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108 Cards in this Set

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After a female politician is injured in a riot following a heated, public debate, a state enacts the following statute: “Any words targeting women or minorities likely to produce violence or rioting are prohibited on any public property.” Is the statute constitutional?

A state can impose restrictions of "fighting words," but not in this way. Because the restriction is only on words targeting specific groups, it is not viewpoint neutral and is unconstitutional on its face.

Types of speech that can be restricted in a public forum: As long as the restriction is:

obscenity, subversive speech, fighting words, defamation, or commercial speech viewpoint neutral

Twenty years ago, a property owner deeded his house to a charitable organization. The warranty deed stated that the house was transferred to the organization “provided that the organization uses the premises as a halfway house for troubled teenagers; otherwise, the owner may reenter the property.” Nine years after the property was transferred, the charitable organization ceased running a halfway house, and began using the house as its administrative office. Recently, upon the death of the property owner, all of his real property passed by will to his daughter. The time period for adverse possession in the state where the house is located is 10 years. Does the charitable organization have a current possessory interest in the house?

No, because the charitable organization ceased to use the house as a halfway house. No, because the owner devised his interest in the house to his daughter. Yes, because the charitable organization has outright ownership of the house through adverse possession. Yes, because the right of re-entry has not been exercised.

Correct Answer: Yes, because the right of re-entry has not been exercised. Rationale: Answer choice D is correct. Following the warranty deed, the charitable organization had a fee simple subject to a condition subsequent and the owner retained a right of entry in the house. Upon the violation of the condition subsequent, the owner has the right to regain possession of the house. However, until the owner exercises the right of entry, the charitable organization continues to hold the right to current possession of the house. Answer choice A is incorrect because the fee simple subject to a condition subsequent did not automatically terminate when the charitable organization violated the condition subsequent.

Answer choice B is incorrect because the owner devised only the unexercised right of entry to the daughter. Answer choice C is incorrect because, although the charitable organization continues to possess the house, the right of entry was created at the same time as the charitable organization’s fee simple subject to a condition subsequent interest in the house. Consequently, the charitable organization’s possession, while a violation of the condition subsequent, does not constitute adverse possession with respect to this future interest, even though the violation occurred more than 10 years ago.

What part of the Constitution creates the right of a church to fire a minister of the church even when a private company would be liable for violating the employee's rights under the Americans with Disabilities Act or some other federal statute?

In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.

Congress can delegate duties to the executive or other branches as long as it provides some type of intelligible principle as guidance, but some duties are considered nondelegable:

impeachment and declare war

Question Text: In order to save money, a state adopted a law restricting voting times and reducing the number of polling sites on Election Day. The law did not significantly impact the ability of voters to cast their ballots. The law applied to all state, local, and federal elections occurring on Election Day. Does Congress have the authority to override this law? Answer Choices: No, because the voters’ ability to cast their ballots was not significantly impacted. No, because the limitations are unrelated to the suppression of ideas. Yes, because the state cannot limit state or federal voting practices. Yes, because the state law regulates federal elections.

Answer choice D is correct. The Elections Clause explicitly empowers Congress to override state laws concerning federal elections. Here, the legislation attempts to regulate the federal election process by limiting voting times and polling sites as applied to federal elections, and Congress has the power to override such legislation.

An unscrupulous landowner sold undeveloped land to two different buyers and then disappeared with the proceeds. Each buyer paid fair market value for the land and neither buyer was aware of the landowner’s transaction with the other buyer. Subsequently, the first buyer, upon learning of the second conveyance, recorded her deed. The second buyer did not record his deed. The applicable recording act reads: “A conveyance of any interest in land shall not be valid against any subsequent purchaser for value, without notice thereof, unless the conveyance is recorded.” In action brought by the first buyer against the second buyer, who is entitled to ownership of the land?

Answer Choices: The first buyer, pursuant to the “first in time, first in right” rule, because the recording act does not apply since the second buyer did not record his deed. The first buyer, pursuant to the recording act, because she alone recorded her deed. The second buyer, pursuant to the recording act, because he paid fair market value for the land without notice of the first conveyance. The second buyer, pursuant to the recording act, because the first buyer knew of the second conveyance prior to recording her deed.

Answer choice C is correct. The second buyer is protected by the recording act, which is a notice statute. The second buyer was a purchaser for value and, at the time of the sale, did not have actual or constructive knowledge of the prior transaction. Answer choice A is incorrect because a notice statute, unlike a race or race-notice statute, does not require that the subsequent purchaser record the conveyance.

Answer choice B is incorrect because the first buyer is not automatically protected by recording her deed under a notice statute, even when she is the only party to record her deed. If the first buyer had recorded her deed prior to the second transaction, she would have given the second buyer constructive notice of the prior sale, and would have enjoyed the protection of the recording act. Answer choice D is incorrect because, under a notice statute, the key is whether the subsequent purchaser, at the time of purchase, has knowledge of the prior conveyance. The first transferee’s knowledge at the time that the first transferee records is irrelevant.

I take out a mortgage to buy a house and it gets recorded. I take out a business loan secured by the same property and it gets mortgaged. Then I modify my original mortgage, adding a $25,000 HE loan for a wedding. Then I default. There's enough money to pay the original mortgage off and enough to pay either the business loan or the modification on the mortgage. Which has priority? Why?

Generally, the modification of a senior mortgage does not forfeit the mortgage’s priority over a junior mortgage except to the extent that the mortgage prejudices the junior mortgage. In such a case, the senior mortgagee subordinates its interest only as to the modification (here, the additional $25,000 wedding loan), while the original mortgage remains superior. The increase in the amount of the bank’s mortgage here prejudiced the junior mortgage by creating a greater risk that the value of the property would not be sufficient to cover the credit union’s loan, as proved to be the case. Consequently, although the bank did not lose its priority with respect to the residential purchase loan, the mortgage modification resulted in the credit union’s loan having priority over the bank’s wedding loan.

What are the elements for a covenant to run with the land?

The elements for both the burden to run (i.e., writing, intent, horizontal and vertical privity, notice, and "touch and concern") and the benefit to run (i.e., writing, intent, limited vertical privity, and "touch and concern")

Which amendment to the Constitution can protect citizens from private companies using them as labor in a sweatshop by threatening legal or physical action?

Under the Thirteenth Amendment, Congress has the power to adopt legislation rationally related to eliminating involuntary servitude. The Thirteenth Amendment is the only amendment that authorizes Congress to regulate purely private conduct. Therefore, the Court may rely solely on the Thirteenth Amendment to uphold a congressional law punishing involuntary servitude committed by private actors.

Question Text: A testator's will provided for a devise of the testator's residence to the testator's daughter and a devise of $100,000 to the testator's son. At the time of the testator's death, the testator owned the residence in fee simple absolute. The residence was not subject to any encumbrances. The testator's only other asset at the time of her death was a bank account that had a balance of $5,000. The personal representative of the testator's estate applied to the money in the bank account to the satisfaction of the testator's outstanding debts and transferred title of the testator's residence to the daughter. The son filed an action in probate court challenging the personal representative's distribution of the testator's residence to the daughter. The son asserted that the personal representative should have sold the residence and divided the proceeds between the testator's daughter and himself.

Answer Choices: Abatement. Ademption. Exoneration. Lapse. Abatement = The concept of abatement permits the reduction or elimination of a devise when the assets of the estate are insufficient to pay all debts and satisfy all devises. Under abatement, a general devise (e.g., a bequest of money) is sacrificed in order to honor a specific devise.

Question Text: A state enacts a statute prohibiting semi-truck drivers from using cellular phones while operating their vehicles. There is no general statute applying the same prohibition to regular drivers in the state. A truck driver in the state sues in federal court after he receives a citation for using his cellular phone while operating his vehicle. He claims he is being unfairly targeted. Which of the following would govern the analysis of the driver’s claim? Answer Choices: Substantive Due Process. Privileges and Immunities Clause. Dormant Commerce Clause. Procedural Due Process.

Answer choice A is correct. The guarantee of substantive due process is based upon the idea that laws should be reasonable and not arbitrary. The analysis here would involve whether the state action infringes upon any protected interest. Note that a rational basis test would apply to these facts, as the right to use a cellular phone while driving is not a fundamental right, and the truck driver does not appear to be a member of any protected class. Therefore, the rational basis test would apply: the law must be rationally related to a legitimate state interest.

A widower owned a residence in fee simple absolute. His only child, a daughter, also had only one child, a son, who had a child, Ann. The widower executed a will in which the residence was devised to his daughter for her life, and then remainder to his grandson’s children. The widower left the rest of his estate to a charity. After the widower’s death, his grandson had a second child, Bill. Subsequently, the widower’s daughter died. A year later, the grandson had a third child, Claire. Recently, the widower’s grandson died. All three of the grandson’s children have survived him. The applicable jurisdiction continues to follow the common-law Rule Against Perpetuities. Who now owns the residence? Answer Choices: Ann. Ann and Bill. Ann, Bill, and Claire. The charity named in the will.

Answer choice B is correct. At the time of the widower’s death, his daughter had a life estate interest in the residence, Ann had a vested remainder subject to open, and the grandson’s unborn children (e.g., Bill and Claire) had contingent remainders in the residence. Just prior to the death of the widower’s daughter, the grandson’s living children, Ann and Bill, each had a vested remainder subject to open. Since the class of the grandson’s children had members at the time that it became possessory (i.e., upon the death of the widower’s daughter), the class closed at that time. Consequently, Claire is not entitled to share ownership of the residence with her siblings.

What happens if the holder of an easement tries to use it for the benefit of another tract of land that he buys that's adjacent to the survient property?

The individual granted the corporation an easement appurtenant because the easement was granted to the corporation as owner of the adjacent property. As such, the easement cannot be used for the benefit of property other than the dominant estate. Here, the corporation intended to use the road for the benefit of not only property owned at the time of the granting of the easement (i.e., the dominant estate), but also property subsequently acquired. While a court may award damages instead of issuing an injunction when there is not an increased burden on the servient estate, in this case there would be an increase in the traffic on the road by the expansion of the factory onto the property acquired from a third party. Thus, an injunction is warranted.

A couple owned a home with a large backyard in which they hosted raucous parties, with extremely loud music and bright lights. These parties often occurred during weekdays and went until dawn. Despite multiple complaints, the couple continued to host these parties. The couple had the following three neighbors: an elderly woman who was abnormally sensitive to loud noises; a teacher who thought the parties were hilarious, as they reminded him of his fraternity days; and a mother who found the parties highly annoying and disruptive to her and her family but never addressed the issue with the couple. Who would be barred from recovering from the couple in a nuisance action? Answer Choices: The elderly woman, because she has special sensitivities. The teacher, because he is not offended by the actions. The mother, because she has not made the couple aware of the effect of their parties on her family. All of the above may recover.

Answer choice D is correct. A private nuisance is a substantial and unreasonable interference with another individual’s use or enjoyment of land. The interference must be intentional, negligent, reckless, or the result of abnormally dangerous conduct to constitute nuisance, and it must be offensive, inconvenient, or annoying to a normal, reasonable person in the community. All three neighbors are entitled to recover. Answer choice A is incorrect because while a person with special sensitivities cannot recover when the average person would not be offended, inconvenienced, or annoyed, here, the average person would be annoyed and offended. Answer choice B is incorrect because a person who is not offended, inconvenienced or annoyed (e.g., the “thick-skinned” plaintiff) is nevertheless entitled to recover if a normal reasonable person would be, although the amount of damages may be affected. C is incorrect because the mother had no duty to notify the couple of the effect of their actions.

When you have a fact pattern that indicates a race recording statute and a mortgagee who recorded first before a subsequent purchaser and the original purchaser defaults (we don't know what the agreement was regarding the loan in fact pattern), the subsequent purchaser can lose the house to foreclosure.

When property on which there is a mortgage is sold, the buyer takes subject to the mortgage unless the buyer assumes the mortgage. In this case, the applicable jurisdiction has a race recording statute. Thus, the bank, by recording its mortgage before the mortgagor sold the property, can enforce its rights in the property despite the subsequent sale.

Here's the rule about co-tenants and expenses:

Absent an agreement to the contrary, co-tenants are not required to pay rent to other co-tenants for their own use of the property. In addition, a co-tenant generally does not have the right of contribution against other co-tenants for operating expenses, such as taxes, when the co-tenant is the only one in physical possession of the property and the value of the use outweighs the amount paid. Additionally, co-tenants do not have the right to be reimbursed by other co-tenants for repairs made to the property—even necessary repairs.

Here's the rule about rights of first refusal and the RAP

Although the jurisdiction follows the majority rule and treats a right of first refusal as subject to the Rule Against Perpetuities, there is an exception where the right is given in conjunction with a lease.

The owner of a building leased a portion of the ground floor for two years at a fixed monthly rent to a chef who opened a restaurant. Eight months later the chef, due to a souring of the local economy, informed the owner that she was closing the restaurant. She vacated the premises and stopped paying rent, which prior to that time she had timely paid. The owner unsuccessfully sought to rent the unoccupied space on behalf of the chef for the following four months before bringing suit against the chef for breach of the lease. What is the maximum amount of rent to which the owner is entitled?

Be careful. There are 16 months left on the lease, but owner can only sue for 4 months because the other 12 are not due yet.

A personal ad appeared in a pornographic magazine that was published and distributed nationwide. The ad stated that an individual was willing to perform various, specified deviant sexual acts. At the end of the ad, the individual was identified by her first and last name. As a consequence, the individual received lewd and offensive communications from strangers. The individual filed an action based on invasion of privacy due to the public disclosure of private facts and the publication of facts placing her in a false light, both recognized in the jurisdiction. In the complaint, the individual alleged that she had neither submitted the ad to the magazine publisher nor had any desire to perform such acts and that the publisher had published the ad with reckless disregard for its truthfulness. The publisher moved to dismiss the complaint. How should the court rule on this motion?

Deny it as to the false light and grant it as to disclosure of private facts. An action for the invasion of privacy based on the public disclosure of private facts is grounded in the disclosure of truthful information about the plaintiff that is not of legitimate concern to the public and that a reasonable person would find highly offensive. Here, because the ad's assertion that the individual was willing to perform the enumerated sexual acts was false, an action based on the public disclosure of private facts cannot be maintained,

As part of a fraternity dare, a college student stood in the middle of a road while drinking a beer. The driver of a car, tired of the fraternity pranks throughout the town, saw the student standing in the road, and reduced his speed but decided not to stop or swerve, saying to himself, “Well, he shouldn’t be in the road anyway. He had better get out of the way, and if I hit him, it’s his own fault.” The intoxicated student could not get out of the way quickly enough, and the driver ran over his foot. If the student sues the driver for negligence in a contributory-negligence jurisdiction, is the driver liable for the injuries that the student sustained to his foot?

Driver is liable for 100% under last clear chance rule - he had the last clear chance to avoid the injury. (even if this is a contributory negligence jurisdiction where contributory negligence is a complete bar to recovery)

Students picketing the residences of particular businessmen. There's a state statute that prohibits it. They sue saying this violates their 1st A rights.

Freedom of expression is not absolute. The government’s ability to regulate the time, place, and manner of speech varies with the forum in which the speech takes place. There is no right to focus picketing on a particular residence. Here, the students are picketing at the particular residence of each individual businessman, and their actions are therefore not protected. The state statute restates the federal law on the issue and is therefore constitutional.

To encourage people from a nearby city in another state to shop there, a small city passed a law exempting out of state shoppers from paying a sales tax, but requiring local shoppers to pay it. On what basis can this law be challenged? P and I or 14th A?

14th A due process - P and I is about states discriminating against others and in favor of their own citizens.

A guy sees a loose tiger running around and freaks out and falls off a ladder. Is the tiger's owner liable?

Strict liability applies to an injury caused by a plaintiff’s fearful reaction to the sight of an unrestrained wild animal, in addition to injuries caused directly by the wild animal. In this case, the defendant had a wild animal that was known to be dangerous, and the sight of this animal caused the plaintiff’s injury. Accordingly, strict liability applies.

The owner of a commercial building leased the premises at fair rental value to a civil organization for a 25-year term. The lease contained a reasonable right of first refusal provision granting the organization a right to purchase the building if the owner found a buyer who was ready, willing, and able to purchase the building at a price agreed to by the owner and the buyer. Fifteen years into the lease, the owner was approached by a friend who was ready, willing, and able to purchase the building. Because of the friendship, the owner agreed to a purchase price that was below the market price. The owner notified the civil organization of the proposed sale, and the organization invoked its right of first refusal. However, the owner refused to sell the building to the organization for less than its fair market value. The applicable jurisdiction has retained the common law with respect to the Rule Against Perpetuities. May the civic organization compel the owner to sell the building to the organization at the price agreed upon by the owner and the friend?

Answer Choices: No, because the organization’s right of first refusal violates the Rule Against Perpetuities. No, because the organization’s right of first refusal constitutes an encumbrance on marketable title. Yes, because the right of first refusal was reasonable. Yes, because the right of first refusal was a valid covenant running with the land.

Answer choice C is correct. A promissory restraint on alienation, such as a right of first refusal, may be enforceable by an injunction if it is reasonable. The organization’s right of first refusal was a reasonable provision in a commercial lease and consequently is enforceable through an injunction compelling the owner to sell the building to the organization. Answer choice A is incorrect because the Rule Against Perpetuities does not apply to a right of first refusal that is granted to a lessee in conjunction with a lease.

Answer choice B is incorrect because the civic organization is seeking to enforce its right to purchase the building based on its own right of first refusal and as thus it would not constitute an encumbrance on the title that the organization would receive. An undisclosed right of first refusal would constitute an encumbrance on marketable title for another purchaser, such as the friend. Answer choice D is incorrect because whether the right of first refusal is a covenant running with land, which affects the rights of subsequent owners, is irrelevant because the owner and the civic organization are the original parties to the agreement.

* The user of a power tool sued the tool’s manufacturer in state court. The action was based on a strict product liability claim that the manufacturer’s failure to adequately warn the user of a defect in the power tool caused the user’s injury. The manufacturer properly removed the case to federal court. The applicable law of the state that governs the existence of the strict product liability claim also recognizes a rebuttable heeding presumption. This presumption assumes that an injured plaintiff would have heeded an adequate warning if one had been given. Under state law, this presumption does not shift the burden of persuasion on this issue to the manufacturer. The manufacturer did not present evidence that the user would not have heeded a different warning had it been given. The court instructed the jury that it must apply the presumption that the warning, if given, would have been heeded. Is the court’s instruction correct?

Answer choice C is correct. In a diversity action, when state substantive law determines the existence of a claim or defense, state law also governs the effect of presumptions related to that claim or defense. Because state law determines the existence of the user’s strict product liability claim, state law governs the effect of the heeding presumption that is related to that claim. Since the manufacturer failed to offer evidence in rebuttal to the presumption, the court properly gave it preclusive effect. Answer choice A is incorrect because, as noted with respect to answer choice C, a rebuttable presumption that has not been rebutted must be given preclusive effect. The trier of fact does not have a choice in such case as to whether to apply the presumption.

* In need of money, the owner of a ring prepared an email one evening proposing to sell the ring to a friend for $500, but only if he responded within 24 hours. Unable to bring herself to send the email, the owner, who normally was a teetotaler, began drinking. When she was thoroughly intoxicated, she sent the email without realizing it. After the owner sobered up the following afternoon, she called her friend and said that she had never meant to send the email, but her friend informed her that he had already responded by email, agreeing to the transaction. Does a valid contract exist?

Answer choice A is correct. There has been a valid offer and acceptance. The owner’s revocation of her offer, coming after the friend had emailed his acceptance, was too late. The offeror’s lack of intent to make an offer is not a defense if the offeree can reasonably interpret the communication as an offer. Answer choice B is incorrect because, although the owner initially conditioned the offer on her friend responding within 24 hours, since she had not received compensation to keep the offer open, she could withdraw it at any time prior to his acceptance of the offer. Answer choice C is incorrect. Although the owner was so intoxicated at the time that she made the offer that she didn’t know what she was doing, a contract entered into by a party while intoxicated is voidable only where the other party had reason to know of the intoxication. Since the offer was sent by email, the friend was unaware that the owner was intoxicated. Answer choice D is incorrect. The fact that the contract had not been performed by either party does not prevent its enforcement. An enforceable contract may be created by the exchange of promises. The owner’s intoxication does not permit the avoidance of the contract simply because it is executory.

If an insane person commits battery knowing that they are doing something wrong, but unable to control himself due to the mental condition, can he be found guilty under the M'Naughten test?

Under the M’Naghten test, a defendant is not guilty if he does not know the nature, quality, or wrongfulness of his act because of his mental disease. In this case, even though the defendant lost control due to his mental illness, he would still be criminally responsible under the M’Naughten test.

* Two gang members orchestrated a plan to scare a local priest who was organizing after school programs to keep kids off the street. They planned to go into the priest’s office with a gun, threaten him, and steal any money in the church offices. One gang member went into the office with the gun while the other stood outside as a lookout. When the priest approached the gang member with the gun in an attempt to reason with him, the gang member panicked and shot the priest, who died instantly. The prosecution charged both gang members with conspiracy and murder, but offered a deal to each in exchange for his testimony against the other. The shooter accepted the deal, while the defendant, who was the lookout, decided to proceed to trial. Is the defendant likely to be convicted of murder?

Answer choice D is correct. A conspiracy is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. A conspirator may be convicted of all substantive crimes committed by his co-conspirator in furtherance of the conspiracy. In this case, the two gang members entered into a conspiracy to commit robbery, and thus they would each be liable for the murder of the priest, which was committed in furtherance of the conspiracy. Answer choice A is incorrect because the defendant may be convicted of any act committed in furtherance of the conspiracy, even though it was not part of the original agreement. Answer choice B is incorrect because the defendant may be convicted even though his co-conspirator will not face trial. Although a conspirator may not be convicted if all other co-conspirators are acquitted at the same trial, a conspirator may be convicted when his co-conspirator pleads guilty. Answer choice C is incorrect because the Wharton Rule, which requires that a conspiracy have more parties than are necessary to complete the crime, is not implicated in this case.

* The defendant robbed an elderly woman at gunpoint. An off-duty police officer witnessed the incident from a distance while walking his dog. He chased down the defendant and placed him under arrest. After being informed of his Miranda rights, the defendant immediately invoked his right to counsel. The defendant was taken to the police station, and before the defendant’s attorney arrived, the defendant was placed in a lineup. The defendant did not object to being placed in the lineup. The elderly woman immediately identified the defendant as the robber. The defendant’s attorney moved to suppress the identification because it was conducted without the attorney present. Is the defendant’s motion likely to be granted?

Answer choice B is correct. A defendant is entitled to have counsel present at any post-indictment lineup in which the defendant is required to participate. The right to counsel does not, however, apply to a pre-indictment witness identification. Answer choice B is incorrect because the defendant was not entitled to have counsel present, and thus it is immaterial whether the defendant’s failure to object constituted a waiver. Answer choice C is incorrect because, while the defendant’s invocation of Miranda prevented the police from questioning the defendant before his attorney arrived, the Fifth and Sixth Amendment rights to counsel are not the same; the Supreme Court has held that a pre-indictment line-up is not a critical stage to which the right to counsel attaches. Answer choice D is incorrect because a defendant is entitled to counsel only at a corporeal identification that takes place after an indictment.

* A buyer agreed in writing to purchase sports memorabilia related to a legendary sports figure, which was on display at a museum, from the owner for $500,000. The agreement called for the payment to be made and the memorabilia handed over at the end of the display period, 60 days after the agreement was signed by both parties. Forty-five days later, a record held by the sports legend was broken and the fair market value of the memorabilia dropped to $275,000. The buyer repudiated the contract. The following week, before the owner could locate another buyer, the memorabilia, on loan for public display, was destroyed without the fault of either the buyer or the owner. The owner had only insured the memorabilia for $100,000. How much is the owner likely to recover from the buyer?

Answer choice B is correct. Generally, where the seller of goods is a merchant, the risk of loss remains with the seller until the goods are delivered to the buyer. However, when goods have been identified at the time that the contract is entered into and the buyer subsequently repudiates the contract, the seller may treat the risk of loss as resting on the buyer to the extent of any deficiency in the seller’s insurance coverage with respect to the goods for a commercially reasonable time. With regard to a nonperishable item, such as sport memorabilia, a commercially reasonable time would likely extend well beyond a week. The owner would thus be entitled to recover the contract price of $500,000 minus the insurance coverage of $100,000, or $400,000. Consequently, answer choices B, C and D are incorrect.

* A defendant was on trial for having killed a civil rights protester in a city 50 years previously. Taking the stand, the defendant denied being present in the city at the time of the killing. The prosecution sought to admit into evidence a copy of the local newspaper from one day after the killing. The newspaper contained an article in which the defendant was quoted as stating that he had heard shots on the day of the murder from inside his apartment. The defendant objected to the introduction of this evidence. Should the judge admit the newspaper article into evidence?

Answer choice A is correct. The defendant’s quote is considered non-hearsay because it is a statement made by a party to the current litigation. Because the defendant is currently testifying and is subject to cross-examination, this statement is admissible. Because these types of statements are considered non-hearsay, they can be admitted both to impeach the declarant and for the truth of the matter asserted. The newspaper article itself is subject to a hearsay exception, as it is an ancient document. Answer choice B is incorrect because the newspaper article would be admissible both substantively and to impeach the defendant’s credibility. Answer choice C is incorrect because the newspaper article is more than twenty years old, and would therefore fall under the ancient document exception to the hearsay rule. Further, the defendant’s statement within the article is also admissible as a statement made by a party to the litigation. Answer choice D is incorrect because, while the document must also be authenticated to qualify as an ancient document, newspapers are considered self-authenticating.

* A tool distributor sold a retailer an assortment of tools on credit. Immediately prior to the sale, the distributor, concerned about the retailer’s financial health, telephoned the retailer to ask if the retailer would be able to pay for the tools. The retailer assured the distributor that it was solvent, even though the retailer knew it might not be before it paid for the tools. Twelve days after the retailer received the tools, the distributor learned that the retailer was insolvent and immediately sought to reclaim the tools. Can the distributor do so?

Answer choice A is correct. When a buyer receives goods on credit, and the seller learns that the buyer is insolvent, the seller may reclaim the goods, provided a demand is made within 10 days after the buyer’s receipt of the goods. Although this 10-day limit does not apply if the seller receives assurances of the buyer’s solvency within three months before the delivery of the goods, such assurances must be in writing. Since the retailer had retained the tools for more than 10 days and the only assurances the distributor received were oral, the retailer is not entitled to reclaim the tools. Answer choice B is incorrect because, as noted with respect to answer choice A, the seller can, in limited circumstances, reclaim goods that are in the buyer’s possession. Answer choice C is incorrect because, as noted with respect to answer choice A, although a seller’s ability to reclaim goods can be extended if the buyer gives assurances of solvency to the seller, such assurances must be in writing. In addition, seller’s ability to reclaim goods sold on credit is not enhanced by the fact that the buyer’s assurances of solvency were knowingly, rather than innocently, made. Answer choice D is incorrect because the general 10-day period is keyed to the date on which the buyer receives the goods, not the date on which the seller learns of the buyer’s insolvency.

* A hardware store owner observed a customer looking at a display of chain saws. The customer asked the owner which of two brands he would recommend. The owner said, “I swear by Brand X. In my opinion they make the best chain saws.” In making this statement, the owner had no intent to offer the customer a warranty. The customer purchased a Brand X chain saw. On the customer’s sales receipt, was printed, “All warrantees, express or implied, are hereby disclaimed.” The chain saw malfunctioned, resulting in serious injury to the customer. The customer sued the store owner for breach of an express warranty. Of the following, which would be the store owner’s best defense?

Answer choice D is correct. Although most statements made by a seller to a buyer about goods will create an express warranty, the statement must be a promise or an affirmation of fact. A statement of opinion or puffery, however, is not treated as creating an express warranty. Answer choice A is incorrect because an express warranty need not contain the words “warranty” or “guarantee.” In order to create an express warranty, the seller need merely make a promise or an affirmation of fact; no particular language must be used. Answer choice B is incorrect because the subjective intent of the seller to create a warranty is not required in order for the seller’s language to create a warranty. Answer choice C is incorrect because a general disclaimer of all warranties is insufficient to disclaim an express warranty. Disclaimer clauses that conflict with express warranties are ignored.

* A plaintiff brought suit against a defendant for injuries she sustained in a car accident that she accused the defendant of negligently causing. Prior to filing suit, the plaintiff’s attorney had the plaintiff visit a physician to determine the extent of her injuries for purposes of determining the damages to be claimed in the lawsuit. After the plaintiff’s examination, while the attorney, plaintiff, and physician were discussing the extent of the plaintiff’s injuries, the plaintiff admitted that she “may have had a few beers” right before the accident. At trial, the defendant’s counsel sought to call the doctor to testify about the statement. The plaintiff properly objected to the introduction of this testimony. How should the judge rule on the plaintiff’s objection?

Answer choice A is correct. Under attorney-client privilege, a confidential communication between a client and an attorney is privileged. While the presence of a third party can destroy privilege, a communication to a representative of the attorney is also privileged. A representative of an attorney is a person who is employed to assist the attorney in providing legal services. Here, the physician has been employed to assist the plaintiff’s attorney in determining the damages to be sought when filing the lawsuit. The physician’s presence would therefore not destroy the privilege, and the attorney-client privilege would apply.

* : A police officer received an anonymous tip that the defendant was manufacturing methamphetamine in his basement. Based solely on the tip, the officer obtained a warrant to search the defendant’s basement for drugs and related manufacturing equipment. The officer and his partner went to the defendant’s home to execute the warrant. Believing the defendant was not home, the officers did not knock on the door, but simply opened the unlocked door. In searching the defendant’s basement, the officers found large quantities of methamphetamine, related manufacturing equipment, and a notebook that said “Ledger” across the cover. The notebook contained a ledger, with the names of the defendant’s clients and statements of their accounts. The officers seized all these items. The defendant seeks to suppress the evidence seized by the officers. What is the defendant’s best argument in favor of suppressing the notebook?

Answer choice D is correct. A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, supported by oath or affidavit. Facts supporting probable cause may come from several sources, including information from a reliable, known informant, or information from an unknown informant that can be independently verified. In this case, the search warrant was based solely on a tip from an unknown informant, and thus probable cause was not established. Answer choice A is incorrect because a police officer may seize an item in plain view, even if it was not named in the search warrant, as long as the officer is on the premises for a lawful purpose and the incriminating nature of the item is immediately apparent. Answer choice B is incorrect because, although the Fifth Amendment prohibits a defendant from being compelled to produce a personal diary, its contents are admissible if it is seized during a valid search. Moreover, the notebook was more in the nature of a business record, which is not protected by the Fifth Amendment. Answer choice C is incorrect because even if the defendant can show that the police violated the “knock and announce” rule, such a violation will not require the suppression of evidence.

* As part of a divorce decree, a father was ordered to make monthly child support payments to his son's mother. The father failed to make such payments. At a criminal contempt hearing regarding the father's failure to comply with the child support order, the father's attorney presented evidence as to the father's inability to make such payments, which evidence was disputed by the mother. Under state law, there is a presumption that, with regard to enforcement of a child support order, the parent obligated to make child support payments has the ability to make such payments, since such ability was determined by the court at the time that the order was issued. In addition, the highest state court has ruled that, with regard to imposition of criminal contempt for a failure to make child support payments, the burden of proof as to the inability to make such payments is placed on the father. The court, finding that the father had not met this burden, held the father in criminal contempt and sentenced him to six months in prison. The father has appealed this decision as unconstitutional. Which of the following is the father's best argument in support of his challenge to the constitutionality of this decision?

Answer choice C is correct. A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense. If the ability to make child support payments is an element of criminal contempt, rather than the inability to pay being an affirmative defense, the state cannot require the father to prove his inability to pay. Rather, the state is required to prove the father's ability beyond a reasonable doubt. Answer choice A is incorrect because a presumption does not automatically violate the Due Process Clause. In order to have such effect, the presumption generally must be a mandatory presumption. Answer choice B is incorrect because the burden of proof with regard to an affirmative defense may be placed on the person on whom the criminal penalty may be imposed (e.g., the defendant). Answer choice D is incorrect because, with regard to criminal contempt, there is a right to trial by jury only if the imprisonment imposed exceeds six months. Here, the father's sentence was six months.

* The defendant was arrested for the murder of his wife. Following his arrest, the defendant was handcuffed and placed in a police car by two police officers. The officers did not provide the defendant with Miranda warnings. During the drive to the police station, the officers began questioning the defendant about his whereabouts the night of the murder. The defendant stated that he was home alone all night waiting for his wife, who never arrived home. At trial, the prosecution offered evidence showing that the wife was murdered in the home she shared with the defendant. The defendant took the stand in his own defense and testified that, on the night of the murder, he was at his brother’s house watching a movie, and that he spent the night there. The prosecution seeks to introduce the defendant’s earlier statement to the police that he was home alone. Is the defendant’s statement to the police admissible?

Answer choice B is correct. A statement taken in violation of Miranda may be used to impeach the credibility of a criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. Answer choice A is incorrect because, although the defendant was entitled to Miranda warnings prior to the questioning that occurred in the police car, statements taken in violation of Miranda, as long as they are not coerced, may be used to impeach the credibility of the defendant in this case. Answer choices C and D are incorrect because statements taken in violation of Miranda may only be used in determining the defendant’s veracity, and not directly in deciding ultimate issues of guilt or innocence. Although the prosecution could use the defendant’s statement to show that the defendant was not a credible witness, it could not use the statement to show that the defendant was home the night of the murder, and thus likely was the perpetrator of the crime.

Answer choice B is correct. A statement taken in violation of Miranda may be used to impeach the credibility of a criminal defendant if he takes the witness stand and gives testimony at variance with his previous admissions. Answer choice A is incorrect because, although the defendant was entitled to Miranda warnings prior to the questioning that occurred in the police car, statements taken in violation of Miranda, as long as they are not coerced, may be used to impeach the credibility of the defendant in this case. Answer choices C and D are incorrect because statements taken in violation of Miranda may only be used in determining the defendant’s veracity, and not directly in deciding ultimate issues of guilt or innocence. Although the prosecution could use the defendant’s statement to show that the defendant was not a credible witness, it could not use the statement to show that the defendant was home the night of the murder, and thus likely was the perpetrator of the crime.

Answer choice C is correct. A third party may recover on a contract if that third party is an intended beneficiary of the agreement. For a third party to be an intended beneficiary, there must be a contract between a promisee and another party, with the clear intent that the contract directly benefit the third party, a breach by either party to the contract, and damages sustained by the third party. Here, the promisee under the contract is the attorney, and the contract expressly provides that the intended beneficiary is the daughter. Because the attorney did not intend to benefit the animal shelter, the animal shelter is merely an incidental beneficiary and cannot enforce performance under the contract.

Two individuals entered into a written contract for the sale of a moped for $475. The contract required delivery of the moped on July 1 and provided that oral modification of the contract was prohibited. On June 25, the seller called the buyer and asked if the seller could deliver the moped on July 2, explaining that the seller was overseas and could not return until July 2 due to work commitments that he could not change. The buyer agreed. On June 30 the buyer called the seller, informing him that he was disregarding the modification and demanding delivery of the moped on July 1. The seller delivered the moped on July 2, but the buyer refused to accept or pay for it. Has the buyer breached the contract?

* ccept or pay for it. Has the buyer breached the contract?

Answer choice D is correct. Under the Uniform Commercial Code (UCC), a clause in a written contract that prohibits oral modification of the contract is enforceable. Consequently, the oral agreement between the seller and the buyer to delay the delivery date of the moped is not given effect. Since the seller failed to deliver the moped on July 1 as called for in the written contract, the seller breached the contract and the buyer was excused from performance. (Note: The oral modification did not run afoul of the Statute of Frauds since the contract as modified was for the sale of goods of less than $500.) Answer choice A is incorrect because, even though the buyer agreed to the modification, the contract prohibited an oral modification of the contract. Answer choice B is incorrect. Although the oral modification itself cannot be given effect, the buyer’s agreement can act as a waiver of the provision in the written contract that required delivery on July 1. However, a party is permitted to retract a waiver so long as the other party has not materially changed position in reliance on the waiver. Since the seller told the buyer that he could not return before July 2, the seller did not delay his return in reliance on the buyer’s waiver. Consequently, the buyer was free to retract his waiver. Answer choice C is incorrect because, under the UCC, a good faith modification of a contract is permitted without consideration.

* In response to a phone query by a manufacturer of fans, a supplier of motors offered to sell the manufacturer up to 10,000 motors at the price of $15 each. The supplier assured the manufacturer before ending the call that this price was good for 60 days. One month later, the manufacturer ordered 5,000 motors from the supplier. The supplier informed the manufacturer that the price was now $20 per motor. Of the following, which is the manufacturer’s weakest argument that the price is $15 per motor?

Answer choice A is correct. Although an offeror can generally withdraw an offer, even one that the offeror has promised to hold open, there is an exception for a firm offer given by a merchant of goods, such as the supplier of motors in the case. However, in order for this exception to apply, the offer must be contained in a writing that is authenticated by the merchant. Here, the motor supplier made its firm offer orally. Consequently, this exception does not apply. Answer choice B is incorrect. An offer is deemed to be held open for a reasonable time unless the offeror specifies a time limit. While the supplier did not specify the date on which its offer of $15 per motor would expire, the supplier’s assurance that this price was good for 60 days strongly indicates that the fan manufacturer’s acceptance was made within a reasonable time. Answer choice C is incorrect because, since the supplier stated that it would hold its offer open for 60 days, it is reasonable for the manufacturer to have relied on this promise. Answer choice D is incorrect because, although an offeror can generally withdraw an offer, even one that the offeror has promised to hold open, the supplier had not done so in this case before the manufacturer placed its order. Consequently, the manufacturer can assert that it accepted the supplier’s offer of $15 per motor before the supplier revoked this offer.

* A prosecutor convened a grand jury to bring criminal charges against a pharmaceutical corporation. The charges were related to a new drug that was linked to several deaths. The prosecutor served a subpoena on a corporate employee who oversaw the testing of new drugs and kept the records related to such testing, requiring the production of all records related to testing done on the new drug. The employee refused to produce the records on Fifth Amendment grounds, asserting that the production of the records might incriminate him personally. Is the employee likely to be required to produce the records?

Answer choice D is correct. Although the custodian of corporate records as an individual enjoys the Fifth Amendment privilege against self-incrimination, the request for production is being made to the custodian in his capacity as a corporation employee, and, as such, the Fifth Amendment does not apply. Answer choice A is incorrect because the Fifth Amendment privilege against self-incrimination applies only to individuals. Entities such as corporations do not enjoy this privilege. Answer choice B is incorrect because the request for production is being made to the custodian in his capacity as a corporate employee, and, as such, the Fifth Amendment does not apply. Answer choice C is incorrect because the privilege may be asserted in any proceeding, including a grand jury proceeding, so long as the testimony might incriminate the person testifying in a criminal proceeding.

* After the defendant murdered his neighbor, the victim’s family members lined the street when the defendant was taken away by police and screamed, “Murderer! Murderer!’’ At the trial for wrongful death, the plaintiffs’ attorney sought to have the evidence of the family’s statements admitted to show the initial impact the crime had on these family members, who had always been quiet and private members of the community. He intended to provide even more evidence to demonstrate increasing the damages suffered by the victim’s family. Is the evidence admissible for these purposes?

Answer choice A is correct. Statements offered to prove something other than the truth of the matter asserted are not hearsay. Here, the statements are not being used to proof the truth of the matter asserted, i.e., that the defendant is actually the murderer. Rather, the statements are being used to show the effect that the murder had on the victim’s family members. Answer choice B is incorrect because relevance alone is not the only consideration when a hearsay statement—or any evidence for that matter—is involved. Answer choice C is incorrect because most of the hearsay rules apply to civil and criminal cases in the same way. Here, because the statement is not being offered for the truth of the matter asserted, the statement does not constitute hearsay, regardless of whether the trial is criminal or civil. Answer choice D is incorrect because, although the statement refers to the defendant as a murderer and whether the defendant is the murderer is relevant to the outcome of the trial, that alone does not make the statement hearsay. Here, the statement is not being used to establish that the defendant is actually a murderer.

* At the beginning of the month, an aunt called her niece who lived in a distant city. During the conversation, the aunt promised to give a family heirloom worth $50,000 to her niece if the niece came to the aunt’s home to retrieve it. The niece promised to come. The following day the niece bought an airline ticket to fly to the city where her aunt lived at the end of the month. The day before the niece was to make the trip, her aunt died. Under the terms of the aunt’s will, the heirloom was left to someone else. Can the niece acquire the heirloom by enforcing her aunt’s promise against the aunt’s estate?

Answer choice D is correct. The aunt’s promise constituted a promise to make a gift. As such it is unenforceable. Answer choice A is incorrect. Although promissory estoppel may apply to a transaction between family members such as this one and arguably the aunt intended for her niece to rely the promise of the heirloom, recovery is generally limited to reliance damages. The extent of the niece’s reliance upon her aunt’s promise was the purchase of a plane ticket. Consequently, the niece may be able to recover the cost of the plane ticket, but is not entitled to the heirloom. Answer choice B is incorrect. The promise made by the niece does not create a binding contract because there was not a bargained for exchange. While the aunt did request that the niece come to the aunt’s home and the niece promised to do so, the aunt was not bargaining for the niece’s companionship in exchange for the heirloom but instead the niece’s presence was a necessary condition for effecting the gift (i.e., delivery of the heirloom to the niece). Answer choice C is incorrect because the fact that the aunt’s promise was not in writing does not prevent it from being enforceable. The Statute of Frauds does not apply in this situation, even if the value of the heirloom was $500 or more, since this situation constitutes a promise to make a gift rather than a sale of goods.

* A defendant is acquitted of murder. Subsequently, the family members of the victim bring a wrongful death action against the defendant. The defendant seeks to introduce a properly authenticated, certified copy of the final judgment to show that the defendant did not wrongfully kill the victim. The victim’s family members object to the introduction of the judgment. May the defendant introduce the copy of the final judgment from his criminal case?

Answer choice B is correct. Evidence of a judgment of acquittal introduced in a subsequent legal proceeding to prove that the defendant did not commit the criminal act is hearsay; it is an out-of-court statement of the court or jury that is offered for its truth. Although there is an exception to the hearsay rule for judgments of conviction, there is no such exception that allows for the admission of a judgment of acquittal. Answer choice A is incorrect because a criminal judgment of conviction for a crime that is punishable by death or imprisonment for more than one year can be introduced in a civil action to prove any fact essential to sustain the judgment. Answer choice C is incorrect because, although the certified copy of the judgment satisfies the original document rule, it is nevertheless inadmissible because it is hearsay. Answer choice D is incorrect because, although there is a lesser standard of proof required in a civil action, this does not change the fact that the judgment is inadmissible hearsay.

* A plaintiff sued a defendant for driving through a red light and crashing into the plaintiff’s truck. At trial, the plaintiff called a witness, who testified that as the defendant was speeding down the street toward the red light he called out to the defendant, whose car window was open, “Watch out, that light is red!” Which of the following provides the best basis for overruling a hearsay objection by defendant’s counsel?

Answer choice A is correct. The statement by the eyewitness is being offered to show that the defendant was warned of the danger, not that the light was red. Thus, the statement is not hearsay. Answer choice B is incorrect because a declarant need not be available to testify in order for a statement to qualify as hearsay. If the statement about which the declarant seeks to testify was made out of court and is being offered to prove the truth of the matter asserted, and does not fall within one of several exclusions, it is a hearsay statement. Answer choice C is incorrect. An adoptive admission is a statement by another person that a party adopts as his own. In order to qualify as an adoptive admission, the party must have heard and understood the statement, have had an opportunity to deny the statement, and a reasonable person would have denied the statement. In this case, even if there was proof that the defendant heard the statement, he would not have had the opportunity to deny the statement from his moving car. Further, the statement is not being offered to prove that the light was red, only to prove that the witness told the defendant it was red. Answer choice D is incorrect because it would be a better argument for the plaintiff to point out that the statement is not hearsay at all. The residual exception, which admits a hearsay statement if (i) the statement has equivalent circumstantial guarantees of trustworthiness, (ii) it is offered as evidence of a material fact, (iii) it is more probative on the point for which it is offered than any other evidence that the proponent can reasonably obtain, and (iv) admission will best serve the purposes of the Federal Rules and the interests of justice, will rarely be the correct answer on the bar exam.

* A client entered into a written contract with his lawyer for the lawyer to provide legal services with regard to the purchase of land. The contract specified that the lawyer was to be paid a flat fee of $2,000 for his services. Prior to completion of the purchase, the lawyer orally assigned his interest in the contract to a third-party landscaper, in exchange for services the landscaper had performed for the lawyer. The lawyer then rendered the legal services necessary for the completion of the purchase of the land. Can the third-party landscaper collect the lawyer’s fee from the client?

Answer choice D is correct. The right to receive payment for services rendered may be assigned. This assignment may be made even before the services are rendered. Answer choice A is incorrect because an assignment is not subject to the Statute of Frauds. The application of the Statute of Frauds to contracts of $500 or more only applies to contracts for the sale of goods, and the interest assigned does not directly relate to the acquisition of real estate. Consequently, it need not be in writing. Answer choice B is incorrect because, while the delegation of the lawyer’s duties to a client may arguably be prohibited if the client was relying on the lawyer’s special skills, the assignment of a right to receive payment for services rendered may be assigned. Answer choice C is incorrect because consideration is not necessary to make a valid assignment; the presence of consideration affects only the revocability of the assignment.

* A property owner constructed a fence along what he thought was the boundary to his property. A year later, a neighbor who was selling adjoining property had a survey conducted. As a consequence of the survey, the neighbor brought an action against the property owner seeking removal of the fence. At trial, the neighbor testified that he had orally objected to the property owner about the placement of the fence at the time it was constructed. After the neighbor left the witness stand, the property owner sought to introduce into evidence a certified copy of the official judgment and conviction of the neighbor for perjury. The neighbor was convicted 11 years ago and released from prison nine years ago. The property owner had not asked the neighbor about the conviction while the neighbor was on the stand. Should the court permit the introduction of the judgment for the purpose of impeaching the neighbor’s testimony?

Answer choice C is correct. A witness’s character for truthfulness may be impeached by evidence of the witness’s conviction of the crime in this instance. The conviction may be proved by extrinsic evidence. Answer choice A is incorrect. Generally, a witness may be impeached by a conviction for a crime that requires as an element of the crime proof or admission of an act of dishonesty or false statement, such as perjury, without weighing the probative value of the conviction against its prejudicial effect, if the conviction is no more than 10 years old. In measuring the 10-year period, the later of the date of conviction or release from imprisonment is used. Consequently, even though the neighbor’s conviction occurred more than 10 year prior to his testimony, since the date of his release was less than 10 years prior to his testimony his perjury conviction may be used to impeach him. Answer choice B is incorrect because when a conviction used for impeachment purposes is proved by extrinsic evidence, there is no requirement that the party introducing the conviction first ask the witness about the conviction. Answer choice D is incorrect because a witness may be impeached with a crime that involves dishonesty or false statement in both civil and criminal cases.

* In state court, an employee was tried and convicted of embezzling funds from her employer. Pursuant to the criminal statute, the employee was ordered to make restitution of the embezzled funds, but not otherwise subjected to imprisonment or a fine for her conduct, even though both were statutorily permitted. The employee successfully appealed her conviction due to improperly admitted evidence. Upon retrial, the employee was again found guilty. In addition to ordering the defendant to make restitution, the judge, commenting that she had wasted valuable judicial resources by appealing her prior conviction, also fined her $50,000. On appeal, the employee contends that her punishment was unconstitutional. Should the appellate court vacate her sentence?

Answer choice B is correct. The Due Process Clause prohibits the imposition of a harsher sentence upon retrial of a defendant who successfully appeals a conviction, when the harsher sentence constitutes a penalty imposed on the defendant for the exercise of her right to appeal her conviction. Here, the judge did not base the harsher sentence on factors relating to the defendant herself, such as other illegal behavior, but in retaliation against the defendant for exercising her right to appeal. Answer choice A is incorrect because the constitutional prohibition against double jeopardy does not generally prevent the imposition of a harsher sentence upon the retrial of a defendant after a successful appeal of a conviction. Answer choice C is incorrect because the constitutional prohibition against double jeopardy applies to criminal punishment whether by imprisonment or by fine. (Note, however, this constitutional protection does not extend to civil penalties.) Answer choice D is incorrect because, although a defendant may generally be retried after a successful appeal of a conviction, the employee-defendant in this case was subjected to a greater punishment in violation of the Due Process Clause.

* A secretary was angry at her boss for not granting her a raise. The secretary decided to “teach the boss a lesson,” by breaking into the boss’s house and stealing the boss’s personal computer. That evening, the secretary waited until she was sure the boss had gone to sleep and then used a key the boss had given her to the house for emergencies in order to enter the house. She took the personal computer and then left the house. The secretary is subsequently arrested and charged with burglary in a jurisdiction that follows the common law. Should the woman be convicted?

Answer choice D is correct. Common law burglary requires the breaking and entering of the dwelling of another in the nighttime with the specific intent to commit a felony therein. Here, the secretary entered the house at night with the intent to commit larceny, a common law felony. She broken into the house, even though she had a key that the boss had given her, because she exceeded the scope of the boss’s consent to enter the house since there was no emergency that required her to use the key. Answer choice A is incorrect, as the secretary is considered to have broken into the house, as she exceeded the scope of the boss’s consent to enter. Answer choice B is incorrect, as stealing the computer would constitute larceny, a common-law felony. Answer choice C is incorrect because there is no requirement that the dwelling be occupied at the time of the breaking and entering.

Two people owned Brownacre as joint tenants with the right of survivorship. The first joint tenant executed a mortgage on Brownacre to a lender in order to secure a loan. Subsequently, but before the indebtedness was paid to the lender, the first joint tenant died intestate with her daughter as her only heir at law. The jurisdiction at which Brownacre is located recognizes the title theory of mortgages.

In an appropriate action, the court should determine that title to Brownacre is vested


A. in the second tenant, with the entire interest subject to the mortgage.B. in the second tenant, free and clear of the mortgage.C. half in the second tenant, free of the mortgage and half in the daughter, subject to the mortgage.D. half in the second tenant and half in the daughter, with both subject to the mortgage.

Answer choice C is correct. A joint tenant may grant a mortgage interest in the joint tenancy property to a creditor. In the "title theory" states (the minority), mortgage severs the title and the tenancy between the joint tenants and creditor is converted into a tenancy in common. Consequently, the second tenant owns half, as a tenant in common, free of the mortgage. The daughter inherits the other half, along with the mortgage, because the joint tenancy was severed. Answer choice A is incorrect because the joint tenancy was severed with the mortgage. Answer choice B is incorrect because this is not a "lien theory" jurisdiction. In the "lien theory" states (the majority), the mortgage is only a lien on the property and does not sever the joint tenancy absent a default and foreclosure sale. Note that any lien against one joint tenant's interest also terminates upon that tenant's death, such that the lien does not encumber the surviving tenants' interest. Answer choice D is incorrect because the second tenant's half of the tenancy is not subject to the mortgage under the "lien theory" or "title theory."

In an automobile negligence action by a plaintiff against a defendant, a witness testified for the plaintiff. The defendant later called another witness, who testified that the first witness’s reputation for truthfulness was bad.

On cross – examination of the second witness, the plaintiff’s counsel asks, “Isn’t it a fact that when you bought your new car last year, you made a false affidavit to escape paying the sales tax?”

The question is


A. proper, because it will indicate the second witness’s standard of judgment as to reputation for truthfulness.B. proper, because it bears on the second witness’s credibility.C. improper, because character cannot be proved by specific instances of conduct.D. improper, because one cannot impeach an impeaching witness.

Answer choice B is correct. A witness may be asked on cross – examination about specific prior bad acts if the acts are probative of untruthfulness. Thus, answer choice B is correct and answer choice C is incorrect. Answer choice A is incorrect because evidence of a witness’s untruthfulness is not probative of his standard of judgment. Answer choice D is incorrect because there is no such limitation on impeachment.

A plaintiff sues a defendant for injuries suffered when the plaintiff was struck by a car driven by a guest who was leaving the defendant's house following a cocktail party. The plaintiff claims that the driver consumed too much liquor at the defendant's cocktail party and was noticeably drunk before leaving the party and injuring the plaintiff. The plaintiff offers evidence that, after the accident, the defendant visited the plaintiff at the hospital and, after offering to pay all of the plaintiff's medical expenses, said, "That's the least I can do after letting the guest leave my house so drunk last night."

The statement that the guest was drunk when leaving the cocktail party on the night of the accident is


A. admissible as an admission by the defendant that guest was drunk when the guest left the cocktail party.B. admissible as a factual admission made in connection with an offer of compromise.C. inadmissible as hearsay not within any exception.D. inadmissible as a statement made in connection with an offer to pay medical expenses.

Correct: Answer choice A is correct. The defendant's acknowledgement that the guest was drunk is a statement by an opposing party, which by definition is not hearsay. Thus, answer choice C is incorrect. Answer choice B is incorrect because the conversation at issue is not an attempt to compromise, but an offer to pay medical expenses. Further, answer choice B is a misstatement of law because statements made in the course of negotiating a compromise are inadmissible to prove liability or the amount of a disputed claim. Answer choice D is incorrect because, although an offer to pay medical bills is not admissible as evidence of liability, any conduct or statement that accompanies such an offer is admissible. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

An environmental organization's stated mission is to support environmental causes. The organization's membership is generally open to the public, but its bylaws permit its officers to refuse to admit anyone to membership who does not adhere to the organization's mission statement.
In a recent state administrative proceeding, the organization opposed plans to begin mining operations in the mountains surrounding a small town. Its opposition prevented the mine from being opened on schedule. In an effort to force the organization to withdraw its opposition, certain residents of the town attended a meeting of the organization and tried to become members, but the officers refused to admit them. The residents sued the organization, claiming that the refusal to admit them was discriminatory and violated a local ordinance that prohibits any organization from discriminating on the basis of an individual's political views. The organization responded that the ordinance is unconstitutional as applied to its membership decisions.
Are the residents likely to prevail in their claim?


A. No, because the membership policies of a private organization are not state action.B. No, because the organization's right to freedom of association allows it to refuse to admit potential members who do not adhere to its mission statement.C. Yes, because the action of the officers in refusing to admit the residents as members violates equal protection of the laws.D. Yes, because the ordinance serves the compelling interest of protecting the residents' free speech rights.

Answer choice B is correct. The residents are not likely to prevail in their claim, because it would violate the environmental organization's First Amendment right to freedom of association if the state were to force the organization to accept the residents as members. The U.S. Supreme Court has held that the forced inclusion of an unwanted person in a group violates the group's freedom of association if including that person would significantly affect the group's ability to express its viewpoints. The freedom of association entitles the environmental organization to refuse membership to the residents, because admitting them would effect a change in the organization's viewpoint on the mining operations. Answer choice A is incorrect because, while it is true that the membership policies of a private organization are not state action, the local ordinance on which the residents base their suit is state action, and it is subject to the requirements of the First Amendment. Answer choice C is incorrect because the action of the officers in refusing to admit the residents as members is not subject to the equal protection clause. The environmental organization is a private entity, and therefore the conduct of the organization's officers does not constitute state action. Answer choice D is incorrect because the U.S. Supreme Court has held that even statutes that support compelling interests do not justify the severe burden on an organization's freedom of association that would result from forcing an organization to accept members who would significantly affect the organization's ability to express its viewpoints.

A buyer wanted to purchase a used boat. The used boat lot of the boat company, in a remote section away from town, was enclosed by a ten-foot chain link fence. While the buyer and the sales representative, an employee of the boat company, were in the used boat lot looking at boats, a security guard locked the gate at 1:30 p.m. because it was Saturday and the lot was supposed to be closed after 1:00 p.m. At 1:45 p.m., the buyer and the sales representative discovered they were locked in. There was no traffic in the vicinity and no way in which help could be summoned. After two hours, the buyer began to panic at the prospect of remaining undiscovered and without food and water from Saturday until Monday morning. The sales representative decided to wait in a boat until help should come. The buyer tried to climb over the fence and, in doing so, fell and was injured. The buyer asserts a claim against the boat company for damages for his injuries. If the buyer’s claim is based on false imprisonment, will the buyer prevail?


A. Yes, because he was confined against his will.B. Yes, because he was harmed as a result of his confinement.C. No, unless the security guard was negligent in locking the gate.D. No, unless the security guard knew that someone was in the lot at the time the guard locked the gate.

Answer choice D is correct. False imprisonment occurs when a person intends to confine another to a bounded area, confinement occurs, and the other is aware of or harmed by the confinement. The buyer will not prevail unless the security guard intended the confinement. Answer choice A is incorrect because it is the intent of the person who restrained the plaintiff that matters, not that the confinement occurred. Not all confinements constitute false imprisonment. Answer choice B is incorrect because even though the buyer was confined and harmed as a result, it does not mean that he was falsely imprisoned. It is the intent of the person who confined him (the security guard) that is at issue. Answer choice C is incorrect because it implies a negligence standard, which is inapplicable here. False imprisonment is an intentional tort. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

In 1930, the owner in fee simple of Barrenacres, a large, undeveloped tract of land, granted an easement to the water district "to install, inspect, repair, maintain, and replace pipes" within a properly delineated strip of land twenty feet wide across Barrenacres. The easement permitted the water district to enter Barrenacres only for the stated purposes. The water district promptly and properly recorded the deed. In 1931, the water district installed a water main which crossed Barrenacres within the described strip; the water district has not since entered Barrenacres. In 1935, the owner sold Barrenacres to a buyer, but the deed, which was promptly and properly recorded, failed to refer to the water district easement. The buyer built his home on Barrenacres in 1935, and since that time he has planted and maintained, at great expense in money, time, and effort, a formal garden area which covers, among other areas, the surface of the twenty-foot easement strip. In 1976, the water district proposed to excavate the entire length of its main in order to inspect, repair, and replace the main, to the extent necessary. At a public meeting, at which the buyer was present, the water district announced its plans and declared its intent to do as little damage as possible to any property involved. The buyer objected to the water district plans. The buyer asked his attorney to secure an injunction against the water district and its proposed entry upon his property.

The best advice that the attorney can give is that the buyer's attempt to secure injunctive relief will be likely to


A. succeed, because the buyer's deed from the owner did not mention the easement.B. succeed, because more than forty years have passed since the water district last entered Barrenacres.C. fail, because the water district's plan is within its rights.D. fail, because the water district's plan is fair and equitable.

Answer choice C is correct. The original owner granted an affirmative easement to the water district for a specific purpose. An easement was properly created, was not terminated, and the water district is acting within the scope of the easement. Answer choice A is incorrect because the easement was properly recorded against the servient estate, therefore, the purchaser was on notice. Answer choice B is incorrect because an easement can only be terminated if the owner of the easement acts in an affirmative way that shows a clear intent to relinquish the easement. Answer choice D is incorrect because whether the plan is fair and equitable is irrelevant to ownership of the easement.

I


n litigation on a federal claim, a plaintiff had the burden of proving that a defendant received a notice. The plaintiff relied on the presumption of receipt by offering evidence that the notice was addressed to the defendant, properly stamped, and mailed. The defendant, on the other hand, testified that she never received the notice.

Which of the following is correct?


A. The jury must find that the notice was received.B. The jury may find that the notice was received.C. The burden shifts to the defendant to persuade the jury of non-receipt.D. The jury must find that the notice was not received, because the presumption has been rebutted and there is uncontradicted evidence of non-receipt.Answer choice B is correct. A presumption is a conclusion that the trier of fact is required to draw, absent any evidence to the contrary. A rebuttable presumption shifts the burden of production to the opposing party. Under the "bursting bubble" approach followed by the federal rules, a presumption is not evidence in a civil case, but a preliminary assumption of fact that disappears ("bursts") after the introduction of sufficient evidence to sustain a contrary finding. In this case, the plaintiff created a rebuttable presumption that the defendant received notice. The defendant then introduced evidence sufficient to burst the presumption, leaving the issue up to the jury to determine the weight and credibility of all the evidence.

Answer choice B is correct. A presumption is a conclusion that the trier of fact is required to draw, absent any evidence to the contrary. A rebuttable presumption shifts the burden of production to the opposing party. Under the "bursting bubble" approach followed by the federal rules, a presumption is not evidence in a civil case, but a preliminary assumption of fact that disappears ("bursts") after the introduction of sufficient evidence to sustain a contrary finding. In this case, the plaintiff created a rebuttable presumption that the defendant received notice. The defendant then introduced evidence sufficient to burst the presumption, leaving the issue up to the jury to determine the weight and credibility of all the evidence. Answer choice A is incorrect because the presumption was burst, so the jury is not required to draw the conclusion that notice was received. Answer choice C is incorrect because after the plaintiff creates a rebuttable presumption, the defendant has only the burden of production, not the burden of persuasion for that issue. Answer choice D is incorrect as a misstatement of the facts: there is evidence both that notice was and was not received, leaving it up to the jury to decide which side is more persuasive.

In exchange for valid and sufficient consideration, a father orally promised his son, who had no car and wanted a minivan, "to pay to anyone from whom you buy a minivan within the next six months the full purchase-price thereof." Two months later, the son bought a used minivan on credit from a minivan retailer for $8,000. At the time, the minivan retailer was unaware of the father's earlier promise to his son but learned of it shortly after the sale.

Can the minivan retailer enforce the father's promise to the son?


A. Yes, under the doctrine of promissory estoppel.B. Yes, because the minivan retailer is an intended beneficiary of the father-son contract.C. No, because the father's promise to the son is unenforceable under the suretyship clause of the statute of frauds.D. No, because the minivan retailer was neither identified when the father's promise was made nor aware of it when the minivan sale was made.

Answer choice B is correct. The minivan retailer is an intended beneficiary of the father-son contract because the father intended to pay a third party for a minivan on son's behalf. The third party does not need to be specifically identified to be considered intended, and the third party need not be aware of the contract until that party seeks to recover on it. Answer choice A is incorrect because promissory estoppel would only apply if the minivan retailer knew of and relied upon a promise that the father made to the minivan retailer. Here, the father's promise was to the son, not the minivan retailer, and the minivan retailer was unable to rely on a promise about which it was unaware. Answer choice C is incorrect because a suretyship is a promise by one party to a second party to answer for the debt of yet a third party, thereby inducing the second party to extend credit to the third party. Here, the father made no promise that would induce the minivan retailer to give the son a loan, and answer choice C is thus incorrect. Answer choice D is incorrect, despite correctly stating facts which are not relevant to the issue of whether the minivan retailer is an intended beneficiary of the father-son contract. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.


A patient owed a physician $25,000 for professional services. The physician orally assigned this claim to her adult daughter as a wedding gift. Shortly thereafter, on suffering sudden, severe losses in the stock market, the physician assigned by a signed writing the same claim to her stockbroker, in partial satisfaction of advances legally made by the stockbroker in the physician's previous stock market transactions. Subsequently, the patient, without knowledge of either assignment, paid the physician the $25,000 then due, which the physician promptly lost at a horse track, although she remains solvent.

Assuming that Article 9 of the Uniform Commercial Code does NOT apply to either of the assignments in this situation, which of the following is a correct statement of the parties' rights and liabilities?


A. As the assignee prior in time, the daughter can recover $25,000 from the patient, who acted at her peril in paying the physician.B. As the sole assignee for value, the stockbroker can recover $25,000 from the patient, who acted at her peril in paying the physician.C. Neither the daughter nor the stockbroker can recover from the patient, but the daughter, though not the stockbroker, can recover $25,000 from the physician.D. Neither the daughter nor the stockbroker can recover from the patient, but the stockbroker, though not the daughter, can recover $25,000 from the physician.

Answer choice D is correct. Payment by the obligor to the assignor can be raised as a defense against an assignee, provided that the payment was made before the obligor had notice of the assignment. Here, the patient paid the physician before having any notice of either assignment and would therefore not be liable to the daughter or the stockbroker. The daughter was a revocable assignee, as there was no consideration for her assignment. The stockbroker is an irrevocable assignee because there was consideration for his assignment. Thus, the stockbroker, but not the daughter, would have a right of recovery against the physician. Answer choice A is incorrect, as the daughter's assignment was revocable, and the stockbroker's was not. Answer choice B is incorrect, as the stockbroker's remedy is only against the physician, as the patient never had notice of the assignment. Answer choice C is incorrect, as the daughter was a revocable assignee, as there was no consideration for her assignment. The stockbroker is an irrevocable assignee because there was consideration for his assignment. Thus, the stockbroker, but not the daughter, would have a right of recovery against the physician.


The defendant visited a fellow college student in the student's dormitory room. They drank some beer. The student produced a box containing marijuana cigarettes and asked if the defendant wanted one. The defendant, afraid of being caught, declined and urged the student to get rid of the marijuana. The student refused. Shortly thereafter, both went out to get more beer, leaving the door to the student's room standing open. Making an excuse about having dropped his pen, the defendant went back into the student's room. Still apprehensive about their being caught with the marijuana cigarettes, he took the cigarettes and flushed them down the toilet. He was sure the student was too drunk to notice that the cigarettes were missing. The defendant is charged with larceny and burglary (defined in the jurisdiction as breaking and entering the dwelling of another with intent to commit any felony or theft).

He should be found guilty of:


A. burglary only.B. larceny only.C. both burglary and larceny.D. neither burglary nor larceny.

Answer choice B is correct. Larceny is the trespassory taking and carrying away of the personal property of another with the intent to steal. Breaking is the opening of any enclosure by fraud or force. Answer choice B is the best answer because there is a larceny, as the defendant took the student’s property with the intent to deprive the student of the property, but there is no burglary, as the breaking element is not satisfied since the door to the dorm was left standing open. Thus, the defendant can only be found guilty of larceny. Answer choices A and C are incorrect because the defendant cannot be found guilty of burglary because there is no breaking. Answer choice D is incorrect because the defendant may be found guilty of larceny because all of the elements of that crime are present.

The personnel handbook of a small city contains all of that city's personnel policies. One section of the handbook states that "when feasible and practicable, supervisors are encouraged to follow the procedures specified in this handbook before discharging a city employee." Those specified procedures include a communication to the employee of the reasons for the contemplated discharge and an opportunity for a pre-termination, trial-type hearing at which the employee may challenge those reasons. After a year of service, the secretary to the city council was discharged without receiving any communication of reasons for her contemplated discharge and without receiving an opportunity for a pre-termination, trial-type hearing. The secretary files suit in federal district court to challenge her discharge solely on constitutional grounds.

Which of the following best describes the initial burden of persuasion in that suit?


A. The city council must demonstrate that its personnel handbook created no constitutionally protected interest in city employment or in the procedures by which such employment is terminated.B. The city council must demonstrate that the secretary's termination was for good cause.C. The secretary must demonstrate that state law creates a constitutionally protected interest in her employment or in procedures by which her employment is terminated.D. The secretary must demonstrate that she reasonably believed that she could work for the city for as long as she wished.

Answer choice C is correct. In order to prevail on a due process claim, the plaintiff must establish that she had a constitutionally protected interest (such as liberty or property) that was adversely affected by the government's actions. Here, the secretary is a public employee, and a legitimate property interest in continued public employment exists only if there is an employment contract or a clear understanding that the employee may only be fired for cause. Here, there is no apparent contract or understanding that the secretary is anything other than an "at-will" employee, so the initial burden is on her to prove otherwise. That supervisors are "encouraged" to follow a certain process is insufficient to shift the burden. Answer choice A is incorrect because the burden to prove the existence of a constitutionally protected interest is on the one challenging the state action (here, the secretary), not on the government. Answer choice B is incorrect because the city council has no such obligation, as the secretary must first show that she had a constitutionally protected interest in her employment. If she had no such protected interest, the city council does not need to show any good cause for her termination. Answer choice D is incorrect because the secretary's personal belief has no bearing on the constitutionality of the state's actions.

The plaintiff was a 10-year-old boy. A machine company that sold new and used machinery stored discarded machinery, pending sale for scrap, on a large vacant area it owned. This area was unfenced and was one-quarter mile from the housing development where the plaintiff lived. The machine company knew that children frequently played in the area and on the machinery. The plaintiff's parents had directed him not to play on the machinery because it was dangerous. One day the plaintiff was playing on a press in the machine company's storage area. The press had several wheels, each geared to the other. The plaintiff climbed on the largest wheel, which was about five feet in diameter. The plaintiff's weight caused the wheel to rotate, his foot was caught between two wheels that were set in motion, and he was severely injured. A claim for relief was asserted by the plaintiff through a duly appointed guardian. The machine company denied liability and pleaded the plaintiff's contributory fault as a defense. In determining whether the machine company breached a duty to the plaintiff, which of the following is the most significant?


A. Whether the press on which the plaintiff was injured was visible from a public way.B. Whether the maintenance of the area for the storage of discarded machinery was a private nuisance.C. Whether the maintenance of the area for the storage of discarded machinery was a public nuisance.D. Whether the machine company could have eliminated the risk of harm without unduly interfering with the machine company's normal operations.

Answer choice D is correct. The attractive nuisance doctrine provides that a landowner may be liable for injuries to trespassing children on the land, if an artificial condition is likely to attract children, who are unable to appreciate the potential risk from the condition on the land. One of the elements considered is whether the risk of harm outweighs the expense of eliminating said harm. Answer choice A is incorrect because the visibility of the area alone is not sufficient to prove that it is an attractive nuisance. Answer choice B is incorrect because a private nuisance is substantial interference with the right to use and enjoy land, which is not applicable here. Answer choice C is incorrect because a public nuisance claim is an unreasonable interference with a right that is shared or common with all members of the community. Typically, public nuisance claims involve interference with health, safety, and community. This type of harm is most likely not applicable here.

A state statute provides that only citizens of the United States may be employed by that state. In an action brought in a federal court, a resident alien who was prevented from obtaining state employment as a garbage collector solely because of his alien status challenged the statute's constitutionality as applied to his circumstances.

Which of the following statements concerning the burden of persuasion applicable to this suit is correct?


A. The alien must demonstrate that there is no rational relationship between the citizenship requirement and any legitimate state interest.B. The alien must demonstrate that the citizenship requirement is not necessary to advance an important state interest.C. The state must demonstrate that there is a rational relationship between the citizenship requirement and a legitimate state interest.D. The state must demonstrate that the citizenship requirement is necessary to advance an important state interest.

Answer choice D is correct. This question involves equal protection. When considering a fundamental right such as alienage, any state action will be held to strict scrutiny, and the government has the burden of proving that it has a compelling state interest, that the law is narrowly tailored to further the interest, and there are no less restrictive means to achieve the interest. Laws prohibiting aliens from acquiring civil service jobs have generally been struck down. Of the four answer choices presented, answer choice D best states the standard for strict scrutiny, even though it uses the word "important" rather than "compelling" when describing the state's interest. Answer choice A is incorrect because it shifts the burden improperly onto the alien and inaccurately applies the rational basis test. Answer choice B is incorrect because it shifts the burden improperly onto the alien, even if it attempts to capture the strict scrutiny standard. Answer choice C is incorrect because the standard is higher than just a rational basis test because it involved a fundamental right. Although answer choice D refers to an "important" state interest rather than a "compelling" state interest, it is the best of the four answer choices presented.

if prosecution shows that D's house was fully insured before it was burned down, is hte evidence admissible?

generally, insurance doesn't prove wrongdoing and can't be admissible for that purpose, but it can be admitted to show motive - in this case the motive to commit arson

can you use someone else's testimony or report to refresh memory?



if you use such testimony, is the court required to allow the opposing party to see it, cross-examine the witness about it and enter it into the record?

yes (but not for the other thingy)



yes "in its discretion" if it deems that its in the interest of justice

A defendant is on trial for attempted fraud. The state charges that the defendant switched a price tag from a cloth coat to a more expensive fur-trimmed coat and then presented the latter for purchase at the cash register. The defendant testified in her own behalf that the tag must have been switched by someone else. On cross-examination, the prosecutor asks whether the defendant was convicted on two prior occasions of misdemeanor fraud in the defrauding of a retailer by the same means of switching the price tag on a fur-trimmed coat.

Is the question about the convictions for the earlier crimes proper?


A. It is not proper either to impeach the defendant or to prove that the defendant committed the crime.B. It is proper both to prove that the defendant committed the crime and to impeach the defendant.C. It is proper to impeach the defendant, but not to prove that the defendant committed the crime.D. It is proper to prove the defendant committed the crime, but not to impeach the defendant.

Answer choice B is correct because under Federal Rule of Evidence 404(b), prior bad acts can be admitted to prove the defendant's conduct if offered for some purpose other than to show that the defendant is a bad person. In this case, the bad acts are very similar to the acts in dispute, and tend to show non-character purposes such as motive, intent, absence of mistake, identity, or common plan or scheme (the "MIMIC" rule). Thus the bad acts can be offered as proof that the defendant committed the crime charged. Prior bad acts are also admissible for the purpose of impeachment.

what are the requirements of a covenant running with the land (burden)?

(1) it is in writing; (2) the intent was explicit in the recorded deeds; (3) the covenant touches and concerns the land; (4) the later purchaser had notice of the covenant from the prior deed; and (5) there is both horizontal and vertical privity.

what are the 3 criteria needed for admission of a record of an act or event made in the course of regularly conducted business to be admissible as evidence?



a statement of a then-existing physical condition must be made by whom about whom to be admissible?

A writing or record of any act or event made in the course of regularly conducted business is admissible under Rule 803(6) if the custodian of records or other qualified witness establishes that the record was made (i) at or near the time of the event, (ii) by someone with knowledge of the event, and (iii) as part of a regular practice of making the kind of entry in question.



a statement of a then-existing physical condition must be made by the declarant about the declarant.

Does a prosecutor have to tell a grand jury that evidence it is considering was obtained illegally by the police?

no - such evidence is admissible at the grand jury stage and the grand jury doesn't need to be told the evidence was obtained illegally

in a malpractice suit, is an expert witness needed to show that the lawyer breached the standard of care owed to a client?

no - the jury decides and expert testimony is not required

A manager and an employee planned to break into a federal government office to steal food stamps. The manager telephoned a pawnbroker one night and asked whether the pawnbroker wanted to buy some "hot" food stamps. The pawnbroker, who understood that "hot" meant stolen, said, "Sure, bring them right over." The manager and employee then successfully executed their scheme. That same night, they delivered the food stamps to the pawnbroker, who bought them for $500. The pawnbroker did not ask when or by whom the stamps were stolen. All three were arrested. The manager and employee entered guilty pleas in federal court to a charge of larceny in connection with the theft. The pawnbroker was brought to trial in the state court on a charge of conspiracy to steal food stamps.

On the evidence stated, the pawnbroker should be found:


A. guilty, because, when a new confederate enters a conspiracy already in progress, he becomes a party to it.B. guilty, because he knowingly and willingly aided and abetted the conspiracy and is chargeable as a principal.C. not guilty, because, although the pawnbroker knew the stamps were stolen, he neither helped to plan nor participated or assisted in the theft.D. not guilty, because the manager and employee had not been convicted of or charged with conspiracy, and the pawnbroker cannot be guilty of conspiracy by himself.

Answer choice C is correct. Conspiracy is an agreement between two or more persons to commit a crime or accomplish an unlawful purpose. Conspiracy has a specific intent mens rea. As the pawnbroker did not agree to steal the stamps, nor did he participate in the theft of the stamps in any fashion, he cannot be guilty of conspiracy. Answer choice A is incorrect because the pawnbroker, by merely agreeing to purchase the stamps post-theft, cannot be guilty of conspiracy to steal them. Answer choice B is incorrect because the pawnbroker did not aid and abet the manager and the employee in committing the theft. The pawnbroker's sole act was purchasing the stamps after the crime. Answer choice D is incorrect as the law requires two or more persons to agree to commit a crime or accomplish an unlawful purpose and it is not a defense that others weren't convicted or charged. The state need prove only that other persons were a part of the conspiracy; those other persons need not be charged or convicted.

If I own a house as tenants in common with two other people who live in another state and I decide to rent out the house to a tenant, then the co-tenants find out, what rights do the co-tenants have?

they can't evict the tenant who is leasing from me, but they can move in with him. I have a right to rent out the property, but my co-tenants also have a right to possess the property. they can make me share the rent I was getting, too.

While crossing Spruce Street, the plaintiff was hit by a car that she did not see. The plaintiff sued the defendant for her injuries. At trial, the plaintiff calls a police officer to testify that, ten minutes after the accident, a driver stopped him and said, "Officer, a few minutes ago I saw a hit-and-run accident on Spruce Street involving a blue convertible, which I followed to the drive-in restaurant at Oak and Third," and that a few seconds later the officer saw the defendant sitting alone in a blue convertible in the drive-in restaurant's parking lot.

The officer's testimony about the driver's statement should be


A. admitted as a statement of recent perception.B. admitted as a present sense impression.C. excluded, because it is hearsay, not within any exception.D. excluded, because it is more prejudicial than probative.

Answer choice C is correct. The officer's testimony contains an out-of-court statement of another person offered for the truth of the matter asserted--that the defendant was the driver--and so it is hearsay. Answer choice B is incorrect because the driver was not describing his present sense impressions of an event to the officer; he was relating a chain of events. Answer choice A is incorrect because although the present sense impression exception applies to statements describing an event made either while the declarant is perceiving the event or immediately thereafter, that is not the case here, as explained above. Answer choice D is incorrect because if an exception did exist, then this testimony would be highly probative to prove who the driver of the vehicle was that night.

Can I cross-examine an expert witness and ask if he (a chemist) failed two chemistry classes as an undergrad when the court has deemed him qualified as an expert?

Even a witness qualified as an expert is subject to cross-examination as to his credibility or the weight of his testimony.

what is forgery?

forgery is a fake document with legal significance - not just any document faked by someone is a forgery

does failure of a police officer to knock and announce when entering a home with a valid arrest warrant to arrest a suspect invalidate the arrest?

yes - failure to knock and announce doesn't trigger the exclusionary rule, but it does invalidate an arrest if there are no exigent circumstances

who bears the burden of proof when the validity of a waiver of MIranda rights is challenged by the defendant? (in this case, the defendant's atty said the teenager could not waive his Miranda rights). what is the standard of proof?

the prosecutor bears the burden; by a preponderance of the evidence

A cop fails to Mirandize you when you're in handcuffs and begins interrogating you. You make a confession and indicate that there's a gun under your bed. Is your confession admissible? is the gun?

Any statement obtained as the result of a custodial interrogation may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights. However, the United States Supreme Court has ruled that derivative physical evidence (e.g., a gun) that has been obtained as a result of a voluntary, uncoerced confession that itself is inadmissible due to the failure by police to give Miranda warnings is admissible.

Under the terms of a written contract, a builder agreed to construct for a homeowner a garage for $20,000. After completing 25% of the garage strictly according to the homeowner's specifications, the builder assigned his rights under the contract to a bank as security for an $18,000 loan. The bank immediately notified the homeowner of the assignment. The builder thereafter, without legal excuse, abandoned the job before it was half-complete. The builder subsequently defaulted on the loan from the bank. The builder has no assets. It will cost the homeowner at least $18,000 to get the garage finished by another builder.

If the bank sues the homeowner for $18,000, which of the following will the court decide?


A. The bank wins, because the contract between the builder and the homeowner was in existence, and the builder was not in breach when the bank gave the homeowner notice of the assignment.B. The bank wins, because the bank, as a secured creditor over the homeowner, is entitled to priority over the homeowner's unsecured claim against the builder.C. The homeowner wins, because his right to recoupment on account of the builder's breach is available against the bank as the builder's assignee.D. The homeowner wins, because his claim against the builder arose prior to the builder's default on his loan from the bank.

Answer choice C is correct. An assignee takes all of the rights of the assignor as the contract stands at the time of the assignment but takes subject to any defenses that could be raised against the assignor. In addition, the rights of the assignee are subject to set-off if the set-off arises out of the same transaction. Here, the homeowner could raise the defense of breach of contract against the builder's assignee, the bank, and would have a right of set-off against the bank. Answer choice A is incorrect, as the bank, as the builder's assignee, would be subject to the homeowner's right of set-off against the builder because the set-off arose out of the same transaction. Answer choice B is incorrect, as the bank is an assignee of the rights of the builder under the contract with the homeowner and is subject to the defenses and the right of set-off that could be asserted by the homeowner against the builder. Answer choice D is incorrect, as the fact that the homeowner's claim against the builder arose before the builder's default on the bank loan is irrelevant. What controls is that the bank is an assignee of the builder, and the homeowner's right to set-off arose out of the same transaction as is the subject of the assignment.

Blackacre is a large tract of land owned by a religious order. On Blackacre, the religious order erected a large residential building where its members reside. Blackacre is surrounded by rural residential properties and its only access to a public way is afforded by an easement over a strip of land 30 feet wide. The easement was granted to the religious order by deed from the owner of one of the adjacent residential properties. The religious order built a driveway on the strip, and the easement was used for 20 years without incident or objection. Last year, as permitted by the applicable zoning ordinance, the religious order constructed a 200-bed nursing home and a parking lot on Blackacre, using all of Blackacre that was available for such development. The nursing home was very successful, and on Sundays visitors to the nursing home overflowed the parking facilities on Blackacre and parked all along the driveway from early in the morning through the evening hours. After two Sundays of the resulting congestion and inconvenience, the neighbor who granted the easement erected a barrier across the driveway on Sundays preventing any use of the driveway by anyone seeking access to Blackacre. The religious order objected. The neighbor brought an appropriate action to terminate the easement.

The most likely result in this action is that the court will hold for


A. the neighbor, because the religious order excessively expanded the use of the dominant tenement.B. the neighbor, because the parking on the driveway exceeded the scope of the easement.


C. the religious order, because expanded use of the easement does not terminate the easement.D. the religious order, because the neighbor's use of self-help denies her the right to equitable relief.

Answer choice C is correct. An express easement can be terminated by release, merger, severance, abandonment, sale, destruction, prescription, and estoppel, but not by overuse. Although the new use of the driveway may be determined to exceed the scope of the easement (as suggested in answer choices A and B), the resulting remedy would not be termination of the easement, but rather an injunction more specifically restricting the use of the easement. Accordingly, both answer choices A and B are incorrect because exceeding the scope of the easement would not terminate the easement. Answer choice D is an incorrect statement of law.

A man owned a large tract of land. The eastern portion of the land was undeveloped and unused. A farmer owned a farm, the western border of which was along the eastern border of the man's land. The two tracts of land had never been in common ownership.
Five years ago, the farmer asked the man for permission to use a designated two acres of the eastern portion of the man's land to enlarge her farm's irrigation facilities. The man orally gave his permission for such use. Since then, the farmer has invested substantial amounts of money and effort each year to develop and maintain the irrigation facilities within the two-acre parcel. The man has been fully aware of the farmer's actions. Nothing regarding this matter was ever reduced to writing.
Last year, the man gave the entire tract of land as a gift to his nephew. The deed of gift made no reference to the farmer or the two-acre parcel. When the nephew had the land surveyed and discovered the facts, he notified the farmer in writing, “Your license to use the two-acre parcel has been terminated.” The notice instructed the farmer to remove her facilities from the two-acre parcel immediately. The farmer refused the nephew's demand.
In an appropriate action between the nephew and the farmer to determine whether the farmer had a right to continue to use the two-acre parcel, the court ruled in favor of the farmer.
What is the most likely reason for the court's ruling?


A. The investments and efforts by the farmer in reliance on the license estop the man, and now the nephew as the man's donee, from terminating the license.B. The nephew is merely a donee.


C. The farmer has acquired an easement based on prior use.D. The farmer received a license coupled with an interest.

Answer choice A is correct. In most jurisdictions, the farmer may acquire the unconditional right to use the land following the oral license, provided that the farmer expended money and labor in reliance on the license. The farmer has acquired what is known as an irrevocable license or an equitable easement. Answer choice B is incorrect because it is irrelevant whether the nephew acquired title to the property as a donee or as a purchaser. Answer choice C is incorrect because the two parcels of land have never been in common ownership and therefore an easement based on prior use cannot be implied. Answer choice D is incorrect because the license granted to the farmer was not a license coupled with an interest. A license coupled with an interest permits a person who owns personal property on the land of another to enter the land to retrieve the personal property.

When the parents were told that their son should repeat second grade, they sought to have him evaluated by a psychologist. The psychologist, who charged $300, determined that the son had a learning disability. Based upon the report, the school board placed the son in special classes. At an open meeting of the school board, the parents asked that the $300 they had paid to the psychologist be reimbursed by the school district. A reporter attending the meeting wrote a newspaper article about this request, mentioning the son by name.
In a privacy action brought by the son's legal representative against the newspaper, the plaintiff will


A. Recover, because the story is not newsworthy.B. Recover, because the son is under the age of consent.C. Not recover, if the story is a fair and accurate report of what transpired at the meeting.D. Not recover, if the parents knew that the reporter was present.

Answer choice C is correct. An action for the invasion of privacy based on the public disclosure of private facts is grounded in the disclosure of truthful information about the plaintiff that is not of legitimate concern to the public and that a reasonable person would find highly offensive. The son's psychological evaluation was not a private fact after the parents disclosed it to everyone attending the meeting, and thereby consented to the public knowing that fact. Therefore, so long as the news story was accurate, the son has no claim for invasion of privacy. Answer choice A is incorrect because not only is an open meeting of the school board newsworthy, the “newsworthiness” is not relevant. Answer choice B is incorrect because, even though the son is a minor, the parents consented to the public disclosure of the son's name by stating it publicly in the meeting. Answer choice D is incorrect because the parents' knowledge of the reporter's presence is irrelevant with respect to whether the reporter publicized private facts.

A plaintiff sued a defendant for an assault that occurred on March 5 in California. To support his defense that he was in Utah on that date, the defendant identifies and seeks to introduce a letter he wrote to his sister a week before the assault in which he stated that he would see her in Utah on March 5.

The letter is


A. admissible, within the state of mind exception to the hearsay rule.B. admissible, as a prior consistent statement to support defendant's credibility as a witness.C. inadmissible, because it lacks sufficient probative value.D. inadmissible, because it is a statement of belief to prove the fact believed.

Answer choice A is correct. A statement of one's present intent is admissible not only to prove the declarant's present intent but also to prove conduct in conformity with the stated intent. The defendant's letter is evidence of his intent, and so is admissible to prove his conduct in conformity, i.e., that he was in Utah on March 5 as intended. Thus, answer choice D is incorrect. Answer choice B is incorrect because a prior consistent statement is only admissible to rebut an attack on the witness's credibility. There has been no such attack against the defendant here. Answer choice C is incorrect because the letter has some probative value and virtually no risk of prejudice.

An interstate bus company operates in five states. A federal statute authorizes the Interstate Commerce Commission (ICC) to permit interstate carriers to discontinue entirely any unprofitable route. The bus company applied to the ICC for permission to drop a very unprofitable route through a sparsely populated mountain region. The ICC granted that permission even though the bus company provided the only public transportation into the region. Customers of a resort in the mountain region usually traveled to the resort on vehicles operated by the bus company. After exhausting all available federal administrative remedies, the owner of the resort filed suit against the bus company in the trial court of the state in which the mountain region is located to enjoin the discontinuance by the bus company of its service to that area. The resort owner alleged that the discontinuance of service by the bus company would violate a statute of that state prohibiting common carriers of persons from abandoning service to communities having no alternate form of public transportation.

The state court should


A. Dismiss the action, because the resort owner lacks standing to sue.B. Direct the removal of the case to federal court, because this suit involves a substantial federal question.C. Hear the case on its merits and decide for the resort owner because, on these facts, a federal agency is interfering with essential state functions.D. Hear the case on its merits and decide for the bus company, because a valid federal law preempts the state statute on which the resort owner relies.

Answer choice D is correct. Any state law that directly or indirectly conflicts with a federal law is void under the theory of preemption. Answer choice C is incorrect because the state statute directly conflicts with the federal law by making it impossible to comply with both enactments. Answer choice A is incorrect because the resort owner does have standing, as he is an affected party. Answer choice B is also incorrect because the issue is not a federal question.

A defendant was tried before a jury for the crimes of possession of a controlled dangerous substance with intent to distribute and the lesser included offense of possession of a controlled dangerous substance. The jury acquitted the defendant of simple possession of a controlled dangerous substance, but deadlocked over the other charge. Subsequently, the prosecution sought to retry the defendant for the crime of possession of a controlled dangerous substance with intent to distribute. The defendant moved to dismiss the charge on double jeopardy grounds.

Should the court rule in favor of the defendant?


A. Yes, because the issue preclusion aspect of the Double Jeopardy Clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment prevents the defendant's retrial.B. Yes, because the Double Jeopardy Clause of the Fifth Amendment as applied to the state through the Fourteenth Amendment prohibits the retrial of a defendant for an offense of which the defendant has been acquitted.C. No, because the prosecution may retry a defendant for an offense where the previous trial for that offense was terminated due to a hung jury.D. No, because the doctrine of collateral estoppel only applies to civil, not criminal cases.

Answer choice A is correct. The Double Jeopardy Clause encompasses the doctrine of issue preclusion. Where a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury deadlocks, the jury determination that the defendant did not commit the lesser included offense precludes the prosecution from retrying the defendant on the greater offense. Answer choice B is incorrect because the defendant was acquitted by the jury of the lesser included offense of possession of a controlled dangerous substance, not the greater offense of possession of a controlled dangerous substance with intent to distribute. The jury deadlocked over the greater offense. Answer choice C is incorrect because, although the prosecution may generally retry a defendant where a trial is terminated for a manifest necessity, such as a hung jury, a retrial is not permitted where the issue preclusion aspect of the Double Jeopardy Clause would prevent such retrial. Answer choice D is incorrect because the doctrine of collateral estoppel can apply to a criminal case through the Double Jeopardy Clause.

A woman is cited for contempt of the House of Representatives after she refused to answer certain questions posed by a House Committee concerning her acts while serving as a United States Ambassador. A federal statute authorizes the Attorney General to prosecute contempt of Congress. Pursuant to this law, the House directs the Attorney General to begin criminal proceedings against the woman. A federal grand jury indicts her.

If the Attorney General signs the indictment, the strongest argument the woman could urge as a defense is that


A. She may refuse to answer the questions if she can demonstrate that they are unrelated to matters upon which Congress may legislate.B. The House may question her on matters pertaining to the expenditures of funds appropriated by Congress.C. Only the Senate may question her on matters that relate to the performance of her duties.D. Congress may not ask questions relating to the performance of duties executed by an officer of the executive branch.

Answer choice A is correct. Congress has no express power to conduct investigations, but pursuant to the Necessary and Proper clause, Congress may conduct investigations solely incident to its power to legislate (in other words, within a "legitimate legislative sphere"). If Congress has no power to legislate an issue, it has no power to investigate that issue. Further note that although a subpoenaed witness who refuses to answer questions may be cited for contempt, that witness is entitled to certain rights including procedural due process (e.g., presence of counsel) and the privilege against self-incrimination. Answer choice B is incorrect because Congress can investigate those issues incident to its power to legislate, which would not necessarily be limited to expenditure of funds. Answer choice C is incorrect because the Necessary and Proper clause does not limit investigations to the specific committee involved, provided the issues are incident to Congress' power to legislate. Answer choice D is incorrect because Congress can potentially question executives on certain duties. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

can a cop stop a car for going 68 in a 65 (the cop is trying to catch someone she has a hunch is a drug trafficker)? if she does, can she make the driver and passenger get out of the car? if the driver was sitting on a bag of weed and the cop sees it, is it admissible?

yes, yes and yes

can an shrink testify as to the mental state of a P in a civil case? that the D had or did not have the mental state to commit the crime in a criminal case?

yes and no

can the seller use marketability of title as an excuse to try to get out of a contract to sell real property between the date of the contract and the closing date?

no - only the buyer can get out of the contract for a breach of the warranty of marketability

is it ok for a prosecutor to get a D to take a plea to a lesser offense by threatening to charge him with an offense that carries a higher penalty?

yes, this is ok

if a manufacturer sells a tool without a safety device to an employer (strongly recommending that the employer buy the safety device, but not requiring it) and the employer has a workder use the tool and the worker gets injured, is the manufacturer liable/

yes - selling a tool without a safety device that protects against a known hazard in the orinary use of hte tool is selling a defective tool

A business owner owns his business in the city. In front of his business and within five feet of the public sidewalk there was a large tree. The roots of the tree caused the sidewalk to buckle severely and become dangerous. An ordinance of the city requires adjacent business owners to keep sidewalks in safe condition. The owner engaged a contractor to repair the sidewalk, leaving it to the contractor to decide how the repair should be made.
The contractor dug up the sidewalk, cut back the roots of the tree, and laid a new sidewalk. Two days after the owner had paid the contractor the agreed price of the repair, the tree fell over onto the street and damaged a parked car belonging to the driver.
The driver has asserted claims against the owner and the contractor, and both defendants admit that cutting the roots caused the tree to fall.
If the driver recovers a judgment against the owner, does the owner have any recourse against the contractor?


A. No, if payment by the owner was an acceptance of the work.B. No, because the owner selected the contractor to do the work.C. Yes, if the judgment against the owner was based on vicarious liability.D. Yes, because the owner's conduct was not a factual cause of the harm.

Answer choice C is correct. Vicarious liability is a form of strict liability in which one person is liable for the tortious actions of another, typically within the scope of employment. If the judgment is based on vicarious liability, one tortfeasor has the right to indemnification from the other tortfeasor whose actions constituted the tort. Answer choice A is incorrect because payment for the work would not eliminate the contractor’s liability nor transfer said liability to the owner. Even if the owner selected the contractor to perform the work, it would not alleviate the contractor’s liability for his own negligence. Therefore, answer choice B is incorrect. Answer choice D is incorrect because it is not a basis for which the owner could recover from the contractor. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

A man owned property that he used as his residence. The man received a loan, secured by a mortgage on the property, from a bank. Later, the man defaulted on the loan. The bank then brought an appropriate action to foreclose the mortgage, was the sole bidder at the judicial sale, and received title to the property as a result of the foreclosure sale. Shortly after the foreclosure sale, the man received a substantial inheritance. He approached the bank to repurchase the property, but the bank decided to build a branch office on the property and declined to sell.

If the man prevails in an appropriate action to recover title to the property, what is the most likely reason?


A. He had used the property as his residence.B. He timely exercised an equitable right of redemption.C. The court applied the doctrine of exoneration.D. The jurisdiction provides for a statutory right of redemption.

Answer choice D is correct. A jurisdiction may, by statute, provide a statutory right of redemption, which sets out an additional time period after the foreclosure sale during which the prior mortgagor and perhaps others have the option to pay a certain sum of money and redeem the title to the property. The right arises only by statute and only after there has been a foreclosure of the mortgage. Answer choice A is incorrect because if the man recovers title to the property, it would be because the jurisdiction provides a statutory right of redemption. If the jurisdiction provides a statutory right of redemption, it does not matter whether the property being redeemed is residential, commercial, or another type of property, unless the statute so notes. Answer choice B is incorrect because the equitable right of redemption arises before foreclosure and ends when foreclosure occurs. Answer choice C is incorrect because the common law doctrine of exoneration occurs when a testator has died and the testator's will devises property which is subject to a mortgage debt for which the testator was personally liable. Exoneration would then direct that the mortgage debt be paid from the assets in the residuary clause. In this case, no one died, so exoneration does not apply.

if a developer has 10 lots and sells the first one without a restrictive covenant and then sells the other 9 with a restrictive covenant and the first buyer sells his lot to a subsequent purchaser, is the subsequent purchaser on inquiry notice and now has to go along with the common scheme in the development?

no - can't attach the burden after the deed is conveyed

Residents of a city complained that brightly colored signs detracted from the character of the city's historic district and distracted motorists trying to navigate its narrow streets. In response, the city council enacted an ordinance requiring any "sign or visual display" visible on the streets of the historic district to be black and white and to be no more than four feet long or wide. A political party wanted to hang a six-foot-long red, white, and blue political banner in front of a building in the historic district. The party filed suit to challenge the constitutionality of the sign ordinance as applied to the display of its banner.

Which of the following would be the most useful argument for the political party?


A. The ordinance is not the least restrictive means of promoting a compelling government interest.B. The ordinance is not narrowly tailored to an important government interest, nor does it leave open alternative channels of communication.C. The ordinance imposes a prior restraint on political expression.D. The ordinance effectively favors some categories of speech over others.

Answer choice B is correct. Since the ordinance is a content-neutral restriction of expression, the city must prove that the ordinance is narrowly tailored to a significant (or important, as stated in answer choice B) government interest and that it leaves open alternative channels of communication. Answer choice A is incorrect because the city must prove that the ordinance is the least restrictive means of promoting a compelling government interest only if the court exercises strict scrutiny. The city's ordinance does not trigger strict scrutiny because it is content neutral. Answer choice C is incorrect as the ordinance does not impose a prior restraint because it does not require the permission of a government official before signs may be posted. Answer choice D is incorrect because it does not apply the appropriate test for content-neutral speech regulation.

The owner of Blackacre needed money. Blackacre was fairly worth $100,000, so the owner tried to borrow $60,000 from a lender on the security of Blackacre. The lender agreed, but only if the owner would convey Blackacre to the lender outright by warranty deed, with the lender agreeing orally to reconvey to the owner once the loan was paid according to its terms. The owner agreed, conveyed Blackacre to the lender by warranty deed, and the lender paid the owner $60,000 cash. The lender promptly and properly recorded the owner's deed. Now, the owner has defaulted on repayment with $55,000 still due on the loan. The owner is still in possession.

Which of the following best states the parties' rights in Blackacre?


A. The lender's oral agreement to reconvey is invalid under the Statute of Frauds, so the lender owns Blackacre outright.B. The owner, having defaulted, has no further rights in Blackacre, so the lender may obtain summary eviction.C. The attempted security arrangement is a creature unknown to the law, hence a nullity; the lender has only a personal right to $55,000 from the owner.D. The lender may bring whatever foreclosure proceeding is appropriate under the laws of the jurisdiction.

Answer choice D is correct. The owner deeded Blackacre to the lender to secure repayment of the loan. Upon default, the lender has the power to force a judicial foreclosure sale to satisfy the debt. The deed to the lender was for the purpose of securing a mortgage, and is thus provable by parol evidence of an oral agreement. Thus, answer choice A is incorrect. Answer choice B is incorrect because, after default and prior to foreclosure, equity of redemption allows the owner to retain the right to reclaim clear title to the property and prevent foreclosure upon full repayment of the debt. Answer choice C is incorrect because the intent of the parties was clearly to create a mortgage and the lender may now foreclose on the property.

A bus passenger sued a transit company for injuries to his back from an accident caused by the company's negligence. The company denies that the passenger received any injury in the accident. The passenger's counsel seeks to introduce an affidavit he obtained in preparation for trial from a doctor who has since died. The affidavit avers that the doctor examined the passenger two days after the accident and found him suffering from a recently incurred back injury.

The judge should rule the affidavit


A. inadmissible, because it is hearsay, not within any exception.B. inadmissible, because it is irrelevant.C. admissible, as prior recorded testimony.D. admissible, as a statement of present bodily condition made to a physician.

Answer choice A is correct. Hearsay is an out-of-court statement offered for the truth of the matter asserted, and is inadmissible unless it falls within a specific hearsay exception. Here, the statement that the plaintiff seeks to introduce is an out-of-court statement by the physician, and the plaintiff is offering it to prove that his injury was the result of a recent event, i.e., for the truth of the matter asserted. Because the statement does not fall within any of the hearsay exceptions, as more thoroughly explained below, it is inadmissible. Answer choice B is incorrect because such information is relevant and would corroborate the passenger's claims. Answer choice C is incorrect, because former testimony of an unavailable witness is admissible only when given under oath and in a hearing or deposition in which the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct, redirect, or cross-examination. The doctor's affidavit does not satisfy this requirement. Answer choice D is incorrect because, while statements made by a patient for the purpose of medical diagnosis or treatment are admissible as an exception to the hearsay rule, in this case, it is the doctor's statement of his impression of the patient's condition that plaintiff's counsel seeks to introduce, not a statement made by the patient. The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.


At the defendant’s trial for sale of drugs, the government called a witness to testify, but the witness refused to answer any questions about the defendant and was held in contempt of court. The government then calls a police officer to testify that, when the witness was arrested for possession of drugs and offered leniency if he would identify his source, the witness had named the defendant as his source.
Should the court admit the testimony concerning the witness’s identification of the defendant?


A. Yes, as a prior inconsistent statement by the witness.B. Yes, as an identification of the defendant by the witness after having perceived him.C. No, because it is hearsay not within any exception.D. No, because the witness was not confronted with the statement while on the stand.

Answer choice C is correct. Officer’s testimony that Witness identified Defendant as his source is an out of court statement that is being offered to prove the truth of the matter asserted. It does not fall under any exception, and as such is inadmissible hearsay. Answer choice A is incorrect because a prior inconsistent statement is admissible only to impeach a witness. Because Witness did not actually testify, there is no testimony for the prosecution to impeach. A previous out of court identification of a person after perceiving that person is not hearsay under Rule 801(d)(1)(C), but is only admissible if the identifying party testifies at the present trial, which is not the case under these facts, making B incorrect. Answer choice D is incorrect because, regardless of whether Witness was confronted with the statement while on the stand, he refused to testify. Therefore, the rule applicable to option B also applies here.
The foregoing NCBE MBE question has been modified to reflect current NCBE stylistic approaches; the NCBE has not reviewed or endorsed this modification.

An owner was the title holder of several vacant lots in a subdivision. She obtained a $50,000 loan from a bank, and executed and delivered to the bank a promissory note and mortgage describing Lots 1, 2, 3, 4, and 5. The mortgage was promptly and properly recorded. Upon payment of $10,000, the owner obtained a release of Lot 2 duly executed by the bank. She altered the instrument of release to include Lot 5 as well as Lot 2 and recorded it. The owner thereafter sold Lot 5 to an innocent purchaser for value. The bank discovered that the instrument of release had been altered and brought an appropriate action against the owner and the purchaser to set aside the release as it applied to Lot 5. The owner did not defend against the action, but the purchaser did. The recording act of the jurisdiction provides: "No unrecorded conveyance or mortgage of real property shall be good against subsequent purchasers for value without notice, who shall first record."

The court should rule for


A. the purchaser, because the bank was negligent in failing to check the recordation of the release.B. the purchaser, because she was entitled to rely on the recorded release.C. the bank, because the purchaser could have discovered the alteration by reasonable inquiry.D. the bank, because the alteration of the release was ineffective.

Answer choice D is correct. Although purchasers who give value in good faith and without notice are generally protected, this is not the case when fraud is involved. Because the owner forged the release, it was ineffective, even against the purchaser (who was a bona fide purchaser). Thus, answer choice B is incorrect. Answer choice A is incorrect because the bank does not have any duty to check the recordation of the release. Answer choice C is incorrect because answer choice D is a better answer; the forged release is ineffective whether or not the purchaser knew or should have known that it was a forgery.

Does a business have an absolute privilege to compete?



What are the elements of intentional interference with a contract?

No.



the competitor must prove that the company (1) knew of the contractual relationship between the competitor and the manufacturer, (2) intentionally interfered with the contract, which resulted in a breach, and (3) that the breach caused damages to the competitor.

if you ask for a lawyer after being read your Miranda rights, you have to do so ______________

unambiguously

A land company purchased a large tract of land intending to construct residential housing on it. The land company hired a pool company to build a large in-ground swimming pool on the tract. The contract provided that the pool company would carry out blasting operations that were necessary to create an excavation large enough for the pool. The blasting caused cracks to form in the walls of the plaintiff's home in a nearby residential neighborhood.
In the plaintiff's action for damages against the land company, the plaintiff should


A. Prevail, only if the land company retained the right to direct and control the pool company's construction of the pool.B. Prevail, because the blasting that the pool company was hired to perform damaged the plaintiff's home.C. Not prevail, if the pool company used reasonable care in conducting the blasting operations.D. Not prevail, if the land company used reasonable care to hire a competent contractor.

Answer choice B is correct. In general, those who hire independent contractors are generally not vicariously liable for the torts of the independent contractors. However, a person who hires an independent contractor remains vicariously liable for certain conduct, including inherently dangerous activities. Here, because blasting is an ultrahazardous activity, the land company will be liable for the pool company's actions. Answer choice A is incorrect because the mere fact that the activity is ultrahazardous is sufficient to establish the land company's liability. Answer choice C is incorrect. When the work to be performed is ultra-hazardous, the pool company, as contractor, would be strictly liable and the land company, as employer, would be vicariously strictly liable. The land company would be responsible for the damages even if the pool company proceeded with reasonable care. Answer choice D is incorrect. Generally, landowners are not liable for the torts of independent contractors unless the landowner is negligent, but this protection from liability does not apply where the work to be performed is inherently dangerous. As blasting is an inherently hazardous activity, the plaintiff does not need to establish that the land company was negligent.

A defendant was prosecuted for homicide. He testified that he shot in self-defense. In rebuttal, a police officer testified that he came to the scene in response to a telephone call from the defendant. The police officer offers to testify that he asked, "What is the problem here, sir?" and the defendant replied, "I was cleaning my gun and it went off accidentally."

The offered testimony is


A. admissible, as an excited utterance.B. admissible, to impeach the defendant and as evidence that he did not act in self-defense.C. inadmissible, because of the defendant's privilege against self-incrimination.D. inadmissible, because it tends to exculpate without corroboration.

Answer choice B is correct. Such a statement by the defendant is not hearsay and can be considered a statement by an opposing party. The general rule is that a prior out-of-court statement by a party to the current litigation that is used against that party is not hearsay. The statement need not have been against the declarant's interest at the time it was made. Answer choice A is incorrect because there is no indication that the statement was made while excited. Answer choices C is incorrect because the privilege against self-incrimination protects the defendant from being compelled to testify, but it does not preclude the state from offering into evidence statements made by the defendant at an earlier time, i.e., it does not apply to prior statements. Answer choice D is incorrect because the concept of exculpating without corroboration existed under a former version of FRE 804(b)(3), but it has been eliminated from that Rule. Even when the concept was part of the Rule, it applied only when the declarant was someone other than the defendant.

A state legislature passed a statute providing that juries in criminal trials were to consist of 6 rather than 12 jurors, and providing that jury verdicts did not have to be unanimous but could be based on 5 votes out of 6 jurors. A defendant was tried for murder. Over his objection, he was tried by a jury composed of 6 jurors. The jurors found him guilty by a vote of 5 to 1 and, over the defendant's objection, the court entered a judgment of conviction, which was affirmed on appeal by the state supreme court. The defendant seeks to overturn his conviction in a habeas corpus action in federal court, claiming his constitutional rights were violated by allowing a jury verdict that was not unanimous and by allowing a jury composed of fewer than 12 members.

How is the federal court likely to rule in this action?


A. It will set aside the conviction, because the jury was composed of fewer than 12 members.B. It will set aside the conviction, because the 6-person jury verdict was not unanimous.C. It will set aside the conviction for both reasons.D. It will uphold the conviction.

Answer choice B is correct. The Constitution requires unanimity where only a 6-person jury is used. Williams v. Florida, 339 U.S. 78 (1970). Answer choice A is incorrect because, although it correctly states that the conviction will be set aside, it misstates the legal basis for this conclusion. The Constitution does not require 12-person juries. Burch v. Louisiana, 441 U.S. 130 (1979). Answer choice C is incorrect because although it correctly states that the conviction will be set aside, it misstates the legal basis for this conclusion. Answer choice D is not the best answer for the reasons stated above.

The defendant was indicted in a state court in January 1985 for a robbery and murder that occurred in December 1982. He retained counsel, who filed a motion to dismiss on the ground that the defendant had been prejudiced by a 25-month delay in obtaining the indictment. Thereafter, the defendant, with his counsel, appeared in court for arraignment and stated that he wished to plead guilty.

The presiding judge asked the defendant whether he understood the nature of the charges, possible defenses, and maximum allowable sentences. The defendant replied that he did, and the judge reviewed all of those matters with him. He then asked the defendant whether he understood that he did not have to plead guilty. When the defendant responded that he knew that, the judge accepted the plea and sentenced the defendant to 25 years.

Six months later, the defendant filed a motion to set aside his guilty plea on each of the following grounds.

Which of these grounds provides a constitutional basis for relief?


A. The judge did not rule on his motion to dismiss before accepting the guilty plea.B. The judge did not determine that the defendant had robbed and killed the victim.C. The judge did not determine whether the defendant understood that he had a right to jury trial.D. The judge did not determine whether the prosecutor's file contained any undisclosed exculpatory material.

Answer choice C is correct. A guilty plea constitutes a waiver of the right to a trial by jury. To be valid, the waiver must be knowing and intelligent and the judge must personally advise the defendant of (1) the defendant's right to trial (and that a plea of guilty waives that right); (2) the critical elements of the charge(s); and (3) the maximum sentence possible. Omission of any of these three elements renders the plea involuntary. Answer choice A is incorrect because there is no rule that outstanding motions must be rule upon before a judge may accept a plea; moreover, the defendant's motion had no merit, as his right to a speedy trial did not begin until he was indicted. Answer choice B is incorrect because there is no requirement that the judge determine that the defendant actually committed the crime he is admitting to, only that the plea is an intelligent choice among the defendant's alternatives on the advice of counsel. Answer choice D is incorrect because a judge need not search for exculpatory evidence before accepting a plea.