December 10 MBE Study

Question 1

Man is not liable for future rent after he provided notice of ______________ to the landlord.

Answer 1

Man is not liable for future rent after he provided notice of abandonment to the landlord.

Question 2

Subletting is a partial transfer of a tenant’s interest to a third party for __________ than the ___________ of the tenant’s lease term.

Answer 2

Subletting is a partial transfer of a tenant’s interest to a third party for less than the remainder of the tenant’s lease term.

Question 3

The mortgage required monthly payments covering interest to date and a portion of the principal

The granddaughter and the son must pay based on the present value of their respective interests.

BECAUSE

If a preexisting mortgage obligation requires the periodic payment of interest only, then the life tenant pays the interest and the future-interest holder pays the later-due principal.

But if periodic payment of interest and principal is required, then both payments must be __________ ____________ the parties based on the present value of each interest.

Answer 3

The mortgage required monthly payments covering interest to date and a portion of the principal

The granddaughter and the son must pay based on the present value of their respective interests.

BECAUSE

If a preexisting mortgage obligation requires the periodic payment of interest only, then the life tenant pays the interest and the future-interest holder pays the later-due principal.

But if periodic payment of interest and principal is required, then both payments must be allocated between the parties based on the present value of each interest.

Question 4

The holder of a life estate which is called the life tenant has a duty to pay __________ __________which are property taxes and mortgage interest unless the document creating the life estate provides otherwise.

Answer 4

The holder of a life estate which is called the life tenant has a duty to pay current charges which are property taxes and mortgage interest unless the document creating the life estate provides otherwise.

Question 5

The holder of a life estate which is called the life tenant has a duty to pay current charges which are property taxes and mortgage interest unless the document creating the life estate provides otherwise.

If the holder of the remainder pays the current property charges instead, then the remainderman is entitled to ____________ from the life tenant.

Answer 5

The holder of a life estate which is called the life tenant has a duty to pay current charges which are property taxes and mortgage interest unless the document creating the life estate provides otherwise.

If the holder of the remainder pays the current property charges instead, then the remainderman is entitled to reimbursement from the life tenant.

Question 6

A shifting executory interest divests an estate held by another ______________, such that the estate shifts from one grantee to another (the executory-interest holder).

Answer 6

A shifting executory interest divests an estate held by another grantee, such that the estate shifts from one grantee to another (the executory-interest holder).

Question 7

A springing executory interest divests an estate held by a ______________, such that the estate springs from the grantor to the executory-interest holder.

Answer 7

A springing executory interest divests an estate held by a grantor, such that the estate springs from the grantor to the executory-interest holder.

Question 8

In order to the federal deficit, Congress enacted a statute imposing was levied upon all retail sales in the United States and applied equally to the sales of all kinds of goods.

Is this tax constitutional as applied to retail sales of newspapers?

Yes, because it is within ____________ power to _________.

Answer 8

In order to the federal deficit, Congress enacted a statute imposing was levied upon all retail sales in the United States and applied equally to the sales of all kinds of goods.

Is this tax constitutional as applied to retail sales of newspapers?

Yes, because it is within Congress’s power to tax.

Question 9

The taxing and spending clause (ie, general welfare clause) gives Congress broad authority to raise ___________ through taxation.

This includes the power to impose indirect taxes (eg, sales tax) if they are applied equally in every state AND are reasonably related to revenue production—as seen here.

Answer 9

The taxing and spending clause (ie, general welfare clause) gives Congress broad authority to raise revenue through taxation.

This includes the power to impose indirect taxes (eg, sales tax) if they are applied equally in every state AND are reasonably related to revenue production—as seen here.

Question 10

In a defamation case, a document purporting to be a memorandum from the defendants company’s president to “All Personnel” printed on the company letterhead is evidence that is LEAST likely to be admitted without a ____________ ____________.

Answer 10

In a defamation case, a document purporting to be a memorandum from the defendants company’s president to “All Personnel” printed on the company letterhead is evidence that is LEAST likely to be admitted without a supporting witness.

Because company letterhead is held by many employees (not just the president) and can easily be copied or stolen.

Question 10

The taxing and spending clause (ie, general welfare clause) gives Congress broad authority to raise revenue through taxation.

This includes the power to impose indirect taxes (eg, sales tax) if they are applied ____________ in every state AND are _________ _____________ to revenue production—as seen here.

Answer 10

The taxing and spending clause (ie, general welfare clause) gives Congress broad authority to raise revenue through taxation.

This includes the power to impose indirect taxes (eg, sales tax) if they are applied equally in every state AND are reasonably related to revenue production—as seen here.

Question 11

Examples of Self-Authenticating evidence that are admissible WITHOUT extrinsic evidence of authenticity includes:
- Trade _____________ affixed in the course of business that indicate ownership (A can label)
- _____________ publications issued by public authority (Pamphlet issued by state’s highway department)
- Printed materials purporting to be a newspaper or periodical.

Answer 11

Examples of Self-Authenticating evidence that are admissible WITHOUT extrinsic evidence of authenticity includes:
- Trade inscriptions affixed in the course of business that indicate ownership (A can label)
- Official publications issued by public authority (Pamphlet issued by state’s highway department)
- Printed materials purporting to be a newspaper or periodical.

Question 12

Here, the seller had a contractual duty to manufacture 1,000 toasters and sell them to the buyer.

Since the nonassignment provision (“[t]his contract may not be assigned”) did not specify whether it applied to rights or duties, it will be __________ to mean that duties may not be delegated.

But the seller informed the buyer that the seller had delegated its duty to the competitor. And since the contract stated that this violation of the nonassignment provision voided the contract, the buyer is no longer ____________.

Answer 12

Here, the seller had a contractual duty to manufacture 1,000 toasters and sell them to the buyer.

Since the nonassignment provision (“[t]his contract may not be assigned”) did not specify whether it applied to rights or duties, it will be construed to mean that duties may not be delegated.

But the seller informed the buyer that the seller had delegated its duty to the competitor. And since the contract stated that this violation of the nonassignment provision voided the contract, the buyer is no longer bound.

EQUAL QUALITY DOES NOT MATTER

Question 13

A man was a suspect in a series of murders. Detectives convinced the man’s neighbor to sneak into the man’s home and remove a cigarette butt so that the man’s DNA could be compared to DNA found at the scene of one of the murders. The DNA was a match and the man was arrested.

Upon discovering that the prosecutor intended to present the DNA-comparison evidence to the grand jury, the man’s lawyer filed a motion to suppress arguing that the evidence was illegally acquired.

How should the court rule on the man’s motion?

Answer 13

Deny the motion, because the exclusionary rule DOES NOT APPLY to GRAND JURY PROCEEDINGS.

Question 14

The exclusionary rule requires the suppression of illegally acquired evidence at trial. But this rule _______ __________ _________ to grand jury proceedings because a grand jury only has the investigatory power to __________ a person with a crime—not the judicial power to convict.

The man’s motion to suppress the DNA-comparison evidence was therefore premature and should be denied. However, the man can file a motion to suppress again at trial.

Answer 14

The exclusionary rule requires the suppression of illegally acquired evidence at trial. But this rule does not apply to grand jury proceedings because a grand jury only has the investigatory power to charge a person with a crime—not the judicial power to convict.

The man’s motion to suppress the DNA-comparison evidence was therefore premature and should be denied. However, the man can file a motion to suppress again at trial.

Question 15

Voluntary dismissal – when the ______________ moves to dismiss the suit.

Answer 15

Voluntary dismissal – when the plaintiff moves to dismiss the suit.

Question 16

Involuntary dismissal – when the ____________ moves to dismiss the suit.

Answer 16

Involuntary dismissal – when the defendant moves to dismiss the suit.

Question 17

An involuntary dismissal under FRCP 41 operates as an ___________ on the ________ unless the court orders otherwise.

This means that the plaintiff’s action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future.

Answer 17

An involuntary dismissal under FRCP 41 operates as an adjudication on the merits unless the court orders otherwise.

This means that the plaintiff’s action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future.

Question 18

An involuntary dismissal under FRCP 41 operates as an adjudication on the merits unless the court orders otherwise.

This means that the plaintiff’s action is dismissed _________ ___________, which precludes the plaintiff from suing the defendant on the same claim in the future.

Answer 18

An involuntary dismissal under FRCP 41 operates as an adjudication on the merits unless the court orders otherwise.

This means that the plaintiff’s action is dismissed with prejudice, which precludes the plaintiff from suing the defendant on the same claim in the future.

Question 19

A court may allow evidence of subsequent remedial measures for other limited purposes such as:

• Resolving a dispute about the ___________ of precautionary measures
• __________ a witness or
• Proving ownership or control

Answer 19

A court may allow evidence of subsequent remedial measures for other limited purposes such as:

• Resolving a dispute about the feasibility of precautionary measures
• Impeaching a witness or
• Proving ownership or control

Question 20

Here, the manufacturer changed the slicer’s design to prevent the wires from coming into contact after the plaintiff’s injury.

Although this evidence is ____________ to prove the manufacturer’s negligence, the manufacturer placed the feasibility of redesigning the slicer in __________ by claiming it was unreasonably expensive.

Therefore, evidence of this change in design is admissible to prove the _____________ of designing the machine to keep the wires from coming into contact.

Answer 20

Here, the manufacturer changed the slicer’s design to prevent the wires from coming into contact after the plaintiff’s injury.

Although this evidence is inadmissible to prove the manufacturer’s negligence, the manufacturer placed the feasibility of redesigning the slicer in dispute by claiming it was unreasonably expensive.

Therefore, evidence of this change in design is admissible to prove the feasibility of designing the machine to keep the wires from coming into contact.

Question 21

A profit is a nonpossessory right to enter another’s land and remove specific natural resources—e.g., timber, sand, gravel.

Similar to an easement, a profit can be implied from an existing _________ ________.

This arises when the owner of two parcels of land used one parcel (servient parcel) to ___________ the other (dominant parcel), and then one of those parcels was transferred to another.

A profit will be implied if the prior use was (1) continuous, (2) apparent or known, and (3) reasonably necessary to the dominant parcel’s use and enjoyment.

Answer 21

A profit is a nonpossessory right to enter another’s land and remove specific natural resources—e.g., timber, sand, gravel.

Similar to an easement, a profit can be implied from an existing prior use.

This arises when the owner of two parcels of land used one parcel (servient parcel) to benefit the other (dominant parcel), and then one of those parcels was transferred to another.

A profit will be implied if the prior use was (1) continuous, (2) apparent or known, and (3) reasonably necessary to the dominant parcel’s use and enjoyment.

Question 22

A contract to employ someone for an indefinite or permanent duration typically creates an ______ _________ employment relationship.

An at-will employment relationship allows either party to terminate the employment contract at any time and for any reason unless the termination violates public policy—eg, when an employee is discharged for filing a discrimination claim.

Answer 22

A contract to employ someone for an indefinite or permanent duration typically creates an at-will employment relationship.

An at-will employment relationship allows either party to terminate the employment contract at any time and for any reason unless the termination violates public policy—eg, when an employee is discharged for filing a discrimination claim.

Question 23

Here, the customer explained that she needed a washable dye, and the clerk assured the customer that the dye was appropriate for her needs.

The clerk’s assurance, which constituted a promise or affirmation, created an ___________ _____________.

The warranty was breached because the dye was permanent, not washable. Therefore, the customer will likely prevail in a breach-of-warranty action against the store.

Answer 23

Here, the customer explained that she needed a washable dye, and the clerk assured the customer that the dye was appropriate for her needs.

The clerk’s assurance, which constituted a promise or affirmation, created an express warranty.

The warranty was breached because the dye was permanent, not washable. Therefore, the customer will likely prevail in a breach-of-warranty action against the store.

Question 24

A state statute provides as follows: *"In all criminal cases, whenever the U.S. Constitution permits, the burden of proof as to a defense claimed by the defendant shall rest on the defendant, and the magnitude of the burden shall be as great as the Constitution permits."* The same state defines the crime of forcible rape as follows: *"Forcible rape consists of sexual penetration inflicted on an unconsenting person by means of force or violence. Consent of the victim is a complete defense to a charge of rape."* At a defendant's trial for forcible rape, he testified that the alleged victim had consented to having sexual intercourse with him. **How should the trial judge instruct the jury regarding the burden of proof on the issue of consent?**

Answer 24

The prosecution must prove **beyond a reasonable doubt** that the victim did not consent.

Question 25

Due process requires that the government prove every element of a **criminal** offense **beyond a reasonable doubt.** Therefore, even when the defendant asserts a defense that negates an element of the crime (eg, lack of intent, alibi), the burden of proof must remain on the ________________ to **prove** that element—it cannot be placed on the defendant. Since a jury instruction must reflect this constitutional requirement, **an instruction violates due process** if it places the **burden** on the _____________ to **prove** any element of the crime.

Answer 25

Due process requires that the government prove every element of a **criminal** offense **beyond a reasonable doubt.** Therefore, even when the defendant asserts a defense that negates an element of the crime (eg, lack of intent, alibi), the burden of proof **must remain on the prosecution** to **prove** that element—it cannot be placed on the defendant. Since a jury instruction must reflect this constitutional requirement, **an instruction violates due process** if it places the **burden** on the **defendant** to **prove** any element of the crime.

Question 26

Due process requires that the government prove every element of a **criminal** offense ________ a ____________ __________.

Answer 26

Due process requires that the government prove every element of a **criminal** offense **beyond a reasonable doubt.**

Question 27

A state taxes residents' 'income,' including the fair rental value of automobiles provided by employers for personal use. Federal employees given cars for work may also use them personally. With no federal law on this, can the state tax the rental value of cars provided to federal employees? Yes, because the tax is imposed on the employees rather than on the United States, and the tax does not _____________ against persons who are ___________ by the United States.

Answer 27

Yes, because the tax is imposed on the employees rather than on the United States, and the tax does not **discriminate** against persons who are **employed** by the United States.

Question 28

A plaintiff can recover in a **strict products liability** action against a manufacturer, retailer, or other distributor (ie, commercial seller) if the following facts are proved: - The product was ____________ (in manufacture, design, or failure to warn). - The defect existed ___________ the product **left the defendant's control.** - The defect ___________ the plaintiff's injuries when the product was used in an **intended** or reasonably foreseeable way. A product has a **manufacturing defect** if it **deviates** from the manufacturer's intended design (eg, due to incorrect assembly).

Answer 28

A plaintiff can recover in a **strict products liability** action against a manufacturer, retailer, or other distributor (ie, commercial seller) if the following facts are proved: - The product was **defective** (in manufacture, design, or failure to warn). - The defect existed **when** the product **left the defendant's control.** - The defect **caused** the plaintiff's injuries when the product was used in an **intended** or reasonably foreseeable way. A product has a **manufacturing defect** if it **deviates** from the manufacturer's intended design (eg, due to incorrect assembly).

Question 29

An action based on **strict products liability** requires proof that the product was ______________ (eg, in manufacture) when it left the defendant's control AND that the defect caused the plaintiff's injuries when the product was used in an _____________or reasonably _______________ way.

Answer 29

An action based on **strict products liability** requires proof that the product was **defective** (eg, in manufacture) when it left the defendant's control AND that the defect caused the plaintiff's injuries when the product was used in an **intended or reasonably foreseeable way.**

Question 30

A state **owned and operated** an electric power system, which included a nuclear power plant. In order to ensure the availability of sites for the disposal of spent fuel from the nuclear power plant, the state **refused to supply** electric power to **out-of-state purchasers** residing in states that would not accept spent fuel from the plant for storage or disposal. Assume that no federal statute applies. **Which of the following is the strongest argument that the state's action is constitutional?** The state itself owns and operates the power system, and therefore its refusal to supply power to out-of-state purchasers is not subject to the __________ implications of the ______________ ____________.

Answer 30

The state itself owns and operates the power system, and therefore its refusal to supply power to out-of-state purchasers is not subject to the **negative implications of the commerce clause.**

Question 31

The commerce clause grants Congress extensive authority to regulate interstate commerce. And the negative implication of this clause (ie, the dormant commerce clause) **prohibits states** from **discriminating against** or otherwise unduly burdening interstate commerce. But states are **not restrained** by this clause when they _______________ in _______ ___________ by, for example, buying or selling goods or services (ie, market-participant exception).

Answer 31

The commerce clause grants Congress extensive authority to regulate interstate commerce. And the negative implication of this clause (ie, the dormant commerce clause) **prohibits states** from **discriminating against** or otherwise unduly burdening interstate commerce. But states are **not restrained** by this clause when they **participate** in **the market** by, for example, buying or selling goods or services (ie, market-participant exception).

Question 32

Federal courts can subpoena U.S. citizens in a foreign country when their testimony is necessary in the interest of justice and impractical to obtain by other means. Such subpoenas are validly served when the serving party: (1) uses a method of service allowed by the federal rules and (2) __________ the citizen's attendance and travel expenses.

Answer 32

Federal courts can subpoena U.S. citizens in a foreign country when their testimony is necessary in the interest of justice and impractical to obtain by other means. Such subpoenas are validly served when the serving party: (1) uses a method of service allowed by the federal rules and (2) **pays the citizen's attendance and travel expenses.**

Question 33

The U.S. involved in a foreign conflict. Congress created a military court in a foreign country to classify and detain captured individuals as enemy combatants until hostilities end. The court could hear evidence at its discretion. A U.S. citizen captured in an active zone was tried, found to be an enemy combatant, and detained without a defense. He seeks to overturn his detention, claiming the statute is unconstitutional as applied. **How will the federal court likely rule?**

Answer 33

It will set aside the military court's ruling, because the man was entitled to a fair opportunity to rebut the government's factual assertions before a neutral decision-maker.

Question 34

Congress must afford __________ ______ _________ to **U.S. citizens classified and detained as enemy combatants.** Procedural due process requires that U.S. citizens be given: - Notice of the factual basis for the citizen's classification as an enemy combatant and - A fair opportunity to rebut the government's factual assertions before a neutral decision-maker. A U.S. citizen detained as an enemy combatant who does not receive these protections **may file a petition for a writ of habeas corpus** in a federal court unless Congress has explicitly suspended the writ. The federal court has jurisdiction **to then set aside an unlawful detention.**

Answer 34

Congress must afford **procedural due process** to **U.S. citizens classified and detained as enemy combatants.** Procedural due process requires that U.S. citizens be given: - Notice of the factual basis for the citizen's classification as an enemy combatant and - A fair opportunity to rebut the government's factual assertions before a neutral decision-maker. A U.S. citizen detained as an enemy combatant who does not receive these protections **may file a petition for a writ of habeas corpus** in a federal court unless Congress has explicitly suspended the writ. The federal court has jurisdiction **to then set aside an unlawful detention.**

Question 35

Negligence claims require proof of the following elements: duty, breach, causation, and damages. The causation element consists of two prongs: - Actual cause – the plaintiff's harm would not have occurred ________ _________ the defendant's negligence and - Proximate cause – the plaintiff's harm was a ________________ consequence of the defendant's negligence.

Answer 35

Negligence claims require proof of the following elements: duty, breach, causation, and damages. The causation element consists of two prongs: - Actual cause – the plaintiff's harm would not have occurred **but for** the defendant's negligence and - Proximate cause – the plaintiff's harm was a **foreseeable** consequence of the defendant's negligence.

Question 36

Here, the politician suffered injuries after the voter committed aggravated battery by dropping a cash register on him. Such criminal acts are generally considered unforeseeable intervening causes. But the bodyguard had a _________ to protect the politician, which he ____________ by failing to use reasonable care to protect the politician from the falling cash register. Therefore, if the politician sues the bodyguard to recover damages for his injuries, he is likely to succeed

Answer 36

Here, the politician suffered injuries after the voter committed aggravated battery by dropping a cash register on him. Such criminal acts are generally considered unforeseeable intervening causes. But the bodyguard had a **duty** to protect the politician, which he **breached** by failing to use reasonable care to protect the politician from the falling cash register. Therefore, if the politician sues the bodyguard to recover damages for his injuries, he is likely to succeed.

Question 37

A seller and buyer had a written contract in March for land sale, with a closing date set for May 1 at 10 a.m. and no mention of title quality. On April 27, the **seller revealed the land had a long-standing easement for a canal towpath.** The buyer believed the easement unlikely to result in a canal and insisted on closing on May 1, notifying the seller on April 28. When the seller refused, the buyer sued for specific performance. **Will the buyer likely win?**

Answer 37

Yes, because the decision to terminate the contract for title not being marketable **belongs only to the buyer.**

Question 38

Title can be rendered unmarketable by encumbrances (eg, easements, mortgages, other liens). However, buyers can _________ encumbrances—as the buyer did here when he notified the seller that he expected to close notwithstanding the corporation's easement. Because the buyer chose to accept the land with the easement instead of terminating the contract, the buyer will be likely to prevail in an action for specific performance.

Answer 38

Title can be rendered unmarketable by encumbrances (eg, easements, mortgages, other liens). However, buyers can **waive** encumbrances—as the buyer did here when he notified the seller that he expected to close notwithstanding the corporation's easement. Because the buyer chose to accept the land with the easement instead of terminating the contract, the buyer will be likely to prevail in an action for specific performance

Question 39

A factory worker is charged with criminal assault on his manager after losing money to the manager during a game of poker. The factory worker testified that he struck the manager while acting in self-defense. The state now seeks to call a witness to testify that, on two prior occasions, the witness saw the factory worker assault someone without provocation after a poker game and thereafter falsely claim self-defense. **Is the witness's testimony admissible?**

Answer 39

Yes, as evidence the factory worker **did not act in self-defense on this occasion.**

Question 40

Evidence of a defendant's bad character (eg, violent nature) is **not admissible** to show that the defendant acted in ___________ with that character on the occasion at issue. Therefore, the witness's testimony is not admissible to show the factory worker's **violent nature**—but it is admissible for the relevant, _____________ purpose of **establishing a pattern of operation or scheme.**

Answer 40

Evidence of a defendant's bad character (eg, violent nature) is **not admissible** to show that the defendant acted in **accordance** with that character on the occasion at issue. Therefore, the witness's testimony is not admissible to show the factory worker's **violent nature**—but it is admissible for the relevant, **noncharacter** purpose of **establishing a pattern of operation or scheme.**

Question 41

A corporation sued a defendant for 10 fuel oil deliveries not paid for. The defendant denied that the deliveries were made. At trial, the corporation calls its office manager to testify that the corporation's **employees always record** each delivery in duplicate, give one copy to the customer, and place the other copy in the corporate files; that he is the custodian of those files; and that his examination of the files **before coming to court** revealed that the 10 deliveries were made. Is the office manager's testimony that the invoices show 10 deliveries admissible? No, because the records must be __________ in order to ________ their __________.

Answer 41

A corporation sued a defendant for 10 fuel oil deliveries not paid for. The defendant denied that the deliveries were made. At trial, the corporation calls its office manager to testify that the corporation's **employees always record** each delivery in duplicate, give one copy to the customer, and place the other copy in the corporate files; that he is the custodian of those files; and that his examination of the files **before coming to court** revealed that the 10 deliveries were made. Is the office manager's testimony that the invoices show 10 deliveries admissible? No, because the records must be **produced** in order to **prove** their **contents.**

Question 42

The office manager would have had ___________ ____________ of the contents of the records had he, for example, personally observed the disputed deliveries. Merely examining the files before coming to court is **not sufficient** for him to testify to their contents.

Answer 42

The office manager would have had **firsthand knowledge** of the contents of the records had he, for example, personally observed the disputed deliveries. Merely examining the files before coming to court is **not sufficient** for him to testify to their contents.

Question 43

The invoices are admissible under the ___________ ____________ exception to the hearsay rule because a corporate employee recorded each delivery as a regular practice of the corporation. But the office manager's **testimony** to the contents of the invoices is ____________ unless the invoice records are produced.

Answer 43

The invoices are admissible under the **Business Records** exception to the hearsay rule because a corporate employee recorded each delivery as a regular practice of the corporation. But the office manager's **testimony** to the contents of the invoices is **inadmissible** unless the invoice records are produced.

Question 44

Federal Rule of Evidence (FRE) 408 is an exclusionary rule designed to encourage compromise and settlement of disputes. As a result, the following evidence is **generally not admissible** to prove/disprove the validity or amount of a disputed claim OR to **impeach a witness** with a prior inconsistent statement: - _____________ of compromise made with the intent to avoid or settle the claim - ____________ or __________ made during compromise or settlement negotiations

Answer 44

Federal Rule of Evidence (FRE) 408 is an exclusionary rule designed to encourage compromise and settlement of disputes. As a result, the following evidence is **generally not admissible** to prove/disprove the validity or amount of a disputed claim OR to **impeach a witness** with a prior inconsistent statement: - **Offers** of compromise made with the intent to avoid or settle the claim - **Conduct or statements** made during compromise or settlement negotiations

Question 45

However, FRE 408 (exclusionary rule to encourage settlement) does not apply to evidence created for reasons ___________ _________ _______, so a party cannot immunize evidence from admission merely by producing it during settlement negotiations. Accordingly, evidence created for ______________reasons is admissible so long as it is not barred by another rule (eg, the rule against hearsay). Here, the quality control report was created during the motel's construction and **before settlement negotiations were ever contemplated**. Therefore, the report is not barred under FRE 408.

Answer 45

However, FRE 408 (exclusionary rule to encourage settlement) does not apply to evidence created for reasons **other than settlement**, so a party cannot immunize evidence from admission merely by producing it during settlement negotiations. Accordingly, evidence created for **nonsettlement** reasons is admissible so long as it is not barred by another rule (eg, the rule against hearsay). Here, the quality control report was created during the motel's construction and **before settlement negotiations were ever contemplated**. Therefore, the report is not barred under FRE 408.

Question 46

The House of Representatives passed a bill imposing a **tax on all insurance premiums for policies covering shipments of goods to foreign countries.** The legislative record states that the purpose of this export tax is to subsidize the marine insurance industry. The tax applies to all goods manufactured or grown in every state. The bill passed the Senate and was signed into law by the President. Pursuant to the statute, a company paid the tax on insurance premiums for policies that cover goods exported to its foreign subsidiaries. The company filed a claim for a tax refund and was denied. The company filed suit alleging that the tax is unconstitutional. **Is this federal tax likely constitutional?** No, because Congress does not have the power to tax __________ _________ or __________ _________ __________.

Answer 46

**Is this federal tax likely constitutional?** No, because Congress does not have the power to tax **exported goods** or **closely related services.**

Question 47

A court should grant a request for a jury instruction on a defense if a reasonable jury could find evidence to support that defense. Under the Model Penal Code (MPC), **voluntary intoxication is only a defense to** crimes for which the requisite mental state is either: _____________ – with a conscious objective to (1) engage in the conduct or (2) cause a particular result or ______________ – with (1) an awareness that the conduct is of the nature required by the crime or (2) a practical certainty that the conduct will cause a particular result

Answer 47

A court should grant a request for a jury instruction on a defense if a reasonable jury could find evidence to support that defense. Under the Model Penal Code (MPC), **voluntary intoxication is only a defense to** crimes for which the requisite mental state is either: **purposely** – with a conscious objective to (1) engage in the conduct or (2) cause a particular result or **knowingly** – with (1) an awareness that the conduct is of the nature required by the crime or (2) a practical certainty that the conduct will cause a particular result

Question 48

A federal agency sued a corporation in a **federal court in State A.** The agency claimed that the corporation intentionally issued false and misleading advertisements in violation of federal law. At the conclusion of trial, the court found that the advertisements were false and misleading and entered a declaratory judgment in favor of the agency. A group of consumers then filed a class action in a federal court in State B against the same corporation to recover damages suffered as a result of the false and misleading advertisements. The corporation demanded a jury trial. **The group moved for partial summary judgment**, asserting that collateral estoppel (issue preclusion) prevents the corporation from relitigating whether the advertisements were false and misleading. **How will the federal court likely rule on the group's motion for partial summary judgment?**

Answer 48

Grant the motion because offensive nonmutual collateral estoppel is permitted.

Question 49

Collateral estoppel also known as ________ ____________, precludes the relitigation of an issue that was actually litigated, ____________, and essential to a valid final judgment.

Answer 49

Collateral estoppel also known as **issue preclusion** precludes the relitigation of an issue that was actually litigated, **determined**, and essential to a valid final judgment.

Question 50

There are two types of collateral estoppel (Issue Preclusion): Mutual – where parties from the ___________ action assert collateral estoppel in a subsequent action against other parties from the first action Nonmutual – where ___________ from the first action assert collateral estoppel in a subsequent action against parties from the first action.

Answer 50

There are two types of collateral estoppel (Issue Preclusion): Mutual – where parties from the **first** action assert collateral estoppel in a subsequent action against other parties from the first action Nonmutual – where **nonparties** from the first action assert collateral estoppel in a subsequent action against parties from the first action.

Question 51

Both types of collateral estoppel or issue preclusion are permitted in _________ _________ and both can be used in a defensive or offensive manner. Defensive estoppel is used by a _______________ in the second action to **avoid relitigating an issue** from the first action. Offensive estoppel is used by a ______________ in the second action to establish an issue from the first action—with limited exceptions.

Answer 51

Both types of collateral estoppel or issue preclusion are permitted in **federal court,** and both can be used in a defensive or offensive manner. Defensive estoppel is used by a **defendant** in the second action to **avoid relitigating an issue** from the first action. Offensive estoppel is used by a **plaintiff** in the second action to establish an issue from the first action—with limited exceptions.

Question 52

Here, a federal court entered a declaratory judgment in favor of the federal agency after finding that the corporation's advertisements were false and misleading. A group of consumers then filed a class action against that corporation. The group (nonparty in first action) moved for partial summary judgment on the ground that the prior judgment established that the advertisements were false and misleading. Since offensive nonmutual collateral estoppel is _____________ in ________ _______, the motion will likely be granted.

Answer 52

Here, a federal court entered a declaratory judgment in favor of the federal agency after finding that the corporation's advertisements were false and misleading. A group of consumers then filed a class action against that corporation. The group (nonparty in first action) moved for partial summary judgment on the ground that the prior judgment established that the advertisements were false and misleading. Since offensive nonmutual collateral estoppel is **permitted in federal court**, the motion will likely be granted.

Question 53

**Collateral estoppel** can be asserted by parties (mutual) or nonparties (nonmutual) to the first action against parties to the first action either (1) _____________, when used by a defendant in the second action to avoid an issue or (2) ____________, when used by a plaintiff in the second action to establish an issue.

Answer 53

**Collateral estoppel** can be asserted by parties (mutual) or nonparties (nonmutual) to the first action against parties to the first action either (1) **defensively**, when used by a defendant in the second action to avoid an issue or (2) **offensively**, when used by a plaintiff in the second action to establish an issue.

Question 54

A plaintiff from State A sued a defendant from State B in a federal court in State B. The plaintiff claims that the defendant breached a provision of their contract, which resulted in $100,000 in damages. The defendant filed and served an answer denying liability. Three months later, the **plaintiff stopped performing** his duties under the contract. The defendant would now like to assert a claim against the plaintiff for breach of contract for $80,000. **What is the best way for the defendant to pursue her claim?** Move for __________ to file a _____________ ____________.

Answer 54

A plaintiff from State A sued a defendant from State B in a federal court in State B. The plaintiff claims that the defendant breached a provision of their contract, which resulted in $100,000 in damages. The defendant filed and served an answer denying liability. Three months later, the **plaintiff stopped performing** his duties under the contract. The defendant would now like to assert a claim against the plaintiff for breach of contract for $80,000. **What is the best way for the defendant to pursue her claim?** **Move for leave to file a supplemental answer.**

Question 55

An off-duty doctor was jogging one evening when he came upon an elderly woman who had suffered a severe heart attack while walking her dogs. The woman was not breathing, and the doctor could barely detect a pulse. The doctor immediately began CPR on the woman while a bystander called 911. The doctor **was able to resuscitate the woman but, in the process of performing CPR, broke several of her ribs.** The broken ribs punctured the woman's lungs, causing them to collapse and leaving her unable to breathe. Because the doctor did not have the necessary medical instruments to release the air that was trapped inside of the woman's lungs, **the doctor did nothing further to help her.** The woman subsequently died from suffocation before an ambulance arrived. Is the doctor **criminally liable** for the woman's death? No, because it was not ___________ ___________ for the doctor to help the woman.

Answer 55

An off-duty doctor was jogging one evening when he came upon an elderly woman who had suffered a severe heart attack while walking her dogs. The woman was not breathing, and the doctor could barely detect a pulse. The doctor immediately began CPR on the woman while a bystander called 911. The doctor **was able to resuscitate the woman but, in the process of performing CPR, broke several of her ribs.** The broken ribs punctured the woman's lungs, causing them to collapse and leaving her unable to breathe. Because the doctor did not have the necessary medical instruments to release the air that was trapped inside of the woman's lungs, **the doctor did nothing further to help her.** The woman subsequently died from suffocation before an ambulance arrived. Is the doctor **criminally liable** for the woman's death? No, because it was not **reasonably possible** for the doctor to help the woman.

Question 56

Here, by rendering aid after finding the woman unconscious, the doctor voluntarily assumed a legal duty to take all reasonable steps to help her. However, he subsequently failed to relieve the pressure in the woman's lungs caused by his administration of necessary CPR. But since the doctor **lacked the medical equipment necessary to do so**, it was not _________ ________for him to perform the omitted act. Therefore, he is not criminally liable for the woman's death

Answer 56

Here, by rendering aid after finding the woman unconscious, the doctor voluntarily assumed a legal duty to take all reasonable steps to help her. However, he subsequently failed to relieve the pressure in the woman's lungs caused by his administration of necessary CPR. But since the doctor **lacked the medical equipment necessary to do so**, it was not **reasonably possible** for him to perform the omitted act. Therefore, he is not criminally liable for the woman's death

Question 57

A homeowner set fire to his residence to collect on his fire insurance policy. Before setting the fire, the homeowner, realizing that the fire would create a great risk that someone could die, carefully checked the residence to ensure that no one was inside. Later, a firefighter who was called to put out the fire was killed when a wall of the residence collapsed due to the fire. The applicable jurisdiction adheres to the common law regarding the crimes of murder and arson. Could the homeowner be **found guilty of murder?** Yes, because the homeowner ____________ the ___________ that the fire represented to human life.

Answer 57

A homeowner set fire to his residence to collect on his fire insurance policy. Before setting the fire, the homeowner, realizing that the fire would create a great risk that someone could die, carefully checked the residence to ensure that no one was inside. Later, a firefighter who was called to put out the fire was killed when a wall of the residence collapsed due to the fire. The applicable jurisdiction adheres to the common law regarding the crimes of murder and arson. Could the homeowner be **found guilty of murder?** Yes, because the homeowner **realized the danger** that the fire represented to **human life.**

Question 58

A 14-year-old girl of low intelligence received her parents' permission to drive their car. She had very little experience driving a car and did not have a driver's license. Although she did the best she could, she lost control of the car and hit a pedestrian. The pedestrian has brought a negligence action against the girl. **Is the pedestrian likely to prevail?** Yes, because the girl was ____________ ___ ___ ________ ____________.

Answer 58

A 14-year-old girl of low intelligence received her parents' permission to drive their car. She had very little experience driving a car and did not have a driver's license. Although she did the best she could, she lost control of the car and hit a pedestrian. The pedestrian has brought a negligence action against the girl. **Is the pedestrian likely to prevail?** Yes, because the girl was **engaging in an adult activity.**

Question 59

The **rescue doctrine** seeks to encourage (not discourage) attempts to assist persons in helpless peril. As a result, the tourist can prevail even though his _________ ___________ attempt failed and did not benefit the photographer. But the tourist must first show that the photographer's peril arose from his own _____________.

Answer 59

The **rescue doctrine** seeks to encourage (not discourage) attempts to assist persons in helpless peril. As a result, the tourist can prevail even though his **reasonable rescue** attempt failed and did not benefit the photographer. But the tourist must first show that the photographer's peril **arose from his own negligence.**

Question 60

Rescue doctrine allows a plaintiff rescuer to establish a prima facie negligence case. In a **common law jurisdiction** a plaintiff's recovery may be ___________ if he: - Knew that the rescue attempt was dangerous and could have proceeded in a **reasonable alternative manner** (ie, assumption of the risk) or - Acted **unreasonably** during the rescue attempt (ie, contributory negligence).

Answer 60

Rescue doctrine allows a plaintiff rescuer to establish a prima facie negligence case. In a **common law jurisdiction** a plaintiff's recovery may be **barred** if he: - Knew that the rescue attempt was dangerous and could have proceeded in a **reasonable alternative manner** (ie, assumption of the risk) or - Acted **unreasonably** during the rescue attempt (ie, contributory negligence).

Question 61

Rescue doctrine allows a plaintiff rescuer to establish a prima facie negligence case. In a **modern law jurisdiction** a plaintiff's recovery may be ___________ if he: - Knew that the rescue attempt was dangerous and could have proceeded in a **reasonable alternative manner** (ie, assumption of the risk) or - Acted **unreasonably** during the rescue attempt (ie, contributory negligence).

Answer 61

Rescue doctrine allows a plaintiff rescuer to establish a prima facie negligence case. In a **modern law jurisdiction** a plaintiff's recovery may be **reduced** if he: - Knew that the rescue attempt was dangerous and could have proceeded in a **reasonable alternative manner** (ie, assumption of the risk) or - Acted **unreasonably** during the rescue attempt (ie, contributory negligence).