I85PREP
⌘ K
Oregon Bar study materials
Oregon Bar study resources

Oregon Bar practice questions

One question at a time. Build your Oregon Bar understanding.

First 50 of 200 questions. Each one lists the choices, the correct answer, and an explanation. The checker at the top of this page saves progress in this browser when it is available.

Continue in the practice tool above to load more questions, 50 at a time.

Question 1Civil Procedure

A plaintiff files suit in Oregon state court alleging only state-law negligence claims against a single in-state defendant, seeking $40,000. Which statement about subject-matter jurisdiction is correct?

  1. Federal subject-matter jurisdiction exists because the amount exceeds $25,000.
  2. The state circuit court has jurisdiction because Oregon circuit courts are courts of general jurisdiction over state-law claims. Correct answer.
  3. Subject-matter jurisdiction depends on whether the defendant consents to state-court adjudication.
  4. The case must be removed to federal court because the parties are diverse.

Explanation

Oregon circuit courts are courts of general jurisdiction and hear state-law claims regardless of amount, subject to any specific statutory limits such as small claims. Diversity jurisdiction is irrelevant here because the plaintiff sued in state court and there is no federal question. A defendant's consent has no bearing on a court's subject-matter jurisdiction.

Question 2Civil Procedure

A defendant wishes to challenge an Oregon circuit court's exercise of personal jurisdiction over her. Under the Oregon Rules of Civil Procedure, which step best preserves the objection?

  1. Raise the defense in the responsive pleading or by motion before answering, without first litigating other defenses on the merits. Correct answer.
  2. Wait until trial and object when the plaintiff offers evidence of jurisdiction.
  3. Raise the defense for the first time on appeal after a merits judgment.
  4. File a counterclaim on the merits and then move to dismiss for lack of jurisdiction.

Explanation

Oregon practice requires that a defense of lack of personal jurisdiction be raised in the first responsive pleading or by motion before pleading, or it is waived. Litigating the merits first can forfeit the objection. Raising it only at trial or on appeal comes too late.

Question 3Civil Procedure

A plaintiff sues in Oregon state court and serves the defendant by leaving copies with the defendant's adult roommate at the defendant's residence, then mailing a copy to the same address. The defendant never receives actual notice. What is the most likely result?

  1. Service is valid if it complied with the method authorized by the Oregon Rules of Civil Procedure, because due process requires notice reasonably calculated to apprise, not actual receipt. Correct answer.
  2. Service is valid only if the plaintiff also publishes notice in a newspaper.
  3. Service is invalid because substitute service is never permitted in Oregon.
  4. Service is invalid because due process guarantees actual notice in every case.

Explanation

Due process under Mullane requires notice reasonably calculated under the circumstances to apprise interested parties, not guaranteed actual receipt. Oregon rules authorize substitute service at the dwelling in specified circumstances. If the rule was followed, the lack of actual notice does not by itself invalidate service.

Question 4Civil Procedure

A plaintiff files a complaint in Oregon circuit court. Under the Oregon Rules of Civil Procedure, what must the complaint contain?

  1. A short and plain statement of the claim showing the pleader is entitled to relief, plus a demand for relief. Correct answer.
  2. A verified affidavit from every witness the plaintiff intends to call.
  3. Only a caption and the names of the parties.
  4. A detailed recitation of every item of evidence supporting each element.

Explanation

Oregon, like the federal rules, uses notice pleading: a short and plain statement of the claim and a demand for relief. Detailed evidence and witness affidavits are not required at the pleading stage. A bare caption without any statement of the claim would not satisfy the rule.

Question 5Civil Procedure

A defendant in an Oregon circuit court case believes the complaint fails to state a claim. Which motion is the procedurally correct vehicle under the Oregon Rules of Civil Procedure?

  1. A motion for judgment notwithstanding the verdict.
  2. A motion to quash service of process.
  3. A motion to dismiss for failure to state a claim upon which relief can be granted. Correct answer.
  4. A motion for summary judgment filed before any answer.

Explanation

Oregon Rule of Civil Procedure 21 A(8) authorizes dismissal for failure to state a claim, the analogue of the federal Rule 12(b)(6) motion. Summary judgment tests the evidence after the pleadings close, and judgment notwithstanding the verdict comes after trial. A motion to quash attacks service, not the sufficiency of the allegations.

Question 6Civil Procedure

A plaintiff sued in Oregon state court and the defendant properly removed the case to federal district court in Oregon. Which statement about the proceedings after removal is correct?

  1. The federal court applies a federal statute of limitations to the state-law claim.
  2. The federal court applies Oregon procedural rules in their entirety.
  3. The federal court must remand because state-law claims cannot be heard after removal.
  4. The federal court applies federal procedural rules but generally applies Oregon substantive law, including the Oregon statute of limitations. Correct answer.

Explanation

Under Erie principles, a federal court sitting in diversity applies federal procedural rules (the Federal Rules of Civil Procedure) and state substantive law, which includes statutes of limitations. Removal does not strip the court of power to hear state-law claims where jurisdiction is proper. Federal law does not supply a limitations period for an Oregon state-law claim.

Question 7Civil Procedure

A plaintiff wishes to sue two defendants in Oregon state court. One defendant resides in Multnomah County and the other in Lane County. Where may venue properly be laid under the Oregon Rules of Civil Procedure?

  1. Only in Marion County because it is the seat of state government.
  2. Only in Multnomah County because the plaintiff chose to file first.
  3. In the county where any defendant resides, so either Multnomah or Lane County is proper. Correct answer.
  4. Only in Lane County because the later-served defendant controls.

Explanation

Oregon venue rules generally allow suit in the county where any defendant resides or where the cause of action arose. With defendants in two counties, venue is proper in either. Neither the order of service nor the location of the capital controls.

Question 8Civil Procedure

A plaintiff properly files and serves an Oregon state-court complaint. The defendant fails to appear or respond within the required time. What is the plaintiff's best procedural step?

  1. Seek a default order and then a default judgment under the Oregon Rules of Civil Procedure. Correct answer.
  2. Immediately request a jury trial on the merits.
  3. File a motion for summary judgment without any answer having been filed.
  4. File a notice of removal to federal court.

Explanation

When a defendant fails to plead or appear, Oregon procedure permits the plaintiff to seek an order of default and then a default judgment, subject to any required notice and proof of the claim. A trial on the merits is unnecessary against a non-appearing party. Summary judgment presupposes an answer and a developed record.

Question 9Civil Procedure

In an Oregon circuit court action, the plaintiff serves interrogatories on the defendant. The defendant objects to several requests as overbroad and irrelevant. Which statement best describes the proper course?

  1. The defendant must file a motion for a protective order before serving any response.
  2. The defendant must serve a written response and specific objections within the time allowed, and the plaintiff may move to compel if the objections are unfounded. Correct answer.
  3. The defendant may simply ignore the interrogatories without any response.
  4. The defendant may answer only the questions the defendant deems relevant without stating objections.

Explanation

Oregon discovery practice requires a written response to interrogatories within the prescribed period, with specific objections stated rather than hidden. If objections are improper, the requesting party may seek an order compelling discovery and possibly sanctions. Ignoring the requests or silently selecting which to answer risks waiver and sanctions.

Question 10Civil Procedure

A plaintiff brings a negligence claim in Oregon circuit court and later moves to amend the complaint to add a breach-of-contract claim arising from the same transaction. Which standard governs whether leave to amend should be granted?

  1. Leave should be freely given when justice so requires, and undue delay, bad faith, or prejudice to the opposing party may justify denial. Correct answer.
  2. Leave must be denied whenever the amendment adds a new legal theory.
  3. Leave may be granted only with the consent of the opposing party.
  4. Leave is automatic and the court has no discretion to deny it.

Explanation

Oregon follows the liberal amendment policy reflected in the rules: leave to amend is freely given when justice requires. Courts may deny leave where the amendment would cause undue delay, prejudice, or bad faith, or where it is futile. The opposing party's consent is not required, and new legal theories arising from the same transaction are ordinarily permissible.

Question 11Civil Procedure

A defendant in an Oregon circuit court case asserts a counterclaim arising out of the same transaction as the plaintiff's claim. Which classification and consequence is most accurate under the Oregon Rules of Civil Procedure?

  1. It is a cross-claim that requires the plaintiff's consent.
  2. It is a compulsory counterclaim, and failing to assert it generally bars later litigation of that claim. Correct answer.
  3. It is a permissive counterclaim that may be raised later without consequence.
  4. It is an affirmative defense that must be pleaded in the answer but cannot seek relief.

Explanation

Under Oregon Rule 13 A, a pleading must state as a counterclaim any claim arising out of the same transaction or occurrence as the opposing party's claim. Failure to do so generally precludes a later action on that claim. A claim seeking affirmative relief is more than an affirmative defense, and a cross-claim runs against a co-party, not the plaintiff.

Question 12Civil Procedure

A plaintiff sues in Oregon state court over an auto accident. The defendant wants a jury of 12 jurors. Assuming no special provision for a smaller jury applies and no different size is stipulated, what is the standard civil jury size in Oregon circuit court?

  1. Twelve jurors, with a unanimous verdict required in every civil case.
  2. Three jurors, with a unanimous verdict required.
  3. Nine jurors, with a two-thirds verdict required.
  4. Twelve jurors, with a verdict possible by a three-fourths majority. Correct answer.

Explanation

ORCP 56 sets the general civil jury size in Oregon circuit court at 12, subject to specified exceptions and stipulations. ORCP 59 permits a verdict by three-fourths of the jurors, so nine of a 12-person jury may agree on the verdict. Unanimity is not the general civil requirement.

Question 13Civil Procedure

After a jury verdict in Oregon circuit court, the losing party believes the evidence was legally insufficient to support the verdict. Which post-trial motion is the appropriate vehicle?

  1. A motion for judgment notwithstanding the verdict, asking the court to enter judgment contrary to the verdict. Correct answer.
  2. A motion for a more definite statement.
  3. A motion to dismiss for failure to state a claim.
  4. A motion to quash service of process.

Explanation

A motion for judgment notwithstanding the verdict (judgment as a matter of law) challenges the legal sufficiency of the evidence after the jury returns its verdict. It is distinct from pre-trial motions such as dismissal or a more definite statement. A motion to quash addresses service, not the evidence.

Question 14Civil Procedure

A plaintiff obtains a money judgment in Oregon circuit court. The defendant owns real property in another Oregon county. Which step best allows the plaintiff to enforce the judgment against that property?

  1. File a notice of appeal in the other county.
  2. Serve interrogatories on the defendant and wait for voluntary payment.
  3. Record a judgment lien in the county where the property is located and pursue execution under Oregon procedure. Correct answer.
  4. File a new lawsuit on the same claim in the other county.

Explanation

An Oregon judgment may be enforced through judgment liens and execution. Recording a certified copy of the judgment in the county where real property is located creates a lien, and the creditor may then seek execution. Filing a new suit on the same claim would be barred by claim preclusion, and discovery alone does not enforce a judgment.

Question 15Civil Procedure

A plaintiff sues in Oregon circuit court and the defendant counterclaims. The plaintiff believes the counterclaim is legally insufficient. How should the plaintiff respond procedurally?

  1. File a notice of removal to federal court.
  2. Move to dismiss the counterclaim for failure to state a claim, or file a reply if the rules require one. Correct answer.
  3. Move for a default judgment on the counterclaim.
  4. Ignore the counterclaim and proceed to trial on the original complaint only.

Explanation

A counterclaim is a pleading subject to the same challenge as a complaint, so the opposing party may move to dismiss it for failure to state a claim. Where the rules require a reply to a counterclaim, that pleading must be filed. Ignoring the counterclaim risks default on it, and removal is unavailable to a plaintiff.

Question 16Civil Procedure

A witness who is a resident of Washington is subpoenaed to testify in an Oregon circuit court trial. The witness objects that she cannot be compelled because she lives outside Oregon. Which statement is most accurate?

  1. A nonresident witness can never be compelled to testify in Oregon under any circumstances.
  2. A nonresident witness must be compelled through the federal courts only.
  3. A nonresident witness may be compelled only if the parties stipulate.
  4. Oregon's subpoena power extends to persons found or residing in Oregon and, within limits, to nonresidents served in Oregon or subject to its jurisdiction. Correct answer.

Explanation

A state's subpoena power reaches persons within its borders and, subject to statutory limits, nonresidents who are served while present or otherwise subject to jurisdiction. The blanket assertion that nonresidents can never be compelled is incorrect. Federal court involvement and party stipulation are not prerequisites.

Question 17Civil Procedure

A plaintiff files a complaint in Oregon circuit court. The defendant believes the complaint is so vague that the defendant cannot reasonably frame a response. Which motion is the appropriate procedural vehicle?

  1. A motion for summary judgment.
  2. A motion for a new trial.
  3. A motion for a more definite statement. Correct answer.
  4. A motion for judgment notwithstanding the verdict.

Explanation

When a pleading is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the proper motion is for a more definite statement. Summary judgment tests evidence, and judgment notwithstanding the verdict and new trial are post-trial motions. None of those addresses the clarity of the complaint.

Question 18Civil Procedure

A defendant in an Oregon circuit court case believes the plaintiff's chosen venue is improper. Which procedural step best preserves the objection?

  1. Raise the objection for the first time at trial.
  2. Raise the venue objection in the responsive pleading or by motion before answering, or it is generally waived. Correct answer.
  3. Raise the objection after judgment on appeal.
  4. Refuse to participate and wait for a default judgment.

Explanation

Objections to improper venue, like personal jurisdiction objections, must be raised in the initial response or by pre-answer motion or they are waived. Waiting until trial or appeal forfeits the objection. Refusing to participate risks a default judgment and does not preserve anything.

Question 19Civil Procedure

A plaintiff sues in Oregon circuit court. The defendant, after answering, learns of a defect in the service of process that occurred before the answer. Which statement best describes the defendant's position?

  1. A defense of insufficient service of process is generally waived if not raised in the first response or pre-answer motion. Correct answer.
  2. The defendant may raise insufficient service only by filing a new lawsuit.
  3. The defendant may raise insufficient service for the first time on appeal.
  4. The defendant may raise insufficient service at any time before trial.

Explanation

Under Oregon practice, defenses including insufficient service of process must be raised in the first responsive pleading or by motion before pleading, or they are waived. The objection is not preserved indefinitely and cannot be raised for the first time on appeal. A separate lawsuit is not the mechanism for challenging service.

Question 20Civil Procedure

A plaintiff in Oregon circuit court seeks to join an additional defendant whose liability arises from the same transaction as the original claim. Which consideration most directly governs whether joinder is proper?

  1. Whether the new party consents to joinder.
  2. Whether the new party resides in the same county as the plaintiff.
  3. Whether the claim against the new party arises out of the same transaction, occurrence, or series of transactions and common questions of law or fact will arise. Correct answer.
  4. Whether the new party has already retained counsel.

Explanation

Permissive joinder under the Oregon rules turns on whether the claims arise from the same transaction, occurrence, or series and share common questions of law or fact. Consent, residence matching the plaintiff, and retention of counsel are not the governing criteria.

Question 21Constitutional Law

Under the Supreme Court's decision in District of Columbia v. Heller, which type of regulation is most clearly permissible consistent with the Second Amendment?

  1. Requiring all firearms to remain disassembled in the home
  2. A ban on handgun possession in the home by law-abiding citizens
  3. Prohibiting the sale of all ammunition for civilian use
  4. Disqualifying convicted felons from firearm possession Correct answer.

Explanation

Heller recognized an individual right to keep a handgun in the home for self-defense but expressly stated that longstanding prohibitions, including those barring felons from possessing firearms, remain presumptively lawful. A total ban on operable handguns in the home was the very measure struck down.

Question 22Constitutional Law

A state enacts a law requiring any person who wishes to speak at a public meeting to obtain a permit from the mayor, who has unreasoned discretion to grant or deny. Which constitutional doctrine most directly governs this scheme?

  1. The Contracts Clause
  2. The Establishment Clause
  3. The prior restraint doctrine Correct answer.
  4. The Privileges or Immunities Clause

Explanation

A licensing scheme that conditions speech on an official's discretionary approval is a prior restraint, and it is invalid if it lacks narrow, objective, and definite standards. The doctrine targets restraints imposed before speech occurs rather than punishment afterward.

Question 23Constitutional Law

Congress passes a statute directing the Secretary of Commerce to regulate a matter, and the statute provides that the Secretary's decisions may be overturned by a resolution of either house of Congress. This legislative-veto provision is most likely unconstitutional under which reasoning?

  1. It violates the Tenth Amendment because it regulates intrastate commerce
  2. It violates the Presentment Clause and bicameralism because it lets one house alter legal duties without passage by both houses and presentation to the President Correct answer.
  3. It violates the First Amendment because it burdens petitioning the government
  4. It violates Article III because it gives Congress judicial power

Explanation

INS v. Chadha held that a one-house veto of executive action is legislative in character and must satisfy bicameralism and presentment. A single chamber cannot change legal rights and duties without action by both houses and the President.

Question 24Constitutional Law

A city ordinance prohibits all signs on residential property but allows flags. The stated purpose is aesthetics and traffic safety. Which standard of review applies to this content-neutral regulation of speech?

  1. Intermediate scrutiny, because it regulates the time, place, or manner of speech Correct answer.
  2. No review, because residential property is not a public forum
  3. Rational basis review, because aesthetics is a legitimate government interest
  4. Strict scrutiny, because all sign regulations burden speech

Explanation

Content-neutral regulations of the time, place, or manner of protected speech are upheld if they serve a significant government interest, are narrowly tailored, and leave open ample alternative channels. Courts apply intermediate scrutiny to such measures.

Question 25Constitutional Law

Which clause of the Fourteenth Amendment has been the primary vehicle for applying most provisions of the Bill of Rights against the states?

  1. The Equal Protection Clause
  2. The Privileges or Immunities Clause
  3. The Citizenship Clause
  4. The Due Process Clause Correct answer.

Explanation

The Supreme Court has incorporated most Bill of Rights guarantees against the states through the Due Process Clause of the Fourteenth Amendment. The Privileges or Immunities Clause was largely read narrowly in the Slaughter-House Cases.

Question 26Constitutional Law

A federal statute regulates the growing of wheat for personal consumption because, in the aggregate, such consumption affects the national wheat market. This aggregation principle is most associated with which case?

  1. United States v. Morrison
  2. Wickard v. Filburn Correct answer.
  3. United States v. Lopez
  4. Heart of Atlanta Motel v. United States

Explanation

Wickard v. Filburn upheld federal regulation of wheat grown for home use because the aggregate effect of many such small contributions substantially affected interstate commerce. Lopez and Morrison later marked outer limits by rejecting aggregation for non-economic activity.

Question 27Constitutional Law

A state university denies admission to an applicant solely because of the applicant's race, using a quota that reserves a fixed number of seats. Under controlling Supreme Court precedent on public higher education, this practice is most likely:

  1. Constitutional, because education is not a fundamental right and rational basis applies
  2. Constitutional, because the state has a compelling interest in remedying past societal discrimination generally
  3. Unconstitutional, because racial classifications must satisfy strict scrutiny and fixed quotas are not narrowly tailored Correct answer.
  4. Unconstitutional, because the Equal Protection Clause bars any consideration of race in admissions

Explanation

Racial classifications by the government are subject to strict scrutiny, and fixed quotas that reserve seats by race are not narrowly tailored to a compelling interest. Bakke rejected rigid quotas while later cases addressed narrowly tailored holistic use of race.

Question 28Constitutional Law

A state requires candidates for state office to have lived in the state for at least seven years. A qualified newcomer challenges the requirement. Under the Supreme Court's ballot-access and candidacy precedents, the durational residency requirement is most likely:

  1. Invalid, because it burdens the right to vote and candidacy without being narrowly tailored to a compelling interest Correct answer.
  2. Valid, because residency is a rational requirement for understanding local issues
  3. Invalid, because durational residency requirements are always unconstitutional for any purpose
  4. Valid, because states may set any qualifications for their own offices

Explanation

Durational residency requirements for candidacy burden voters' choices and candidates' access to the ballot and are evaluated under strict scrutiny. Cases such as Anderson v. Celebrezze and related decisions have struck down lengthy durational requirements absent narrow justification.

Question 29Constitutional Law

A public school teacher leads students in a prayer during class, and the school permits it as part of a moment of silence. Which principle most directly determines the Establishment Clause analysis?

  1. The Free Exercise Clause's prohibition on burdening religious belief
  2. The Equal Protection Clause's ban on religious classifications
  3. The Free Speech Clause's protection of teacher expression
  4. The Lemon test's inquiry into purpose, effect, and entanglement, and coercion concerns in the school context Correct answer.

Explanation

Establishment Clause challenges to school prayer are analyzed for whether the practice has a religious purpose or effect and whether it coerces students, with particular sensitivity to the captive school audience. The Lemon framework and later coercion-focused decisions supply the governing principles.

Question 30Constitutional Law

A state law grants a tax exemption to a church for property used exclusively for religious worship, and the exemption is available to all religious and nonreligious organizations on equal terms. This exemption is most likely:

  1. Unconstitutional, because any benefit to religion violates the Establishment Clause
  2. Unconstitutional, because it prefers religion over nonreligion
  3. Constitutional, because the Free Exercise Clause requires tax exemptions for all churches
  4. Constitutional, because it is a neutral exemption available to a broad class of organizations Correct answer.

Explanation

The Supreme Court has upheld broad property-tax exemptions for religious organizations where the exemption is neutral and available to a wide class of groups. Such an exemption does not amount to sponsorship of religion.

Question 31Constitutional Law

A state enacts a law that prohibits any state employee from wearing a religious head covering while at work, and the law has the effect of burdening a particular religious practice. A plaintiff challenges it under the Free Exercise Clause. Following Employment Division v. Smith, which standard applies?

  1. Rational basis review, because the law is neutral and generally applicable Correct answer.
  2. Intermediate scrutiny, because the law affects employment
  3. The law is per se invalid because it targets religion
  4. Strict scrutiny, because the law burdens a religious practice

Explanation

Smith held that neutral, generally applicable laws that incidentally burden religious practice are not subject to heightened scrutiny under the Free Exercise Clause. Such laws need only satisfy rational basis review unless they target religion or allow individualized exceptions.

Question 32Constitutional Law

Congress passes a statute that commands state legislatures to enact a specific regulatory scheme. Which constitutional principle is most directly implicated?

  1. The Spending Clause, which allows Congress to attach conditions to federal funds
  2. The Supremacy Clause, which makes federal law supreme over state law
  3. The anticommandeering doctrine, which bars Congress from conscripting state legislatures to implement federal programs Correct answer.
  4. The Necessary and Proper Clause, which authorizes all means convenient to federal ends

Explanation

Printz and New York v. United States established that Congress may not commandeer state legislatures or executive officials to administer federal regulatory programs. Congress may, however, regulate directly or use conditional spending to encourage state cooperation.

Question 33Constitutional Law

A federal agency adjudicates a dispute and imposes a civil penalty, and the statute limits judicial review to a deferential standard while barring courts from reviewing the agency's factual findings. Which constitutional concern is most directly raised?

  1. The First Amendment right to petition
  2. The separation of powers and the availability of judicial review under Article III Correct answer.
  3. The Contracts Clause
  4. The Tenth Amendment reservation of powers to the states

Explanation

Congress may not strip courts of the essential attributes of judicial power or foreclose all meaningful judicial review of constitutional and legal questions. The concern is the separation of powers and the role of Article III courts.

Question 34Constitutional Law

A state imposes a higher tax on out-of-state businesses that sell goods within the state than on in-state businesses engaged in the same activity. Which constitutional provision most directly governs whether the differential tax is valid?

  1. The Full Faith and Credit Clause
  2. The Dormant Commerce Clause Correct answer.
  3. The Privileges and Immunities Clause of Article IV
  4. The Import-Export Clause

Explanation

Discriminatory state taxation of interstate commerce is analyzed under the Dormant Commerce Clause, which generally forbids states from favoring in-state economic interests over out-of-state competitors. Such discrimination is valid only if the state can show a legitimate local purpose that cannot be served by reasonable nondiscriminatory means.

Question 35Constitutional Law

A plaintiff sues a state agency in federal court for money damages under a federal statute enacted under the Commerce Clause. The state asserts sovereign immunity. Which statement best reflects the governing doctrine?

  1. The state is immune because Congress cannot abrogate Eleventh Amendment immunity under its Commerce Clause power Correct answer.
  2. The state is not immune because the statute creates a federal question
  3. The state is immune only if the lawsuit names the state itself rather than an agency
  4. The state is not immune because the Eleventh Amendment applies only to diversity cases

Explanation

Seminole Tribe v. Florida held that Congress cannot abrogate state sovereign immunity under its Article I Commerce Clause power. Congress may abrogate under Section 5 of the Fourteenth Amendment, but not under the Commerce Clause.

Question 36Constitutional Law

A state enacts a law that bans the publication of truthful information about a matter of public concern obtained lawfully from a government record. A newspaper challenges the ban. Which standard governs?

  1. The law is subject to intermediate scrutiny because it regulates the press
  2. The law is valid because the information came from a government record
  3. The law is subject to strict scrutiny and is likely invalid because it restricts truthful speech on a matter of public concern Correct answer.
  4. The law is valid if it serves a rational basis

Explanation

Content-based restrictions on truthful speech about matters of public concern are subject to strict scrutiny and are rarely upheld. The government generally cannot prohibit publication of lawfully obtained truthful information absent a compelling interest narrowly served.

Question 37Constitutional Law

A state creates a public forum in a municipal auditorium and then excludes a speaker because the speaker's views are unpopular, while allowing speakers with opposing views. The exclusion is most likely:

  1. Invalid, because viewpoint discrimination in a designated public forum is subject to strict scrutiny Correct answer.
  2. Invalid, because all content regulation in a public forum is per se unconstitutional
  3. Valid, because the government owns the auditorium
  4. Valid, because the auditorium is a nonpublic forum

Explanation

Once the government designates property as a public forum, it may not discriminate against speakers based on viewpoint, and such discrimination receives strict scrutiny. Content-neutral time, place, and manner rules may still apply.

Question 38Constitutional Law

Congress conditions a federal highway grant on a state's raising its drinking age to 21, withholding a portion of funds if the state refuses. Which test governs whether the condition is a valid exercise of the spending power?

  1. The condition is invalid because Congress may not influence state policy through spending
  2. The condition is valid only if the state consents by statute
  3. The condition must be reasonably related to the federal interest in the spending program and may not cross the line from pressure to compulsion Correct answer.
  4. The condition must satisfy strict scrutiny because it affects state policy

Explanation

South Dakota v. Dole upheld conditional spending where the condition serves the general welfare, is unambiguous, is reasonably related to the federal interest, and does not amount to coercion. The spending power may be used to encourage state policy choices.

Question 39Constitutional Law

A state enacts a law that requires all candidates for a local school board to be nominated by a political party, effectively excluding independent candidates. An independent candidate challenges the law. Which analysis is most consistent with Supreme Court precedent?

  1. The law is valid because states have plenary power over local elections
  2. The law is subject to strict scrutiny because it burdens ballot access and association, and is likely invalid absent a compelling justification Correct answer.
  3. The law is subject to rational basis review because candidacy is not a fundamental right
  4. The law is valid because political parties are private associations

Explanation

Restrictions that burden access to the ballot and the right of political association trigger strict scrutiny, requiring a compelling state interest and narrow tailoring. Closing the ballot to independent candidates is unlikely to survive that standard.

Question 40Constitutional Law

A federal statute requires state executive officials to conduct background checks for federal firearms purchases. The state objects that this conscripts its officials. Which doctrine most directly applies?

  1. The Eleventh Amendment, because the state is being sued
  2. The Supremacy Clause, because federal law always overrides state objections
  3. The Spending Clause, because the state receives federal funds
  4. The anticommandeering doctrine, because Congress may not command state executive officials to administer a federal program Correct answer.

Explanation

Printz v. United States held that Congress cannot commandeer state executive officials to implement a federal regulatory scheme. Congress must use its own officials or provide incentives such as conditional spending.

Question 41Contracts and Sales

Under the Uniform Commercial Code, which of the following contracts is governed by Article 2 rather than the common law of contracts?

  1. A contract for the sale of a commercial building and its parking lot
  2. A contract for the sale of a dental practice, including patient records and goodwill
  3. A contract for the sale of shares of stock in a closely held corporation
  4. A contract for the sale of a new furnace to be installed in a homeowner's basement Correct answer.

Explanation

Article 2 governs transactions in goods, meaning movable tangible items at the time of identification to the contract. A new furnace is a good even when the seller also installs it, because installation is incidental to the sale. The other transactions involve real property, services, or intangibles and fall outside Article 2.

Question 42Contracts and Sales

A merchant sends a signed writing stating that she will sell 500 widgets at $4 each and that she will hold the offer open for thirty days. Under the UCC firm-offer rule, which statement is correct?

  1. The offer is revocable at any time because no consideration was given to keep it open.
  2. The offer is irrevocable for thirty days even without consideration, because a merchant made a signed assurance. Correct answer.
  3. The offer is irrevocable only if the buyer also signs the writing.
  4. The offer is irrevocable indefinitely once made in a signed writing.

Explanation

UCC section 2-205 makes an offer by a merchant to buy or sell goods irrevocable without consideration if it is in a signed writing and assures that it will be held open. The irrevocability lasts only for the stated period, capped at three months. No consideration or buyer signature is required.

Question 43Contracts and Sales

A buyer and seller orally agree on the sale of a used motorcycle for $5,000, and the buyer mails a signed check for the full price. No writing otherwise exists. What is the most likely result under the UCC Statute of Frauds?

  1. The contract is enforceable because the check is a writing signed by the buyer evidencing the sale. Correct answer.
  2. The contract is enforceable against the buyer but not against the seller.
  3. The contract is unenforceable unless the seller also signs a writing.
  4. The contract is unenforceable because no signed writing describes the motorcycle.

Explanation

Under UCC section 2-201, a writing is sufficient if it indicates a contract for sale, is signed by the party against whom enforcement is sought, and states a quantity. A signed check can serve as such a writing against the signer. Because the buyer signed, the contract can be enforced against the buyer.

Question 44Contracts and Sales

A seller agrees to sell a specific antique vase to a buyer. Before delivery, the vase is destroyed by fire without fault of either party, and the risk of loss had not yet passed to the buyer. What is the buyer's best argument for relief?

  1. The buyer must still pay the price because the contract was for an identified good.
  2. The buyer may compel the seller to deliver a comparable vase.
  3. The buyer may rescind for mutual mistake only if the seller also agrees.
  4. The buyer may recover damages because the seller bore the risk of loss. Correct answer.

Explanation

When identified goods are destroyed without fault before risk of loss passes, the contract is avoided under UCC section 2-613 if the loss is total. If the seller still bore the risk, the buyer is excused from performance and may pursue damages for breach. The buyer cannot demand substitute goods from a seller who never promised them.

Question 45Contracts and Sales

Which promise would be enforceable without consideration under the doctrine of promissory estoppel?

  1. A promise to make a gift to a favorite charity announced at a fundraising dinner.
  2. A promise to pay a bonus to an at-will employee for past loyalty.
  3. A promise by a contractor to a subcontractor to award a job, on which the subcontractor reasonably and detrimentally relies by purchasing materials. Correct answer.
  4. A promise to pay a debt barred by the statute of limitations, made without any writing.

Explanation

Promissory estoppel enforces a promise when the promisor should reasonably expect reliance, reliance actually occurs, and injustice can be avoided only by enforcement. The subcontractor's purchase of materials in reliance on the award is the classic illustration. Gift promises, past-consideration promises, and moral obligations generally lack the required reliance.

Question 46Contracts and Sales

A minor signs a contract to purchase a car and later, after turning eighteen, continues to make payments and keeps the car for several months. What is the effect of this conduct?

  1. The minor may disaffirm only if the car is returned in perfect condition.
  2. The contract is automatically void from the outset and cannot be ratified.
  3. The minor's continued retention and payments constitute ratification of the contract. Correct answer.
  4. The contract remains voidable until the minor reaches twenty-one.

Explanation

A contract made by a minor is voidable, but upon reaching majority the former minor may ratify it expressly or by conduct inconsistent with disaffirmance. Retaining the benefits and continuing to perform after majority is such conduct. The contract is voidable, not void, and disaffirmance does not require perfect condition in most jurisdictions.

Question 47Contracts and Sales

An offeror sends an offer by mail and states that acceptance must be received by the offeror by Friday. The offeree mails an acceptance on Wednesday that arrives Friday afternoon. Which statement is correct?

  1. The mailbox rule applies, so acceptance was effective on Wednesday when mailed.
  2. The offer lapsed on Wednesday because the offeree did not use a faster method.
  3. No contract formed because acceptance by mail was not authorized.
  4. Acceptance was effective when received on Friday, because the offeror specified receipt. Correct answer.

Explanation

The mailbox rule makes acceptance effective on dispatch, but the offeror may control the manner and timing of acceptance. When the offer expressly requires receipt by a stated time, acceptance is effective only upon receipt. The offeree's Wednesday mailing therefore did not create a contract until Friday.

Question 48Contracts and Sales

A seller sends a buyer a purchase order for 100 chairs. The buyer responds with an acknowledgment form that agrees to 100 chairs but adds a clause requiring all disputes to be arbitrated. Both parties are merchants. Under UCC section 2-207, what is the effect of the arbitration clause?

  1. The clause prevents contract formation because it is a material alteration.
  2. The clause is automatically struck, and the contract contains only the original terms.
  3. The clause is a proposal for addition that does not prevent formation, and its inclusion depends on whether it materially alters the contract. Correct answer.
  4. The clause becomes part of the contract because the writings otherwise agree.

Explanation

Under section 2-207, a definite and seasonable expression of acceptance operates as an acceptance even if it states additional terms. Between merchants, additional terms become part of the contract unless they materially alter it, are objected to, or the offer limits acceptance to its terms. Arbitration clauses are often analyzed as material alterations, so the clause is a proposal whose fate depends on that analysis.

Question 49Contracts and Sales

A buyer orders goods from a seller and the contract is silent on risk of loss. The seller is a merchant and agrees to ship the goods by common carrier. The goods are damaged in transit after being delivered to the carrier. Who bears the risk of loss?

  1. The buyer, because the contract is a shipment contract and risk passed on delivery to the carrier. Correct answer.
  2. The seller, because merchants always bear risk until the buyer inspects the goods.
  3. The seller, because risk passes only on the buyer's receipt of the goods.
  4. The buyer, because risk passes when the goods are identified to the contract.

Explanation

In a shipment contract, the seller fulfills the delivery obligation by putting conforming goods into the hands of a carrier and making a reasonable contract for transport. Risk of loss then passes to the buyer at the time of shipment. A destination contract, by contrast, would keep risk with the seller until tender at the destination.

Question 50Contracts and Sales

A homeowner hires a contractor to remodel a kitchen for $40,000. Midway through, the homeowner repudiates the contract without justification. The contractor has spent $15,000 on labor and materials and has not yet completed the work. What may the contractor recover?

  1. Nothing, because the contractor did not substantially perform.
  2. The full contract price of $40,000, minus the cost of completing the work. Correct answer.
  3. The contract price, because repudiation accelerates the entire obligation.
  4. Only the reasonable value of the benefit conferred on the homeowner, measured by the market price.

Explanation

When the buyer repudiates a construction contract before completion, the builder may recover the contract price less the cost of completion, or may await performance. This protects the expectation interest without giving the contractor a windfall. The measure is not limited to restitution or to nothing.