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Question 1Multistate Bar Examination (MBE)

A homeowner signs a writing stating that she promises to pay her nephew $5,000 if he refrains from smoking, drinking, and gambling until his twenty-first birthday. The nephew so refrains. Under the common law of contracts, which of the following is the strongest ground for enforcing the homeowner's promise?

  1. The promise is enforceable because it is in writing and signed by the promisor.
  2. The promise is a valid gift because it is supported by natural love and affection.
  3. The nephew's forbearance from legal conduct was bargained for and constitutes consideration. Correct answer.
  4. The nephew relied on the promise to his detriment by changing his habits.

Explanation

Consideration requires a bargained-for exchange of legal value. Forbearance from conduct one has a legal right to engage in is valid consideration when it is requested by the promisor in exchange for the promise. The writing and any reliance are not necessary to make the promise enforceable.

Question 2Multistate Bar Examination (MBE)

A landlord and tenant enter an oral lease for a commercial storefront at a rent of $3,000 per month for a term of two years. The tenant takes possession and pays rent for six months, then vacates. The landlord sues for the remaining rent. Which of the following best describes the enforceability of the lease?

  1. The lease is unenforceable because it was not in writing and the term exceeds one year.
  2. The lease is enforceable as a periodic tenancy, and the tenant is liable for the reasonable rental value for the period of occupancy. Correct answer.
  3. The lease is enforceable for the full two-year term because the tenant took possession and paid rent.
  4. The lease is enforceable as a tenancy at will only, so the tenant owes no further rent.

Explanation

An oral lease for more than one year violates the Statute of Frauds and cannot be enforced for its full term. However, part performance by taking possession and paying rent typically creates a periodic tenancy, and the tenant is liable for the reasonable value of occupancy. The tenant is not liable for the entire remaining two-year term.

Question 3Multistate Bar Examination (MBE)

A defendant is charged with battery for striking the plaintiff during an argument. The defendant claims self-defense. Which of the following facts, if true, would most likely defeat the defendant's claim of self-defense?

  1. The plaintiff was the first to raise a fist but did not strike.
  2. The defendant was the initial aggressor and did not withdraw before using force. Correct answer.
  3. The defendant reasonably believed that force was necessary to prevent an imminent battery.
  4. The defendant used force disproportionate to the threatened harm.

Explanation

A person who is the initial aggressor generally cannot claim self-defense unless he withdraws and communicates that withdrawal to the other party. The other options either do not defeat self-defense or are not supported by the facts as stated.

Question 4Multistate Bar Examination (MBE)

A state enacts a law requiring all businesses to provide employees with paid sick leave. A trade association sues, arguing that the law violates the Equal Protection Clause because it treats businesses with fewer than ten employees differently from larger businesses. Which level of scrutiny should the court apply?

  1. Strict scrutiny, because the law affects the right to contract.
  2. Intermediate scrutiny, because the law involves employment.
  3. Rational basis review, because the classification is based on business size and does not involve a suspect class or fundamental right. Correct answer.
  4. No scrutiny, because economic regulations are immune from constitutional review.

Explanation

Social and economic regulations that do not burden a suspect class or fundamental right are reviewed under the rational basis test. Business size is not a suspect classification, and the right to contract is not fundamental in this context. The law need only be rationally related to a legitimate government interest.

Question 5Multistate Bar Examination (MBE)

A plaintiff sues a defendant for negligence in federal court based on diversity jurisdiction. The plaintiff is a citizen of State A, and the defendant is a citizen of State B. The amount in controversy is $100,000. The plaintiff wishes to join a second defendant who is a citizen of State A. Which of the following is true regarding the joinder?

  1. The second defendant may be joined if the plaintiff's claim against that defendant arises from the same transaction or occurrence.
  2. The second defendant may be joined because the amount in controversy exceeds $75,000.
  3. The second defendant may not be joined because complete diversity would be destroyed. Correct answer.
  4. The second defendant may be joined only if the first defendant consents.

Explanation

Diversity jurisdiction requires complete diversity between all plaintiffs and all defendants. Joining a defendant who is a citizen of the same state as the plaintiff would destroy complete diversity, so the joinder is not permitted. The amount in controversy and the transaction-or-occurrence test do not cure the jurisdictional defect.

Question 6Multistate Bar Examination (MBE)

A police officer stops a car for a broken taillight. While approaching, the officer sees a passenger place a small bag under the seat. The officer orders the passenger out and searches under the seat, finding illegal drugs. The passenger moves to suppress. Which of the following is the best argument for the prosecution?

  1. The search was valid under the automobile exception because the officer had probable cause to believe contraband was in the car. Correct answer.
  2. The search was valid as a protective sweep of the passenger's person.
  3. The search was valid as a search incident to arrest because the passenger was not free to leave.
  4. The search was valid because the passenger had no reasonable expectation of privacy in the car.

Explanation

The automobile exception permits a warrantless search of a vehicle when the officer has probable cause to believe it contains contraband. The officer's observation of the passenger hiding a bag under the seat, combined with the context of the stop, can establish probable cause. The other exceptions do not fit the facts.

Question 7Multistate Bar Examination (MBE)

A testator executes a will leaving her estate to her two children equally. She later marries, and her new spouse survives her. The will is not revised. Under the Uniform Probate Code and common law, which of the following is most likely true?

  1. The spouse is entitled to an intestate share unless the will shows an intention to disinherit the spouse. Correct answer.
  2. The spouse may elect against the will only if the will was executed before the marriage.
  3. The spouse takes nothing because the will predates the marriage.
  4. The spouse automatically receives the entire estate, and the children take nothing.

Explanation

Under the Uniform Probate Code and many state statutes, a spouse who marries after the execution of a will and is not provided for receives an intestate share unless the will shows an intention not to provide for the spouse. The pretermitted spouse doctrine protects the omitted spouse. The children do not lose their share entirely.

Question 8Multistate Bar Examination (MBE)

A company's board of directors approves a merger without disclosing material facts to the shareholders before a vote. A shareholder sues, alleging a violation of federal securities law. Which of the following is the most likely basis for liability?

  1. Section 10(b) and Rule 10b-5 for material misstatements or omissions in connection with the purchase or sale of securities. Correct answer.
  2. Section 11 of the Securities Act for false registration statements.
  3. Section 13(d) for failure to file a beneficial ownership report.
  4. Section 16(b) for short-swing profits.

Explanation

Rule 10b-5 prohibits material misstatements or omissions in connection with the purchase or sale of securities. If the board solicits proxies with incomplete disclosure, shareholders may have a claim under Section 10(b) and Rule 10b-5. The other provisions address different disclosure obligations.

Question 9Multistate Bar Examination (MBE)

A tenant rents an apartment for one year. After six months, the tenant moves out without notice and stops paying rent. The landlord relets the apartment to a new tenant at a lower rent. In a jurisdiction that follows the modern rule, which of the following is the landlord's best remedy?

  1. The landlord may recover the full rent for the remainder of the term without mitigating damages.
  2. The landlord may recover the difference between the rent due and the rent received from the new tenant, plus reasonable costs. Correct answer.
  3. The landlord may recover nothing because the tenant abandoned the premises.
  4. The landlord may recover only the security deposit.

Explanation

Under the modern rule, a landlord has a duty to mitigate damages when a tenant abandons. The landlord may recover the unpaid rent accrued and the difference between the original rent and the fair rental value for the remainder of the term, less any rent received from reletting. The other options misstate the remedy.

Question 10Multistate Bar Examination (MBE)

A defendant is charged with murder. The prosecution seeks to introduce evidence that the defendant previously committed a similar murder. The defendant objects. Under the Federal Rules of Evidence, which of the following is the most likely ruling?

  1. The evidence is admissible only if the defendant introduces character evidence first.
  2. The evidence is admissible if it is relevant to identity and the probative value is not substantially outweighed by unfair prejudice. Correct answer.
  3. The evidence is admissible to show the defendant's propensity to commit murder.
  4. The evidence is inadmissible because prior bad acts are never admissible in a criminal case.

Explanation

Under Federal Rule of Evidence 404(b), evidence of prior crimes or bad acts is not admissible to prove propensity but may be admissible for other purposes, such as identity, intent, or motive. The court must also weigh the probative value against the danger of unfair prejudice under Rule 403. The other options overstate or misstate the rule.

Question 11Multistate Bar Examination (MBE)

A plaintiff files a complaint in federal court alleging employment discrimination. The defendant moves to dismiss for failure to state a claim. The court should grant the motion if:

  1. the defendant has a strong affirmative defense that is apparent on the face of the complaint.
  2. the plaintiff's allegations are merely conclusory and do not plausibly suggest an entitlement to relief. Correct answer.
  3. the plaintiff has not attached evidence supporting the allegations.
  4. the plaintiff has not served the defendant within 90 days.

Explanation

A complaint must contain enough factual matter to state a plausible claim for relief. Conclusory allegations without factual support are insufficient under the plausibility standard. The other options either address a different motion or misstate the pleading requirements.

Question 12Multistate Bar Examination (MBE)

A woman is charged with shoplifting. The prosecution offers evidence that she was previously convicted of theft. The defense objects. The evidence is most likely admissible to:

  1. prove that she committed the charged offense.
  2. show that she is a bad person.
  3. show that she has a propensity for theft.
  4. impeach her credibility if she testifies and the crime involved dishonesty. Correct answer.

Explanation

Under Federal Rule of Evidence 609, a prior conviction for a crime involving dishonesty or false statement is admissible to impeach a witness's credibility, subject to the court's discretion. It may not be used to show propensity or bad character. The other options are impermissible uses.

Question 13Multistate Bar Examination (MBE)

A landowner conveys a parcel to a buyer with a deed that states: 'To Buyer, but if the property is ever used for commercial purposes, then to Charity.' The jurisdiction follows the common law. Which interest does the buyer have?

  1. A fee simple subject to a condition subsequent, because the landowner must re-enter to enforce the restriction.
  2. A life estate, because the restriction limits the duration of the buyer's ownership.
  3. A fee simple absolute, because the restriction is unenforceable.
  4. A fee simple subject to an executory interest, because the property will automatically pass to Charity if the condition occurs. Correct answer.

Explanation

A fee simple subject to an executory interest is created when a grantor conveys a fee simple that will automatically shift to a third party upon the occurrence of a specified event. Here, the property automatically goes to Charity if it is used for commercial purposes, so the buyer holds a fee simple subject to an executory interest. The other options misclassify the estate.

Question 14Multistate Bar Examination (MBE)

A defendant is charged with arson for burning down a vacant building. The defendant argues that because the building was vacant, the burning did not constitute arson. Under the common law, which of the following is the most likely result?

  1. The defendant is guilty because arson requires only the malicious burning of a dwelling, and vacancy does not matter if it is a dwelling. Correct answer.
  2. The defendant is not guilty because arson requires intent to defraud an insurer.
  3. The defendant is guilty only if the building was insured.
  4. The defendant is not guilty because arson requires a dwelling occupied by a person.

Explanation

Common law arson is the malicious burning of the dwelling of another. A dwelling is a structure used for habitation; temporary vacancy does not necessarily change its character if it remains a dwelling. The other options misstate the elements of arson.

Question 15Multistate Bar Examination (MBE)

A plaintiff sues a defendant for breach of contract. The plaintiff sends a request for admission to the defendant asking the defendant to admit that the contract was signed. The defendant fails to respond within 30 days. What is the effect of the failure to respond?

  1. The defendant may respond at any time before trial without consequence.
  2. The request is deemed denied, and the plaintiff must prove the matter at trial.
  3. The matter is admitted, and the defendant is bound by the admission. Correct answer.
  4. The court will automatically dismiss the request as untimely.

Explanation

Under Federal Rule of Civil Procedure 36, a party who fails to respond to a request for admission within the time allowed admits the matter. The admission is binding for the purposes of the pending action. The other options misstate the consequence of failing to respond.

Question 16Multistate Bar Examination (MBE)

A state law requires that all motorcyclists wear helmets. A motorcyclist challenges the law under the Due Process Clause, arguing that it violates a fundamental right to personal liberty. Which standard of review applies?

  1. The law is presumptively invalid because it restricts liberty.
  2. Rational basis review, because the law is a public safety measure that does not burden a fundamental right. Correct answer.
  3. Strict scrutiny, because the law burdens a fundamental right.
  4. Intermediate scrutiny, because the law affects only a subset of the population.

Explanation

The right to personal liberty does not include a fundamental right to ride a motorcycle without a helmet. Laws regulating public safety are reviewed under the rational basis test, which requires only a reasonable relationship to a legitimate government interest. The other options apply too stringent a standard.

Question 17Multistate Bar Examination (MBE)

A principal hires an agent to sell a house. The agent, without authority, sells the house to a third party who knows the agent lacks authority. The principal refuses to convey the property. Which of the following is the most likely result?

  1. The sale is valid because the agent had apparent authority.
  2. The principal is estopped from denying the sale because the agent acted within the scope of employment.
  3. The sale is void because the third party knew the agent lacked authority. Correct answer.
  4. The sale is voidable by the third party because the agent lacked actual authority.

Explanation

A principal is bound by an agent's acts only if the agent had actual or apparent authority. If the third party knows the agent lacks authority, there is no apparent authority, and the sale is void as to the principal. The other options incorrectly assume authority or estoppel.

Question 18Multistate Bar Examination (MBE)

A defendant is charged with burglary. The prosecution proves that the defendant broke into a neighbor's garage at night with the intent to steal tools. The garage is attached to the house but has no interior connection. Under the common law, which of the following is the most likely result?

  1. The defendant is not guilty because a garage is not a dwelling. Correct answer.
  2. The defendant is guilty only if the tools were worth more than $100.
  3. The defendant is not guilty because the burglary occurred at night.
  4. The defendant is guilty because the garage is part of the curtilage.

Explanation

Common law burglary requires breaking and entering the dwelling of another at night with intent to commit a felony therein. A garage, even if attached, is not a dwelling unless it is used for habitation. The other options misstate the elements or add irrelevant requirements.

Question 19Multistate Bar Examination (MBE)

A plaintiff obtains a judgment against a defendant for $50,000. The defendant owns a car worth $20,000 and has $10,000 in a bank account. The plaintiff seeks to enforce the judgment. Which of the following is the most appropriate step?

  1. File a motion for summary judgment.
  2. Obtain a writ of execution and have the sheriff levy on the defendant's property. Correct answer.
  3. Serve interrogatories on the defendant.
  4. File a notice of appeal.

Explanation

After obtaining a judgment, a plaintiff may enforce it through a writ of execution, which directs the sheriff to seize and sell the defendant's property to satisfy the judgment. Discovery devices and appeals are not methods of executing on a judgment. The other options are procedural steps in litigation, not enforcement.

Question 20Multistate Bar Examination (MBE)

A seller and buyer enter into a contract for the sale of goods. The contract includes a clause limiting the seller's liability for consequential damages. The buyer later discovers that the goods are defective and sues. Under the Uniform Commercial Code, which of the following is the most likely result?

  1. The limitation is unenforceable because consequential damages cannot be limited.
  2. The limitation is enforceable only if the buyer is a merchant.
  3. The limitation is per se unenforceable in consumer contracts.
  4. The limitation is enforceable unless it is unconscionable. Correct answer.

Explanation

Under UCC § 2-719(3), a clause limiting consequential damages is enforceable unless it is unconscionable. The UCC permits parties to allocate risk, but courts may refuse to enforce a limitation that is unconscionable. The other options overstate the restrictions.

Question 21Multistate Bar Examination (MBE)

A defendant is on trial for robbery. The prosecution calls a witness who testifies that the defendant's friend said, 'The defendant robbed the store.' The defendant objects on hearsay grounds. The statement is most likely:

  1. Inadmissible hearsay because it is offered to prove the truth of the matter asserted. Correct answer.
  2. Admissible as a prior consistent statement.
  3. Admissible as an excited utterance.
  4. Admissible as a statement against interest.

Explanation

The friend's statement is an out-of-court statement offered to prove that the defendant robbed the store, which is the definition of hearsay. None of the exceptions applies on the facts. The other options do not fit the circumstances.

Question 22Multistate Bar Examination (MBE)

A state enacts a statute that prohibits the sale of any book that is deemed 'harmful to minors.' A bookseller challenges the statute as facially unconstitutional. Which of the following is the most likely result?

  1. The statute is invalid because it applies only to books.
  2. The statute is valid because obscenity is not protected by the First Amendment.
  3. The statute is valid because it protects minors from harmful material.
  4. The statute is invalid because it is overbroad and lacks a scienter requirement. Correct answer.

Explanation

A statute that restricts speech based on its content must be narrowly tailored and provide adequate safeguards. A law that prohibits the sale of material 'harmful to minors' without a scienter requirement and with vague standards is likely overbroad and unconstitutional. The other options misstate First Amendment doctrine.

Question 23Multistate Bar Examination (MBE)

A plaintiff sues a defendant in federal court. The plaintiff is a citizen of State A, and the defendant is a citizen of State B. The plaintiff seeks $80,000 in damages. The defendant files a counterclaim for $100,000. Which of the following is true regarding subject matter jurisdiction?

  1. The court has jurisdiction over the plaintiff's claim only if the plaintiff's claim independently satisfies the amount in controversy.
  2. The court lacks diversity jurisdiction because the plaintiff's claim is less than $75,000.
  3. The court has diversity jurisdiction over the entire case because the parties are diverse and the amount in controversy exceeds $75,000. Correct answer.
  4. The court has supplemental jurisdiction over the plaintiff's claim if it is part of the same case or controversy.

Explanation

In a diversity case, the amount in controversy is determined by the amount claimed by the plaintiff, not by the defendant's counterclaim. If the plaintiff's claim is less than $75,000, diversity jurisdiction is lacking, and the court cannot hear the case. The counterclaim does not cure the defect.

Question 24Multistate Bar Examination (MBE)

A partner in a general partnership commits a tort against a third party in the ordinary course of the partnership's business. The partnership agreement limits the partner's authority to commit torts. Which of the following is true regarding the partnership's liability?

  1. The partnership is not liable because the partner acted outside the scope of authority.
  2. The partnership is liable only if the partner is personally insolvent.
  3. The partnership is liable only if the third party knew of the partnership agreement.
  4. The partnership is liable because a partnership is liable for torts committed by a partner in the ordinary course of business. Correct answer.

Explanation

Under the Uniform Partnership Act, a partnership is liable for loss or injury caused by a partner's wrongful act or omission in the ordinary course of the partnership's business. The partnership agreement's internal limits do not affect the partnership's liability to third parties. The other options misstate the rule.

Question 25Multistate Bar Examination (MBE)

A defendant is charged with larceny for taking a wallet from a victim's pocket. The defendant claims that he intended to return the wallet after borrowing it. Under the common law, which of the following is the most likely result?

  1. The defendant is not guilty because the wallet was not taken from a building.
  2. The defendant is not guilty because he intended to return the wallet. Correct answer.
  3. The defendant is guilty only if the wallet contained money.
  4. The defendant is guilty because larceny requires only the taking of property.

Explanation

Common law larceny requires the trespassory taking and carrying away of another's personal property with the intent to permanently deprive the owner of it. If the defendant intended only to borrow the wallet and return it, the intent to permanently deprive is absent. The other options misstate the elements.

Question 26Multistate Bar Examination (MBE)

A homeowner signs a written contract to sell her house to a buyer for $400,000. The contract fully describes the property and is signed by the homeowner, but the buyer has not yet signed. The buyer later refuses to proceed, and the homeowner sues for breach. Under the Statute of Frauds, is the contract enforceable against the buyer?

  1. No, because a land sale contract must be signed by both parties to be enforceable.
  2. Yes, because the writing is signed by the party to be charged and adequately describes the land. Correct answer.
  3. No, because the buyer never took possession or paid any part of the price.
  4. Yes, but only if the buyer admits in court that a contract existed.

Explanation

The Statute of Frauds requires a writing signed by the party against whom enforcement is sought, not by every party. A memorandum identifying the land and stating the essential terms, signed by the seller, suffices to bind the buyer in most jurisdictions. Part performance or an admission is an alternative route, not a prerequisite.

Question 27Multistate Bar Examination (MBE)

A driver runs a red light and strikes a pedestrian, breaking her leg. The pedestrian sues in negligence. The driver admits he was careless but argues the pedestrian cannot recover because she was not wearing a helmet and would have suffered a milder injury. In a contributory negligence jurisdiction, what is the most likely result?

  1. The pedestrian recovers full damages, because the driver's violation establishes negligence per se.
  2. The pedestrian recovers reduced damages in proportion to her fault.
  3. The pedestrian recovers nothing, because any negligence by the plaintiff bars recovery entirely. Correct answer.
  4. The pedestrian recovers nothing only if her fault exceeded the driver's fault.

Explanation

In a pure contributory negligence jurisdiction, any negligence by the plaintiff that is a proximate cause of the harm bars recovery completely. Comparative fault rules, which reduce or apportion damages, do not apply there. The driver's statutory violation may establish breach, but it does not eliminate the plaintiff's own bar.

Question 28Multistate Bar Examination (MBE)

A homeowner leaves a loaded handgun on her front porch. A young child from next door wanders onto the porch, picks up the gun, and injures himself. The homeowner owed no duty to trespassers except to refrain from willful harm. In the child's suit, which doctrine is most likely to impose a duty on the homeowner?

  1. The doctrine of respondeat superior, because the homeowner controls the premises.
  2. The attractive nuisance doctrine, because a dangerous condition likely to draw children was left accessible. Correct answer.
  3. The doctrine of superseding cause, because the child's parents failed to supervise him.
  4. The doctrine of res ipsa loquitur, because guns do not ordinarily discharge without negligence.

Explanation

The attractive nuisance doctrine creates a duty of reasonable care toward child trespassers when a landowner maintains a dangerous condition the owner knows or should know children are likely to encounter. A loaded firearm left accessible is a classic application. The other doctrines address proof of negligence, vicarious liability, or causation rather than the landowner's duty to child trespassers.

Question 29Multistate Bar Examination (MBE)

A defendant is charged with battery for striking a man at a bar. The defendant claims he acted to defend a friend whom the man was about to stab. Which statement best describes the defense of defense of others?

  1. The defendant may use any force necessary, including deadly force, whenever he subjectively believes it is needed.
  2. The defendant may use reasonable force if he reasonably believed the other person was entitled to use self-defense. Correct answer.
  3. The defendant may use force only if the person defended was in fact the initial aggressor.
  4. The defendant may use force only if the person defended was a family member.

Explanation

The modern rule permits a defender to use the force he reasonably believes the person assisted would be entitled to use in self-defense, even if that belief later proves mistaken. Deadly force is limited to situations where the person defended could use deadly force. The relationship between defender and protected party is irrelevant.

Question 30Multistate Bar Examination (MBE)

An owner delivers a deed to a grantee 'to Grantee for life, then to Grantee's heirs.' Under the common law, what estate does the grantee hold?

  1. A life estate, with a remainder in the grantee's heirs.
  2. A fee simple subject to executory limitation in the heirs.
  3. A fee tail, because the grant is limited to the grantee's line of descent.
  4. A fee simple absolute, because the heirs' interest merges into the grantee's estate. Correct answer.

Explanation

The doctrine of merger of estates treats a life estate followed by a remainder in the life tenant's own heirs as a fee simple absolute, because the heirs take nothing independent of the ancestor. The grantee thus holds the entire estate. A remainder cannot be created in unascertainable heirs of a living person.

Question 31Multistate Bar Examination (MBE)

A company's board adopts a poison pill that makes a hostile takeover prohibitively expensive. The board claims the measure protects shareholders from an inadequate offer. Under Delaware corporate law, which standard of review applies to the board's adoption of the pill?

  1. The Unocal enhanced scrutiny standard, because the board acted defensively against a takeover threat. Correct answer.
  2. The waste standard, because the pill destroys shareholder value.
  3. The entire fairness standard, because a takeover always involves a conflict of interest.
  4. The business judgment rule, because the board's decision is presumed valid without further inquiry.

Explanation

Defensive measures adopted in response to a perceived threat to corporate control are reviewed under the Unocal standard, which asks whether the board had reasonable grounds to believe a threat existed and whether the response was proportionate. The business judgment rule applies only after that scrutiny is satisfied. Entire fairness applies to self-dealing transactions, not ordinary defensive tactics.

Question 32Multistate Bar Examination (MBE)

A plaintiff sues a defendant in federal court based on diversity jurisdiction. The plaintiff wants to call an expert witness who will testify that the defendant's machine design was defective. Under the Federal Rules of Evidence, what must the trial judge determine before admitting the testimony?

  1. Whether the jury finds the expert credible and persuasive.
  2. Whether the testimony rests on sufficient facts and reliable methods reliably applied to the case. Correct answer.
  3. Whether the expert holds a license in the field in which he is testifying.
  4. Whether the expert's opinion is generally accepted by the majority of the relevant scientific community.

Explanation

Under Daubert and Rule 702, the judge serves as gatekeeper and must find that the expert's testimony is based on sufficient facts or data, is the product of reliable principles and methods, and reflects a reliable application of those methods to the facts. General acceptance is one factor, not a threshold requirement. Credibility is for the jury.

Question 33Multistate Bar Examination (MBE)

A defendant is charged with murder and requests appointed counsel because he is indigent. The state refuses, arguing the crime is not capital. Which constitutional principle governs?

  1. The Sixth Amendment requires appointed counsel only when the defendant requests it in writing.
  2. The Sixth Amendment requires appointed counsel only in capital cases.
  3. The Sixth Amendment does not require appointed counsel because prosecution is initiated by the state.
  4. The Sixth Amendment requires appointed counsel for any defendant facing imprisonment who cannot afford a lawyer. Correct answer.

Explanation

Gideon v. Wainwright extended the right to appointed counsel to all indigent felony defendants, and later cases extended it to any case involving actual imprisonment. The right is not limited to capital cases. A request for counsel need not be in writing.

Question 34Multistate Bar Examination (MBE)

A seller agrees to deliver 1,000 widgets to a buyer by June 1. On May 1 the seller tells the buyer, 'I will not be delivering the widgets.' The buyer sues immediately for breach. What is the buyer's best theory?

  1. Frustration of purpose, because the buyer's business purpose has been defeated.
  2. Waiver, because the buyer has not objected to the seller's statement.
  3. Anticipatory repudiation, which permits immediate suit if the repudiation is clear and unequivocal. Correct answer.
  4. Impossibility, because performance has become objectively impossible.

Explanation

An unequivocal repudiation before the time for performance gives the nonbreaching party an immediate right to sue for total breach. The buyer need not wait until June 1. Impossibility and frustration require objective impossibility or a defeated purpose, neither of which is shown.

Question 35Multistate Bar Examination (MBE)

A customer slips on a wet floor in a grocery store. The store had mopped the floor minutes earlier but posted no warning sign. The customer sues for negligence. Which element is the customer most likely to establish through circumstantial evidence?

  1. Breach, because a reasonable store would warn of a known slippery floor. Correct answer.
  2. Duty, because the store owed a duty only to invitees who are warned.
  3. Causation, because the wet floor was the actual and proximate cause of the fall.
  4. Damages, because nominal damages are presumed from any slip.

Explanation

The store owes invitees a duty of reasonable care, and a reasonable proprietor who creates a slippery condition should warn or remedy it. The failure to post a warning supports breach through ordinary circumstantial proof. Duty is a legal question, and damages must be proven rather than presumed.

Question 36Multistate Bar Examination (MBE)

A defendant is charged with burglary of a dwelling at night. The prosecution proves the defendant entered through an unlocked door intending to steal. The defendant argues the entry was not burglarious because the door was unlocked. How should the court rule?

  1. The entry is sufficient, because breaking includes any entry through an opening not intended for entry. Correct answer.
  2. The entry is insufficient unless the defendant remained unlawfully after a lawful entry.
  3. The entry is insufficient, because an unlocked door requires no force and thus no breaking.
  4. The entry is sufficient only if the defendant used actual physical force against the door.

Explanation

At common law, breaking includes constructive breaking, such as entering through a chimney, an open window, or an unlocked door not intended as a means of entry. Actual force is not required. The intent to steal supplies the requisite mens rea.

Question 37Multistate Bar Examination (MBE)

A plaintiff sues a defendant for defamation after the defendant publishes a statement that the plaintiff cheated on a licensing exam. The plaintiff is a private figure, and the statement concerns a matter of public concern. What must the plaintiff prove to prevail?

  1. Damages only, because the statement concerns professional competence.
  2. Falsity only, because the statement is defamatory per se.
  3. Actual malice, because the statement involves a matter of public concern.
  4. Falsity and fault amounting at least to negligence. Correct answer.

Explanation

Under Gertz and its progeny, a private-figure plaintiff on a matter of public concern must prove falsity and fault amounting at least to negligence to recover compensatory damages. Actual malice is required only for presumed or punitive damages. Defamation per se may relieve the need to prove special damages but not the fault requirement.

Question 38Multistate Bar Examination (MBE)

A state enacts a tax that imposes a higher rate on out-of-state businesses than on in-state businesses selling identical goods. An out-of-state seller challenges the tax under the Commerce Clause. Which standard applies?

  1. The tax is invalid if it discriminates against interstate commerce and is not narrowly tailored to a legitimate local purpose. Correct answer.
  2. The tax is invalid only if it exceeds the state's total budget.
  3. The tax is valid if it raises revenue for the state, regardless of discrimination.
  4. The tax is valid if the out-of-state business has no physical presence in the state.

Explanation

A facially discriminatory tax on interstate commerce is virtually per se invalid unless the state can show a legitimate local purpose that cannot be served by reasonable nondiscriminatory alternatives. Revenue-raising alone is not a sufficient justification for discrimination. Physical presence affects collection duties, not the validity of discriminatory rates.

Question 39Multistate Bar Examination (MBE)

An agent is employed to purchase inventory for a principal. The agent buys goods from a supplier at an inflated price and secretly accepts a payment from the supplier. What is the principal's most likely remedy?

  1. Recover nothing, because the principal received the inventory ordered.
  2. Sue the supplier for fraud only if the goods were defective.
  3. Recover the secret payment from the agent, because the agent breached the duty of loyalty. Correct answer.
  4. Rescind the purchase only if the supplier knew of the agency.

Explanation

An agent owes a fiduciary duty of loyalty and may not secretly profit from the agency relationship. The principal may recover the undisclosed benefit from the agent regardless of whether the principal received conforming goods. The duty runs to the principal even without supplier knowledge.

Question 40Multistate Bar Examination (MBE)

A testator's will leaves $100,000 to 'my sister, if she survives me.' The sister predeceases the testator. The residue clause leaves the remainder to charity. What happens to the $100,000?

  1. It passes to the testator's heirs by intestacy, because the residue clause is void.
  2. It passes to the sister's children under the anti-lapse statute only if they are the testator's issue.
  3. It passes to the sister's estate, because the gift was absolute.
  4. It lapses and passes to the residue, because the sister did not survive the testator. Correct answer.

Explanation

A gift conditioned on survival lapses when the beneficiary predeceases the testator, and the lapsed gift falls into the residue. Anti-lapse statutes typically apply to kindred of the testator, such as issue or siblings, but they require the statutory prerequisites, and the question states no such facts.

Question 41Multistate Bar Examination (MBE)

A plaintiff sues a defendant for battery in federal court. The plaintiff seeks to introduce a hospital record stating that the plaintiff said, 'The defendant hit me.' The defendant objects on hearsay grounds. The plaintiff argues the statement is admissible. Which basis best supports admission?

  1. It is admissible as a dying declaration.
  2. It is admissible as a public record.
  3. It is admissible as a business record because it appears in a hospital file.
  4. It is a statement of the plaintiff's then-existing physical condition or a statement for medical diagnosis. Correct answer.

Explanation

Statements made for medical diagnosis or treatment, including the cause of the condition if pertinent to treatment, fall within Rule 803(4). The statement describes the cause of injury and may qualify if made for diagnosis or treatment. A hospital record is not automatically a business record for every statement within it.

Question 42Multistate Bar Examination (MBE)

A defendant is tried for robbery. The prosecution offers evidence that the defendant fled from police shortly after the crime. The defendant argues the flight evidence is inadmissible because it is circumstantial. How should the court rule?

  1. Exclude the evidence because it is character evidence.
  2. Admit the evidence as relevant circumstantial proof of consciousness of guilt. Correct answer.
  3. Admit the evidence only if the defendant testifies.
  4. Exclude the evidence because flight is not direct proof of the crime.

Explanation

Evidence of flight is relevant circumstantial evidence from which the jury may infer consciousness of guilt, provided the defendant knew he was being pursued. Circumstantial evidence is admissible and may support a conviction. It is not character evidence.

Question 43Multistate Bar Examination (MBE)

A plaintiff obtains a default judgment against a defendant in state court. The defendant later learns of the judgment and moves to set it aside, arguing excusable neglect. Under the Federal Rules of Civil Procedure, which standard governs relief from a final judgment?

  1. Relief is unavailable once a default judgment has been entered.
  2. Relief is available only within ten days of the judgment.
  3. Relief may be granted for mistake, inadvertence, surprise, or excusable neglect, and the motion must be made within a reasonable time and no later than one year after entry. Correct answer.
  4. Relief is automatic upon a showing that the defendant did not appear.

Explanation

Rule 60(b)(1) permits relief from a final judgment for mistake, inadvertence, surprise, or excusable neglect, and Rule 60(c) requires the motion within a reasonable time and no more than one year after entry. Default judgments are not immune from relief. There is no automatic vacatur.

Question 44Multistate Bar Examination (MBE)

A seller and buyer enter a contract for the sale of a used car. The contract includes a clause stating that the seller disclaims all warranties, including the implied warranty of merchantability. The car later breaks down. Which statement best describes the enforceability of the disclaimer?

  1. The disclaimer is void because implied warranties cannot be disclaimed.
  2. The disclaimer is effective only if the buyer is a merchant.
  3. The disclaimer is effective regardless of its wording because parties may contract freely.
  4. The disclaimer is effective only if it is conspicuous and mentions merchantability. Correct answer.

Explanation

Under UCC section 2-316, a disclaimer of the implied warranty of merchantability must mention merchantability and, if in a writing, be conspicuous. A general disclaimer of all warranties may not suffice. Implied warranties can be disclaimed, but only in the manner the Code prescribes.

Question 45Multistate Bar Examination (MBE)

A defendant is charged with possession of cocaine. Police stopped the defendant's car without a warrant and searched the trunk, finding the drugs. The stop was based on an anonymous tip that lacked indicia of reliability. What is the strongest argument for suppression?

  1. The search was valid because the defendant was not arrested.
  2. The search was valid because automobiles are always subject to search without cause.
  3. The search violated the Fourth Amendment because it was not supported by probable cause or a recognized exception. Correct answer.
  4. The drugs are admissible because the trunk is not part of the passenger compartment.

Explanation

A warrantless search requires probable cause plus a recognized exception, such as the automobile exception. An unreliable anonymous tip alone does not supply probable cause. The location of the search within the car does not cure an unconstitutional stop or search.

Question 46Multistate Bar Examination (MBE)

A minority shareholder sues directors for approving a transaction with the CEO's wholly owned company. The plaintiff challenges the transaction's fairness. Which standard of review most likely applies?

  1. The Unocal standard, because the transaction affects control.
  2. The business judgment rule, because directors are presumed to act in good faith.
  3. Entire fairness, because the transaction involves a controlling or interested fiduciary. Correct answer.
  4. The waste standard, because the transaction benefits the CEO.

Explanation

Self-dealing transactions between a corporation and its fiduciaries are reviewed for entire fairness unless the board employs procedural protections such as approval by disinterested directors or shareholders. The business judgment rule yields when a conflict exists. Unocal governs defensive measures, not interested transactions.

Question 47Multistate Bar Examination (MBE)

A plaintiff and defendant are citizens of different states. The plaintiff sues for $100,000 in federal court. The plaintiff joins a claim against a second defendant who is a citizen of the plaintiff's state for $10,000. The second defendant moves to dismiss for lack of subject-matter jurisdiction. What is the most likely result?

  1. The court has diversity jurisdiction over the second claim because the amount is below $75,000.
  2. The court may exercise supplemental jurisdiction over the second claim if it arises from the same case or controversy. Correct answer.
  3. The court lacks jurisdiction because the plaintiff cannot sue two defendants in one action.
  4. The court must dismiss the entire action because complete diversity is destroyed.

Explanation

Under 28 U.S.C. section 1367, a federal court with original jurisdiction may exercise supplemental jurisdiction over related claims that are part of the same case or controversy, even if they do not independently satisfy diversity. Complete diversity is required only for claims invoking diversity jurisdiction itself. The court has discretion to decline supplemental jurisdiction in some circumstances.

Question 48Multistate Bar Examination (MBE)

A defendant is charged with murder. At trial, the defendant offers evidence that a third party confessed to the killing. The prosecution objects that the confession is hearsay. The defendant argues the evidence is admissible. Which statement is most accurate?

  1. The evidence is admissible only if the third party testifies.
  2. The evidence may be admitted under the residual exception or as a statement against penal interest if the declarant is unavailable and corroborating circumstances clearly indicate trustworthiness. Correct answer.
  3. The evidence is inadmissible because third-party confessions are always hearsay.
  4. The evidence is admissible because it is offered by the defendant rather than the prosecution.

Explanation

A third-party confession may qualify as a statement against penal interest under Rule 804(b)(3) if the declarant is unavailable and corroborating circumstances clearly indicate trustworthiness, or under the residual exception. Constitutional due process may also require admission of reliable exculpatory evidence. The identity of the offering party does not itself determine admissibility.

Question 49Multistate Bar Examination (MBE)

A landowner grants a neighbor an easement 'for access to the lake' across the landowner's property. The landowner later builds a fence that blocks the easement. The neighbor sues to enforce the easement. The landowner argues the easement is invalid because it was not recorded. What is the most likely outcome?

  1. The easement is enforceable between the original parties even if unrecorded, because recording protects against subsequent purchasers. Correct answer.
  2. The easement is invalid because it lacks a fixed duration.
  3. The easement is void because all easements must be recorded to be valid.
  4. The easement is enforceable only if the neighbor paid consideration.

Explanation

An express easement is valid between the parties who created it even if it is not recorded. Recording statutes protect subsequent bona fide purchasers, not the original grantor. An easement may be perpetual or of reasonable duration, and consideration is not required for its validity between the parties.

Question 50Multistate Bar Examination (MBE)

A defendant is charged with conspiracy to distribute drugs. The prosecution proves the defendant agreed with an undercover officer to sell drugs and took a substantial step toward the sale. The defendant argues there was no conspiracy because the officer lacked genuine intent. How should the court rule?

  1. The defendant may be convicted only if the officer is charged as a co-conspirator.
  2. The defendant cannot be convicted because the officer's lack of intent negates the agreement.
  3. The defendant cannot be convicted because conspiracy requires at least two guilty minds.
  4. The defendant may be convicted under the unilateral theory of conspiracy if the jurisdiction follows it, because the defendant had the requisite intent. Correct answer.

Explanation

Under the unilateral approach, a conspiracy requires only that one party genuinely intend the unlawful objective; the feigned agreement of an undercover officer does not defeat the offense. The common-law bilateral rule, followed in some jurisdictions, would require two guilty minds. The question asks which theory permits conviction, and the unilateral theory does.