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Quick Test

Explain a scenario in which D is may not be liable for injury to a trespassing child occuring on premises controlled by D.

Answer

When D could not resonably have known of the dangerous condition.

 More scenarios include:

 When the dangerous condition is a natural one not artiicially created by D.

When the cost of removing the danger is greater than the risk of harm it poses and D has taken due care to protect children.

When D could not reasonably know of, or anticipate, trespassing children.

Quick Test

When will the best documentary evidence be insisted upon in district court?

Answer:

When it would be unfair to admit copies or other secondary evidence, or the party proposing secondary evidence (destroyed or will not produce) the original. Otherwise secondary evidence is as good as the original under the FRE.

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1. Plaintiff and Store Clerk are alone in the store.
Plaintiff asks Store Clerk: “What time does this store close on Sundays?” Store clerk replies: “I know you: you’re planning to steal from this store again, aren’t you? You’ve stolen from us before.” Plaintiff wishes to bring suit for these statements.

What course of action may she pursue and against whom?

(A) A defamation action
(B) No action
(C) An action for misrepresentation
(D) A defamation action based on publication

b

2. While security cameras are operating, and operators listening while observing the store through them, Plaintiff asks Store Clerk: “What time does this store close on Sundays?” Store clerk replies: “I know you: you’re planning to steal from this store, aren’t you? You’ve stolen from us before.”
Plaintiff wishes to bring suit.

Which of these elements must she prove to prevail in her action?

(A) That what Defendant said is true
(B) That Defendant was negligent in ascertaining her facts
(C) That Defendant does not know Plaintiff well
(D) That the security camera operators heard Defendant

d

 HomeCo makes home purchase loans. CondoCo sells homes. Recently, Condo has discovered the advantages of directly loaning purchase money to its home buyers. It causes an advertisement to be published with the claim: “We will beat HomeCo’s mortgage rate by one-and-a-half percent! Switch to CondoCo before July 21st!” A large number of HomeCo’s mortgage borrowers switch their business to CondoCo.

What action may HomeCo bring against CondoCo?

(A) An action for breach of customers’ contracts
(B) An action for interference with contract
(C) An action for trade libel
(D) An action for libel

b

Will the action question 3 succeed?

(A) No
(B) No, if the defendant induced the customers to switch
(C) No, because these actions are common in the trade
(D) No, because no customers switched

a

Pat is a clothes model who is very used to being photographed. While eating lunch with her son at a restaurant, Mr Diner, eating at the next table, secretly snaps a camera picture of Pat, which Mr Diner emails to friends on a social network.

Does Mr Diner have any potential liability to Pat?

(A) Yes, for false light
(B) Yes, for appropriation of likeness
(C) Yes, for intrusion upon solitude
Yes, for invasion of privacy

c

6. Pat is a clothes model who is very used to being photographed. While eating lunch with her son at a restaurant, Mr Diner, eating at the next table, secretly snaps a camera picture of Pat, which Mr Diner emails to friends on a world-wide social network.

What must Pat prove to win a claim against Mr Diner?

(A) A case based on invasion of privacy
(B) An unreasonable injury
(C) A case based on the privacy torts
A reasonable expectation of privacy

a

Note: Without answer a, answer b can not stand.

Soldier fought gallantly in two wars and received
an honorable discharge after twenty years of military service. Hometown Clarion, a widely-circulated local newspaper, has published a list of local military heroes that it claims to “fully include all honorably discharged soldiers living locally.”

Soldier has consulted you for advice on his rights against Hometown Clarion because he is not mentioned on the list of honorably discharged soldiers.

Which of these will be your advice to Soldier?

(A) Bring a tort action
(B) Bring a tort action for misrepresentation and fraud
(C) Consider an action for negligent infliction of emotional distress
Bring an action for intentional infliction of emotional distress
c


If Soldier in question 7 brings a claim against
Hometown Clarion for false light, how will such a claim fare in court?

(A) Soldier wins because the list omits his name
(B) Soldier wins because the list presents him to the world as not honorably discharged
(C) Soldier loses because the list is exhaustive
Soldier loses even though he lives locally

b


Akin was hired by CompCo because of his very advanced computer programming skills. Akin was hired at a high salary on an at-will basis. Akin has promised to work for CompCo for four years. DevCo is a rival computer programming company. DevCo offers Akin stock, salary, and an executive vice-Presidency to join its staff. Akin accepts and starts work for DevCo immediately.

What is DevCo’s potential liability to CompCo for acquiring Akin’s services in the manner that it did?

(A) Breach of contract
(B) Intentional infliction of mental distress
(C) Tortes interference
(D) Interference with advantageous relations

d

While approaching her locked car after shopping
late at night, Defendant pushes the ‘door open’ button on her key fob to unlock the driver-side door. It unlocks with a loud beep.
Plaintiff, who suffers from a condition that makes her react violently to certain sounds, immediately attacks Defendant and a passer-by.

What is a possible basis for an action brought by the passer-by against the Defendant car owner for the passer-by’s injuries?

(A) Negligence
(B) Strict liability
(C) A non intentional tort
(D) There is no basis for liability

a

Will the action in question 10 likely succeed?

(A) No
(B) Yes
(C) More facts are needed
It depends on foreseeability

d

12. Akin was hired by CompCo because of his very advanced computer programming skills. Akin was hired at a high salary on an at-will basis. Akin has promised to work for CompCo for four years. DevCo is a rival computer programming company. DevCo offers Akin stock, salary, and an executive vice-Presidency to join its staff. Akin accepts and starts work for DevCo immediately.

Does CompCo have a course of action against Akin and what are its chances of success?

(A) No - the contract is an at-will contract
(B) No  - Akin did not leave CompCo in bad faith
(C) Yes - Akin breached his contract with CompCo
(D) Yes - CompCo has suffered economic loss

b Note: This is more specific than "a".


Defendant does not own a car. Her child is very
sick and the ambulance service says it has no vehicles. Defendant enters Plaintiff’s car, forces it to start, and drives her sick child to the hospital in it. Plaintiff is unable to go to work and loses the day’s pay.

Which of the following statements is true?

(A) The defendant can rely on the defense of necessity
(B) The defendant can rely on the defense of necessity but will pay Plaintiff’s lost earnings

(C) The defendant can rely on the defense of necessity, which is a complete defense

(D) The defendant can rely on the defense of duress

b


Defendant does not own a car. Her child is very
sick and the ambulance service says it has no vehicles. Defendant enters Plaintiff’s car, forces it to start, and drives her sick child to the hospital in it.
Because Plaintiff is unable to go to work and loses the day’s pay, he can not pay an electric bill and his electricity service is cut off. As a result, he contracts an illness.

Will Plaintiff be successful in claiming the cost of having this illness treated from Defendant?

(A) No, Plaintiff’s claim will fail
(B) Yes, Plaintiff’s claim will succeed
(C) Yes, since Defendant can not rely on Plaintiff’s insurance
No, because the Plaintiff must claim on his own insurance first

c


ProduceCo uses an ammonia based material in its manufacturing process. The material gives off an offensive odor. ProduceCo is located near  Factory, which emits a dangerous but odorless waste gas. Plaintiff works at Factory and complains about the offensive smell coming from ProduceCo.

What defenses are available to ProduceCo against an action brought by Plaintiff to stop the smell?

(A) ProduceCo is located in an industrial area
(B) ProduceCo produces no dangerous waste gas as Factory does
(C) Plaintiff is not physically at risk
Plaintiff personally operates the machinery that produces Factory’s dangerous waste gas



a

16.  Employee’s contract with Employer requires Employee to walk through the aisles throughout the day making sure that shoppers are not exposed to any danger of injury. While Employee is on her scheduled unpaid break she sees Shopper about to step into a spill but does nothing. Shopper steps into the spill and falls, sustaining injuries.

Which of the following provides a basis for a claim by Employer against Employee?

(A) Breach of contract because Employee should have delayed her break

(B) Negligence

(C) Intentional negligence

Indemnity and/or contribution

d

17.  Worker’s contract with Employer requires Worker to drive through the company’s parking lot throughout the night and report suspicious or criminal activity to her supervisor by radio phone. While Worker is on her scheduled break she sees Shopper about to step into a spill but does not react. Shopper steps into the spill and falls, sustaining injuries.

Which of the following provides a basis for Employer’s liability to Shopper?

(A) Worker’s negligence

(B) Employer’s negligence in hiring worker

(C) Employer’s negligence in not training Worker

All of the above

d
 
18.   A local safety law requires motorists to use seat belts while driving. The reason for the law is driver safety. Driver is driving through a busy intersection while texting and while not using a seat belt. Driver hits a pedestrian who is properly crossing the intersection.

If driver Driver is found NOT liable to Passenger under the seat belt law the court’s reasoning is likely to be that

(A) The pedestrian is not a driver

(B) The safety law does not apply to accidents

(C) The safety law does not apply to this case notwithstanding the negligence per se rule

The driver was negligent

a
Note: This answer is more specific than c.

19.  Ann has a very large pet snake that she keeps in an approved high quality custom-made safety cage. She uses all care to secure the snake in its cage. It escapes. A woman who sees it slithering suffers a heart attack due to fear that it will attack her, and gets taken to hospital.

What is the basis of Ann’s liability to the woman?

 (A) Assault

(B) Intentional infliction of emotional distress

(C) Strict liability

Negligence and/or assault

c

20.  Ann has a pet snake that she keeps in a custom-made safety cage. She uses all care to secure the snake in its cage. It escapes. A woman who sees it suffers a heart attack and is taken to hospital where a doctor mistakenly injects him with  substances that cause another heart attack. The doctor brings a claim against Ann.

Which of the following is a proper basis for the doctor’s claim?

 (A) Indemnity and contribution

(B) Ann and the doctor are joint tort feasors

(C) The doctor’s mistake is an independent cause

The doctor’s mistake worsened  the man’s condition

a

Note: This answer stems from b and is therefore better

 The driver of a large truck is looking down
at the truck’s radio dial when the truck drives into a parked bus, seriously damaging it. The bus is taken to the repair shop where the repair technicians accidentally uncouple its brakes.
On the day the bus is taken out of the repair shop, it spins off the road because of serious brake failure, injuring eight people. A rescuer falls to her death while attempting to assist the injured.

Can any of the injured bring an action against the truck driver and will it succeed?

(A) Only the rescuer’s survivors can bring an action and it will succeed
(B) The eight injured persons can all bring an action
(C) The eight injured persons and the rescuer’s survivors can bring a successful action
(D) The driver may argue the defenses of assumption of risk and contributory negligence

c
 
 The driver of a large truck is looking down
at the truck’s radio dial when the truck drives into a parked bus, seriously damaging it. The bus is taken to the repair shop where the repair technicians accidentally uncouple the brakes.
On the day the bus is taken out of the repair shop it spins off the road, injuring eleven people. A rescuer falls and is injured while attempting to assist the injured.

On which of the following grounds can suit be brought against both the truck driver and the repair shop?

(A) Joint liability

(B) Successive tort feasors can bear unequal liability

(C) Foreseeable injuries not prevented

Joint negligence liability

c

Note that this is a better answer than d, which is also correct; and better than a, which is less specific than d.

 
23.  A court determines that Dan is 30% at fault while Danny is 50% at fault. This type of fault system is

(A) Comparative

(B) Comparative negligence

(C) Contributory negligence

Negligence

b

24.  After an accident on a broken-down escalator at the mall, a court determines that Pauline is 10% at fault while Daniel is 90% at fault. Under a commonly used system of awards the court will award Pauline

 (A) 10% of the total damages

(B) 90% of the total damages

(C) A part of the total damages


(D) No part of the total damages

b
 
25. Driver realizes that a cyclist is about to cut into Driver’s lane and in front of Driver’s moving car. To prevent this, Driver speeds up sharply and unsafely. Driver’s car hits Cyclist’s wheel, knocking Cyclist to the ground. Cyclist suffers no physical injury but is seriously traumatized for months afterward.

If Driver wins a negligence suit brought by Cyclist it will be because

(A) Cyclist suffered no injury

(B) Cyclist suffered no visible injury

(C) Cyclist suffered no physical injury

Cyclist suffered serious injury

c

 26.  Driver realizes that a cyclist is about to cut into Driver’s lane and in front of Driver’s moving car. To prevent this, Driver speeds up sharply and unsafely. Driver’s car hits Cyclist’s wheel, knocking Cyclist to the ground. Cyclist suffers serious physical injury and is traumatized for months.

 Why does the Cyclist lose a suit for Intentional Infliction of Emotional Distress?

(A) There was no outrageous intent (act)

(B) There was a valid reason for the accident

(C) Because Cyclist assumed the risk by attempting to cut in front of Driver’s moving car

Because Driver has a valid defense

a

 Why does Mr P lose a claim against Mr D
after Mr D says the following to Mr P’s house help:
“The man you work for, Mr P, is a career criminal. He’s paying you with the proceeds of retail store robberies. You better know that because you could get arrested.” ?

(A) The entire statement is false

(B) The house help is not a reputable person

(C) There is no publication

(D) There is no basis for a defamation action

 b

This is more specific than d.

28.  Why does Paula fail to win her suit brought against Della after Della says the following to Paula: “You are a career criminal. You spend all this money but you’re a criminal and one day you will pay.”

(A) Della is speaking to Paula

(B) Della is sure of her facts

(C) Della checked her facts

(D) Della has a valid defense against Paula

 a

29. Susan is a famous model who gets photographed everywhere she goes. While dining with friends at a restaurant another diner takes a photograph of her, which he sells to a news magazine.

Why does Susan lose a claim against the diner who took a photograph of her?

 (A) Susan is currently in the news for her obesity

(B) Susan was not photographed

(C) The diner is not a professional photographer

The diner is not an appropriator

a

Note: This is a better answer than d, even assuming that d is true, because it helps explain d

30.  A battery has occurred when

(A) Plaintiff slaps defendant without justification

(B) Plaintiff escalates the altercation

(C) Defendant refuses to retaliate

Defendant intends to make harmful and offensive contact with Plaintiff

a

 Plaintiff drinks coffee prepared by Defendant and develops
serious stomach pains three days later.

Plaintiff loses an action for his injuries because


(A) Plaintiff also ate rotten apples

(B) Plaintiff can not prove injury

(C) Plaintiff can not prove legal causation

(D) Plaintiff can not prove causation

c

Note:

This answer explains a, which is also correct.

32.  Plaintiff drinks cola manufactured by Defendant and develops serious stomach pains immediately.

Why does Plaintiff lose an action brought against Defendant for battery?

 (A) Defendant did not intend to harm or offend Plaintiff

(B) The Cola went bad and Plaintiff knew that

(C) Plaintiff was contributorily negligent in drinking the Cola

(D) Plaintiff was comparatively negligent in drinking the Cola

b

(Assumption of risk of harmful/offensive contact.)
 
What must Pete prove to succeed in a suit
against for Dave for disparagement of goods after Dave tells a friend:
“My competitor, Pete,  sells very inferior dangerous products and I can prove it.”

(A) That Pete is not a competitor

(B) That Dave is a competitor

(C) That Pete and Dave are competitors and Dave’s profits have dropped

That Pete and Dave are competitors and Pete has never disparaged Dave’s goods

c

34.  P’s father buys a gas stove for P. The stove explodes while P is cooking on it. The stove was manufactured by StoveCo.

On what basis may StoveCo be liable to P’s father?

(I) Negligent manufacture

(II) Battery, because of the harmful and offensive contact that P’s daughter
made with the explosion

(III) Strict liability for introducing  an avoidably dangerous product into the stream of commerce

(IV) Misrepresenting the law as to Stove specifications

(A) (I) and (II) only
(B) (I), (III) and (IV) only
(C) (II) and (III)
(I) and (IV)

b

Approximately how many torts questions will appear on (I) the bar exam, and (II) the baby bar exam?

(A) 25 - 33
(B) 10 - 12
(C) Many
50 - 70

a



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Quiz

When is D not responsible for a death occurring while D is committing a crime?

Answer:

When D's crime is not an enumerated felony

When D's crime is not a common law felony

When the deceased is an accomplice (some states)

Quiz

If seller and buyer agree to sell and buy a table for $50 and set delivery for next Tusday, what is the place of delivery?

Answer:

The seller's place of business or if none, seller's home

Quiz

What must P prove for strict tort liability?

Among other things that:

a) The harm was caused by the quality or propensity

b) That makes the activity, animal or thing dangerous,

c) That the danger can not be eliminated with any reasonable care,

d) That the activity is abnormally dangerous for the above reasons,

e) Or/and is conducted in an inappropriate place for that kind of activity.

 

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Constitutional Law

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Constitutional Law

Constitutional law exams deal with some citizen’s rights against either the federal government or a state, acting through one of its agents, congress, or the state legislature. A local county, city, agent or public department is also a government actor.

The rights protected are summed up as the right to life, limb and liberty.

Different amendments in the bill of rights, (the first ten amendments), protect different rights. The entire US constitution applies to a state through the 14th amendment while it is the 5th amendment that makes it applicable to the federal government (including congress.)

Once you examine your hypo and determine the harm done to the citizen, how, by whom and where, you will be able to select the applicable amendment.

Is the citizen or group being harmed in their speech or religious rights? Look to the 1st amendment for redress.

Did a government measure aim itself at a clearly definable class like panhandlers working within 40 feet of a subway, car dealers in the city, women under 40, students needing bus rides? Look at equal protection. And so forth. The dormant commerce clause is heavily tested. The federal supremacy clause, executive power vs congressional acts, are often tested on the MBE.

During a trial for the recovery of converted property, the primary witness for the plaintiff does not wish to answer the following question: “Did you help the defendant to hide the car in your garage?”

What must the witness do to prevent sanctions from the court for refusing to answer?

(A) She must show an understanding of the 5th amendment
(B) Her lawyer must take the 5th amendment
(C) She must plead the 5th amendment
(D) She must communicate her intent to plead the 5th amendment by a proper motion on notice to the defendant
c.

While delivering mail, a post office clerk becomes involved in an argument with a citizen and shouts: “It’s illegal immigrants like you who have ruined this country!” The clerk is terminated from her job.
Can she get her job back?
(A) Yes
(B) Probably

(C) Yes, because the post office can not ban employees’ free speech outside its premises
(D) No, because such speech may lower public confidence in the post office
d.

3. A federal State Department manager emails the following message to a restaurant: “Unlicensed establishments such as yours harbor and support individuals who want to do us harm.” The manager is terminated from his job.
Did his employer have a proper constitutional right to act as it did, considering the circumstances?

(A) Yes, because the speech relates to job performance
(B) No, even if the speech does relate to job performance
(C) Yes, if the employer gives reasons for the termination
(D) No, even if the employer has given reasons for the termination
a. 

Note: Answer c is also correct under Procedural due process. We chose a Substantive due process answer because substantive due process is analytically the more fundamental right.

4. A man enters a barber shop and asks for a hair cut. The attendant says: “You can’t have that haircut dude, you’re not Hispanic.” If the man replies, “I am offended by that, sir,”
as a constitutional law matter, does a police officer standing nearby have a right to arrest the attendant?

(A) Yes, this is a racial slur
(B) Yes, because the attendant has breached the  peace
(C) Only if the attendant is a government employee
(D) Only if congress permits the arrest under its 13th amendment powers
d.

The plaintiff applies for a retail industry job in state X while living in state Y. Sell Inc, his prospective employer in state X, rejects the plaintiff’s application because it wants to employ only residents of state X.
Will the court hear the plaintiff’s action for violation of his right to travel?

(A) No, because Sell Inc is a private firm
(B) No, because the plaintiff has no property interest in the job as yet
(C) No, because Sell Inc is within its constitutional rights
(D) No, because the plaintiff has no standing to bring suit in another state
a.

The plaintiff applies for a government job in state X while living in state Y. His prospective employer, state X, rejects the plaintiff’s application because it wants to employ only residents of state X.
What redress is available to the plaintiff?

(A) His right to travel interstate has been violated
(B) State X will be ordered to employ him
(C) Damages for loss of income
(D) Declarative relief
d.

Columbus state has the most extensive bear hunting forests in the country. It requires hunters to purchase a license before hunting. The license costs $50 for state residents and $30 for out of state residents. The plaintiff is a state resident who never hunts but pays all state taxes and volunteers at the hunting forests. He is suing for violation of the federal constitution on behalf of a family member who is a hunter.

Will the plaintiff’s action be heard by the court?

(A) No
(B) Yes
(C) No, because the plaintiff never hunts and his his own rights are thus not violated
(D) Yes, because the family member can not lawfully bring an action due to imprisonment
d.

8. TrainCo operates trains between two large cities situated 200 miles from one another. TrainCo paints the following legend on numerous of its train cars, seen by travelers: “Comfort and savings - free coffee for overnight travelers.” TrainCo in fact serves free coffee to overnight travelers but most travelers complain of acute discomfort inside the narrow and poorly-lit compartments.

Can the travel regulating authority penalize TrainCo for its claims?

(A) Yes, because of state regulation of health and safety
(B) Yes, because the travel regulating authority possesses properly delegated executive power
(C) Yes, because state law requires truth in advertising
(D) Yes, because TrainCo’s commercial speech is not true
d.

9. Mother has three under-aged children who suffer from malnutrition. Because of the difficulty of obtaining proper employment in her home city she travels to a new state. Once she arrives she goes to the state housing department and asks for temporary accommodation for her children and herself. She is refused such accommodation and given no reason other than that none is available for her and her children.

Is Mother obligated to accept this refusal?

(A) Yes - the state is not required to give more reasons
(B) Yes - because she has no property interest in the housing she wants
(C) No - the state is required to give more reasons
(D) No - because she now has a property interest in the housing she wants
a.

Value Bar Prep Budget Law School For The Bar: Bonus Question

Mother has three under-aged children who suffer from malnutrition. Because of the difficulty of obtaining proper employment in her home city she travels to a new state. Once she arrives she goes to the state housing department and asks for temporary accommodation for her children and herself. She is refused such accommodation and given no reason other than that none is available to her and her children.

Must Mother be given reasons for the refusal?

(A) No, because her request is not a fundamental
right
(B) Yes, because her request is a fundamental right
(C) No, because of procedural due process
(D) Yes, because of procedural due process
d.

Bike Associates is made up of 5,000 bicycle enthusiasts who believe that bicycles should have priority over cars on roads because of the vulnerability of bicyclists. Bike Associates provides accident insurance to its members at minimal cost. A Bike Associates member is hit by a truck and seriously injured. A negligence action is pending against the truck driver, as well as reckless driving charges.

On what basis does Bike Associates have standing to take over the bicyclist’s negligence action against the truck diver?

(A) The bicyclist believes that bicycles should have priority over cars on the road
(B) The bicyclist pays Bike Associates dues regularly
(C) Bike Associates is the organization of record for injured bicyclists
Bike Associates has a mission which is germane to bicycle safety
b.

11. The department of fire safety prints a flier advertising new fire jobs open to applicants aged between 18 and 25. The plaintiff is a 32 year-old fire safety college graduate interested in applying. He brings an action to compel the department of fire safety to permit him to apply.
Will the department of fire safety be compelled to consider the plaintiff’s application?

(A) As a due process matter - no
(B) As a due process matter - yes
(C) As a personal liberty matter - yes
(D) As a personal liberty matter - no
 a.

12. Regina does not believe in contraception because of its widely publicized health risks. A doctor employed by the county government advices her to start using contraception to prevent obesity. Regina believes that this advice is malpractice. She wishes to bring action against the county as the doctor’s employer.
May Regina do so?

(A) Yes, based on clear constitutional principles
(B) Yes, because the doctor is a state actor
(C) Yes, based on the seriousness of the bad advice
(D) No, because the state does not employ the doctor
b.

Home Association employees have determined that home unit number 100 must be demolished to prevent a landslide in the entire sub division. The owner of unit 100 will be compensated to the extent of her outstanding mortgage plus 15%.

What constitutional action can the owner of unit 100 bring against Home Association’s employees to prevent the demolition of her home?

(A) An action based on the takings clause
(B) An action based on the takings clause - but it will fail since she is being properly compensated
(C) No action is available
(D) No constitutional action is available
d.
Officer arrests Defendant in Defendant’s home without a warrant and illegally searches for hidden weapons.
What constitutional violations may Defendant complain of?

(A) None
(B) Due Process violations
(C) Procedural due process violations
(D) Substantive due process violations
c.

Buyer finds his newly purchased product seriously defective. When he telephones the seller he is told that the product was inspected and passed by the government. Buyer now wants to bring action against the government inspectors.

If buyer wins he may

(A) Get money damages against the government
(B) Get money damages against the inspectors
(C) Get only injunctive relief against the inspectors
(D) Get only money damages against the government
b.

16. Defendant is charged with larceny of an expensive coat and arson to cover up the theft. The defendant claims that he was not in the city at the time of the crime. The court has refused to subpoena  the defendant’s witnesses because they are abroad.

What constitutional protections afforded the defendant may the court be breaching?

(A) His right to freedom of association because the court is refusing bring his foreign witnesses into court
(B) His right to be treated the same as the prosecution with regard to filing constitutional law motions
(C) His right to equal protection because he is a United States citizen
(D) His right to subpoena witnesses for his defense
d.

17. Abel is young and care-free. He has a trust fund established by his mother which pays him an income of several hundred dollars a month. He purchases a house financed with a loan from a credit bank. He subsequently falls behind on the mortgage debt and the bank brings action to recover the loan amount. The court determines that the bank can recover only after Abel reaches majority and subsequently affirms the loan agreement.
Under the US constitution, can Abel bring action against the bank for malicious prosecution before he reaches majority?

(A) Yes, because the US constitution does not forbid actions brought by a minor
(B) No, because the US constitution forbids actions brought by a minor
(C) No, because Abel has had his day in constitutional court
(D) Yes, because the bank’s action ended in Abel’s favor
a.

18.  The state properly enacts legislation forbidding marriage outside a person’s race. The legislation is due to be signed into law by the governor in two months.
If plaintiff brings suit to have the law struck down, which of the following is NOT correct?

(A) The law will be struck down because the plaintiff’s right to marry whomever he chooses has been abridged
(B) The law will not be struck down until it is actually in force
(C) The governor must sign the legislation into law before it becomes effective
(D) The facts show that the legislature passed the law
b.

19. The Mayflower is a taxi cab company in the city. Its manager decides to hire only clean-shaven drivers. He gives no reason for this policy. The plaintiff wins an action to compel the manager to hire bearded applicants who meet all qualification requirements. The Mayflower taxi cab company appeals.

Will the appeal succeed and why or why not?

(A) It will fail because The Mayflower is constitutionally bound to afford equal protection to all job applicants
(B) It will fail because The Mayflower is constitutionally bound to treat persons similarly situated the same
(C) It will succeed because The Mayflower is not constitutionally bound to afford equal protection to all job applicants
(D) It will succeed because The Mayflower is constitutionally bound to observe equal protection requirements
c.

20. Fire And Brimstone Inc is a religious organization that provides subsidized medicines to HIV patients. It receives most of its funding from the federal government. It refuses to subsidize treatment for a convicted rapist with HIV.

Can Fire And Brimstone be sued as a government actor to enforce the convict’s right to equal protection of the laws?

(A) No, it is a private religious organization
(B) No, it is a private religious organization not financially entangled with government
(C) Yes, because under its government-required charter it has an elected board rather than an appointed one
(D) Yes, because of its government funding
d.

State A has discovered that coal mined within its borders is turned back by state B officials as inferior and not allowed to be sold in state B. The state A attorney general wishes to bring suit against state B for this discrimination in the conduct of inter state commerce.

Which of the following courts has original jurisdiction to hear the case?

(A) The circuit court of state A where the coal is produced
(B) The circuit court of either state
(C) The highest court in state B where the defendants reside
(D) The US supreme court
d.

22. Acme Inc sells silver jewelry world-wide. Its factory is located in state A. BarAcme Inc is located in state B and does not accept products from Acme Inc for sale in its shops because state A classifies BarAcme Inc as a foreign company and assesses customs taxes on wholesale purchases made from it by state A companies.

Does Acme Inc have a constitutional right of action against BarAcme Inc for refusing to buy from it?

(A) No because state A assesses import taxes on Acme products bought by out-of-state companies for re-sale
(B) No
(C) No, because it is never possible for a private company to violate the constitutional rights of another private company
Yes, because an undue burden is being placed on interstate commerce, and products made Acme Inc are being discriminated against by BarAcme Inc
b.

The editors did not agree between b and c for this question. This can occur on the bar. The question will then be ungraded for all candidates. Email your answer choice to answer@californiabarhelp.com

23. Acme Inc sells silver jewelry world-wide. Its factory is located in state A. BarAcme Inc is located in state B and does not accept products from Acme Inc for sale in its shops because state A classifies BarAcme Inc as a foreign company and assesses customs taxes on wholesale purchases made from it by state A companies.

Is state A permitted to assess  custom taxes on Acme Inc’s exports?

(A) No
(B) No, because a state can not assess custom taxes
(C) No, because BarAcme Inc is not a foreign company
No, because there is no evidence that state A has passed an enabling law authorizing it to assess custom taxes
a.

24. Acme Inc sells silver jewelry world-wide. Its factory is located in state A. BarAcme Inc is located in state B and does not accept products from Acme Inc for sale in its shops because state A classifies BarAcme Inc as a foreign company and assesses customs taxes on wholesale purchases made from it by state A companies.
Which constitutional clause may state A be violating?

(A) The interstate commerce clause
(B) The dormant commerce clause
(C) The commerce clause
(D) The comity clause which requires states to recognize companies registered in other states as domestic companies
b.

25. A high school attended by the governor’s children requires its students to wear a small flag on jacket, shirt, or blouse fronts or lapels on the last day of school before independence day, July the 4th. The plaintiff objects to this on religious grounds.

Can the school be constitutionally compelled to rescind its requirement on those grounds?

(A) Yes, because it affects free speech
(B) Yes, because it regulates free speech
(C) Yes, because it burdens the free exercise of religion
(D) Yes, if it burdens the free exercise of religion
d.

26. Approximately how many constitutional law questions may be found on the bar examination?

(A) 11 - 12
(B) 23 - 34
(C) 50 - 60
(D) Roughly 10
b.



How is the MBE portion of the bar exam taken?

(A) 100 questions on Tuesday morning, 100 questions on Tuesday afternoon
(B) 100 questions on Thursday morning, 100 questions on Thursday afternoon
(C) 100 questions on Wednesday morning, 100 questions on Wednesday afternoon
(D) 200 questions on Thursday afternoon
c.

28. Congress makes a law requiring a federal government department to save 10% of its budget to be used to finance American missionaries facing violence and death in foreign lands. The law has been signed into effect by the President and enjoys an unusually high approval rating among the public.
What arguments can be made against the constitutionality of this law?

(A) It un-necessarily entangles government with religion
(B) It establishes a state religion
(C) It is a dissipation of needed tax funds
(D) It is a clear violation of the US constitution
a.

Note: The bar may might decide to accept option b. as an alternative correct answer. However it is less technically correct than choice a.

29. A qualified magistrate has been appointed to review applications for protest march licenses. The magistrate is to “determine the approval of each properly filed application on its individual merit.”
What arguments may be made against this law?

(A) It does not conform to constitutional requirements
(B) It gives too much discretion to the official approving license applications
(C) It is vague
(D) It is over-broad
b.

30. A state constitution contains the following provision: “Any person campaigning in person for elected office within 500 yards of a school building or office is liable to pay a fine of $500 for each offense.” The state’s appeals court determines that Paul was properly fined under this provision. Paul files federal suit in a district court on the ground that the provision violates the US constitution.

The district court will

(A) Abstain from hearing the case
(B) Abstain from hearing the case if it was decided solely on federal constitutional grounds
(C) Decide on the issue of abridgment of free speech rights based on state law
(D) Decide on the issue of abridgment of free speech rights based on federal law
d.

31. The Boating Company employs numerous foreign nationals most of whom are not legal immigrants. The Boating company routinely withholds pay due to these employees whenever its revenue levels decline seriously.

Which constitutional protection is Boating company violating?

(A) None
(B) The right to equal protection
(C) The commerce clause
(D) The fundamental right to employment and a livelihood
a.

32. What percentage weight is given to the MBE portion of the bar examination?

(A) 45%
(B) 50%
(C) 65%
(D) 35%
d.
Note that the written portion carries 65% of the percentage weight and consists of the 6 essays and 2 MPT’s.


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33. Congress passes a law requiring men who seek federal employment to be no more than three months behind on child support payments before consideration of their employment application can take place.

What federal constitutional area is implicated by this requirement?

(A) The commerce clause, because of the implications of federal occupation of the field of federal employment
(B) Free speech, because child support payments are a form of speech
(C) Freedom of association
(D) Equal protection
d.

34. A state constitution provides that migrating birds flying into the state are property of the state and must not be hunted.
Which provision of the US constitution is likely violated by this law?

(A) The dormant commerce clause
(B) Federal regulation of channels and instrumentalities of inter state commerce
(C) Equal protection for farmers
(D) The right to travel interstate
b.



Evidence


To answer an evidence question, describe logical and legal relevancy first. Then look at the evidence, which is the statement, document, object or demonstration being offered as proof of a fact in dispute. Then look at who is offering it, and examine how it is being offered.

At all these stages there are issues. If it’s a statement, does it go to character? Is it hear say? If a document, is it authenticated? Is it the best evidence? Are copies allowed? If an object the same issues exist. Is it a demonstration? Does it fairly replicate or demonstrate what it purports to?

If it is a hear-say matter, what exceptions/exemptions may help to get into evidence? If it is a question addressed to a witness, what are possible objections? Is the W qualified to testify? Did he really witness what he is testifying to, and is his witness reliable?



Key: Questions 1 - 10
1 a    2 d    3 c    4 c    5 a    6 b   7  d  8  d  9 a  10 d

1. In an action for the recovery of a rental automobile W says, “ I returned the car on the 5th of March. I have a receipt for the return in my hand.”
Is the receipt receivable in evidence as part of W’s testimony?

(A) No, until a foundation is laid
(B) No, until W is cross-examined
(C) Yes, because W has personal knowledge
Yes, because knowledge of  the return of a rental car is not expert knowledge

2. In an action to recover for injuries suffered when a scaffolding fell on a passer-by at a building site plaintiff’s lawyer asks W: “After the scaffolding hit you what happened?”
Which of these objections might successfully be raised to this line of questioning?
(A) Asked and answered
(B) Calls for narrative
(C) Assumes facts not in evidence
(D) Calls for narrative and assumes facts not in evidence

3. Witness declares that she saw Defendant climb into Victim’s house through a window facing the street on a rainy Wednesday night.
If this evidence is rejected by the court, which of these is a likely reason?
(A) The witness has no personal knowledge
(B) The evidence is not logically relevant to the issue of burglary
(C) The witness could not have seen Defendant clearly in the rain and dark
The evidence is hear-say not saved by any exception

4. The FRE requires that evidence of character be given by
(A) Opinion evidence only
(B) Reputation evidence only
(C) Opinion and reputation evidence only
(D) Opinion, reputation and specific instance evidence

Quiz
How does this differ from CA?
Tip: Google for an answer

4. A man picked up a wrist watch that was on display at a jewelry store and put it in his pocket, intending to play a prank on the store clerk. The store clerk called the police and the man was arrested for theft.
Is the man an expert on store thefts for the purpose of giving evidence during a trial?

(A) Yes, because the man touched and moved the property of another with intent to deprive
(B) Yes, notwithstanding that the clerk called the police and the man was arrested
(C) Yes, by reason of experience
(D) No, because the man has no court-recognized qualifications

5. The record shows that on April the 10th W heard D say to W’s injured passenger after an automobile collision with W: “We were driving under the speed limit.” W presently believes that D was driving above the speed limit.

Is W permitted to testify to this present belief?

(A) Yes, because W perceived the speed of D’s automobile
(B) No, because W did not reliably measure the speed of D’s automobile
(C) No, because it is a statement of memory or belief
(D) Yes, because it is a present sense impression

6. At trial the issue is the exclusion of illegal drugs discovered as a result of a search. D has presented evidence that the officer who arrested him searched his home for criminal evidence and without a warrant. D’s wife wants to testify that D keeps illegally acquired firearms in a bedroom closet. D objects to the testimony being given.

May D’s wife testify over her husband’s objection?

(A) No
(B) Yes
(C) Only if D consents
(D) Only if D consents after first unsuccessfully moving a motion for dismissal




Quiz:

How does this differ from CA?
Tip: Google the answer.

7. During trial W claims to have learned the facts of the case by television outside the court. If W is permitted to give his opinion as to a fact based on what he learned on television outside the court, it will be because W is likely

(A) A reliable witness
(B) A reliable witness who is not shown to be biased
(C) A reliable witness who understands the witness oath
(D) An expert

8. Lawyer is plaintiff’s lawyer. Lawyer was there when the defendant attacked the plaintiff at a restaurant. Can Lawyer testify on the plaintiff’s behalf as to the cause of the fight?

(A) Lawyer can testify only if she presently recollects the events
(B) Lawyer can not testify because she has no personal knowledge
(C) Lawyer can only testify as to what she heard and saw
(D) Lawyer would need to leave the case

9. During a product liability trial, a juror conducts an experiment at home to replicate the condition of the product complained of. Relying on her subsequent conclusions, she votes the defendant liable to the plaintiff in the case.
May another juror tell the court about the first juror’s experiments at home?

(A) Yes
(B) No, because a juror may never testify
(C) It depends on the state’s rules of evidence and juror regulations
(D) A juror may never testify at a trial except on issues of bias

10. The defendant is on trial for robbery and felony murder. The state shows the jury a knife which the state says was used in the crime.
What objection may the defendant’s lawyer raise in response?

(A) The defendant has never seen that knife before
(B) The knife is not shown to be genuine
(C) The knife is not logically relevant to the case
(D) The knife is not shown to be the one used in the robbery




Key: Questions 11 - 20
11 b   12  b  13  d  14  c  15  d  16  c  17  c  18  d  19 b   20  b

11. The defendant is on trial for robbery and felony murder. The state shows the jury a knife which the state says was used in the crime.
What type of evidence is the knife?

(A) Demonstrative evidence
(B) Real evidence
(C) Admissible evidence
(D) Smoking gun evidence

12. During trial the plaintiff leads evidence that the defendant was distracted while operating a machine. Defendant now wishes to introduce rebuttal evidence by his supervisor that he is never distracted while operating the machine.

Is this evidence admissible?
(A) Yes, because it is admissible character evidence
(B) Yes, because it is habit evidence
(C) No, because such evidence can only be reputation or opinion
(D) No, because defendant’s modus operandi is not an issue

13. W is the defendant’s mother. Defendant is a minor.

May the defendant’s mother testify on the defendant’s behalf?

(A) Yes, because a minor can not testify without court protection
(B) Yes, because a minor is held to the standards of a child of like age and experience
(C) No, because only the minor can testify for himself
(D) No, because the mother has no personal knowledge

14. Approximately how many Evidence questions will there be on your bar exam?

(A) 41 - 55
(B) 5 - 11
(C )21 - 33
(D) 6 - 10

15. What percentage weight does the MBE contribute to the bar exam?

(A) 65%
(B) 50%
(C) 55%
35%


Note
The MEE contributes 65% and consists of the 6 essays and 2 performance tests.

16. Pete is jogging through the mall when he sees Dan hit Winnie. In court Winnie is called as a witness. She testifies that Pete was jogging through the mall at the time Dan hit her.
What part of Winnie’s testimony is hear-say?

(A) Her statement that Pete was jogging, which occurred outside the present hearing
(B) All parts of her statement are hear-say
(C) No part of her testimony is hear-say
(D) Winnie can only testify to what she herself said or did

17. Wanda swears an oath before a justice of the peace declaring that a certain automobile belongs to her. At a later action for the conversion of the automobile, can the plaintiff rental company introduce Wanda’s oath into evidence?

(A) Yes, because Wanda swore it legally
(B) Yes, because it is former testimony
(C) Yes, under a hear-say exception
(D) Yes, as testimonial evidence by a competent witness

18. If a witness refuses to testify by pleading the 5th amendment, can the court strike out the rest of that witness’ testimony?

(A) No. Once given, court testimony is constitutionally protected
(B) No. The court must use the remainder of that witness’ testimony
(C) No
(D) Yes

19. Witness declares that she is a government agent and proceeds to describe what she saw of the defendant’s activities from a surveillance vehicle parked near the defendant’s home.
Can this evidence be used to convict the defendant?

(A) No
(B) Yes
(C) Only if the government agent recorded her observations
(D) Only if the defendant calls the government agent as his own witness

20. W has never seen a space rocket in actual flight. The plaintiff, a space craft manufacturer, calls her to the stand to testify as what occurred on the day she was hit in the back by falling debris at the space craft manufacturer’s factory.

What weight will the court attach to the fact that W has never seen a space rocket in actual flight?

(A) The court will not accept W’s testimony
(B) The court will accept W’s testimony
(C) The court will weigh W’s testimony for the jury’s benefit
The court will not accept W’s testimony regardless of what weight it attaches

Key: Questions 21 - 34
21 a  22 c   23  a  24  b   25 b   26 a   27 d   28  d  29  d  30 c   31  c  32  d   33 a   34 b

21. Paul falls down the stairs at StoreCo but sustains no life-threatening injuries. If he sues StoreCo for negligence, what may StoreCo’s lawyer do to rebut Paul’s testimony that at least 40 other people fell down the same stairs the same month he did?

(A) Introduce evidence that StoreCo’s safety record is excellent
(B) Introduce evidence that Paul was careless and contributorily negligent
(C) Introduce evidence that StoreCo serves the community in important ways
(D) Introduce evidence that StoreCo’s retail activities are not abnormally dangerous because StoreCo uses and sells no dangerous chemicals


22. A man is angered when another man calls his wife a derogatory name. He buys a hunting knife, finds the first man at his home twenty miles away, and stabs him to death.
In a survival action brought for manslaughter, will the record of the victim’s wife’s call to police be admitted on the plaintiffs’ behalf?

(A)  Yes, if such calls are always recorded
(B)  Yes, if the defendant does not object
(C)  Yes, if the state authenticates the call and the record of it
(D) Yes, because this is a civil action
23.  A police officer pretends to be a meter reader and enters the defendant’s home to arrest him for robbery. The defendant resists arrest and the officer returns with reinforcement and an invalid warrant.
May the judge take judicial notice of the fact that arrest warrants issued in the jurisdiction are frequently invalid?

(A) No
(B) Yes
(C) Judicial notice is not yet recognized by the FRE
(D) No, because arrest warrants are not testimony
Quiz:
How does CA differ from the FRE in treating Judicial notice?
Tip: Google the answer.

24. Defendant is crossing the road at an intersection when Plaintiff crashes into Defendant’s automobile. At trial, Plaintiff claims that Defendant had the Last Clear Chance to prevent an accident. Defendant strongly disputes this.
May the court admit evidence of whether the defendant could have prevented the collision?

(A) Yes – from an expert
(B) Yes – from a collision expert
(C) No, because this prejudices the defendant
(D) No, because the jury can not be induced to believe a false statement

25. Can a witness who heard an accident victim say: “That guy was going like a bat,” testify that she was not herself driving an automobile at the time of the crash?
(A) No, it is irrelevant to the issue of present sense impression
(B) Yes, because it is relevant to the issue of present sense impression
(C) No, because her testimony is needlessly cumulative
(D) Yes, because the witness has been properly sworn
26. A witness declares on the stand that she is not well enough to testify. May she be excused from further testifying?
(A) Yes because she is unavailable
(B) No because she is available
(C) Yes because the statement is oral
(D) No because a witness can not declare herself incompetent

27. A man is angered when another man calls his wife a derogatory name. He buys a hunting knife, finds the first man at his home twenty miles away, and stabs him to death.
In a survival action brought for manslaughter, will the record of the victim’s wife’s call to police be admitted on the defendant’s behalf?
(A) No
(B) More facts are needed
(C) It depends on the admissibility of police records in the jurisdiction
(D) Yes
28. A man realizes how much he likes a car parked on a street corner. He gets into it, starts it, and drives for a mile or two before he turns back and parks the car where he found it. In an action for trespass to chattel the court refuses to accept evidence of the defendant’s previous joy riding.
Among the choices given, what is the likely justification for rejecting this evidence?
(A) The court is in error
(B) The evidence will NOT confuse the jury
(C) Revelation of previous acts of joy riding amounts to character evidence
(D) It is prejudicial

A woman realizes that she has no money to pay for a movie ticket. She solicits a passer-by for the price of the ticket in exchange for sex. After the man gives her the ticket price the woman reneges on the agreement and goes in to the movie. The passer-by sues for recovery of his money.
Select the most true statement:
(A) The woman can not testify because she went in to the movie
(B) The woman can not testify because she breached an agreement
(C) The woman can not testify because she does not know who the passer-by is
 Surveillance video can be shown to the jury in place of oral testimony

30. A witness declares that the party who called her to the stand is a liar and a crook. The party who called her to the stand resorts to asking her leading questions from that point.
Why is this type of questioning permitted?
(A) The witness called her sponsor a liar and a crook
(B) The witness has already begun testifying
(C) The witness is hostile
The witness is surprised

31. A witness is 13 years old and mentally unstable because she is subject to hallucinations and delusions. She will be permitted to testify as to what she heard and saw on the day a robbery occurred because
(A) She is a competent witness
(B) She is a United States citizen with protected rights
(C) She understands the oath and the need not to make up events
 She speaks clearly
Note: The chosen answer explains the more general option, (A).

32. The court has ruled that the plaintiff’s case is premature because the threatened injury has less than a 49% chance of occurring.
Can this ruling be used as evidence in a future trial?
(A) Yes, as non hear-say
(B) Yes, as an official record
(C) Yes, as former testimony
(D) Yes, as a non hear-say court judgment


Quiz:
Do CA former testimony rules differ from the FRE?
Tip: Google the answer.

33. The power-point presentation made by the defendant has been ruled irrelevant by the judge and ordered removed from the record. The defendant has obtained leave to appeal the ruling. While arguing the interlocutory appeal, may the defendant rely on representations made by a power-point expert who is now dead, and testify as to those representations?
(A) Yes, by authenticating copies of the representations and proving the statements reliable
(B) Yes, by showing the jury copies of the representations
(C) Yes, because the witness is unavailable and the evidence is dissipating
(D) Yes, because the witness is unavailable and the court must be in possession of the evidence



Quiz
Do CA unavailability rules differ from FRE rules?
Tip: Google the answer.

34. The court has ruled that the defendant is competent to testify despite her young age. The opposing party decides to call the defendant as a witness in order to thoroughly exploit the defendant’s testimonial weaknesses.
Can the opposing party do this?
(A) It is redundant because the opposing party is already entitled to cross examine the defendant
(B) Yes
(C) This will reduce the finality of the defendant’s cross examination
(D) No