Wrong Answers Flashcards

Question

As part of a deal to raise the federal debt limit, Congress passed a statute by a greater than two-thirds vote in both houses giving the President authority to cancel particular spending provisions that are contained within legislation that he signs into law. The statute provided that Congress could override the President's decisions only by a three-fourths vote. As soon as the statute went into effect, a Senator who had voted against the statute filed suit in federal district court, challenging its constitutionality. Is the Senator likely to succeed in her lawsuit?

Answer 1

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

Answer 2

The best argument is that the taxpayer lacks standing. Generally, taxpayers lack standing to challenge federal appropriations. There is an exception for expenditures violating the Establishment Clause, but that is not the case here.

Answer 3

The woman must allege that she pays federal income taxes and that the use of federal funds in this manner is improper under Congress's taxing and spending power. In general, a taxpayer has no standing to challenge the expenditure of federal funds. The major exception to this rule is where the taxpayer alleges that the expenditure was enacted under Congress's taxing and spending power and exceeds some specific limitation on that power, in particular the Establishment Clause. Typically, neutral benefit programs that provide aid to private schools do not violate the Establishment Clause if they treat religious schools the same as other eligible private schools. This program, however, may be problematic because it provides a benefit to religious schools that isn't available to other schools. Thus, the woman would have standing to contest this federal expenditure. The woman does not have to have children to bring this challenge, let alone children in the charter school. However, she would have to be a taxpayer.

Answer 4

A member of the nonprofit flying association is most likely to have standing to challenge the gift. To have standing to challenge government action on constitutional grounds, a person must show that he has a concrete stake in the outcome of the litigation. This is to ensure adequate presentation of the issues. To have such a stake, the potential litigant must show that he has an injury in fact caused by the government that is more than the theoretical injury that all persons suffer when the government engages in unconstitutional acts, and that a decision in his favor will eliminate his harm. A member of the flying association can show both components here: If the gift is unconstitutional, the association has suffered more than a theoretical injury-it has lost the opportunity to purchase the airplane from the federal government at a good price, and a decision in the club's favor will eliminate the injury because it will then be able to purchase the plane. Thus, the member of the nonprofit flying organization has standing.

Answer 5

The truck driver may assert the claim, but they are not required to do so. As a general rule, a party may assert a crossclaim against a co-party only if the crossclaim arises from the same transaction or occurrence as the original action or a counterclaim. Furthermore, such claims are permissive, in that the crossclaim will not be barred at the conclusion of the pending litigation. Here, the truck driver’s claim for damages to their truck would relate to the pedestrian’s negligence claim and is thus a proper crossclaim. There is supplemental jurisdiction over the claim because it arises from a common nucleus of operative fact as the pedestrian’s claim, and the withdrawal provisions contained in the supplemental jurisdiction do not apply because they apply, if at all, only to claims by a plaintiff.

Answer 6

The store owner’s December 14 letter was an acceptance. Whether the letter was an acceptance depends on whether the manufacturer’s letter was an offer, because an acceptance is a manifestation of assent to an offer. For a communication to be an offer, it must create a reasonable expectation in the offeree that the offeror is willing to enter into a contract on the basis of the offered terms. There must be a promise, undertaking, or commitment to enter into a contract with certain and definite terms. Courts usually hold that if a statement is made broadly, such as in an advertisement or catalog, it will not constitute an offer because it is not reasonable to expect that the sender intended to make offers to all who received the advertisement; rather, the courts usually find such advertisements to be invitations seeking offers. However, price quotations may be considered as offers if given in response to a specific inquiry. The courts will look to the surrounding circumstances, and here a court would probably determine that the catalog that the manufacturer sent was an offer because it was sent in response to the store owner’s specific inquiries about prices on a specific computer and it included delivery terms and conditions of sale.

Answer 7

The builder will not be able to recover anything from the couple under the contract because he has not performed his duty. Under the parties’ contract, the builder’s completion of the house was a condition precedent to the couple’s duty to pay. The condition precedent was not discharged by the destruction of the work in progress because construction has not been made impossible, but rather merely more costly—the builder can rebuild. Thus, he is not entitled to any recovery. Note, however, that a number of courts will excuse timely performance because the destruction was not the builder’s fault.

Answer 8

The department store was entitled to recover contract damages from the manufacturer for the three food processors that it accepted. If the buyer accepts goods that breach one of the seller’s warranties, the basic measure of damages is the difference between the value of the goods as delivered and the value they would have had if they had been according to the contract, which is the difference between the processors and the market price.

Answer 9

The contract arose when the balls were shipped. The general rule is that an offer can be accepted by performance or a promise to perform unless the offer clearly limits the method of acceptance. Here, the offer would be the bowling alley owner’s order, because a magazine ad is usually held to be merely solicitation to accept offers rather than an offer. Thus, the manufacturer accepted and the contract was formed when it shipped the balls.

Answer 10

If the father prevails, it will be because his promise to the young woman was not in writing. The Statute of Frauds requires that a contract in consideration of marriage must be evidenced by a writing to be enforceable. This includes any promise that induces someone to marry by offering something of value.

Answer 11

The motion should be denied. A school search will be upheld only if it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search, and the search is “not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”

Answer 12

The conversation should be suppressed because the police conduct violated the man’s Sixth Amendment right to counsel. The Sixth Amendment provides that in all criminal prosecutions a defendant has a right to the assistance of counsel at all critical stages after formal proceedings have begun. For Sixth Amendment purposes, a criminal prosecution begins when adversary judicial proceedings have commenced, such as the filing of formal charges in this case. Because custodial interrogation is a critical stage of prosecution, the Sixth Amendment is violated by post-charge interrogation unless the defendant has waived his right to counsel. Interrogation includes not only direct questioning, but also any other conduct by the police intended to elicit a response. The police conduct here (telling the man that the woman had implicated him and then bugging the conversation) constitutes prohibited interrogation.

Answer 13

A regulation limiting access to privately owned in-state products would violate the negative implications of the Commerce Clause; there is no exception for such regulations.

Answer 14

The state may ban the radar detectors. States may regulate local aspects of interstate commerce as long as the local regulation does not conflict with, or is not preempted by, federal regulation and the regulation meets the following tests: (i) the regulation does not discriminate against out-of-state competition in order to benefit local economic interests, and (ii) the incidental burden on interstate commerce does not outweigh the local benefits of the regulation. In this case, the federal regulations do not conflict with the state ban and are not so comprehensive as to preempt nonconflicting state regulation.

Answer 15

The Privileges or Immunities Clause of the Fourteenth Amendment would not apply to a state tax on interstate commerce that discriminates against a natural person who is a nonresident. It applies when a state denies its own citizens rights of national citizenship.

Answer 16

The court should not find the statutes constitutional, because less restrictive means are available. The statutes violate the Privileges and Immunities Clause of Article IV, which prohibits discrimination against nonresidents with respect to essential activities (e.g., pursuing a livelihood) unless (i) the discrimination is closely related to a substantial state purpose, and (ii) less restrictive means are not available. Here, other controls could be placed on fishing without discriminating against out-of-state fishermen.

Answer 17

The physician will succeed. The Privileges or Immunities Clause of the Fourteenth Amendment prohibits states from denying their citizens the privileges and immunities of national citizenship. This includes the right to travel, and the Court has held that the right to travel includes the right of newly arrived citizens to enjoy the same privileges and immunities as are enjoyed by other citizens of the state. A state law that distinguishes between new residents solely on the length of their residency will serve no legitimate state interest. Thus, a law limiting medical licenses to persons who have resided in the state for a year runs afoul of the clause.

Answer 18

The court will likely find that the one-year residency requirement is unconstitutional because it burdens the right to travel. An individual has a fundamental right to travel from state to state, and a state law that is designed to deter persons from moving into the state is likely to violate the Equal Protection Clause (as well as the Fourteenth Amendment Privileges or Immunities Clause). When a state uses a durational residency requirement (a waiting period) for dispensing benefits, that requirement normally should be subject to the strict scrutiny test, and usually will be found not to have satisfied the test.

Answer 19

The fact that no police officer has been terminated during probation except for cause may be enough for the graduate to show that she has a right to a hearing. Continued public employment may be a protected property interest if there is a clear practice or mutual understanding that an employee can be terminated only for "cause." If the graduate can establish this, she will be able to force the city to give her a reason for her termination and a hearing.

Answer 20

The discriminatory effect of governmental action is not enough, standing alone, to trigger strict or intermediate scrutiny. Only intentional discrimination violates the Equal Protection Clause, and the mere fact that government action appears to have a discriminatory effect does not show a discriminatory intent.

Answer 21

The state's action would be reviewed under the rational basis standard. Although state classifications based on alienage are generally suspect, a state may reserve a government position for citizens if it is related to self-governance, involves policymaking, or requires exercise of important discretionary power over citizens. In these cases, only a rationality test is used. A public school teacher at the primary and secondary school level performs an important governmental function (e.g., he influences students' attitudes about government, the political process, citizenship, etc.), and therefore the exclusion of aliens is rationally related to the state's interest in furthering educational goals.

Answer 22

It is not true that hate crime statutes may limit fighting words sanctions to cases in which the words seek to insult or provoke on the basis of race, religion, or sexual orientation. Such a limitation means the sanction is based on viewpoint, and the Court will not tolerate such sanctions.

Answer 23

The most helpful additional fact for the patron is that the head librarian allowed other people to distribute leaflets at all hours. Although the government may adopt reasonable time, place, and manner restrictions in public forums and designated public forums, such restrictions must be content-neutral, or else they will be subject to strict scrutiny. The head librarian's allowing some people to distribute leaflets at all hours shows that the restriction here is probably being used as a content regulation, meaning that the restriction would be subject to strict scrutiny and likely invalidated. Additionally, if the head librarian is allowing others to distribute leaflets at all hours, the discriminatory application of the ordinance might also violate the Equal Protection Clause.

Answer 24

The gang member can be convicted because the statute does not violate the First Amendment. Certain public property (e.g., public streets or parks) is so historically associated with the exercise of First Amendment rights that speech thereon can be regulated only by content-neutral proscriptions. Other places controlled by the government, however, are not so historically linked to speech activities, and in such locations free speech might interfere with the intended use of such locations. Thus, the government can regulate access to these limited public forums and nonpublic forums based on the subject matter of the speech, as long as the regulation is reasonably related to the purpose served by the property and is not designed merely to suppress a particular point of view. A courthouse and its grounds are not a public forum. (The surrounding sidewalks are, but that is not in issue here.) The statute, although based on the subject matter of speech, is viewpoint neutral and reasonably related to the courthouse purpose of promoting a stable, orderly atmosphere in which judicial proceedings can take place, free of improper outside influence or coercion. Thus, the statute is valid and the gang member can be convicted for his actions.

Answer 25

The second conviction will not stand. The Double Jeopardy Clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial. This right is violated by retrial for a more serious offense, even if at the second trial the defendant is only convicted of an offense no more serious than that for which she was convicted at the first trial.

Answer 26

The judge’s failure to determine whether the woman understood her right to trial by jury indicates that her guilty plea does not satisfy the constitutional requirement that it be “voluntary and intelligent.” A guilty plea is a waiver of the Sixth Amendment right to a jury trial. To be a valid waiver, the judge must determine on the record that the guilty plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. To ensure that this is the case, the judge should make sure that the defendant is informed of the nature of the charge to which the plea is offered, of the maximum possible penalty, that she has a right not to plead guilty, and that by pleading guilty she waives her right to a trial. If the judge did not determine whether the woman understood that she had a right to a trial by jury, her plea will not be a sufficiently intelligent choice to satisfy the constitutional standard, and therefore will not be immune from a post-sentence attack on it.

Answer 27

The proprietor can recover the cost of the jacket from the grandfather’s estate because the proprietor is an intended third-party beneficiary and his right to enforce the contract has vested. The rights of an intended third-party beneficiary vest when the beneficiary (i) manifests assent to the promise in a manner invited or requested by the parties; (ii) brings suit to enforce the promise; or (iii) materially changes his position in justifiable reliance on the promise. Here, the proprietor qualifies as an intended beneficiary of the agreement between the man and his grandfather because the proprietor was expressly designated in the contract, he was to receive performance directly from the grandfather, and he stood in an existing contractual relationship with the man that required the man to either pay for the jacket or return it, making it likely that the young man’s purpose in making the arrangement with his grandfather was to satisfy the obligation to the proprietor. The proprietor can enforce the contract because his rights vested when he sent the bill to the grandfather at the grandfather’s request.

Answer 28

The landowner may keep the $6,000 as liquidated damages. A liquidated damages clause is enforceable if: (i) damages are difficult to ascertain at the time of the making of the contract, and (ii) the damages are a reasonable forecast of compensatory damages. Here, the landowner was unsure what her damages would be if she did not receive the sales proceeds from the property, but $10,000 seemed a reasonable amount.

Answer 29

Federal Rule 4 provides that summons and complaint may be served on an individual other than an infant or incompetent pursuant to the law of the state in which the district court is located. Notwithstanding, the state provision must be constitutional; i.e., it must be reasonably calculated to give the defendant notice of the action.

Answer 30

The confession is admissible with the judge’s limiting instruction. Where two persons are tried together and one has given a confession implicating the other, the general rule is that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement. This problem arises because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial. As exceptions to the general rule, the statement may be admitted if: (i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement); (ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or (iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.

Answer 31

The judge must raise the issue of competency. If it appears to the judge that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge’s failure to raise the issue or to request a determination of competency does not constitute a waiver of the competency issue. [Pate v. Robinson (1966)] Therefore, if the trial judge observes the defendant acting in such a way that may indicate he is incompetent to stand trial (e.g., meowing, chasing imaginary squirrels), she should conduct further inquiry to determine the competency of the defendant.

Answer 32

The former student’s best argument for preventing the cocaine from being admitted into evidence is that his confession was not voluntary. Choices (C) and (D) both focus on improper conduct during the former student’s interrogation, but (C) is better because the former student will have a better chance of invoking the exclusionary rule if the confession is involuntary. For confessions to be admissible, the Due Process Clause of the Fourteenth Amendment requires that they be voluntary. While voluntariness is a fact question that is assessed by looking at the totality of the circumstances, the duration and manner of the police interrogation here indicate that the confession probably was the result of actual coercion. If the confession is found to be involuntary, the former student can invoke the exclusionary rule to exclude the cocaine as “fruit of the poisonous tree.”

Answer 33

Generally, the right to receive goods under a requirements contract is not assignable because the obligor's duties could change significantly. In fact, here, a significant change would seem possible because the large toymaker is a larger company than the small manufacturer and its needs could be greater. However, the UCC allows the assignment of requirements contracts if the assignee acts in good faith not to alter the terms of the contract. [UCC §2-306] (The UCC applies here because goods are involved.)

Answer 34

The bartender's testimony is inadmissible because the defendant's prior fight in the tavern cannot be admitted to prove his propensity to beat someone to death. The basic rule is that when a person is charged with one crime, extrinsic evidence of his other crimes or misconduct is inadmissible if such evidence is offered solely to establish a criminal disposition. [Fed. R. Evid. 404(b)] The danger is that the jury may convict because of past conduct rather than because of guilt of the offense charged. While evidence of other crimes is admissible if it is independently relevant to some other issue (e.g., motive, intent, or identity), the defendant's prior fight appears to have no relevance other than as evidence of his violent disposition. It is therefore inadmissible.

Answer 35

The letter is admissible as substantive evidence as well as for impeachment purposes. For the purpose of impeaching the credibility of a witness, a party may show that the witness has, on another occasion, made statements that are inconsistent with some material part of his present testimony. This may be done by first questioning the witness as to the prior inconsistent statement that he has made. If the witness denies having made the statement or fails to remember it, the making of the statement may be proved by extrinsic evidence. A proper foundation must be laid by giving the witness an opportunity to explain or deny the statement, and it must be relevant to some issue in the case. Under Rule 803(3), a statement of a declarant's then-existing state of mind is admissible as a basis for a circumstantial inference that the declarant acted in accordance with his state of mind. [See also Mutual Life Insurance Co. v. Hillmon (1892)] The employee's statement that he was going to do electrical work on the home is admissible as circumstantial evidence tending to show that he followed through with his plans and did the electrical work, which is what the statement is being offered to establish. In this case, therefore, the letter should be admissible as both substantive and impeachment evidence,

Answer 36

The testimony should be found inadmissible. Extrinsic evidence of a prior inconsistent statement may not be used to impeach a witness upon a collateral matter. The clerk testified that he could recognize the defendant's face, and so the color of the gun is not material to any issue in the case under the facts given.

Answer 37

The son received a fee simple in the property. The grandfather attempted to give his son a fee simple, but placed a restraint on alienation. Direct restraints on alienation of a fee simple are void. The grant is simply read as if it had been "O to A in fee simple." The grandson gets nothing. Thus, (A) is correct.

Answer 38

The charity can stop only the tree cutting. The charity would be suing the life tenant on a theory of waste. Both the gravel mining and the tree cutting could be voluntary waste. Generally, a life tenant can only maintain the property and not sell off any of the natural resources, such as trees and gravel. But there is an exception for existing exploitation of these resources. Because the gravel mine was operating prior to the son's taking of the life estate, that preexisting use is protected and the son is not liable for continuing the mining of gravel. But the trees do not fall under this exception. Because the property had not been in use as a tree farm, the general rule applies and the cutting of the trees would be waste. The destruction of the house might be considered ameliorative waste-the destruction of improvements on the life estate that increase the value of the property (i.e., they make the gravel mining more profitable). Generally, a life tenant cannot tear down improvements simply because the life tenant wants to make a more profitable use of the land. But an exception exists when changed conditions have made the destruction of the improvement reasonably necessary. Here, the house was on the edge of the pit, vacant because of its very poor condition. Changed conditions (the encroachment of the pit) have made the house reasonably unsuitable, so the life tenant can tear it down.

Answer 39

The husband and wife hold an 80% interest as joint tenants, and the daughter and her spouse each hold a 10% interest as tenants in common. When the husband and wife conveyed 10% to their daughter, each retained 45% as joint tenants with one another, and the daughter's 10% is, by severance, a tenancy in common. Because both the husband and wife joined in the conveyance to their daughter, their interests remain undisturbed as joint tenants. Similarly, when the husband and wife then conveyed 10% to the daughter's spouse, they each retained their 40% as joint tenants with one another, and the spouse's 10% is, by severance, a tenancy in common.

Answer 40

The owner is liable to the wife. Landlords are liable for latent defects even if they neither knew nor should have known of the defect if the lease is for a short term and the property is furnished. This is an exception to the general rule that a landlord is not liable for latent defects unless the landlord either knew or had reason to know of the defects.

Answer 41

The tenancy will be month-to-month at $975 per month. When a tenant wrongfully holds over after the expiration of a lease, the landlord has two choices: either treat the tenant as a trespasser and sue for damages and possession or impose a new periodic tenancy on the hold-over tenant. If the landlord chooses, as this landlord has done here, to impose the new periodic tenancy, most courts in residential situations would impose a month-to-month tenancy. While the rent (as well as other terms) of the new tenancy will generally be the same as the old tenancy, there is an exception when the landlord has told the tenant of a future higher rent and that notification came before the expiration of the old lease. In that event, the landlord can impose the higher rent in the new periodic tenancy. Exam Tip: The facts in this type of question may vary-be sure that the landlord told the tenant of the higher rent before the expiration of the old lease; otherwise, the old, lower rent applies. Because the landlord told the tenant that the tenant could stay on at $975 and this occurred on June 15, prior to the expiration of the two-year lease, then if the tenant held over and the landlord elected to hold the tenant to a new periodic tenancy, it would be at the higher rent.

Answer 42

The owner's best argument is that the tenant is a licensee. A license is a privilege to enter onto another's property. It may be revoked at any time merely by a manifestation of the licensor's intent to end it.

Answer 43

The friend should prevail. The deed from the woman to her son granted the son an express easement. That easement was never terminated by merger and the friend, the owner of the motel property on the east parcel, still has a valid easement over the daughter's property, the west parcel. (A) is incorrect because, for there to be a merger which will extinguish an easement, the duration of the servient estate must be equal to or longer than the duration of the dominant estate (and therefore the easement). In this case, the son owned the east parcel in fee simple but owned only a life estate in the servient estate, the west parcel. Therefore, because the duration of the servient estate was shorter, there was no merger of the two estates and the easement was not extinguished by the son's partial ownership of the servient estate.

Answer 44

C is the correct answer. The woman's first use of the driveway started the prescriptive period running. There is no requirement of exclusive use for the woman to obtain an easement by prescription. Exclusivity is only required in cases of adverse possession. Adverse possession is not at issue here because the woman has not "possessed" any part of the west parcel, and does not require title to continue her use of the property, which is all she seeks. No merger because the son had a life estate and a fee simple. Both parcels must be owned in the same manner.

Answer 45

The restriction cannot be voided under the doctrine of changed neighborhood conditions. Restrictive covenants on all lots in a subdivision such as this can be voided if changed conditions have made the property unusable for the specified use, and this means that the entire subdivision must have changed so significantly that enforcement of the restriction would be inequitable. If some houses in the center of the subdivision are not affected by the pollution, then none of the restrictions can be voided; if all lots are affected, then all restrictions are voided.

Answer 46

The court should require specific performance of the brother and sister. When a transfer of land is preceded by a contract for sale, the risk of loss to the property during that time interval is imposed on the buyer in most jurisdictions. Thus, despite a loss due to fire or other casualty (assuming it was not due to the fault of either party), the buyer must still pay the contract price at the closing date unless the contract provides otherwise. Consequently, the brother and sister were still under a duty to tender the amount due on the property. Their failure to do so puts them in breach of contract, allowing the executor to obtain specific performance (payment of the balance due on the contract). (B) is incorrect because the preferred remedy for the executor is specific performance. While the executor could obtain a damage remedy based on the difference between the contract price and the market value of the land on the date of the breach, that would leave him with the task as executor of trying to resell the property. Because land is considered unique, a buyer is entitled to specific performance of the contract. The seller (the executor) can also get specific performance if the buyer is in breach.

Answer 47

The court should deny the injunction because the equipment constituted trade fixtures. Equipment installed for the purpose of trade by a tenant, even if it would otherwise constitute a fixture, is generally removable if it is not an integral part of the premises and the tenant pays for any damages caused by the removal. Absent an agreement to the contrary, these annexations are removable because it was not the intention of the tenant to make them a permanent part of the premises. Here, the brewer used the equipment for his business and had no intention to permanently improve the leased premises with his brewery equipment, so he should be permitted to remove his equipment.

Answer 48

The court will rule that the developer has rights superior to those of the other parties. Under a notice statute, which is the statute applicable here, the general rule is that a subsequent bona fide purchaser ("BFP") will prevail over a prior grantee who failed to record before the BFP's purchase; if the prior grantee has previously recorded, the subsequent purchaser ordinarily will be deemed to have record notice of the prior conveyance and will not be a BFP. Here, the owner resold the property to the investor before the buyer recorded his deed to the property; thus, the investor had no record notice of the transfer. Because the investor also had no actual knowledge or inquiry notice (the buyer was out of the country), she qualifies as a BFP. Finally, under the shelter rule, a person who takes from a BFP will prevail against any interest that the transferor-BFP would have prevailed against. Thus, even though the developer knew that the buyer held a deed to the property, the developer prevails against the buyer because the investor would have prevailed against the buyer.

Answer 49

For the neighbor to prevail, he must show either that his land would have been damaged without the storage shed or that the contractor was negligent. A landowner has a right to have his land supported in its natural state by adjoining land. If, however, the land has buildings on it, an excavating adjacent landowner is strictly liable for damage to the buildings caused by the excavation only if the excavation would have caused the land to subside even in its natural state (i.e., without buildings). Even if the land would not have subsided in its natural state, the excavating landowner is liable for the damages if she was negligent. Here, the neighbor has established that the landowner's excavation caused the damage to the neighbor's storage shed. To prevail, the neighbor will need to show either that the subsidence would have occurred even if the land had been unimproved or that the contractor hired to excavate for the pool was negligent.

Answer 50

The contract is enforceable because the mailbox rule applies here. Acceptance by mail creates a contract at the moment of posting, properly addressed and stamped, unless the offer stipulates that acceptance is not effective until received, or an option contract is involved. If the offeree sends an acceptance and then rejects the offer, the mailbox rule applies; i.e., a contract is created upon dispatch of the acceptance. Because no option contract is involved here, and the widget maker’s offer did not state that the factory owner’s acceptance would be effective only when received, his acceptance was effective the moment he placed the envelope containing the contract in the mailbox. His attempt to reject occurred after acceptance took place. Thus, a valid contract was formed and the widget maker may enforce it.

Answer 51

The nonprofit group did not give consideration to the law firm in return for the law firm’s promise to turn over half of its attorneys’ fees to the group in the event it won or settled the class action suit. Thus, the law firm’s promise was gratuitous; i.e., it was simply attempting to confer a gift upon the nonprofit group, and the group could not compel the law firm to turn over the money.

Answer 52

The manufacturer will prevail because it never accepted the offer. For a communication to be an offer, it must contain a promise, undertaking, or commitment to enter into a contract, rather than a mere invitation to begin negotiations. The broader the communicating media, e.g., publications, the more likely it is that the courts will view the communication as merely the solicitation of an offer. An advertisement in a trade journal generally is construed as an invitation to submit offers, not an offer itself. It is an announcement of the price at which the seller is willing to receive offers. Thus, the store owner’s e-mail was an offer that was never accepted by the manufacturer.

Answer 53

The officer is an accessory after the fact to burglary. An accessory after the fact is one who receives, relieves, comforts, or assists another, knowing that he has committed a felony, in order to help the felon escape arrest, trial, or conviction. The crime committed by the principal must have been completed at the time aid is rendered. Here, the officer had a duty to arrest the suspect and failed to do so, instead letting him go. Her failure to act under these circumstances constituted sufficient assistance to the suspect to make her liable as an accessory after the fact. She almost certainly knew that the suspect had committed the felony of burglary, as she saw him with a flashlight in the darkened house and caught him sneaking out the back way with a lock-picking device in his possession. Under these facts, she can be liable as an accessory after the fact to burglary.

Answer 54

The rancher should recover $2,000 because that is the amount by which the horse breeder would be unjustly enriched.

Answer 55

This question is best answered by eliminating the incorrect choices first. (A) is incorrect. A contract was formed here for 500 canoes. The original “agreement” between the parties was nothing more than an invitation seeking offers. It did not create a contract between the department store and the manufacturer because it was illusory—an agreement to buy only what is desired is not consideration. The “agreement” probably does not even qualify as an offer. An offer must express a commitment to conclude a bargain on the offered terms. Absent some quantity limitation, a court would probably find the “agreement” here too vague to constitute an offer; otherwise, the manufacturer could be committing itself to sell more canoes than it can supply. Thus, the department store’s first order will be construed as an offer, and the manufacturer’s confirmation will be construed as an acceptance of the offer, thus creating a contract.

Answer 56

The President as Commander in Chief of the Armed Forces has broad discretion to use American troops in foreign countries. In fact, never in all of American history has a presidential use of troops in a foreign nation been declared unconstitutional. Thus, the President's power as Commander in Chief would justify this action.

Answer 57

The executive order is constitutional because it was authorized by Congress. For all practical purposes, the power to regulate foreign commerce lies exclusively with Congress, and Congress may delegate this power to the President. By authorizing the issuance of the Presidential executive order, Congress has constitutionally exercised this power.

Answer 58

The court should hold for the company because it has a valid contract. A state violates the prohibition against impairing the obligation of contract when it substantially impairs any contracts to which it is a party and the impairment does not meet the various exceptions recognized by the Court. Here, the state is simply seeking to reduce its contractual financial obligations, and its decision would violate the prohibition.

Answer 59

The best reason for the court to dismiss the complaint is that the senator's statement was made on the Senate floor and is therefore protected by the Speech or Debate Clause. Article I, Section 6 provides that "For any speech or debate in either House [members of Congress] shall not be questioned in any other place." Senators who make statements on the Senate floor have immunity from defamation suits, even if the defamation suit could otherwise overcome the high standard for suits against public figures.

Answer 60

The newspaper will prevail on First Amendment grounds. In Nebraska Press Association v. Stewart (1976), the Supreme Court made it clear that a prior restraint will be upheld only if it is the only sure way of preserving a fair trial for the defendant. Although prejudicial publicity can pose a serious problem, the Supreme Court held that it virtually always should be dealt with by means other than prior restraints.

Answer 61

The county should prevail because the regulation was not intended to close the church and it appears that it was not applied in a discriminatory manner. A state regulation promulgated to protect the health and welfare of the citizens of the state will prevail over constitutional objections, as long as the state regulation was not instituted merely to discriminate against a particular religious group and was not applied in a discriminatory manner. In this case, the building code was enacted to protect the health and safety of the state's citizens and not simply to close down the church, and it was standard procedure to revoke occupancy certificates for the type of violation found.

Answer 62

Evidence that the bottler complied with applicable statutes will be admissible to show that the bottler acted with ordinary, reasonable care, and is the only one of the listed arguments that would be helpful to the bottler. The bottler is being sued on a negligence theory; thus, the thief must prove that the bottler failed to exercise ordinary, reasonable care in bottling and distributing the water. Violation of a statute will establish a conclusive presumption of duty and breach of duty. However, compliance with an applicable statute does not necessarily establish due care, because due care may require more than is called for by the statute. Nevertheless, compliance with a statute is admissible as evidence that a defendant may have acted with due care. Thus, the bottler could use its compliance with the water bottling statutes as a means of establishing that it conformed with its duty to use ordinary, reasonable care.

Answer 63

The court should grant the electrical company's motion for a directed verdict because the homeowner has not established a prima facie case of negligence on the company's part. The homeowner has established that the electrical company owed a duty to him and that he has suffered harm from the fire caused by the short in the wiring. However, he has not established that the company breached any duty to him. While breach of duty is ordinarily a question for the trier of fact, a plaintiff's failure to offer any evidence on that element of the prima facie case will permit a directed verdict for the defendant.

Answer 64

The passenger has a valid claim against the driver because the jury could reasonably conclude that she was negligent. The driver owes a duty of ordinary care to his passenger regardless of whether that passenger is paying or not paying. The driver also owed a duty to act as a reasonable person would under emergency circumstances after the car was stopped. Her opening of the car door, as well as her failure to maintain her car, could be found to be negligent under the circumstances. The acts of the criminals were foreseeable, because every day the passenger and the driver commuted through this dangerous neighborhood.

Answer 65

The passenger will recover all of his damages from the driver. Because the damage resulting from medical malpractice was a foreseeable result of the driver's negligence, the driver is liable for such damage even though the negligent doctor contributed to the passenger's damages; i.e., the doctor's negligence is not a superseding cause and therefore does not cut off the driver's liability for the passenger's injuries.

Answer 66

The court should deny both motions and submit the case to the jury, because the jury could find that the father was negligent in not preventing his child from grabbing the steering wheel. Under ordinary negligence principles, the father owed a duty to other motorists to maintain control of his vehicle. The jury could find that the father breached this duty of care by not noticing when his child unbuckled the seat belt and started climbing into the front seat, and not preventing the child from grabbing the steering wheel. Hence, the case should go to the jury for a determination of whether the father was negligent.

Answer 67

The landowner probably will win in a breach of contract suit. In partial condemnation cases, the landlord-tenant relationship continues, as does the tenant’s obligation to pay the entire rent for the remaining period of the lease. The tenant is, however, entitled to share in the condemnation award to the extent that the condemnation affected the tenant’s rights under the lease.

Answer 68

The homeowner’s testimony is admissible because the homeowner has personal knowledge of what the plumber said during their conversation—the homeowner was present and heard the plumber’s statements himself.

Answer 69

The champion will recover from the player for conversion. Conversion consists of (i) an act by defendant interfering with plaintiff’s right of possession in the chattel, (ii) intent to perform the act bringing about the interference with plaintiff’s right of possession, (iii) causation, and (iv) damages—an interference that is serious enough in nature or consequence to warrant that the defendant pay the full value of the chattel. Intent to trespass is not required; intent to do the act of interference with the chattel is sufficient for liability. Therefore, the player was guilty of conversion when he intentionally (i.e., volitionally) took the champion’s board, which resulted in its loss, even though the player did not intend to lose it or even realize that he had taken the property of another.