offer rather than offers. (D) is wrong because acceptance occurred before shipment; it occurred when the manufacturer sent its promise to ship.
What is intergovernmental immunity?
The employee’s best defense is intergovernmental immunity. State and local governments cannot tax or regulate the activities of the federal government. This principle is often termed “intergovernmental immunity.” The arrest and prosecution of a federal employee who was on the job violates this principle, which is based on the supremacy of the federal government and federal law.
A Congressman was indicted for conspiracy to use improper influence to prevent a tax fraud investigation of his ex-law partner. The prosecution desires to show that, as part of the conspiracy, the Congressman made a speech on the floor of the United States House of Representatives at a relevant time, urging a cutback in appropriations for the Internal Revenue Service. The Congressman’s legislative aide and speechwriter have been called as a witness to the circumstances of the preparation of that speech. The Congressman objects to the calling of his speechwriter.
How should the court rule on the objection? …
A) Deny the objection, because the speech or debate clause does not protect speeches when they are the subject of a criminal prosecution.
B) Deny the objection, because the speech or debate clause only protects speeches made on the floor of congress, not relations with congressional aids.
C) Sustain the objection, because the speech or debate clause protects all confidential communications between a Congressman and his aid.
D) Sustain the objection, because the aide is protected by the speech or debate clause when preparing a speech for the floor of Congress.
(D) is correct. The Speech or Debate Clause provides that “For any speech or debate in either House [members of Congress] shall not be questioned in any other place.” The immunity extends to aides who engage in acts that would be immune if performed by a legislator. Here, the aide assisted in the legislative process by preparing a speech to be delivered during a legislative session and, thus, is protected under the Speech or Debate Clause. Therefore, (B) is incorrect. (A) is incorrect. Under the Speech or Debate Clause, the deliberative process on the floor of Congress is a protected activity, even when it is relevant to a criminal investigation. (C) is incorrect. This statement is too broad. The scope of the Speech or Debate Clause extends only to material prepared for the deliberative process. It does not create a general privilege between a member of Congress and his aides.
A motorist who failed to stop at a stop sign was struck by a car being taken for a test drive by a mechanic who had repaired the car’s brakes. The motorist sued the repair shop that employed her to recover for his injuries. At trial, the motorist called a bystander to testify that when the mechanic saw that the motorist was injured, she ran over and told him, “I’m really sorry. I guess I didn’t fix the brakes as well as I thought.”
Should the repair shop’s objection to the bystander’s testimony be sustained?…
A) Yes, because the mechanic’s statement is inadmissable against the repair shop.
B) Yes, because the motorist did not stop at the stop sign.
C) No, because it is a declaration against interest.
D) No, because it is a statement attributable to a party opponent.
D - The mechanic’s statement is admissible as a statement attributable to a party-opponent. The Federal Rules treat statements by a party-opponent (commonly known as admissions) as nonhearsay (whereas most states consider them to be an exception to the hearsay rule). This rule applies to any statement made by a party and offered against that party. Such a statement need not have been against interest at the time it was made.
Some statements are considered admissions even if not made by the party against whom they are offered, as long as they are attributable to the party. One such vicarious admission is a statement by an agent concerning a matter within the scope of her agency, made during the existence of the agency relationship. [Fed. R. Evid. 801(d)(2)(D)]
Here, the bystander’s testimony as to the mechanic’s statement is offered to prove the truth of the matter asserted therein; i.e., that the mechanic had not properly fixed the brakes. Thus, the mechanic’s statement would normally be considered hearsay.
However, the statement was made while she was an agent of the repair shop, and the statement concerned a matter within the scope of her agency (i.e., whether she had properly performed the job for which she was employed by the repair shop). Consequently, her statement may be introduced against the repair shop as an admission by a party-opponent of negligence in the repair of the brakes.
