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MT Bar practice questions

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Question 1Multistate Bar Examination (MBE)

A patient consented in writing to surgery on her right knee. While operating, the surgeon found the right knee healthy but discovered a serious tear in the left knee and repaired it. The repair was performed skillfully and improved the patient's condition, but she had never agreed to surgery on the left knee. In the patient's battery action against the surgeon, is she likely to prevail?

  1. No, because the surgery left the patient better off than before.
  2. No, because the surgeon did not intend to harm the patient.
  3. Yes, because the surgeon intentionally made contact with her body beyond the scope of her consent. Correct answer.
  4. No, because consent to surgery carries an implied authorization for any procedure the surgeon considers advisable.

Explanation

Battery requires an intentional act that causes a harmful or offensive contact with another person. Consent marks the boundaries of the contact a patient has authorized, so a surgeon who operates on a body part the patient never agreed to commits battery even if the treatment is skillful and beneficial. The relevant intent is the intent to make the contact, not an intent to injure.

Question 2Multistate Bar Examination (MBE)

A driver is sued by a pedestrian struck at an intersection. Two days after the collision, the driver told an insurance adjuster, "I ran the light because I was texting." At trial, the pedestrian offers the adjuster's testimony repeating that statement. The driver objects on hearsay grounds. How should the court rule?

  1. Exclude it, because it is an out-of-court statement offered for its truth.
  2. Admit it, because it was made close in time to the collision.
  3. Exclude it, because statements to an insurer are protected by the work-product doctrine.
  4. Admit it, because the driver's own statement is offered against him. Correct answer.

Explanation

Under Federal Rule of Evidence 801(d)(2), a statement that a party made and that is offered against that party is an opposing party's statement and is expressly excluded from the definition of hearsay. The declarant need not be available, need not have been under oath, and the statement may be used for its truth. No separate hearsay exception is required.

Question 3Multistate Bar Examination (MBE)

On May 1, an owner mailed a signed offer to sell a warehouse to a buyer, stating that the offer would remain open until June 1. On May 5, the buyer mailed a signed acceptance. On May 6, the owner mailed a revocation. The owner received the acceptance on May 8, and the buyer received the revocation on May 9. The parties are not merchants as to this property and no option contract was formed. Is there an enforceable contract?

  1. No, because the buyer's acceptance was not received until after the owner decided to revoke.
  2. No, because a revocation is effective on dispatch, so the owner revoked before acceptance.
  3. Yes, because the acceptance was effective when mailed, before the revocation was sent. Correct answer.
  4. Yes, because the owner's promise to keep the offer open until June 1 was binding.

Explanation

Under the common-law mailbox rule, an acceptance sent by an authorized medium becomes effective as soon as it is dispatched, unless the offer states otherwise. A revocation, by contrast, is effective only when it is received. Because the buyer mailed the acceptance on May 5, a day before the owner sent the revocation, a contract was formed on dispatch.

Question 4Multistate Bar Examination (MBE)

A plaintiff sues a defendant in federal court on a state-law contract claim, invoking diversity jurisdiction; she seeks $200,000, and the parties are citizens of different states. The defendant answers and asserts a $30,000 compulsory counterclaim for breach of the same contract, also a state-law claim. The defendant is a citizen of the same state as the plaintiff. The defendant moves to dismiss the counterclaim for lack of subject-matter jurisdiction. How should the court rule?

  1. Grant the motion, because the counterclaim lacks complete diversity and does not satisfy the amount in controversy.
  2. Deny the motion, because the counterclaim arises from the same contract, so the amounts in controversy may be aggregated.
  3. Deny the motion, because the counterclaim is part of the same case or controversy and §1367(b) does not apply here. Correct answer.
  4. Grant the motion, because a state-law counterclaim always needs an independent basis for federal jurisdiction.

Explanation

Section 1367(a) gives the federal courts supplemental jurisdiction over claims so related to the claim with original jurisdiction that they form part of the same case or controversy, and a compulsory counterclaim arising from the same transaction satisfies that test. The exceptions in §1367(b) reach only claims by plaintiffs against parties joined under Rules 14, 19, 20, or 24, so they do not strip jurisdiction over a defending party's counterclaim. No independent diversity or amount in controversy is needed.

Question 5Multistate Bar Examination (MBE)

A city ordinance requires anyone who wants to hold a demonstration in a public park to obtain a permit from the chief of police. The ordinance sets no deadline, no standards, and no review process; the chief simply grants or denies applications as he sees fit. A group whose application was denied challenges the ordinance. How should a facial challenge be resolved?

  1. It should fail, because the group applied for and was denied a permit, so it cannot bring a facial challenge.
  2. It should succeed, because the ordinance gives an official unfettered discretion over protected speech. Correct answer.
  3. It should fail, because parks are nonpublic forums the city may regulate however it chooses.
  4. It should succeed, because the First Amendment bars all permit requirements for demonstrations in public parks.

Explanation

Public parks are traditional public forums, so any licensing scheme for speech there must contain narrow, objective, and definite standards and must not confer unbridled discretion on the deciding official. An ordinance leaving the chief of police free to grant or deny permits with no criteria is a facially invalid prior restraint, and a facial challenge is permitted because the discretionary power itself chills protected speech.

Question 6Multistate Bar Examination (MBE)

A man asked his friend to drive him to a convenience store and keep the engine running outside. The friend knew the man planned to rob the store but did not know he was armed. When the man ran out with the cash, the cashier chased him, and the man shot and killed the cashier. The jurisdiction applies the common law of felony murder and accomplice liability. The friend is charged with felony murder. Is he guilty?

  1. No, because he did not know the man was armed and could not foresee the shooting.
  2. No, because he stayed in the car and did not participate in the killing.
  3. Yes, because he aided the robbery and the killing occurred during that felony. Correct answer.
  4. Yes, but only if he personally participated in the killing.

Explanation

An accomplice is liable for the offense he aids and abets and for other crimes that are the natural and probable consequence of that offense. Felony murder is a foreseeable result of an inherently dangerous felony such as robbery, so the friend's ignorance that the principal carried a gun and his position in the getaway car do not shield him from liability.

Question 7Multistate Bar Examination (MBE)

A landowner granted a neighbor a recorded easement across the landowner's parcel, described in the deed as an easement "for access to the lake." The neighbor later sold his parcel, and the deed conveyed the parcel "together with all appurtenant easements." The landowner now refuses to let the buyer use the path, arguing that the original grant was personal to the neighbor because it did not mention heirs and assigns. Who prevails?

  1. The landowner wins, because the easement was granted for a personal purpose and lapsed when the neighbor moved away.
  2. The landowner wins, because easements in gross terminate when the original holder sells the benefited parcel.
  3. The landowner wins, because the grant did not use words of inheritance.
  4. The buyer wins, because an easement appurtenant passes automatically with the dominant estate. Correct answer.

Explanation

An easement appurtenant benefits the holder in the use of a particular parcel, the dominant estate, and it passes automatically with that parcel when the parcel is transferred, even if the deed is silent. Because this easement served the neighbor's parcel by giving it access to the lake, it runs with the land unless the original grant expressly made it personal, and no words of inheritance are required.

Question 8Multistate Bar Examination (MBE)

After his arrest for burglary, a suspect received Miranda warnings and said, "I want a lawyer." Officers stopped questioning him and placed him in a holding cell. Two hours later, with no counsel present, an officer walked past the cell and the suspect said, "I'll tell you what happened if you want." The officer then questioned him, and the suspect confessed. Under federal constitutional law, is the confession admissible?

  1. No, because the two-hour gap shows the police deliberately delayed in providing counsel.
  2. No, because the suspect asked for counsel, and no interrogation may occur until counsel is provided.
  3. Yes, because the suspect himself initiated the further exchange. Correct answer.
  4. Yes, because the suspect was not in custody when he made the statement from his cell.

Explanation

Once a suspect in custody invokes the right to counsel, further interrogation is barred unless counsel is present or the suspect himself initiates the exchange. Here the suspect volunteered the offer to talk, so the officer could resume questioning and any resulting waiver is valid; the police were not required to supply counsel unasked.

Question 9Multistate Bar Examination (MBE)

A state enacted a law requiring all new homes to be equipped with fire sprinklers. A plumbing-supply company in the state that does not sell sprinklers sues to enjoin the law, alleging that the law will increase construction costs and reduce its sales. The company offers no other evidence about its own business. Does the company have Article III standing?

  1. No, because a company cannot challenge a state law regulating construction.
  2. Yes, because any economic effect of a statute is sufficient for standing.
  3. Yes, because it competes in the same market as sprinkler suppliers.
  4. No, because the claimed injury is speculative and not concrete. Correct answer.

Explanation

Article III standing requires an injury in fact that is concrete, particularized, and actual or imminent, along with causation and redressability. A conclusory allegation that a regulation will raise construction costs and shrink sales, without any concrete showing that the company's own business will be affected, is too speculative to support standing.

Question 10Multistate Bar Examination (MBE)

O, the owner of Blackacre, conveyed it to A by warranty deed, and A did not record. A then conveyed Blackacre to B by warranty deed; B paid fair value, did not record, and had no notice of any competing claim. Later, O conveyed Blackacre to C, who paid fair value, had no notice of the conveyances to A or B, and immediately recorded. B then recorded. The jurisdiction has a race-notice recording statute. Who holds superior title?

  1. B and C as tenants in common, because both paid value for their deeds.
  2. A, because A's failure to record left record title in A.
  3. C, because C took without notice of the prior conveyances and recorded before B. Correct answer.
  4. B, because B was the first bona fide purchaser to acquire an interest in Blackacre.

Explanation

A race-notice statute protects a later purchaser who pays value, takes without notice of the earlier conveyance, and records before the earlier purchaser records. C met all three requirements, so C's interest prevails even though B bought first, and B's later recording cannot revive the interest C already cut off.

Question 11Multistate Bar Examination (MBE)

At a robbery trial, the prosecution offers a statement made by an unavailable bystander to a 911 dispatcher: "A man in a red cap just ran past me going north on Elm." The statement is offered to prove the direction the robber fled. How should the court rule?

  1. Admit it as a present sense impression. Correct answer.
  2. Exclude it because it was made to a 911 dispatcher rather than under oath.
  3. Exclude it because the bystander is unavailable and cannot be cross-examined.
  4. Admit it as an excited utterance only if the bystander was visibly frightened.

Explanation

Under Federal Rule of Evidence 803(1), a statement describing or explaining an event made while or immediately after the declarant perceived it is admissible as a present sense impression. The bystander described the robber's flight right after observing it, so the exception applies. Neither unavailability nor an oath is required for this hearsay exception.

Question 12Multistate Bar Examination (MBE)

A state statute requires all cyclists riding at night to display a front headlight. The legislature intended the law to prevent nighttime collisions between cyclists and motor vehicles. A cyclist riding without a light is struck by a car at night. In the cyclist's negligence action, the unlit bicycle is relevant because the statute may

  1. establish the driver's duty to yield in every nighttime collision
  2. create strict liability for any collision involving a cyclist at night
  3. have no effect because statutes cannot define negligence in tort actions
  4. set the standard of care as negligence per se Correct answer.

Explanation

Negligence per se uses a statute to set the standard of care when the plaintiff is within the class the legislature intended to protect and the injury is the type the statute was designed to prevent. The headlight law was meant to prevent nighttime cyclist-motor vehicle collisions, so it may supply the standard. It does not create strict liability.

Question 13Multistate Bar Examination (MBE)

Police lawfully arrest a suspect inside his apartment on a valid warrant. Immediately after the arrest, the officers search the suspect's person and the area within his immediate control. The search is

  1. valid as a search incident to arrest. Correct answer.
  2. invalid unless the officers first obtain a separate search warrant.
  3. invalid because the arrest occurred in a home.
  4. valid only if the suspect consented to the search.

Explanation

A lawful arrest permits a search of the arrestee's person and the area within the arrestee's immediate control to prevent destruction of evidence and to remove weapons. This rule comes from Chimel v. California and does not require a separate warrant or consent. The fact that the arrest occurred in a home does not by itself invalidate the search incident to arrest.

Question 14Multistate Bar Examination (MBE)

A merchant sells a new bicycle to a consumer under a written contract. The contract states in bold capital letters: "SELLER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE WARRANTY OF MERCHANTABILITY." The bicycle's frame cracks in normal use. Under the UCC, the disclaimer is

  1. invalid because implied warranties cannot be disclaimed for new goods.
  2. invalid unless the buyer signs a separate waiver.
  3. valid only if the buyer is a merchant.
  4. valid because it is conspicuous and specifically mentions merchantability. Correct answer.

Explanation

UCC section 2-316 permits a seller to disclaim the implied warranty of merchantability if the disclaimer is conspicuous and mentions merchantability. The bold capital-letter clause satisfies both requirements, so it is effective. The rule applies even when the buyer is a consumer rather than a merchant.

Question 15Multistate Bar Examination (MBE)

A tenant operates a bakery and installs a commercial oven bolted to the leased floor. The lease is silent about fixtures. When the lease ends, the oven is best characterized as

  1. a fixture owned jointly by the tenant and landlord.
  2. a removable trade fixture if removal causes no substantial damage. Correct answer.
  3. a fixture that automatically becomes the landlord's property and cannot be removed.
  4. personal property that the tenant must remove.

Explanation

A trade fixture is an item installed by a tenant for business purposes. It remains the tenant's personal property and is removable at the end of the lease if removal does not cause substantial damage to the leased premises. Because the lease is silent, this default rule governs.

Question 16Multistate Bar Examination (MBE)

A state board prohibits pharmacists from advertising the prices of prescription drugs. A pharmacy challenges the ban. Under the commercial speech doctrine, the prohibition is most likely

  1. valid because states may regulate professions broadly.
  2. valid because price advertising is misleading per se.
  3. invalid because it is more extensive than necessary. Correct answer.
  4. invalid because commercial speech receives full political-speech protection.

Explanation

Truthful, lawful commercial speech is protected under the First Amendment, and restrictions must directly advance a substantial governmental interest and be no more extensive than necessary. A blanket ban on price advertising by pharmacists fails that standard because less restrictive alternatives exist. Professional regulation does not remove commercial speech protection.

Question 17Multistate Bar Examination (MBE)

An Ohio corporation manufactures kitchen appliances and sells them nationwide through a website. A California resident buys one of the appliances in California and is injured by a defect. She sues the company in California federal court. The company's contacts with California are

  1. insufficient because the company is incorporated and headquartered in Ohio.
  2. sufficient for specific jurisdiction based on purposeful availment and relatedness. Correct answer.
  3. irrelevant because federal courts require complete diversity only.Incorrect
  4. sufficient only if the company has a physical office in California.

Explanation

Specific personal jurisdiction exists when the defendant purposefully avails itself of the forum market and the claim arises out of or relates to those forum contacts. Selling products nationwide through a website can satisfy purposeful availment when the product is purchased in the forum. A physical office is not required, and diversity jurisdiction is a separate question.

Question 18Multistate Bar Examination (MBE)

On June 1, a seller agrees to deliver goods to a buyer on August 1. On June 20, the seller unequivocally tells the buyer, "I will not deliver the goods." The buyer

  1. must wait until August 1 before filing suit.
  2. loses the right to sue by treating the contract as ended.
  3. may sue immediately only if the seller's statement is in writing.
  4. may treat it as an anticipatory repudiation and sue immediately. Correct answer.

Explanation

An unequivocal anticipatory repudiation gives the nonbreaching party an immediate right to sue for total breach. The buyer may also wait for the performance date, but waiting risks the buyer's own obligations. A writing is not required for the repudiation to be effective.

Question 19Multistate Bar Examination (MBE)

At a drug conspiracy trial, the prosecution offers a statement made by an alleged co-conspirator to an undercover officer during the conspiracy. The statement describes a planned sale and is offered against the defendant. Under the Federal Rules of Evidence, the statement is admissible if the prosecution shows by a preponderance that

  1. the declarant is unavailable to testify at trial.
  2. the declarant made it during and in furtherance of the conspiracy. Correct answer.
  3. the defendant personally heard the statement.
  4. the statement was against the declarant's penal interest.

Explanation

Federal Rule of Evidence 801(d)(2)(E) treats a co-conspirator's statement as nonhearsay when it is made during the conspiracy and in furtherance of it. The proponent must prove the conspiracy and the declarant's membership by a preponderance of the evidence. Unavailability and the defendant's presence are not required.

Question 20Multistate Bar Examination (MBE)

A delivery driver negligently leaves the keys in the ignition of a truck while making a delivery. A thief steals the truck and, while fleeing, strikes a pedestrian. In the pedestrian's negligence action against the delivery company, the theft is

  1. generally a superseding cause unless the theft was foreseeable. Correct answer.
  2. a superseding cause only if the thief is convicted of a crime.
  3. irrelevant because the driver's negligence is a cause in fact.
  4. a foreseeable intervening act that always imposes liability on the driver.

Explanation

An intervening criminal act generally supersedes the defendant's negligence unless the criminal act was foreseeable. Leaving keys in an unlocked truck can create a foreseeable risk of theft in some circumstances, but the thief's reckless flight is ordinarily a superseding cause. The conviction of the thief is not the test.

Question 21Multistate Bar Examination (MBE)

A plaintiff sues over damage to her car. To prove the cost of repairs, she offers an itemized invoice prepared by the body shop's office manager from the mechanic's worksheet, on the day the repairs were finished, and kept in the shop's ordinary billing files. The office manager has no personal knowledge of the repair work. The defendant objects on hearsay grounds. How should the court rule?

  1. Admit it; the invoice was made at or near the time of the repairs from information supplied by a person with knowledge, in the ordinary course of business. Correct answer.
  2. Exclude it, because although the invoice is a business record, it was prepared for billing purposes and is therefore inadmissible hearsay when offered to prove the cost of the repairs.
  3. Exclude it, because the office manager who prepared the invoice had no personal knowledge of the repair work and so cannot provide a sufficient foundation.
  4. Admit it, but only if the mechanic who performed the repairs is shown to be unavailable to testify at trial.

Explanation

Under FRE 803(6), a record of a regularly conducted activity is admissible if it was made at or near the time by, or from information transmitted by, someone with knowledge, kept in the course of that activity, and shown by a qualified witness; the preparer need not have personal knowledge. The mechanic's worksheet supplies the knowledge requirement, and the shop's regular billing practice supplies the routine. The rule does not require the mechanic's unavailability, and billing is itself an ordinary business activity.

Question 22Multistate Bar Examination (MBE)

An aunt signed a written promise to her niece's remodeling contractor: "If my niece does not pay you for the kitchen work, I will pay you the full contract price of $30,000." The contractor finished the work. The niece paid $10,000 and then filed for bankruptcy. The contractor sues the aunt for the remaining $20,000. What result?

  1. The contractor cannot recover, because the contractor gave no consideration to the aunt for her promise.
  2. The contractor cannot recover, because the contractor is at most an incidental beneficiary of a promise made for the niece's benefit.
  3. The contractor recovers only after exhausting all claims against the niece in the bankruptcy proceeding.
  4. The contractor recovers, because the aunt's promise was intended to benefit the contractor, who is a creditor beneficiary. Correct answer.

Explanation

A third party may enforce a promise when the contracting parties intended to confer on that party the right to performance. A creditor beneficiary-one to whom the promisee owes an obligation that the promisor agrees to satisfy-is such an intended beneficiary. The aunt's promise was expressly conditioned on the niece's nonpayment, showing an intent to benefit the contractor directly, and enforcement does not depend on first suing the niece.

Question 23Multistate Bar Examination (MBE)

A store detective watched a customer slip a watch into his coat and walk past the registers without paying. The detective stopped him near the exit, led him to an office, questioned him for fifteen minutes, and called police, who found the watch. The customer sues for false imprisonment. What result?

  1. The store is liable, because the detective needed probable cause rather than a reasonable suspicion before physically detaining the customer.
  2. The store is liable, because any intentional detention of a customer without a warrant or the customer's consent constitutes false imprisonment, regardless of the reason for it.
  3. The store is not liable, because the detention was based on reasonable grounds and was conducted in a reasonable manner for a reasonable time. Correct answer.
  4. The store is not liable, because the customer actually took the watch and therefore cannot complain about any intentional tort.

Explanation

The shopkeeper's privilege allows a merchant to detain a suspected shoplifter for a reasonable time, in a reasonable manner, on reasonable grounds of suspicion, for the purpose of investigating. The detective saw the concealment and the bypassed registers, questioned the customer briefly, and summoned police, all within the privilege. The privilege defeats the false-imprisonment claim even though a detention occurred.

Question 24Multistate Bar Examination (MBE)

A buyer sent a purchase order for 500 commercial ovens at $1,000 each. It contained no warranty terms. The seller, a merchant, returned an acknowledgment reciting the same quantity and price but adding in bold type: "Seller disclaims the implied warranty of merchantability." The buyer said nothing and accepted delivery. When the ovens failed, the buyer sued for breach of the implied warranty. Is the disclaimer part of the contract?

  1. No, because a merchant's acknowledgment that adds any term to the offer operates as a counteroffer rather than as an acceptance of the original offer.
  2. No, because a disclaimer of the implied warranty of merchantability materially alters the contract and the buyer never expressly agreed to it. Correct answer.
  3. Yes, because the disclaimer appears in bold type and is therefore conspicuous under the UCC's requirements for warranty disclaimers.
  4. Yes, because the buyer accepted the ovens without objecting to the acknowledgment form and therefore assented to all of its terms.

Explanation

Under UCC 2-207(2), an additional term in a merchant's definite expression of acceptance becomes part of the contract unless it would materially alter the deal and the offer did not expressly limit acceptance to its own terms. A disclaimer of the implied warranty of merchantability is treated as a material alteration, and the buyer's silence is not the express agreement needed to adopt it. Conspicuousness satisfies the separate 2-316 disclaimer formality but does not cure the material-alteration problem.

Question 25Multistate Bar Examination (MBE)

Three siblings acquired a farm as joint tenants with the right of survivorship. One sibling conveyed her interest to a stranger by quitclaim deed. A second sibling then died intestate. The third sibling claims the entire farm. How should the farm be owned?

  1. The stranger owns one-third and the surviving sibling owns two-thirds, as tenants in common. Correct answer.
  2. The surviving sibling owns the entire farm, because the right of survivorship defeated the stranger's interest when the second sibling died.
  3. The stranger owns one-third, and the surviving sibling and the deceased sibling's heirs own the remaining two-thirds as joint tenants.
  4. The stranger owns one-third and the surviving sibling owns two-thirds, as joint tenants with each other.

Explanation

A conveyance by one joint tenant severs the joint tenancy as to that share and converts it into a tenancy in common held by the grantee alongside the remaining joint tenants; the untouched shares stay joint among the original owners. When the second sibling died, her one-third share passed to the surviving sibling by survivorship. The surviving sibling therefore holds two-thirds in severalty, and the stranger holds one-third, both as tenants in common.

Question 26Multistate Bar Examination (MBE)

A man agreed to drive the getaway car for a planned bank robbery and helped the planner case the bank the week before. On the morning of the robbery he called the planner and said, "I'm out; count me out," and stayed home. He did not call police or take any other step. The robbery went forward with another driver. Is the man liable for the robbery?

  1. Yes, but only if the planner actually relied on his earlier help in planning the robbery.
  2. No, because he was not present at the robbery and gave no aid on the day it occurred.
  3. No, because he communicated his withdrawal to the planner before the robbery was committed.
  4. Yes, because he did not neutralize his earlier assistance in casing the bank. Correct answer.

Explanation

An accomplice who wants to withdraw must neutralize the assistance already given-typically by notifying the authorities or taking equivalent effective steps-and must repudiate the plan early enough for the others to abandon it. Simply telling the confederates he is out excuses only future aid, not the help he already supplied. His absence on the day of the robbery does not undo the casing assistance he provided.

Question 27Multistate Bar Examination (MBE)

Officers developed probable cause to believe that a sedan contained stolen laptops. They stopped the sedan, which was occupied by the driver, and searched the trunk and a locked hard-sided case inside the trunk without a warrant. Stolen laptops were found in the case. The driver moves to suppress. Should the motion be granted?

  1. Yes, because a locked container found inside a vehicle may not be opened without a warrant, even when the officers have probable cause to believe it holds contraband.
  2. No, because probable cause to believe the vehicle contained contraband justified searching the trunk and the containers in it. Correct answer.
  3. Yes, because the officers had time to obtain a warrant before stopping the car and therefore should have done so.
  4. No, because the search was valid as a search incident to the arrest of the driver of the vehicle.

Explanation

Under the automobile exception, if officers have probable cause to believe a vehicle contains contraband or evidence, they may search the vehicle, including its trunk and any containers inside that might hold the object of the search. The exception does not require a warrant or a showing that obtaining one was impracticable. The locked case was within the scope of the probable-cause-based search.

Question 28Multistate Bar Examination (MBE)

A manufacturer is incorporated in Delaware and has its principal place of business in Ohio. It runs a distribution center in Nevada, where it employs 200 people and earns about 8% of its revenue. A Nevada resident sues the manufacturer in Nevada federal court on a claim about a ladder bought in Ohio. Does the court have general jurisdiction over the manufacturer?

  1. Yes, because the manufacturer's distribution center and employees give it continuous and systematic contacts with Nevada of the kind that supports general jurisdiction.
  2. Yes, because the plaintiff is a Nevada resident and the manufacturer has substantial sales in the state, so jurisdiction and venue are proper there.
  3. No, because the manufacturer is at home only in Delaware and Ohio, and its Nevada operations do not make it at home there. Correct answer.
  4. Yes, because the manufacturer operates a distribution center and employs 200 people in Nevada, which makes it essentially at home there.

Explanation

After Goodyear and Daimler, a corporation is "at home" for general jurisdiction where it is incorporated or has its principal place of business, or in the exceptional case where its operations are so substantial that it is essentially at home. A distribution center, 200 employees, and 8% of revenue fall far short of that. Neither the plaintiff's residence nor substantial in-state sales creates general jurisdiction over an unrelated claim.

Question 29Multistate Bar Examination (MBE)

A city designated a 60-year-old movie palace as a historic landmark, which barred the owner from altering the facade. The owner continued to operate the theater at a profit but claimed the designation destroyed the building's redevelopment value and sued, alleging a taking. Which standard governs, and what result?

  1. The Penn Central factors apply, and the owner loses because the designation does not deny all economically viable use and allows the existing use. Correct answer.
  2. A per se taking has occurred, because the designation permanently prevents the owner from altering the property in any way.
  3. The Penn Central factors apply, and the owner likely wins because any measurable reduction in the property's redevelopment value is a compensable taking.
  4. A per se taking has occurred unless the city can show that the designation substantially advances a legitimate state interest and does not burden the owner disproportionately.

Explanation

Regulations that neither compel a physical invasion nor deprive the owner of all economically beneficial use are judged under the ad hoc Penn Central factors: economic impact, interference with distinct investment-backed expectations, and the character of the government action. A facade restriction that leaves the theater operating at a profit ordinarily is not a taking. Only denial of all economically viable use triggers the categorical rule of Lucas.

Question 30Multistate Bar Examination (MBE)

The defendant is tried for arson of a warehouse. The defense offers a recorded statement by the defendant's friend, who died before trial: "I set that fire myself. The defendant had nothing to do with it." No other evidence connects the friend to the fire. Is the statement admissible for its truth?

  1. Yes, because the friend's statement is an admission by a party opponent and the defendant adopted it.
  2. No, because the friend's statement is hearsay and no exception applies to statements that shift blame to a dead declarant.
  3. Only if corroborating circumstances clearly indicate the statement's trustworthiness, because it is offered to exculpate the accused. Correct answer.
  4. Yes, because a statement against a declarant's penal interest is always admissible once the declarant is unavailable.

Explanation

FRE 804(b)(3) admits a statement that a reasonable person would make only if true because it exposed the declarant to criminal liability, provided the declarant is unavailable. When such a statement is offered in a criminal case to exculpate the accused, the rule adds a requirement of corroborating circumstances that clearly indicate trustworthiness. The friend's confession to arson is against his penal interest, but without corroboration it cannot be admitted for its truth.

Question 31Multistate Bar Examination (MBE)

A citizen of State A sues two defendants in federal court. Defendant One is a citizen of State A, and Defendant Two is a citizen of State B. The complaint seeks $150,000 in damages. Defendant One moves to dismiss for lack of subject-matter jurisdiction. How should the court rule?

  1. Deny the motion, because Defendant One is not an indispensable party.
  2. Grant the motion, because complete diversity is absent. Correct answer.
  3. Grant the motion, because the plaintiff did not allege more than $75,000 in controversy.
  4. Deny the motion, because the amount in controversy exceeds $75,000 and one defendant is diverse.

Explanation

Diversity jurisdiction under 28 U.S.C. § 1332 requires complete diversity between all plaintiffs and all defendants, plus an amount in controversy exceeding $75,000. Because the plaintiff and Defendant One are both citizens of State A, complete diversity is absent regardless of the amount sought. The court should therefore grant the motion to dismiss.

Question 32Multistate Bar Examination (MBE)

On March 1, an offeror sends an offeree a signed letter offering to sell a used boat for $8,000. The letter states that acceptance must be mailed by March 10, and it contains no option contract. On March 5, the offeree mails an acceptance. On March 6, before the offeror receives the acceptance, the offeror telephones the offeree and revokes the offer. The offeree receives the revocation that day. Is a contract formed?

  1. Yes, because acceptance became effective when mailed on March 5. Correct answer.
  2. Yes, but only if the offeree had received the offer before mailing acceptance.
  3. No, because the offeror revoked the offer before receiving the acceptance.
  4. No, because the revocation was communicated before the acceptance was received.

Explanation

Under the mailbox rule, an acceptance is generally effective when dispatched, unless the offer provides otherwise or an option contract exists. The offeree mailed acceptance on March 5, so the contract was formed then; the later telephone revocation could not undo it. The offeror's receipt of the acceptance is irrelevant under these facts.

Question 33Multistate Bar Examination (MBE)

A homeowner invites a neighbor to a dinner party. While walking down the basement stairs, the neighbor is injured when a handrail that the homeowner knew was loose gives way. The homeowner had not warned the neighbor. The neighbor sues for negligence. What duty did the homeowner owe the neighbor?

  1. A duty to warn of the known dangerous condition of the handrail. Correct answer.
  2. No duty, because the neighbor was a trespasser.
  3. No duty, because social guests are owed no duty of care.
  4. A duty to inspect the premises for latent defects and repair all unsafe conditions.

Explanation

A social guest is a licensee, and a possessor owes a licensee a duty to warn of known dangerous conditions that the licensee is unlikely to discover. The homeowner knew the handrail was loose, so the failure to warn breached that duty. A licensee is not owed a duty to inspect for latent defects.

Question 34Multistate Bar Examination (MBE)

In a civil action arising from a car collision, the plaintiff alleges that the defendant drove negligently. To show that the defendant acted in conformity with a reckless character, the plaintiff offers testimony that the defendant has a reputation in the community for driving recklessly. The defendant objects. How should the court rule?

  1. Admit it, because the defendant's driving character is at issue in every negligence case.
  2. Admit it, because reputation evidence is always admissible to show conduct.
  3. Exclude it, because reputation evidence is hearsay without an exception.
  4. Exclude it, because character evidence cannot prove conduct in a civil negligence case. Correct answer.

Explanation

Federal Rule of Evidence 404(a)(1) bars character evidence offered to prove that a person acted in conformity with that character. In a civil negligence case, the defendant's character is not an essential element of the claim, so reputation evidence of reckless driving is inadmissible for that purpose. The evidence could be admissible for a different, proper purpose, but none is offered here.

Question 35Multistate Bar Examination (MBE)

For 25 years, a neighbor openly and continuously crossed a landowner's gravel path to reach a public road. The statutory period for prescription is 20 years. In year 10, the landowner gave the neighbor written permission to use the path, and the neighbor continued using it. The neighbor now claims a prescriptive easement. Is the claim valid?

  1. Yes, because written permission confirms the use was open and notorious.
  2. Yes, because the use lasted longer than the 20-year statutory period.
  3. No, because the neighbor's use was not adverse after permission was granted. Correct answer.
  4. No, because a prescriptive easement requires exclusive use.

Explanation

A prescriptive easement requires use that is open, notorious, continuous, and adverse for the statutory period. Once the landowner gave permission, the neighbor's use became permissive rather than adverse, so the required period was interrupted. The claim therefore fails even though the total use exceeded 20 years.

Question 36Multistate Bar Examination (MBE)

A bookkeeper is employed to collect customer payments on behalf of a company and to deposit them in the company's account. Instead, the bookkeeper keeps $5,000 of collected payments and covers the shortage with false entries. The bookkeeper is charged with theft. Which offense best describes the conduct at common law?

  1. False pretenses, because the bookkeeper obtained title to the funds by deception.
  2. Robbery, because the bookkeeper used false entries to conceal the taking.
  3. Larceny, because the bookkeeper took property from the company's possession.
  4. Embezzlement, because the bookkeeper converted funds lawfully in her possession. Correct answer.

Explanation

Embezzlement is the fraudulent conversion of property of another by a person who lawfully possesses the property. The bookkeeper had lawful possession of the collected payments and then converted them to her own use, which fits embezzlement rather than larceny. Larceny would require a trespassory taking from another's possession.

Question 37Multistate Bar Examination (MBE)

A state enacts a law imposing a $40 per ton fee on all solid waste generated outside the state that is disposed of in state landfills. No fee is imposed on solid waste generated within the state. A waste-hauling company challenges the fee. Which standard should a court apply?

  1. Rational-basis review, because landfills are a traditional state function.
  2. Congressional authorization, because only Congress may regulate interstate waste.
  3. Strict scrutiny, because the fee discriminates against interstate commerce. Correct answer.
  4. No review, because states may charge whatever they wish for landfill use.

Explanation

A state fee that discriminates against out-of-state commerce is subject to strict scrutiny under the dormant Commerce Clause. The state must show that the fee serves a legitimate local purpose that cannot be achieved by reasonable nondiscriminatory alternatives. A higher fee on out-of-state waste is facially discriminatory, so rational-basis review is insufficient.

Question 38Multistate Bar Examination (MBE)

A bride contracts with a hotel to rent a ballroom for her wedding reception on June 1. On May 1, the hotel is destroyed by a fire not caused by either party, and the hotel cannot provide any comparable ballroom. The bride sues for breach. What is the hotel's best defense?

  1. The fire made performance impossible and discharged the hotel's duty. Correct answer.
  2. The bride assumed the risk of fire when she signed the contract.
  3. The contract was void for lack of consideration.
  4. The hotel's duty was only to use reasonable efforts to find another ballroom.

Explanation

When the specific subject matter of a contract is destroyed without fault of either party before performance, the duty to perform is discharged by impossibility. The fire destroyed the only ballroom the hotel promised, so the hotel's performance became impossible. The bride did not assume that risk merely by signing the contract.

Question 39Multistate Bar Examination (MBE)

The defendant is prosecuted for assault. The prosecution calls a police officer who testifies that an unavailable witness told him at the scene, "The defendant stabbed me." The defendant had no prior opportunity to cross-examine the witness, and the statement is testimonial. Is the statement admissible?

  1. No, because it is testimonial hearsay with no prior cross-examination. Correct answer.
  2. No, because police officers may never testify about victims' statements.
  3. Yes, because the statement qualifies as an excited utterance.
  4. Yes, because the witness is unavailable and the statement is against penal interest.

Explanation

The Confrontation Clause bars admission of testimonial hearsay from an unavailable declarant unless the defendant had a prior opportunity to cross-examine the declarant. The statement is testimonial and the defendant had no such opportunity, so it is inadmissible despite any hearsay exception. A hearsay exception does not by itself satisfy confrontation.

Question 40Multistate Bar Examination (MBE)

A federal district court exercises diversity jurisdiction over a state-law contract claim. The state's supreme court has not addressed the issue, but the state's intermediate appellate court has issued a published decision adopting a rule. The federal court finds the reasoning persuasive and sees no indication the state supreme court would rule otherwise. How should the federal court decide the state-law issue?

  1. It must certify the question to the state supreme court in every case.
  2. It must treat the intermediate appellate decision as binding state law.
  3. It may ignore state law and apply federal common law.
  4. It should predict the state supreme court's ruling and may follow the intermediate decision. Correct answer.

Explanation

In diversity cases, a federal court must apply the forum state's substantive law, including its common-law rules, as the state's highest court would. A published intermediate appellate decision is persuasive but not binding on the federal court; the court should predict the state supreme court's ruling and may follow the intermediate decision when persuasive. Certification is discretionary, not mandatory.

Question 41Multistate Bar Examination (MBE)

A homeowner sued a remodeling contractor for breach of contract, alleging that the contractor installed defective plumbing. The court entered judgment for the contractor. After the judgment, the homeowner discovered that the same defective plumbing had caused water damage to her basement, and she sued the contractor again. What is the effect of the first judgment?

  1. The second action is barred because it arises from the same transaction as the first action. Correct answer.
  2. The second action is permitted because the homeowner seeks a different remedy.
  3. The second action is permitted because the water damage was discovered after the first judgment.
  4. The second action is barred only if the contractor proves that the homeowner knew of the water damage before the first trial.

Explanation

Claim preclusion bars a second action on the same claim, and a claim includes all theories and remedies arising from the same transaction. The homeowner's new water-damage theory could have been raised in the first action, so the judgment for the contractor bars it. Discovery after judgment does not create a new transaction for preclusion purposes.

Question 42Multistate Bar Examination (MBE)

A property owner hired a painter for $5,000 to paint a house by June 1. In May, the painter told the owner that he would not finish unless the owner promised an additional $1,000. The owner, who needed the house painted for a family event, signed a written promise to pay the extra $1,000. After the painter completed the work, the owner refused to pay the additional amount. In the painter's suit for $1,000, who should prevail?

  1. The painter, because the promise to pay more was in writing.
  2. The owner, because the painter gave no new consideration for the additional payment. Correct answer.
  3. The painter, because the owner received the benefit of a timely completed paint job.
  4. The owner, because the painter's demand was a crime.

Explanation

At common law, a promise to perform an existing contractual duty is not consideration for a modification. The painter was already obligated to complete the job, so the owner's promise of an extra $1,000 lacks consideration. The writing does not cure the consideration problem.

Question 43Multistate Bar Examination (MBE)

A member of the city council sues a newspaper for defamation over an article about his votes on city contracts. The article contains a false statement. The council member must establish which fault standard to recover?

  1. Actual malice, meaning knowledge of falsity or reckless disregard for the truth. Correct answer.
  2. Strict liability, because the statement was false and defamatory.
  3. Ill will, meaning personal spite toward the council member.
  4. Ordinary negligence, because the newspaper is a media defendant.

Explanation

A public official suing for defamation over conduct related to official duties must prove actual malice to recover. Actual malice means knowledge of falsity or reckless disregard for the truth. Negligence and ill will are not enough for a public official.

Question 44Multistate Bar Examination (MBE)

During a 911 call, a woman told the dispatcher, "A man in a red jacket just smashed my front window and is running toward the park." At the man's trial for vandalism, the prosecution offers the recording of the call to prove that the man smashed the window. The woman is unavailable to testify. How should the court rule?

  1. Exclude the statement because it identifies the man by his clothing.
  2. Exclude the statement because the woman is unavailable.
  3. Admit the statement as a present sense impression. Correct answer.
  4. Admit the statement only to impeach the woman's credibility.

Explanation

A present sense impression is a statement describing or explaining an event made while or immediately after the declarant perceived it. The 911 caller described the breaking and flight as it was happening, so the statement fits the exception. Unavailability is not required for this exception.

Question 45Multistate Bar Examination (MBE)

A city clerk told a reporter that the mayor was steering no-bid contracts to relatives. The clerk was fired. The clerk sues, claiming retaliation for speech protected by the First Amendment. What must the clerk show to establish protection?

  1. The speech was made during ordinary job duties and concerned only routine office procedures, which receives no First Amendment protection.
  2. The clerk spoke as a private citizen on a matter of public concern, and the speech interest outweighs efficient operations. Correct answer.
  3. The speech was false, because false statements by public employees are categorically unprotected even when on a matter of public concern.
  4. The mayor personally disagreed with the speech, which alone establishes retaliation without regard to the speech's content or context.

Explanation

Public employee speech is protected only when the employee speaks as a private citizen on a matter of public concern and the Pickering balancing favors the speech. Speech made pursuant to ordinary job duties is not protected. Personal disagreement by a supervisor does not by itself establish retaliation.

Question 46Multistate Bar Examination (MBE)

Before dawn, a homeowner saw an intruder reach into his jacket. Believing the intruder was drawing a gun, the homeowner shot and wounded him. The intruder was actually reaching for a flashlight and was unarmed. The homeowner is charged with battery. The homeowner's belief was reasonable. What is the best defense?

  1. Necessity, because the homeowner faced an imminent threat of harm from the intruder.
  2. Defense of habitation, because the intruder had entered the homeowner's dwelling without permission.
  3. Self-defense, because the belief in imminent deadly force was reasonable. Correct answer.
  4. Duress, because the homeowner acted under fear for his own life during the encounter.

Explanation

A defendant may use deadly force in self-defense if he reasonably believes that deadly force is necessary to prevent imminent death or serious bodily harm. A reasonable mistake about the threat does not forfeit the defense. Defense of habitation and duress are different doctrines with narrower requirements.

Question 47Multistate Bar Examination (MBE)

O conveys Blackacre by deed to A, who does not record. O then conveys Blackacre by deed to B, who pays full value, has no notice of A's deed, and records immediately. The jurisdiction has a notice recording statute. A and B both claim title. Who owns Blackacre?

  1. B, because B took without notice of A's deed and paid value. Correct answer.
  2. A, because B had constructive notice from A's possession of the property.
  3. B, because a notice statute protects any subsequent purchaser, whether or not value was paid.
  4. A, because A's deed was delivered first.

Explanation

Under a notice recording statute, a subsequent purchaser who pays value and takes without notice of a prior unrecorded conveyance prevails. B paid full value, had no notice, and recorded, so B owns Blackacre. Priority in delivery alone does not defeat the statute.

Question 48Multistate Bar Examination (MBE)

A plaintiff sues a defendant in federal court for fraud. The complaint states the elements of fraud but does not identify the specific statements, speakers, or dates, despite the availability of that information. The defendant moves to dismiss for failure to state a claim. How should the court rule?

  1. Deny, because the complaint states the elements of fraud.
  2. Grant, because fraud must be pleaded with particularity and the complaint lacks specifics. Correct answer.
  3. Grant, because federal courts lack jurisdiction over fraud claims.
  4. Deny, because a motion to dismiss tests only whether the plaintiff has a legal theory.

Explanation

Federal Rule of Civil Procedure 9(b) requires a party alleging fraud to state the circumstances with particularity. A complaint that pleads only the elements, without identifying the statements, speakers, or dates, is subject to dismissal. The motion challenges the pleading's specificity, not the court's jurisdiction.

Question 49Multistate Bar Examination (MBE)

A father contracts with a builder to construct a house on the father's land for the father's daughter. The contract states that the builder will complete the house for the daughter and that the father will pay the builder. The daughter learns of the contract and, in reliance, sells her current home and moves into a rental near the site. Later, the father and builder agree in writing to cancel the contract. The daughter sues the builder for breach. What is the daughter's status?

  1. She is an incidental beneficiary and has no rights under the contract.
  2. She is a creditor beneficiary, and the father's cancellation is effective because the father paid the builder.
  3. She is a promisee, and she may enforce the contract only after the father assigns his rights.
  4. She is a donee beneficiary whose rights vested when she materially relied on the contract. Correct answer.

Explanation

A third-party beneficiary's rights vest when the beneficiary materially changes position in reliance on the contract, manifests assent, or brings suit. The daughter was an intended donee beneficiary, and selling her home and moving in reliance vested her rights. The later cancellation cannot cut off those vested rights.

Question 50Multistate Bar Examination (MBE)

A defendant is charged with robbery. Before trial, he threatened the only eyewitness, who then refused to testify. The prosecution offers the witness's recorded statement to police. The defendant had no prior opportunity to cross-examine the witness. What is the best ruling?

  1. Admit it under forfeiture by wrongdoing because the defendant procured the witness's absence. Correct answer.
  2. Admit the statement because every unavailable witness's prior statement is admissible.
  3. Exclude the statement because it was not made under oath.
  4. Exclude the statement because it is testimonial hearsay and the defendant had no opportunity to cross-examine.

Explanation

The forfeiture-by-wrongdoing doctrine permits admission of an unavailable witness's testimonial statement when the defendant engaged in conduct designed to prevent the witness from testifying. The defendant's threat caused the eyewitness to refuse to testify, so the Confrontation Clause does not bar the recorded statement. The lack of oath and prior cross-examination do not defeat forfeiture.