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A statute passed by both houses of Congress and signed by the President authorizes a federal agency to select a site for and to construct a monument honoring members of the capitol police force killed in the line of duty. The statute appropriates the necessary funds but provides that the funds may not be expended until both houses of Congress have adopted a concurrent resolution, not subject to presentment to the President, approving the agency's plans for the monument's location and design. Is the provision requiring further congressional approval before expenditure of the funds constitutional? A No, because decisions regarding the placement and design of government-owned structures are an exclusively executive function with which Congress may not interfere by any means. B No, because the provision amounts to an unconstitutional legislative interference with an executive function. C Yes, because Congress may atta - ✔✔(B) is correct. The enactment of laws by Congress requires passage of the law in both houses (bicameralism) and approval of the law by the President (that is, the presentment requirement) or an override of a presidential veto. Here, Congress passed a law and the President signed it, but Congress sought further control by requiring expenditures to be approved specifically by Congress without presentment to the President. Such a requirement usurps the power of the executive branch to execute laws and places it in the hands of Congress in violation of the doctrine of separation of powers. (A) is incorrect. Under the Spending Clause, Congress certainly has the power to adopt a law specifying where a monument should be placed, and if such a law were passed by Congress and the President signed the law, it would be valid. However, that is not what happened here. Here, the law left it to an agency to select a site. (C) is incorrect for the reasons stated above; requiring subsequent Congressional approval of agency site selection is unconstitutional. (D) is incorrect for the same reason. Under the authority of a federal voting rights statute, some states drew congressional districts in a manner calculated to increase the likelihood that members of historically disadvantaged minority racial groups would be elected. The U.S. Supreme Court declared these districts to be unconstitutional, as improper racial gerrymanders. In response to this ruling, Congress passed a new statute that explicitly denies the Supreme Court appellate jurisdiction over all future cases challenging the constitutionality of action taken under the authority of the federal voting rights statute. Which of the following is the most persuasive argument for the constitutionality of the new statute restricting the Supreme Court's appellate jurisdiction?
A Article III of the Constitution explicitly states that the Supreme Court's appellate jurisdiction is subject to such exceptions and regulations as Congress shall make.BThe constitution - ✔✔(A) is correct. Article III explicitly gives Congress the power to make exceptions to the Supreme Court's appellate jurisdiction. (B) is incorrect. The separation of powers doctrine is described as a series of checks and balances among the three branches of government - just the opposite of what this choice suggests. (C) is incorrect. Although Congress has broad powers under the Commerce Clause, they are not without limit. The Commerce Clause gives Congress power to adopt laws concerning channels of interstate commerce, such as roads and airways; instrumentalities of interstate commerce, such as trucks and trains; and economic or commercial activities - even ones that take place solely within one state - that in aggregate have a substantial effect on interstate commerce. Congressional voting districts do not fall within any of these categories. Moreover, the General Welfare Clause is part of Congress's spending power (it may spend for the general welfare) and is not part of Congress's commerce power. (D) is incorrect because it is not as strong an answer as (A). Article III explicitly allows Congress to make exceptions to the Supreme Court's appellate jurisdiction without qualification. The enabling clause of the Fifteenth Amendment allows Congress to adopt legislation protecting the right to vote from discrimination. A law taking away from the Supreme Court jurisdiction to hear cases under a voting rights statute would seem to be the opposite of what is allowed by the Fifteenth Amendment's enabling clause. A man was in jail after being arrested for burglary. When the police attempted to question him, the man invoked his Miranda rights and refused to answer any questions. The man was subsequently tried, convicted, and sentenced to a prison term for the burglary. Three years later, while the man was serving his prison sentence for the burglary, a police detective from a nearby town questioned him about an unsolved homicide. The detective did not know that the man had invoked Miranda at an earlier time. The man waived his Miranda rights and made several incriminating statements to the detective. When he was later charged with the homicide, the man moved to suppress these statements, claiming that his earlier refusal to waive his Miranda rights should have been honored. Should the court suppress the statements? Press Enter or Space to submit the answerANo, because the detective was unaware that the man had originally invok - ✔✔(B) is correct. As a general rule, police officers must scrupulously honor a detainee's invocation of Miranda rights. If the invocation is not scrupulously honored, statements made by the detainee are inadmissible. The prohibition against questioning a detainee after invoking Miranda rights lasts the entire time the detainee is in custody for interrogation purposes, plus 14 more days after the detainee returns to his normal life (which can include his "normal life" in jail). Here, the detainee invoked Miranda rights three years before the questioning in the current case. Thus, far more than 14 days had passed since he had returned to his "normal life" in jail. Therefore, (B) is correct and (C) and (D) are incorrect. (A) is incorrect because whether the detective knew the man had originally invoked his Miranda rights is irrelevant: his incarceration and time lapse of three years rendered the prior invocation of his rights moot. The man would need to be given new Miranda warnings regardless. A defendant is on trial in federal court for bank robbery. Before the police had any suspects, a police officer interviewed an eyewitness at the police station and showed her a "mug book" containing dozens of photographs. The eyewitness identified the defendant's photograph as that of the robber.
At trial in a criminal prosecution for theft, the defendant calls a witness to testify that he formerly knew the defendant as an army supply sergeant and that the defendant had turned down many opportunities for black marketeering. Is the witness's testimony admissible? Press Enter or Space to submit the answerANo, because it is irrelevant to the present charge.BNo, because the defendant may not prove his good character by specific instances of good conduct.CYes, because a criminal defendant may prove his good character as a basis for inferring conduct.DYes, because, by accusing the defendant of being a thief, the prosecution has put his character in issue. - ✔✔B) is correct. A criminal defendant may introduce evidence of his own good character for a pertinent trait to show that he did not commit the alleged crime. However, such evidence may be presented in the form of reputation and opinion testimony only; specific acts are not allowed. Thus, the defendant here may not introduce his specific acts of turning down opportunities for black marketeering to prove his good character for truthfulness. (A) is incorrect. Evidence is relevant if it has any tendency to make a fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. Character evidence often meets this low bar for relevance, but is subject to various restrictions because of the danger for undue prejudice, waste of time, etc. Here, the fact that the defendant turned down opportunities for black marketeering shows his honesty and unwillingness to steal, so it is certainly relevant to the current theft charge. However, it is inadmissible because it is in the wrong form. (C) is incorrect. It is true that a defendant may introduce evidence of his own good character to show that he acted in conformity with that character during the events of the current case. However, the defendant may only introduce this type of evidence via reputation and opinion testimony. The character witness may not testify as to specific acts by the defendant. (D) is incorrect. 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, it is said that character is "directly in issue." When character is in issue in a case, all forms of character evidence (reputation, opinion, and specific acts) are allowed. However, character is only truly in issue in a few types of civil cases (e.g., defamation, negligent hiring an A pedestrian domiciled in State A was crossing a street in State B when he was hit by a car driven by a citizen of a foreign country. Both the pedestrian and the driver suffered injuries. The pedestrian filed a negligence action against the driver in a federal district court in State B, seeking $100,000 in damages. The driver believes that the pedestrian was crossing the street illegally and is therefore responsible for the accident. The driver seeks an attorney's advice on how best to respond to the action. Assume that State B is a contributory negligence state. How should the attorney advise the driver to respond? Press Enter or Space to submit the answerAFile an answer raising the affirmative defense of contributory negligence and asserting a counterclaim for negligence, seeking damages for the driver's injuries.BFile an answer raising the affirmative defense of contributory negligence and move for judgment on the - ✔✔(A) is correct. Contributory negligence is an affirmative defense that must be raised in the driver's answer. Furthermore, if the pedestrian was the true cause of the action, he would be liable for the driver's damages, and thus a counterclaim would be necessary (and required, since it would be a compulsory counterclaim given that the counterclaim arose from the same transaction or occurrence as the pedestrian's complaint). (B) is incorrect because a motion for judgment on the pleadings would not
be warranted. Presumably, the pedestrian was able to plead a case for negligence. It will be up to the fact-finder to determine who was truly at fault for the accident. (C) is incorrect because the driver will be subject to personal jurisdiction in State B based on a specific jurisdiction theory. Arguably, the driver was negligent by committing a tort within State B, assuming that State B has an applicable long-arm statute authorizing such jurisdiction (which all states do). (D) is incorrect because the case would fall under the court's diversity (alienage) jurisdiction. There is complete diversity between a citizen of a foreign country and a citizen of State A, and the amount in controversy requirement ($75,000) is satisfied. A plaintiff sued the manufacturer of a slicing machine for negligent design, after the machine cut off the plaintiff's finger. The plaintiff claims that while he was cleaning the machine, two wires came into contact with each other and caused the machine to turn on. At trial, the manufacturer has offered evidence that it was unreasonably expensive to design the machine so that the wires could not come into contact. In rebuttal, the plaintiff offers evidence that after this action was filed, the manufacturer redesigned the machine to prevent the wires from coming into contact. Is evidence of this change in design admissible? Press Enter or Space to submit the answerANo, because the change in design may have been unrelated to this type of accident.BNo, under the rule regarding remedial measures that encourages manufacturers to make their products safer.CYes, as evidence tending to show that the machine could be designe - ✔✔(C) is correct. As a matter of public policy, evidence of repairs or other precautionary measures made following an injury is inadmissible to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. The purpose of the rule is to encourage people to make such repairs. However, such evidence may be admissible for other purposes. One permissible purpose is to rebut a claim that the repair or precaution was not feasible. Here, the manufacturer has introduced evidence that it was unreasonably expensive to design the machine so that the wires would not come into contact-but they did in fact implement this new design. Thus, the plaintiff may introduce evidence of the new design to rebut the manufacturer's claim that it was not feasible. (A) is incorrect. It is immaterial whether the change in design came as a result of the plaintiff's accident; it is still relevant to rebut the manufacturer's evidence that the change was not feasible. (B) is incorrect because it is too broad. The policy exclusion for subsequent remedial measures prohibits such evidence when offered to prove negligence, culpable conduct, a defect in a product or its design, or a need for a warning or instruction. However, such evidence is still admissible to rebut a contention that the remedial measure was not feasible. (D) is incorrect because evidence of subsequent remedial measures is inadmissible to prove negligence. However, the evidence is admissible in this case to prove that it was feasible to redesign the machine. A general contractor about to bid on a construction job for an office building invited a carpenter and several others to bid on the carpentry work. The carpenter agreed to bid if the general contractor would agree to give the carpenter the job provided that his bid was lowest and the general contractor was awarded the main contract. The general contractor so agreed. The carpenter, incurring time and expense in preparing his bid, submitted the lowest carpentry bid. The general contractor used the carpenter's bid in calculating its own bid, which was successful. Which of the following best supports the carpenter's position that the general contractor is obligated to award the carpentry subcontract to the carpenter?
considering the merits of that price. (C) is incorrect. While it is true that the contractor relied on the initial promise of $50,000 by remodeling the basement, parties are free to modify their agreements, and the parties here did so, as explained above. There is no injustice in enforcing the contract as modified. (D) is incorrect because as stated above, the homeowner's surrender of his claim is sufficient consideration for modification of the contract price. A defendant was convicted of fraud after a jury trial in state court. The conviction was affirmed on direct appeal. The defendant timely moved for postconviction relief under the Sixth Amendment on the ground that his attorney had provided ineffective assistance of counsel. The trial judge, after a hearing, found that the attorney had performed deficiently by failing to raise a proper objection that would have resulted in exclusion of important prosecution evidence. What more, if anything, must the trial court find in order to sustain the defendant's Sixth Amendment claim? Press Enter or Space to submit the answerANothing more, because the unjustifiable failure to object to important prosecution evidence is structural error.BThat the attorney was court-appointed and not privately retained.CThat there is a reasonable probability that the trial's outcome would have been different if the attorney had objected.DThat ther - ✔✔(C) is correct. To obtain postconviction relief for ineffective assistance of counsel, the claimant must show her counsel's performance was deficient and that, but for the deficiency, the outcome of the trial would have been different. (A) is incorrect because it misstates the law. As indicated above, there must also be a showing that but for the deficiency, the result of the trial would have been different. (B) is incorrect because it does not matter if an attorney is court- appointed or privately retained; both types of attorneys are sufficient to meet the defendant's Sixth Amendment right to counsel. (D) is incorrect because it overstates the burden on the claimant for proving an ineffective assistance of counsel claim. The standard is "reasonable probability," not "clear and convincing evidence," that the outcome of the trial would have been different. A man who believed that his wife was cheating on him with her gym trainer decided to kill the trainer. He loaded his handgun and set off for the trainer's house. Because he was anxious about committing the crime, the man first stopped at a bar, drank eight shots of hard liquor, and became intoxicated. He then left the bar and went to the trainer's house. When the trainer answered the door, the man shot and killed him. The man then passed out on the trainer's porch. The man has been charged with murder in a jurisdiction that follows the common law. Can the man raise an intoxication defense? Press Enter or Space to submit the answerANo, because drinking at the bar was the proximate cause of the killing.BNo, because the man intended to commit the murder and drank to strengthen his nerve.CYes, because drinking at the bar was a foreseeable intervening cause of the killing.DYes, because the man's intoxication negated the s - ✔✔(B) is correct. Murder is the unlawful killing of a human being with malice aforethought. Malice aforethought exists if the defendant has any 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. Voluntary intoxication may be a defense to specific intent crimes if it prevented the defendant from formulating the requisite intent.
Here, the man had the specific intent to kill before he drank any alcohol. He decided to kill the trainer, loaded his handgun, and set off for the trainer's house before going to the bar. The man's intoxication did not prevent him from forming the intent to kill; it reduced his anxiety so he could continue with his plan. He therefore cannot raise an intoxication defense. (A) is incorrect. To be guilty of murder, a defendant's conduct must be both the cause-in-fact and the proximate cause of the death. A defendant's acts are the proximate cause of all results that occur as a natural and probable consequence of his conduct, and the chain of proximate causation can be broken only by the intervention of a superseding factor. Here, the man intended to kill the trainer before he drank at the bar. His drinking therefore did not cause him to have the intent to kill and was not the proximate cause of the killing. (C) is incorrect. An intervening act will shield a defendant from liability if the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant's act. As discussed above, the man had the intent to kill before he began drinking. The drinking was not a mere coincidence or unforeseeable; the man purposely drank at the bar to ease his anxiety so he could go through with the killing. (D) is incorrect. Vol A defendant is on trial for theft of a used car that he took for a test drive and did not return. He was arrested in the car two days later. In his defense, the defendant has testified that he had no intention of keeping the car but got caught up in marital problems and simply delayed returning it. The defendant calls a witness to testify that the defendant told him, during the two days, "I'm going to return this car as soon as I work things out with my wife." Is the witness's testimony admissible? Press Enter or Space to submit the answerANo, because it is a self-serving statement by an accused.BNo, because it is hearsay not within any exception.CYes, as a prior consistent statement of the defendant.DYes, as a statement by the defendant of his then-existing state of mind. - ✔✔(D) is correct. A statement of the declarant's then-existing state of mind (such as motive, intent, or emotion) is admissible as an exception to the hearsay rule. Here, the defendant's statement that he intended to return the car falls squarely within this exception. (A) is incorrect because there is no rule prohibiting self-serving statements; most statements offered by a party are self-serving in some respect. (B) is incorrect. Although the statement is hearsay because it was made outside of the current proceeding and is being offered for its truth-that the defendant intended to return the car-it is admissible under the present state of mind exception. (C) is incorrect. Generally, a witness's testimony cannot be bolstered until the witness has been impeached. Once the witness's testimony has been impeached, prior consistent statements are admissible in certain circumstances to rehabilitate the witness. If admissible to rehabilitate, prior consistent statements are excluded from the definition of hearsay and are admissible as substantive evidence. Here, however, there is no indication that the defendant's testimony has been impeached, so his statement would not be admissible on the basis that it is a prior consistent statement. A man conveyed the eastern half of a tract of vacant land to a woman by a warranty deed. The woman promptly recorded the deed. The land conveyed to the woman fronted on a public highway. The land retained by the man was landlocked. One year later, the man died intestate, leaving a cousin as his only heir. The cousin visited the man's land for the first time and discovered that it had no access to a public highway. A neighbor who owned adjoining land fronting on the public highway offered to sell the cousin a right to cross the neighbor's land for access to the highway. Although the neighbor's price was reasonable, the cousin rejected the
harmful force against the woman and confined her to a bounded area, his conduct was privileged as a defense of others. An engineer signed a two-year contract to serve as the chief safety engineer for a coal mine at a salary of $7,000 per month. The position required the engineer to work underground each workday. After one week on the job, the engineer became very ill. He requested testing of the mine air system, which revealed the presence of a chemical agent to which the engineer had a rare allergic reaction. The engineer promptly quit. The coal mine then hired a qualified replacement for the remainder of the engineer's contract at a salary of $7,500 per month. Assume that no statute or regulation applies. If the coal mine sues the engineer for breach of contract, is the coal mine likely to recover damages? Press Enter or Space to submit the answerANo, because an at-will employee has the right to terminate an employment contract.BNo, because the risk to the engineer's health excused his nonperformance of the contract.CYes, because t - ✔✔(B) is correct. The engineer's nonperformance will be excused by impracticability. The occurrence of an unanticipated or extraordinary event may make contractual duties impossible or impracticable to perform. Where the nonoccurrence of the event was a basic assumption of the parties in making the contract and neither party has expressly or impliedly assumed the risk of the event occurring, contractual duties may be discharged. The test for a finding of impracticability is that the party to perform has encountered: (i) extreme and unreasonable difficulty and/or expense; and (ii) its nonoccurrence was a basic assumption of the parties. The engineer's rare allergic reaction to a chemical found in the mine air system was unanticipated by the parties. The engineer cannot perform his job anywhere but inside the coal mine but it is unreasonable for the engineer to risk his health, and possibly his life, to fulfill his duties under the contract. Due to this unanticipated and rare circumstance, his employment under the contract will be discharged. (A) is incorrect. All employees are free to terminate their employment because involuntary servitude is prohibited by the Constitution, but in the case of an employee under a contract, doing so is a breach of contract. If the engineer's performance was not excused by impracticability, then the coal mine could have recovered damages for breach. (C) is incorrect. If the engineer's performance had not been excused, then the mitigation by the coal mine would have been relevant to damages. However, due to the unanticipated extraordinary circumstances of the engineer's allergic reaction, the contract was discharged. (D) is incorrect. It does not matter that the mine was reasonably safe for most people; the test for impracticability is a subjective one. The engineer could not perform under t At trial in an action for personal injuries suffered in a traffic accident, the plaintiff first calls the defendant as an adverse party. The plaintiff then calls a witness who was a passenger in the plaintiff's car but who also happens to be the defendant's former employer. On direct examination, the witness testifies to how the accident occurred and also expresses his opinion that the defendant is not a truthful person. Which one of the following areas of questioning is most likely to be held beyond the proper scope of cross-examination? Press Enter or Space to submit the answerAIn letters to prospective employers, the witness has described the defendant as very honest and dependable.BThe defendant recently filed an action against the witness for breach of contract.CThe plaintiff's injuries were not as serious as the plaintiff is
claiming.DThe witness has been falsifying his income tax returns. - ✔✔(C) is correct. The scope of cross- examination is generally limited to: (i) matters brought up on direct examination; and (ii) matters concerning the witness's credibility (i.e., impeachment). Here, the witness's testimony on direct examination concerned how the accident happened and the defendant's character for untruthfulness; there is no indication that the witness testified about the plaintiff's injuries. Because the questioning does not concern the subject matter of the direct examination or the witness's credibility, it is most likely to be held beyond the proper scope of cross-examination. The other answer choices describe proper impeachment of the witness. (A) is incorrect. A common method of impeachment is asking the witness about the witness's prior statements that are inconsistent with the witness's current testimony. Here the witness testified as to his opinion that the defendant is an untruthful person. Thus, it would be proper to cross-examine the witness about his inconsistent prior descriptions of the defendant's good character for honesty. (B) is incorrect. A witness may be impeached with evidence that the witness is biased in favor of or against a party in the case. Here, the fact that the defendant recently filed an action against the witness for breach of contract shows that the witness may have a motive to testify against the defendant in this case. (D) is incorrect. A party may impeach a witness by cross-examining the witness about the witness's specific acts of misconduct involving untruthfulness. Thus, it is proper to ask the witness about whether the witness falsified his tax returns. In an effort to counteract a steep increase in juvenile crime, a state enacted a law terminating the parental rights of any state resident whose child under 16 years of age is convicted of a violent crime in the state. The law directs the state juvenile court to enter a termination order in such a case after the parent has been afforded notice and an opportunity for a hearing at which the only relevant issues are the age of the child and whether the child has been convicted of a violent crime in the state. Is the state law constitutional? Press Enter or Space to submit the answerANo, because the law is not narrowly tailored to serve a substantial state interest.BNo, because the law is not necessary to serve a compelling state interest.CYes, because a state's police power authorizes it to punish criminal behavior with appropriate sanctions.DYes, because the law is rationally related to a legitimate state interest. - ✔✔(B) is correct. Under the Due Process Clause, if government action impacts a fundamental right, the action is valid only if it passes strict scrutiny - that is, the government must prove that the action is necessary to achieve a compelling state interest. This is a very difficult hurdle to clear. The U.S. Supreme Court has held that the Constitution includes a fundamental right of privacy, and the fundamental right of privacy includes the right of parents to the companionship, care, custody, and control of their children. This fundamental right surely extends to instances where, as here, the state seeks to terminate companionship/parental rights. Thus, the only choice that reflects the strict scrutiny standard is (B). While whether the standard was met is a factual determination, as indicated above, the standard is very hard to meet. Surely, there are ways to curtail juvenile crime other than automatically terminating parental rights on proof that the parent's child committed a violent crime. For example, perhaps parenting classes would be equally or more effective. (A) is incorrect. Although it comes to the correct result (that is, the law is unconstitutional), it sets forth an intermediate scrutiny test, which is not used in substantive due process analysis. (C) is incorrect. Although it is true that states have the power to punish criminal behavior, their punishments and procedures must not violate any constitutional provision or federal law. As discussed above, the automatic termination of parental rights here violates the Due Process Clause. (D) is incorrect. Although it probably is true that the law here is rationally related to reducing juvenile crime
✔✔(C) is correct. This is the best answer choice because the other answers are clearly wrong. Expert testimony is admissible if: (i) the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue; (ii) the opinion is based on sufficient facts or data; (iii) the opinion is the product of reliable principles and methods; and (iv) the expert has reliably applied the principles and methods to the facts of the case. Here, the expert's testimony as to his findings is relevant and helpful to the jury in determining whether the blade flew off in the manner claimed by the plaintiff, and the expert has used a reliable method in reaching his conclusion. (A) is incorrect because an expert is generally not prohibited from giving an opinion as to the ultimate issue in the case (although there is a limited exception for testimony as to a criminal defendant's mental state). (B) is incorrect. Expert witnesses are routinely paid by parties to consult and/or provide testimony in the case. The other party may cross-examine the expert about the compensation to show that the expert is biased, but the compensation has no bearing on the admissibility of the expert's testimony. (D) is incorrect. There is no requirement that an adverse party have notice or an opportunity to participate in an expert's testing process. The plaintiff could have hired his own expert to conduct testing on identical mowers. An elderly woman underwent major surgery and spent two weeks in the hospital. The woman continued to take powerful pain medication for several weeks after she returned home. During her recovery, she offered to sell her car for $450 to her neighbor, who owned a house-cleaning service. The neighbor said, "That's great! I need a car to transport all the people who work for me to their job sites." In fact, the woman's car was worth $3,000, and the neighbor knew this. He was also aware that the woman had undergone surgery and noted that she seemed "out of it" because of the medication she was taking. Several days later, the woman's son found out about the deal and contacted the neighbor, telling him that the woman would sell him the car, but for $3,450. The next day, when the neighbor tendered $ and demanded that the woman give him the car, she refused. If the neighbor sues the woman for breach of contract, will he be - ✔✔(A) is correct. For a contract to be enforceable, both parties must have had capacity to enter into a contract. One who is so intoxicated by drugs or alcohol that she does not understand the nature and significance of her promise may be held to have made only a voidable promise if the other party had reason to know of the intoxication. Here, the woman was under the influence of powerful pain medication at the time she made the offer to sell her car to the neighbor. The neighbor was aware of her incapacity, noting that she seemed "out of it." The woman since refused to affirm her voidable promise, so it is likely that the neighbor will be unable to prevail in a breach of contract action against her. (B) is incorrect. The neighbor is unlikely to prevail due to the woman's incapacity, not because the contract was not in writing. This contract did not need to be in writing to be enforceable. A contract for the sale of goods for a price of $500 or more is within the Statute of Frauds and generally must be evidenced by a signed writing to be enforceable. The contract here was for only $450, so a writing was not required to make the contract enforceable. It is the price in the contract and not any other perceived value of the goods that matters. (C) is incorrect. The neighbor was aware of the woman's incapacity at the time he made the contract, and there is no evidence of reliance here. The neighbor's need for a car did not change based on the woman's promise. (D) is incorrect. As stated above, due to the woman's incapacity, and the neighbor's awareness of that incapacity, the woman's promise was voidable. Since the woman now refuses to go through with the sale, there is no enforceable contract.
A builder contracted in writing to construct a small greenhouse on a homeowner's property for $20,000, payable upon completion. After the builder had spent $9,000 framing the greenhouse and an additional $1,000 for materials not yet incorporated into the greenhouse, the homeowner wrongfully ordered the builder to stop work. The builder then resold the unused materials that he had already purchased for the greenhouse to another contractor for $1,000. At the time the homeowner stopped the work, it would have cost the builder an additional $5,000 to complete the project. The partially built greenhouse increased the value of the homeowner's property by $3,000. In a suit by the builder against the homeowner, how much is the builder likely to recover? Press Enter or Space to submit the answerA$3,000, the increase in the value of the homeowner's property.B$10,000, the total cost expended by the builder at the time of the br - ✔✔(C) is correct. The builder is likely to recover $14,000. In a construction contract, if the property owner breaches the contract during construction, the builder is entitled to any profit he would have derived from the contract plus any costs he has incurred to date. If the builder has mitigated his damages, any losses that are avoided must be subtracted from this amount. (A) is incorrect. In a construction contract, when the property owner breaches before the construction is completed, the builder's damages are not measured by the increase in value of the homeowner's property. (B) is incorrect. The builder is also entitled to the profit he would have made if the contract had been performed. (D) is also incorrect. The formula for awarding a builder damages for a breach during a construction contract can also be stated as the contract price minus the cost of completion, which would be $15,000. However, this answer fails to account for the $1,000 of damages the builder avoided by reselling the unused materials. A shop owner domiciled in State A sued a distributor in a federal district court in State A for breach of a contract. The shop owner sought $100,000 in damages for allegedly defective goods that the distributor had provided under the contract. The distributor is incorporated in State B, with its principal place of business in State C. The distributor brought in as a third-party defendant the wholesaler that had provided the goods to the distributor, alleging that the wholesaler had a duty to indemnify the distributor for any damages recovered by the shop owner. The wholesaler is incorporated in State B, with its principal place of business in State A. The wholesaler has asserted a $60,000 counterclaim against the distributor for payment for the goods at issue, and the distributor has moved to dismiss the counterclaim for lack of subject-matter jurisdiction. Should the motion to dismiss be granted? Press Enter or Spac - ✔✔(B) is correct. There is supplemental jurisdiction because the claim for nonpayment for the goods in issue arises out of a common nucleus of operative fact as the plaintiff's (the shop owner's) claims, and the restrictions contained in the supplemental jurisdiction statute do not apply to these facts. This question tests on the restrictions placed on the use of supplemental jurisdiction when the case is in federal court under diversity jurisdiction and the use of supplemental jurisdiction is inconsistent with the requirements for diversity. The rule to remember here is this: The restrictions on the use of supplemental jurisdiction apply to plaintiffs only. Here, the defendant (the distributor) is the party using supplemental jurisdiction, so the restrictions do not apply. As a result, it does not matter that the defendant and third-party defendant are not diverse, and it does not matter
incorrect. A cause of action based on vicarious liability may arise not just from an employee's negligence but also from an employee's intentional conduct in certain circumstances. Here, the vicarious liability allegation is based on the security guard's intentional tort of battery, for which contributory negligence is not a defense. (B) is incorrect. Even if the customer should have known that a security guard would intervene and was therefore contributorily negligent, that would not be a defense to battery. (D) is incorrect. The fact that the customer did not know that he was pushing a security guard does not address the store's defense, which is that the customer should have known that the person who intervened could have been a security guard and therefore was contributorily negligent. Choice (C) addresses why the defense will fail. To improve the quality of rental housing within its boundaries, a city proposed an ordinance requiring all new and existing rental housing units to provide at least one full bathroom for each bedroom, plumbing and electrical hookups for a washer and dryer, and a covered parking space. A majority of the owners of existing rental housing in the city opposed the ordinance. They argued that it would dramatically decrease the number of low-income rental housing units because owners would be unable to raise rents enough to recoup the investment required to comply. Without denying these contentions, the city enacted the ordinance. A plaintiff who owns low-income rental housing has sued the city, claiming only that the ordinance is unconstitutional on its face. Which of the following best states the burden of persuasion in this action? Press Enter or Space to submit the answerAThe city must demonstrate that the ordinance is - ✔✔(D) is correct. The claim underlying the challenge here must be that the ordinance discriminates against poor people. Under the Equal Protection Clause, the burden of persuasion depends on the basis of the classification and the nature of the right involved. If the basis of the classification is suspect or a fundamental right is involved, strict scrutiny applies and the government must prove its action is necessary to achieve a compelling interest. But if no fundamental right is involved, and the classification is not suspect or quasi-suspect (that is, based on sex or legitimacy), the person challenging the government action must prove that it is not rationally related to achieving a legitimate government interest. Here, the classification appears to affect people on the basis of wealth, which is not a suspect or quasi-suspect classification, and it affects the ability to obtain housing, which is not a fundamental right. Therefore, the rational basis test applies. (A) is incorrect. It correctly sets forth the burden when a fundamental right is involved, but the right to rent housing is not a fundamental right. (B) is incorrect for a similar reason - as discussed above, wealth is not a suspect classification. (C) is incorrect too. Although it correctly indicates that the plaintiff has the burden, it states the wrong test - when the challenger has the burden, the challenger must prove the state action is not rationally related to achieving any legitimate government interest. A man decided to give a cabin he owned to his daughter at his death. To accomplish this goal, he delivered to his attorney a deed that fully complied with the applicable statute of frauds and told his attorney to record the deed when he died unless he later gave the attorney instructions to the contrary. Three weeks after dropping off the deed, the man properly drafted and executed his own will, which left all of his real property to his son.
One year later, the man died, and the attorney immediately recorded the deed. At the time of the man's death, the cabin was titled in his name and he owned no other real property. The daughter and the son now disagree as to who is entitled to ownership of the cabin. Other than the jurisdiction's statute of frauds and statute of wills, there are no applicable statutes. Who is entitled to ownership of the cabin? Press Enter or Space to submit the answerAThe daughter, because the a - ✔✔(C) is correct. A deed is not effective to transfer an interest in realty unless it has been delivered. Delivery refers to the grantor's intent. There must be words or conduct showing the grantor intended that the deed have some present operative effect- that title pass immediately and irrevocably, even though the right of possession may be postponed. If the right of possession is to be postponed until the grantor's death, the deed may be held "testamentary" and therefore void (unless executed with testamentary formalities). However, most courts hold that if the grantor executes a deed and gives it to another with instructions to give it to the grantee upon the grantor's death, the grantor's intent was to presently convey a future interest to the grantee (either a remainder, with a life estate reserved in the grantor, or an executory interest), and so the gift is inter vivos, not testamentary. To make an effective delivery, the grantor must relinquish absolute and unconditional control. That was not the case here. The man gave the deed to the attorney to record when the man died "unless he later gave the attorney instructions to the contrary." This language shows that the man did not relinquish control. Thus, there was no delivery, and the property passed by the will to the son. (A) is incorrect. A trustee holds legal title to property and has an equitable duty to deal with it for the benefit of the beneficiary. Here, the attorney was given a deed to hold and record at the appropriate time. The attorney never acquired title to the property, and the deed was in the daughter's name. Also, the attorney's duties were owed to the man; he had to hold the title and record it at the man's death unless instructed otherwise. (B) is incorrect. The statute of frauds is only one component of a valid transfer by deed. To transfer ti A plaintiff sued an industrial facility in her neighborhood for injuries to her health caused by air pollution. At trial, the plaintiff was asked questions on direct examination about the days on which she had observed large amounts of dust in the air and how long the condition had lasted. She testified that she could not remember the specific times, but that she maintained a diary in which she had accurately recorded this information on a daily basis. When her attorney sought to refresh her recollection with her diary, she still could not remember. The plaintiff's attorney seeks to have the information in the diary admitted at trial. Is the information admissible? Press Enter or Space to submit the answerANo, because reviewing it did not refresh the plaintiff's recollection.BNo, unless it is offered by the defendant.CYes, and the plaintiff should be allowed the option of reading it into evidence or having the diary - ✔✔(D) is correct. Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a memorandum or other record given to her on the stand, the record itself may be read into evidence if a proper foundation is laid for its admissibility. This is known as the recorded recollection exception to the hearsay rule. Here, all the foundational requirements are met-the plaintiff had personal knowledge of the facts when she made the diary; she made the diary herself and in a timely manner each day; she has vouched for its accuracy; and she currently has insufficient recollection to testify fully and accurately about the facts contained in the diary. Thus, the information in the diary may be read into
Press Enter or Space to submit the answerANo, because the homeowner was contributorily negligent in failing to furnish the snowblower's manual to the mechanic.BNo, because the injury resulted from a substantial alteration of the snowblower by a third party.CYes, because a defect in the snowblower caused the homeowner's i - ✔✔(B) is correct. To hold a commercial supplier liable for a product defect, the product must be expected to, and must in fact, reach the user or consumer without substantial change in the condition in which it is supplied. Here, the cutoff switch that failed had functioned well for a year after the homeowner purchased the snowblower but failed after the machine had been improperly repaired by a mechanic. The mechanic's alteration to the switch mechanism, which the manual warned against making, will preclude the homeowner from recovering against the manufacturer. (A) is incorrect. Even if the homeowner were arguably somewhat negligent in failing to furnish the manual to the mechanic, such negligence would be minimal and would not preclude the homeowner from having a claim against the manufacturer. (C) is incorrect. To prove actual cause in a products liability action, the plaintiff must trace the harm suffered to a defect in the product that existed when the product left the defendant's control. The facts do not establish that a defect existed in the snowblower before the mechanic repaired it. (D) is incorrect. The facts establish only that the mechanic did not have a manual available, not that the manufacturer did not make one available. The mechanic's failure to obtain a manual (which he could have borrowed from the homeowner) does not establish any fault on the part of the manufacturer. An individual investor purchased stock through a company's stock offering. When the price of the stock plummeted, the investor sued the company in a state court in State A, claiming that the company's offering materials had fraudulently induced him to purchase the stock and seeking $25,000 in damages. A university that had purchased the company's stock through the same offering sued the company in federal court in State B, claiming that the offering materials violated federal securities laws and seeking $1 million in damages. The individual investor's suit proceeded to trial. The state court ruled that the company's offering materials contained false information and awarded the investor a $25,000 judgment. The university immediately moved for partial summary judgment in its federal action against the company, arguing that the state court judgment bound the federal court on the issue of whether the company's offering - ✔✔(A) is correct. Generally speaking, when dealing with the preclusive effect of a judgment, the recognizing court should not give a judgment any greater effect than the rendering state would. (When "case one" has been decided in state court, the court in case two generally will apply the claim or issue preclusion of the jurisdiction that decided case one.) Here, the rendering state, State A, does not recognize nonmutual collateral estoppel, so a federal court sitting in State B should not give the judgment issue preclusive effect. (B) is incorrect. As stated above, the law of the rendering state generally determines the preclusive effect of the judgment. (C) is incorrect for a similar reason. The fact that federal law may permit nonmutual issue preclusion is irrelevant. The law of the rendering state generally controls the preclusive effect of the judgment. (D) is incorrect. The listed factors are used to determine whether a court may apply issue preclusion, but they do not address whether nonmutual issue preclusion is applicable. After her husband died in a hospital, a widow directed the hospital to send her husband's body to a funeral home for burial. The hospital negligently misidentified the husband's body and sent it to be
cremated. When she was informed of the hospital's mistake, the widow suffered serious emotional distress. She has sued the hospital. Is the hospital likely to be held liable to the widow? Press Enter or Space to submit the answerANo, because the widow did not witness the cremation.BNo, because the widow was never in any danger of bodily harm.CYes, because hospitals are strictly liable if they do not properly dispose of corpses.DYes, because the negligent handling of the husband's body was especially likely to cause his widow serious emotional distress. - ✔✔(D) is correct. In the usual action for negligent infliction of emotional distress, the plaintiff must be within the "zone of danger" and must suffer physical symptoms from the distress. However, the plaintiff may be able to recover without proving these requirements in special situations where the defendant's negligence creates a great likelihood of severe emotional distress, such as when the defendant mishandles the corpse of a family member of the plaintiff. Here, the hospital negligently sent the body of the widow's husband to be cremated, contrary to her wishes. This conduct caused her serious emotional distress, for which the hospital is likely to be liable. (A) is incorrect. While a bystander must witness a family member's injury to recover for negligent infliction of emotional distress under the bystander theory of recovery, the theory of recovery here is based on the obligation of the hospital to handle the deceased's body with due care. Failure to do so makes the hospital liable to the widow even though she did not witness the cremation. (B) is incorrect. As discussed above, the hospital may be liable to the widow for her emotional distress even though she was not in the "zone of danger" of bodily harm. (C) is incorrect. Hospitals are not strictly liable for the disposition of corpses. Rather, the hospital is liable for its negligence in mishandling the husband's corpse and causing the widow serious emotional distress. A woman sued her former employer in state court, asserting age and sex discrimination claims under both state and federal law. The woman's attorney had recently been embarrassed in court by the judge to whom the case was assigned. Wishing to avoid difficulties with the judge, the woman's attorney promptly removed the case to federal court on the basis of federal-question jurisdiction. The employer's attorney has timely moved to remand. How is the federal court likely to proceed? Press Enter or Space to submit the answerARemand the entire case.BRemand the state claims but keep the federal claims.CRetain the case to avoid the risk of bias and impropriety in having it proceed before a judge who has shown clear hostility toward the woman's attorney.DRetain the case, because it was timely removed and the woman alleges federal claims. - ✔✔(A) is correct. Although federal subject matter jurisdiction exists based on the presentation of a federal question, the woman is not allowed to remove because she is the plaintiff, and plaintiffs are not allowed to remove a case. Thus, the entire case must be remanded due to this defect. (B) is incorrect. Because the plaintiff is not allowed to remove, the entire case must be remanded. Note that there is a rule that when a case filed in state court contains a claim that would arise under federal law, and it is joined with state law claims that do not invoke diversity or supplemental jurisdiction, the entire case can be removed to federal court. The federal court, however, must then sever and remand the purely state law claims to state court. (C) is incorrect. Local prejudice does not provide a basis for removal. (D) is incorrect because it ignores the fact that plaintiffs have no right of removal.
