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Question 1Civil Procedure

A company is incorporated in Delaware and has its principal place of business in Ohio. It owns factories in three states but has no property, employees, or customers in State X. A plaintiff sues the company in State X on a claim that arose entirely in another state. May State X's courts exercise personal jurisdiction over the company?

  1. Yes, because a corporation that sells goods nationwide consents to jurisdiction in every state.
  2. Yes, because the company does business in several states and is therefore subject to suit in any of them.
  3. No, because the company is not at home in State X and the claim is unrelated to any local contact. Correct answer.
  4. No, because a corporation may be sued only where its principal officers maintain their homes.

Explanation

General jurisdiction exists only where a corporation is at home, meaning its place of incorporation or its principal place of business, absent contacts so exceptional that the corporation is essentially at home elsewhere. Specific jurisdiction requires an affiliation between the forum state and the underlying controversy. With no contacts in State X and a claim arising elsewhere, neither form of jurisdiction is available.

Question 2Civil Procedure

A plaintiff sues a driver for injuries from a car accident. The driver believes that a repair shop's faulty brake work caused the crash and wants to bring the shop into the lawsuit. Under Rule 14, the driver may:

  1. bring the shop in only if the plaintiff consents in writing and the court approves the addition.
  2. dismiss the action and refile a separate lawsuit against the shop before answering.
  3. serve a third-party complaint on the shop seeking contribution or indemnity. Correct answer.
  4. add the shop as a defendant only if the shop's citizenship is diverse from the plaintiff's.

Explanation

Rule 14(a) allows a defending party, as a third-party plaintiff, to serve a summons and complaint on a nonparty who may be liable to it for all or part of the claim asserted against it. The third-party claim is derivative of the plaintiff's claim and requires neither the plaintiff's consent nor complete diversity.

Question 3Civil Procedure

Which of these actions carries a right to trial by jury under the Seventh Amendment?

  1. A petition to admit a will to probate.
  2. A suit by a buyer asking the court to order specific performance of a land sale contract.
  3. An action for money damages for breach of a commercial contract. Correct answer.
  4. A suit to dissolve a partnership and appoint a receiver.

Explanation

The Seventh Amendment preserves the jury right in suits at common law, meaning claims historically tried in courts of law, such as actions for damages. Claims historically heard by courts of equity, including specific performance, receivership, and probate matters, carry no jury right.

Question 4Civil Procedure

A state agency issues a water-discharge permit to a factory. Downstream residents sue the agency in federal court to overturn the permit. An environmental group whose members live downstream moves to intervene. To intervene as of right under Rule 24(a)(2), the group must show that disposition of the action may impair its interest and that:

  1. the court grants permission after weighing whether the group's participation would cause undue delay.
  2. its participation would help the court resolve the dispute, which the court may allow in its discretion at any time.
  3. existing parties do not adequately represent that interest. Correct answer.
  4. its claim and the main action share a common question of law or fact, so that joinder would be efficient.

Explanation

Rule 24(a)(2) requires a timely motion, an interest relating to the property or transaction at issue, a practical impairment of that interest from disposition of the action, and inadequate representation by existing parties. The other standards described govern permissive intervention under Rule 24(b), which is discretionary.

Question 5Civil Procedure

A plaintiff from Nevada sues two defendants, both citizens of Arizona, in the United States District Court for the District of Arizona. All of the events giving rise to the claim occurred in Phoenix. Venue in that district is proper because:

  1. the plaintiff could have filed the action in any district, since the venue statutes are advisory.
  2. all defendants reside there and a substantial part of the events occurred there. Correct answer.
  3. the amount in controversy exceeds $75,000, which establishes venue in any district the plaintiff prefers.
  4. federal courts in Arizona have personal jurisdiction over the defendants, which alone fixes venue.

Explanation

Under 28 U.S.C. §1391(b)(1), venue lies in a district where any defendant resides if all defendants reside in the same state, and under §1391(b)(2) it lies where a substantial part of the events giving rise to the claim occurred. Here both grounds are satisfied in Arizona.

Question 6Civil Procedure

A plaintiff sues in federal court on a state-law contract claim. The complaint notes that the contract concerned goods regulated by a federal statute but pleads no federal cause of action, and the defendant's only defense would be federal preemption. The defendant moves to dismiss for lack of subject-matter jurisdiction. The court should:

  1. deny the motion, because the defendant intends to raise a federal defense.
  2. deny the motion, because the contract involves a federally regulated commodity.
  3. deny the motion, because federal courts may hear any claim that touches on interstate commerce.
  4. grant the motion, because the plaintiff's own claim does not arise under federal law. Correct answer.

Explanation

Under the well-pleaded complaint rule, federal question jurisdiction exists only when the plaintiff's own claim creates the federal issue; a federal defense, including preemption, does not appear on the face of the complaint and cannot support §1331 jurisdiction. Because the claim is pleaded purely under state law, no federal question jurisdiction exists.

Question 7Civil Procedure

A defendant files a timely Rule 12(b)(6) motion to dismiss, omitting any objection to personal jurisdiction. After the motion is denied, the defendant answers and asserts lack of personal jurisdiction. How should the court treat that defense?

  1. It is preserved, because objections to personal jurisdiction may be raised at any time before trial.
  2. It is preserved, because defenses may be asserted for the first time in the answer.
  3. It is waived, because the defendant did not request a hearing on the issue before filing the motion.
  4. It is waived, because the defendant omitted it from the first Rule 12 motion. Correct answer.

Explanation

Rule 12(h)(1) provides that a defense of lack of personal jurisdiction or improper venue is waived unless raised in a pre-answer Rule 12 motion or included in the answer or an amendment permitted as of right. Having elected to make a Rule 12 motion, the defendant had to include all then-available defenses in it.

Question 8Civil Procedure

A complaint alleges that the defendant "was negligent and careless" but says nothing about what the defendant actually did. The defendant moves to dismiss under Rule 12(b)(6). The court should:

  1. grant the motion unless the plaintiff attaches the evidence that supports the allegations.
  2. deny the motion, because courts must accept all allegations in the complaint, including legal conclusions, as true.
  3. grant the motion unless the complaint pleads enough facts to make the claim plausible on its face. Correct answer.
  4. deny the motion, because Rule 8 requires only a short and plain statement giving notice of the claim.

Explanation

Rule 8(a)(2) requires a short and plain statement showing that the pleader is entitled to relief, which the Supreme Court in Twombly and Iqbal construed to demand enough factual content to make relief plausible. Threadbare recitals of an element, such as bare negligence language, are legal conclusions that need not be accepted as true.

Question 9Civil Procedure

A plaintiff sues a driver for negligence after a collision and obtains a final judgment on the merits. The plaintiff then sues the same driver for the property damage caused by the same collision. The second action is barred because the new claim:

  1. arises from the same transaction and involves the same parties or their privies. Correct answer.
  2. seeks damages that exceed the amount recovered in the earlier judgment.
  3. could have been raised in the earlier action only if the plaintiff had known of the injury at that time.
  4. was actually litigated and decided in the earlier action, which the plaintiff must establish.

Explanation

Claim preclusion bars a later suit when a final judgment on the merits was rendered by a court with jurisdiction and the later claim arises from the same transaction or occurrence and involves the same parties or their privies. It is irrelevant whether the second claim was actually litigated or even known to the plaintiff.

Question 10Civil Procedure

Plaintiffs seek certification of a nationwide class of purchasers under Rule 23(b)(3). Which additional finding must the court make beyond the Rule 23(a) requirements?

  1. The class is so numerous that joinder of all members is impracticable and common questions exist.
  2. The defendant has acted on grounds generally applicable to the class, which makes final injunctive relief appropriate.
  3. The class contains at least 40 members and the representative party's claim is typical of the class claims.
  4. Common questions predominate and a class action is superior to other available methods. Correct answer.

Explanation

Rule 23(a) supplies the threshold requirements of numerosity, commonality, typicality, and adequacy, and Rule 23(b)(3) adds the findings that questions of law or fact common to class members predominate and that a class action is superior to other methods of adjudication. Rule 23(b)(2) instead covers class-wide injunctive or declaratory relief.

Question 11Civil Procedure

A party moves for summary judgment under Rule 56. The court should grant the motion when, viewing the record in the light most favorable to the nonmovant:

  1. the parties have stipulated that a judge rather than a jury should decide the case and find the facts.
  2. the nonmoving party has not responded to the motion within the time set by local rule.
  3. the court, after weighing the evidence and assessing credibility, finds the moving party more persuasive.
  4. no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law. Correct answer.

Explanation

Rule 56(a) permits judgment only where the record shows no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. The court draws all reasonable inferences against the movant and does not weigh evidence or make credibility determinations.

Question 12Civil Procedure

After the plaintiff rests, the defendant moves for judgment as a matter of law under Rule 50(a). The court should grant the motion only if:

  1. the case turns on a question of law that the judge could decide more reliably than a jury could after hearing the evidence.
  2. the defendant's evidence, taken as a whole, is stronger than the plaintiff's evidence on each element of the claim, as the judge weighs it.
  3. no reasonable jury, viewing the evidence in the light most favorable to the plaintiff, could find for the plaintiff. Correct answer.
  4. the plaintiff's key witness was impeached during cross-examination, leaving the plaintiff's case weakened.

Explanation

Rule 50(a) permits judgment as a matter of law when a party has been fully heard on an issue and no reasonable jury could find for the nonmovant on the record. The court does not weigh evidence or judge credibility; it draws all reasonable inferences in favor of the party opposing the motion.

Question 13Civil Procedure

A plaintiff sues a fellow citizen of the same state in state court, pleading only state-law claims and seeking $200,000. The defendant wants to remove the case to federal court. May the defendant remove?

  1. Yes, if the defendant files the notice of removal within 30 days after being served.
  2. Yes, because the amount in controversy exceeds $75,000 and removal is available in any civil action.
  3. No, because only a plaintiff may remove a case from state court to federal court.
  4. No, because the case could not have been brought in federal court originally. Correct answer.

Explanation

Under 28 U.S.C. §1441(a), a defendant may remove only a civil action of which the federal district courts have original jurisdiction. Because the parties are not diverse and no federal claim appears on the face of the complaint, the action could not have been filed in federal court, so removal is unavailable.

Question 14Civil Procedure

A plaintiff sues in the District of Delaware, where venue is proper and personal jurisdiction exists. Most witnesses and records are in the Northern District of Illinois, and the case has no connection to Delaware beyond the plaintiff's choice. The defendant moves to transfer under 28 U.S.C. §1404(a). The court may:

  1. transfer the case only if the Delaware court lacks personal jurisdiction over the defendant.
  2. transfer to Illinois if convenience of the parties and witnesses and the interest of justice favor it. Correct answer.
  3. refuse transfer, because a plaintiff's choice of a proper forum can never be disturbed by the court.
  4. dismiss the case outright, because the chosen forum is substantially inconvenient for the defendant and the witnesses.

Explanation

Section 1404(a) permits transfer to any district in which the action could have been brought, for the convenience of parties and witnesses and in the interest of justice. The plaintiff's forum choice is given weight but is not absolute, and unlike forum non conveniens, transfer keeps the case in the federal system rather than dismissing it.

Question 15Civil Procedure

A plaintiff from State A sues a defendant from State B in federal court on a $100,000 state-law claim. The plaintiff also sues a second defendant, a citizen of State A, on a related state-law claim arising from the same events. The second claim is:

  1. improper, because the two claims do not share a common nucleus of operative fact.
  2. improper, because §1367(b) bars a plaintiff's claim against a Rule 20 party that would defeat diversity. Correct answer.
  3. proper, because the first claim satisfies the amount in controversy requirement for the entire action and related claims may be added.
  4. proper, because both claims share a common nucleus of operative fact sufficient to invoke supplemental jurisdiction.

Explanation

Section 1367(a) grants supplemental jurisdiction over claims that are part of the same case or controversy, but §1367(b) withholds that jurisdiction over claims by plaintiffs against parties joined under Rules 14, 19, 20, or 24 when doing so would be inconsistent with the diversity requirements. Because the second defendant shares the plaintiff's citizenship, the claim falls within that exception.

Question 16Civil Procedure

A federal court exercising diversity jurisdiction hears a state-law malpractice claim. The state's highest court requires plaintiffs to file an expert affidavit with the complaint; no Federal Rule or statute addresses the issue, and the requirement is substantive and outcome-determinative. The federal court should:

  1. decline to decide the issue and dismiss the case without prejudice so that the plaintiff may refile in state court.
  2. apply a federal common-law rule, because pleading requirements are procedural for Erie purposes.
  3. apply the federal practice of allowing the claim, because federal courts always follow their own procedural rules in diversity cases.
  4. apply the state requirement, because it is substantive and conflicts with no valid federal rule. Correct answer.

Explanation

Where no Federal Rule or valid federal statute governs, a federal court sitting in diversity must apply state substantive law under Erie and its progeny. A state rule that materially affects the outcome and creates incentives to choose federal court is substantive for Erie purposes, so the state affidavit requirement controls.

Question 17Civil Procedure

Anticipating litigation, a manufacturer's lawyer interviews employees about a machine failure and writes memoranda recording what they said. The plaintiff later seeks the memoranda in discovery, and the manufacturer objects. The court should:

  1. protect them unless the plaintiff shows substantial need and undue hardship. Correct answer.
  2. order disclosure, because statements by corporate employees are never protected from discovery.
  3. order disclosure, because the memoranda record facts rather than the lawyer's legal opinions.
  4. protect the memoranda absolutely, because attorney work product is never discoverable.

Explanation

Documents prepared in anticipation of litigation by or for a party's representative are work product under Rule 26(b)(3), and factual work product is discoverable only on a showing of substantial need and inability to obtain the equivalent without undue hardship. Opinion work product, by contrast, receives near-absolute protection.

Question 18Civil Procedure

A plaintiff timely sues Company A for injuries. Within the limitations period the plaintiff learns that Company B, a related entity sharing officers and counsel, actually owned the machine, and that B received notice of the suit during the period for service. After the limitations period expires, the plaintiff moves to amend to name B as a defendant. The amendment relates back only if:

  1. the amendment adds no new factual allegations but only corrects the caption to name the proper corporate entity.
  2. the original complaint alleged facts that would have stated a claim against B had B been named from the outset and B had a full opportunity to investigate the case before being named in the amendment.
  3. Company B consents to the amendment and waives any statute of limitations objection to being added to the case at this late stage.
  4. B received notice within the period for service and knew or should have known the action would have been brought against it but for a mistake about the proper party. Correct answer.

Explanation

Rule 15(c)(1)(C) allows an amendment naming a new party to relate back when the claim arises from the same conduct set out in the original pleading, the new party received notice within the Rule 4(m) service period, and the new party knew or should have known it would have been sued but for a mistake concerning its identity. Notice and mistake-based knowledge protect the new party from prejudice.

Question 19Constitutional Law

The power of federal courts to decline to enforce an act of Congress that conflicts with the Constitution was first firmly established in which decision?

  1. McCulloch v. Maryland
  2. Marbury v. Madison Correct answer.
  3. Gibbons v. Ogden
  4. Cohens v. Virginia

Explanation

Marbury v. Madison (1803) held that when a federal statute conflicts with the Constitution, the Constitution controls and courts must disregard the statute. That reasoning supplies the foundation for judicial review of legislative acts.

Question 20Constitutional Law

Most protections of the Bill of Rights now apply to the states through which constitutional provision?

  1. The Necessary and Proper Clause of Article I
  2. The Privileges or Immunities Clause of the Fourteenth Amendment
  3. The Due Process Clause of the Fourteenth Amendment Correct answer.
  4. The Privileges and Immunities Clause of Article IV

Explanation

The Court has selectively incorporated most Bill of Rights guarantees against the states by treating them as components of the liberty protected by the Fourteenth Amendment's Due Process Clause. Duncan v. Louisiana is the classic statement of that approach.

Question 21Constitutional Law

A state statute makes it a crime to 'desecrate a recognized symbol of national unity.' It is enforced against a demonstrator who burned a United States flag at a political protest. Which statement best describes the constitutionality of the conviction?

  1. The conviction is invalid because the school of expressive conduct doctrine protects the message conveyed. Correct answer.
  2. The conviction is valid because flag burning is conduct rather than speech and receives no protection.
  3. The conviction is invalid only because the statute lacks a secular legislative purpose.
  4. The conviction is valid because the invocation of a compelling interest in national unity justifies the restriction.

Explanation

Burning a flag as part of a political protest is expressive conduct protected by the First Amendment. A statute whose object is to suppress the message conveyed by that conduct cannot stand, even when the government asserts an interest in preserving the flag's symbolic value.

Question 22Constitutional Law

The Ex Post Facto Clause bars a state legislature from taking which of the following actions?

  1. Retroactively increasing the punishment for a crime after it was committed Correct answer.
  2. Retroactively altering the remedies available for breach of an existing contract
  3. Punishing a specific person by legislative act without a trial
  4. Retroactively applying a new civil tax to income earned in prior years

Explanation

The Ex Post Facto Clauses prohibit legislatures from criminalizing conduct that was lawful when done, increasing punishment after the fact, or reducing the evidence needed to convict. The prohibition reaches penal legislation only, not civil statutes.

Question 23Constitutional Law

A public school district allows a student elected by the student body to deliver a 'message or invocation' before football games, subject to school review and broadcast over school equipment. Applying the Establishment Clause, a court is most likely to rule that

  1. the policy is valid because attendance at football games is voluntary for students and spectators
  2. the policy is invalid only if the prayers consistently favor one denomination over others
  3. the policy is valid because the invocation is chosen by students rather than school officials
  4. the policy is invalid because the school sponsors and controls the religious message Correct answer.

Explanation

A school policy that sponsors and controls a religious invocation at a school event is attributable to the state and amounts to government sponsorship of religion. Student election of the speaker does not cure the defect, because the school retains control over the content and delivery of the messages.

Question 24Constitutional Law

A wildlife biologist who has lived abroad for years sues to challenge a regulation affecting endangered species in a foreign country, alleging that she intends someday to return and observe the animals; she has no concrete travel plans. How should a federal court rule on standing?

  1. She has standing, because environmental injury is never treated as a generalized grievance.
  2. She lacks standing, because her asserted injury is speculative rather than concrete and imminent. Correct answer.
  3. She has standing, because the agency failed to follow required notice-and-comment procedures.
  4. She lacks standing, because a private plaintiff may never challenge a regulation that operates outside the United States.

Explanation

Article III requires an injury in fact that is concrete, particularized, and actual or imminent. A vague intention to return and observe wildlife someday is too speculative, and a procedural violation alone does not create standing without a concrete interest behind it.

Question 25Constitutional Law

A plaintiff obtains a favorable district court ruling invalidating a state's 16-week abortion ban. By the time the appeal is argued, she has given birth. The court of appeals should most likely

  1. dismiss the appeal as moot, because no live controversy remains
  2. dismiss the appeal as unripe, because the state has not yet had a full opportunity to enforce the ban
  3. remand for a new trial, because the plaintiff's claim became moot while the appeal was pending
  4. reach the merits, because pregnancy is a condition capable of repetition yet evading review Correct answer.

Explanation

A federal case must remain live through appellate review, but the Court recognizes an exception for injuries too brief to be fully litigated, such as pregnancy. Because the same plaintiff could become pregnant again, the controversy is capable of repetition yet evading review.

Question 26Constitutional Law

Which of the following has the Supreme Court treated as presenting a nonjusticiable political question?

  1. A claim that a state's system of financing public schools through local property taxes denies equal protection of the laws
  2. A claim that a state's legislative districts are malapportioned
  3. A challenge to the Senate's use of a committee to take evidence in an impeachment trial Correct answer.
  4. A claim that a state's congressional map is an unconstitutional racial gerrymander

Explanation

Nixon v. United States held that a challenge to the Senate's internal impeachment procedures presents a political question, because the Constitution commits trial procedures to the Senate and supplies no judicial standard. The other three claims have been resolved on the merits.

Question 27Constitutional Law

Congress sets a quota on the amount of wheat a farmer may grow, and the farmer is penalized for growing wheat solely for consumption on his own farm. The regulation is most likely

  1. invalid, because the farmer's own consumption never crosses a state line
  2. valid, though only if Congress first makes explicit findings that the activity affects commerce
  3. invalid, because growing wheat for personal use is not commerce among the several states
  4. valid, because the aggregated effect of home consumption substantially affects interstate commerce Correct answer.

Explanation

Under Wickard v. Filburn, Congress may regulate activity that in isolation looks local if the activity, aggregated with that of others similarly situated, has a substantial effect on interstate commerce. Home consumption of a regulated crop fits that principle.

Question 28Constitutional Law

Congress enacts a statute requiring state and local law enforcement officers to conduct background checks on prospective handgun purchasers. Under the Tenth Amendment, the statute is most likely

  1. valid, because the Second Amendment restricts only federal, not state, firearms regulation
  2. invalid, because Congress may not commandeer state executive officials to administer a federal program Correct answer.
  3. valid, because the Necessary and Proper Clause authorizes any convenient means to a lawful end
  4. invalid, because Congress has no authority to legislate concerning firearms

Explanation

Printz v. United States held that Congress may not conscript state executive officials to administer a federal regulatory scheme. Congress must instead use federal officers or condition federal funds, so the mandatory background-check duty on state officers is invalid.

Question 29Constitutional Law

Which statement about inferior officers under the Appointments Clause is correct?

  1. Congress may vest their appointment in the President, a department head, or a court of law. Correct answer.
  2. They may be appointed without Senate confirmation only while the Senate is in recess.
  3. They may be appointed only by the President acting alone, without Senate confirmation.
  4. They may be appointed only by the President with the advice and consent of the Senate.

Explanation

The Appointments Clause allows Congress to vest the appointment of inferior officers in the President, in the heads of departments, or in the courts of law. Principal officers, by contrast, must be appointed by the President with the advice and consent of the Senate.

Question 30Constitutional Law

A city ordinance limits sound amplification at demonstrations in a residential neighborhood to 60 decibels. It applies to all demonstrations regardless of viewpoint and gives enforcing officials no discretion over who may demonstrate. The ordinance is most likely

  1. invalid, because any regulation that limits the volume of speech in a public forum must satisfy strict scrutiny
  2. invalid, because the ordinance does not provide for an administrative hearing before it is enforced
  3. valid, provided the restriction is narrowly tailored to a significant interest and leaves ample alternatives Correct answer.
  4. valid, because the city's police power over noise is not limited by the First Amendment

Explanation

A content-neutral regulation of the time, place, or manner of speech in a public forum is valid if it serves a significant governmental interest, is narrowly tailored to that interest, and leaves open ample alternative channels. A fixed decibel limit with no official discretion fits that framework.

Question 31Constitutional Law

A state statute provides that only men may be appointed as administrators of a decedent's estate. Which statement best describes the statute's constitutionality?

  1. Constitutional, because gender classifications receive only rational basis review.
  2. Unconstitutional, because the classification is not substantially related to an important governmental interest. Correct answer.
  3. Constitutional, because the state's interest in efficient estate administration is legitimate.
  4. Unconstitutional, because the classification operates as a bill of attainder.

Explanation

Gender classifications trigger intermediate scrutiny: the state must show an exceedingly persuasive justification, meaning the line drawn is substantially related to important governmental objectives. A blanket preference for men in estate administration fails that standard.

Question 32Constitutional Law

A state law of general applicability forbids the use of peyote. Members of a Native American church who used peyote in a religious ceremony are denied unemployment benefits because of the law. Under Employment Division v. Smith, the denial is

  1. unconstitutional, because it substantially burdens religious exercise and the state lacks a compelling interest
  2. constitutional, because the Free Exercise Clause has never been applied to the states
  3. unconstitutional, because the law discriminates against religion on its face
  4. constitutional, because a neutral law of general applicability need not be justified by a compelling interest Correct answer.

Explanation

Employment Division v. Smith held that a neutral law of general applicability that burdens religious practice does not violate the Free Exercise Clause and need not be justified by a compelling interest. The peyote prohibition applies to everyone and does not single out religious conduct.

Question 33Constitutional Law

During a declared national emergency, the President issues an executive order directing the seizure of steel mills to avert a strike. Congress has considered and refused to authorize such seizures. Under Justice Jackson's framework in Youngstown Sheet & Tube Co. v. Sawyer, the order is most likely

  1. invalid, because only a treaty ratified by the Senate can authorize a taking of private property
  2. valid, because the President has inherent power over interstate commerce in wartime
  3. valid, because the Commander in Chief's authority is at its zenith during a declared national emergency
  4. invalid, because the President acts at the lowest ebb of his power when contravening Congress's will Correct answer.

Explanation

Justice Jackson's framework places the President at the lowest ebb of his authority when he acts contrary to the express or implied will of Congress. A seizure undertaken despite Congress's refusal to authorize it falls in that category and cannot rest on inherent power alone.

Question 34Constitutional Law

A state enacts a regulation that deprives a landowner of all economically beneficial use of a parcel, without physically invading it. Under the Supreme Court's regulatory takings doctrine, the regulation is most likely

  1. a taking requiring compensation, unless the restriction merely codifies background principles of nuisance or property law Correct answer.
  2. constitutional, because a regulation that does not physically invade the property can never be a taking
  3. unconstitutional, because any regulation that reduces the value of property requires compensation
  4. constitutional, because the owner retains the right to exclude others from the parcel

Explanation

Lucas v. South Carolina Coastal Council held that a regulation eliminating all economically beneficial use of property is a per se taking unless the prohibited use was already barred by background principles of nuisance or property law. The absence of physical invasion is not dispositive.

Question 35Constitutional Law

A state imposes a $2-per-ton fee on all solid waste received at its landfills but charges an additional $5-per-ton surcharge on waste generated outside the state. Under the Dormant Commerce Clause, the surcharge is most likely

  1. valid, because the charge raises revenue rather than prohibiting the importation of waste
  2. valid, because the state may charge higher fees for waste generated outside its borders
  3. valid, because the Commerce Clause leaves waste disposal entirely to the states
  4. invalid, because it facially discriminates against interstate commerce without a legitimate local justification Correct answer.

Explanation

A facially discriminatory state law that burdens out-of-state commerce is virtually per se invalid under the Dormant Commerce Clause unless the state can show a legitimate local purpose that cannot be served by nondiscriminatory means. A surcharge imposed only on out-of-state waste fails that test.

Question 36Constitutional Law

Congress offers states funds to expand a health program, but provides that any state declining the expansion forfeits all of its existing funding under the program, an amount equal to roughly a fifth of the average state's budget. Under the Spending Clause, the condition is most likely

  1. valid, because a state remains free to decline the federal funds
  2. invalid, because Congress may not appropriate money for the general welfare
  3. valid, because Congress may attach whatever conditions it chooses to federal funds
  4. invalid, because the threatened loss of all existing funding is coercive rather than an inducement Correct answer.

Explanation

NFIB v. Sebelius held that the Spending Clause does not permit Congress to coerce states into accepting federal terms, and threatening to withdraw all of an existing program's funding crosses the line from inducement to compulsion. A state's nominal freedom to decline does not save a condition that leaves it no real choice.

Question 37Contracts

An offeror sends an offer by mail that does not specify how acceptance must be made. The offeree mails an acceptance, which the offeror receives three days later. Under the mailbox rule, when is the contract formed?

  1. When the offeree confirms that the offeror received the acceptance
  2. When the offeree deposits the acceptance in the mail Correct answer.
  3. When the offeror reads the acceptance
  4. When the offeror receives the acceptance

Explanation

Unless the offer states otherwise, an acceptance sent by a reasonable medium is effective on dispatch, so the contract is formed the moment the offeree mails it. The rule protects the offeree from a revocation that crosses the acceptance in transit.

Question 38Contracts

An uncle promises his niece $5,000 if she refrains from drinking alcohol for one year. She has no legal duty to abstain, does abstain, and the abstention also improves her health. Is the promise enforceable?

  1. Yes, but only if the uncle's promise was in writing and signed
  2. No, because past consideration cannot support a promise
  3. No, because she only gained a health benefit and suffered no detriment
  4. Yes, because she gave up a legal right in the bargain Correct answer.

Explanation

Consideration is a bargained-for exchange in which each party surrenders something the law recognizes, and forbearing to exercise a legal right qualifies even when the forbearance is personally advantageous. The niece's year of abstention was the exact performance the uncle requested.

Question 39Contracts

A merchant of office furniture signs a writing offering to sell 500 chairs at a fixed price and stating that the offer will remain open for 60 days. Twenty days later, before the buyer accepts, the merchant attempts to revoke. What is the result?

  1. The revocation is effective because the buyer gave no consideration for the promise to keep the offer open
  2. The offer is irrevocable only if the buyer paid the merchant a nominal sum
  3. The offer is irrevocable for the stated period under the UCC firm offer rule Correct answer.
  4. The revocation is effective because 60 days is an unreasonably long period

Explanation

Under UCC 2-205, a merchant's offer in a signed writing that assures it will be held open is irrevocable for the stated period, up to three months, without any consideration. Sixty days falls within that statutory limit.

Question 40Contracts

A buyer and a seller orally agree on the sale of a used boat for $8,000. No writing is signed and no payment or delivery has occurred. The seller later refuses to deliver. What gives the buyer the best chance to enforce the agreement?

  1. The oral agreement is enforceable because the boat is used rather than new
  2. The buyer has a writing signed by the seller that states a quantity Correct answer.
  3. The oral agreement is enforceable because the price is stated with certainty
  4. The oral agreement is enforceable because the parties are merchants

Explanation

A sale of goods for $500 or more is unenforceable without a writing indicating a contract and signed by the party to be charged; under the UCC the writing need only state a quantity. The condition of the goods, the certainty of price, and the parties' status do not remove the writing requirement.

Question 41Contracts

An offeror mails a revocation of her offer on Monday. The offeree, unaware of the revocation, mails an acceptance on Tuesday. The revocation arrives Wednesday and the acceptance arrives Thursday. Has a contract formed?

  1. No, because the acceptance arrived after the revocation
  2. Yes, because acceptance took effect when mailed Correct answer.
  3. Yes, because the revocation was not signed
  4. No, because the revocation was dispatched first

Explanation

A revocation binds the offeree only upon receipt, while an acceptance by an authorized medium is effective on dispatch. Because the Tuesday mailing preceded the Wednesday receipt of the revocation, a contract was formed.

Question 42Contracts

A supplier promises in writing to sell a manufacturer 10,000 parts at a fixed price for the coming year, but the writing does not state that the offer is firm and the manufacturer gives nothing in return. Relying on the promise, the manufacturer buys specialized equipment and turns down another supplier. The supplier then refuses to sell. What is the manufacturer's best theory?

  1. The promise is unenforceable because past consideration cannot bind the supplier
  2. Promissory estoppel makes the promise enforceable to the extent of reasonable reliance Correct answer.
  3. The promise is enforceable because reliance created a bilateral contract
  4. The promise is enforceable because it is in writing

Explanation

A promise without consideration may still be enforced to avoid injustice when the promisor should reasonably have expected reliance and reliance in fact occurs, with recovery usually limited to the reliance interest. The equipment purchase and forgone alternative supplier were foreseeable responses to the promise.

Question 43Contracts

A buyer sends a purchase order for 1,000 widgets. The seller responds with an acknowledgment that expressly accepts but adds a clause requiring arbitration of all disputes. The buyer never objects, and the goods are shipped and accepted. Is the arbitration clause part of the contract?

  1. Yes, because the seller's form was the last document sent before performance
  2. No, because a definite and seasonable expression of acceptance must match the offer exactly
  3. No, because the clause was not separately signed by the buyer
  4. Yes, unless the clause materially alters the contract and the buyer objects Correct answer.

Explanation

UCC 2-207 provides that a definite and seasonable expression of acceptance operates as an acceptance even with additional terms; between merchants those terms join the contract unless they materially alter it, are objected to, or the offer limited acceptance to its own terms. The arbitration clause therefore survives only if it is not a material alteration and the buyer does not object.

Question 44Contracts

A contractor agrees to build a deck for a homeowner, with payment due at completion. Before any work begins, the contractor clearly tells the homeowner that he will not perform. The homeowner does nothing for two months and then sues. What is her position?

  1. She has breached by not paying, because payment was due at completion
  2. She must wait until the completion date and then sue for breach
  3. She cannot sue yet because the contractor's time to perform has not expired
  4. She may sue immediately, treating the repudiation as a breach Correct answer.

Explanation

An unequivocal anticipatory repudiation gives the nonbreaching party an immediate claim for total breach and excuses that party's remaining duties, including any conditions to performance. She may sue at once, subject to the duty to mitigate damages.

Question 45Contracts

A seller delivers 100 lamps to a retailer in a single shipment. Ten lamps have cracked bases. The seller promptly notifies the retailer that it will substitute conforming lamps within the contract period for performance. Which statement is correct?

  1. The retailer may reject the whole shipment only if the defects are latent
  2. The seller may cure because the time for performance has not expired Correct answer.
  3. The retailer must keep all 100 lamps and sue for damages
  4. The retailer may reject the entire shipment and the seller has no right to cure

Explanation

Although the perfect tender rule lets a buyer reject goods that fail in any respect, a seller whose time for performance has not expired may cure by giving seasonable notice and delivering conforming goods. The retailer must allow the cure rather than reject outright.

Question 46Contracts

A grocery store sells a sealed jar of salsa prepared by a commercial supplier. A customer is injured by a shard of glass in the salsa. Which theory most directly supports her claim against the grocery store?

  1. Breach of the implied warranty of merchantability Correct answer.
  2. Fraudulent misrepresentation
  3. Breach of the implied warranty of fitness for a particular purpose
  4. Breach of an express warranty created by the label

Explanation

A merchant seller impliedly warrants that food is fit for its ordinary purpose and adequately contained, and glass in salsa breaches that warranty. The claim does not depend on any promise by the seller or any special purpose of the buyer.

Question 47Contracts

A father promises a contractor that he will pay for a garage built on his adult son's land, and the contract recites that the work is for the son's benefit. The contractor finishes the garage, but the father refuses to pay. What is the son's status?

  1. The son may enforce the contract only if he signed it
  2. The son is an incidental beneficiary and may not enforce the contract
  3. The son is an intended beneficiary and may enforce the promise Correct answer.
  4. The son is a donee beneficiary who loses enforcement once he learns of the promise

Explanation

A third party is an intended beneficiary, with the right to enforce, when the circumstances show that the promisee intended to confer the benefit of performance on that party. The recital that the garage is for the son makes him intended rather than incidental.

Question 48Contracts

A lease states that the tenant may not assign the lease without the landlord's consent. Without asking, the tenant assigns the leasehold to a friend. Which statement is most accurate?

  1. The landlord's only remedy is eviction of the tenant
  2. The assignment is effective, but the tenant may be liable for breach Correct answer.
  3. The tenant committed a crime by assigning the lease
  4. The assignment is void because the lease expressly prohibited assignment without consent

Explanation

A covenant against assignment restricts the tenant's conduct but does not invalidate a later assignment, so the assignee takes the leasehold while the assignor faces damages for breach. Only language declaring assignments void renders a transfer ineffective.

Question 49Contracts

A builder completes a house under a construction contract but installs a different brand of appliance than the one specified. The substitute costs the same or less and does not affect the home's function or value. The owner refuses to pay the balance. What must the owner do?

  1. The owner must pay the price minus damages for the deviation Correct answer.
  2. The owner must pay the full price plus a penalty
  3. The owner must pay nothing because any deviation is a material breach
  4. The owner may rescind the contract entirely

Explanation

Substantial performance entitles the builder to the contract price less any damages caused by a minor deviation, which is measured by the cost of curing or any loss in value. A technical departure that does no harm is not a material breach.

Question 50Contracts

A software company and its client agree that late delivery will cost the company $1,000 per day. When they contracted, the client's anticipated losses from delay were roughly $900 to $1,100 per day and were difficult to estimate. Delivery is 10 days late. Is the clause enforceable?

  1. Yes, because parties may agree to any amount so long as it is in writing
  2. No, because the amount was agreed before any breach occurred
  3. No, because a fixed sum unrelated to actual loss is always a penalty
  4. Yes, because the sum was a reasonable forecast of uncertain losses Correct answer.

Explanation

A liquidated damages clause is enforced when, viewed at the time of contracting, the stipulated sum reasonably forecasts damages that are difficult to estimate; later actual loss is not the measure. The daily figure closely matched the anticipated range of harm.