National Conference of Bar Examiners Multistate Bar Examination - Online Practic, Exams of Law

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Multistate Bar Examination - Online Practice Exam 4

Question # 1 - Constitutional Law

A federal civil statute prohibited fishing in any body of water that was located within a national park and contained a particular endangered species of fish. The statute authorized federal district courts to enjoin knowing violators of the statute from the use of all national park facilities for up to two years. After a vacationer was found by a federal district court to have knowingly violated the statute, the court issued an injunction against his use of all national park facilities for two years. The vacationer appealed. Before the appeals court heard the vacationer's case, Congress repealed the statute by a law that expressly made the repeal effective retroactive to a date one month before the vacationer's violation of the statute. The law also directly cited the vacationer's case and stated that it was intended to "repeal all the statutory prohibitions that formed the basis for decisions" such as that rendered against the vacationer. On the basis of this law, the vacationer has asked the appeals court to vacate the injunction issued against him. Counsel for the United States has objected, contending that, as applied to the specific case pending in the appeals court, the law is unconstitutional. How should the appeals court rule? (A) For the United States, because Congress defied the constitutional prohibition against ex post facto laws by retroactively changing the consequences for violating the statute after the violation was proved in a trial court. (B) For the United States, because the law's citation to the vacationer's case demonstrates that Congress intended to compel the appeals court to reach a particular result and, therefore, sought to exercise judicial powers vested exclusively in the courts by Article III. (C) For the vacationer, because Congress has the power to determine the laws to be applied by the federal courts and to require retroactive application of those laws to any specifically identified case that it chooses. (D) For the vacationer, because Congress is authorized to make substantive changes to federal civil statutes and to direct that those changes be applied by the courts to all actions in which a final judgment has not yet been rendered.

Question # 2 - Real Property

A man obtained a bank loan secured by a mortgage on an office building that he owned. After several years, the man conveyed the office building to a woman, who took title subject to the mortgage. The deed to the woman was not recorded. The woman took immediate possession of the building and made the mortgage payments for several years. Subsequently, the woman stopped making payments on the mortgage loan, and the bank eventually commenced foreclosure proceedings in which the man and the woman were both named parties. At the foreclosure sale, a third party purchased the building for less than the outstanding balance on the mortgage loan. The bank then sought to collect the deficiency from the woman. Is the bank entitled to collect the deficiency from the woman? (A) No, because the woman did not record the deed from the man. (B) No, because the woman is not personally liable on the loan. (C) Yes, because the woman took immediate possession of the building when she bought it from the man. (D) Yes, because the woman was a party to the foreclosure proceeding.

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If the court dismisses the action, what will be the most likely reason? (A) The action involves a nonjusticiable political question. (B) The action is not ripe. (C) The action is within the original jurisdiction of the U.S. Supreme Court. (D) The ambassador does not have standing.

Question # 6 - Torts

An assistant to a famous writer surreptitiously observed the writer as the writer typed her private password into her personal computer in order to access her email. On several subsequent occasions in the writer's absence, the assistant read the writer's email messages and printed out selections from them. The assistant later quit his job and earned a considerable amount of money by leaking information to the media that he had learned from reading the writer's email messages. All of the information published about the writer as a result of the assistant's conduct was true and concerned matters of public interest. The writer's secretary had seen the assistant reading the writer's emails and printing out selections, and she has told the writer what she saw. The writer now wishes to sue the assistant for damages. At trial, the writer can show that the media leaks could have come only from someone reading her email on her personal computer. Can the writer recover damages from the assistant? (A) No, because the assistant was an invitee on the premises. (B) No, because the published information resulting from the assistant's conduct was true and concerned matters of public interest. (C) Yes, because the assistant invaded the writer's privacy. (D) Yes, because the published information resulting from the assistant's conduct constituted publication of private facts concerning the writer.

Question # 7 - Evidence

A defendant is on trial for knowing possession of a stolen television. The defendant claims that the television was a gift from a friend, who has disappeared. The defendant seeks to testify that he was present when the friend told her neighbor that the television had been given to the friend by her mother. Is the defendant's testimony about the friend's statement to the neighbor admissible? (A) No, because the friend's statement is hearsay not within any exception. (B) No, because the defendant has not presented evidence of circumstances that clearly corroborate the statement. (C) Yes, as nonhearsay evidence of the defendant's belief that the friend owned the television. (D) Yes, under the hearsay exception for statements affecting an interest in property.

Question # 8 - Contracts

A restaurant supplier sent a letter to a regular customer offering to sell the customer an industrial freezer for $10,000. Two

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days later, the customer responded with a letter that stated: "I accept your offer on the condition that you provide me with a warranty that the freezer is merchantable." In response to the customer's letter, the supplier called the customer and stated that the offer was no longer open. The supplier promptly sold the freezer to another buyer for $11,000. If the customer sues the supplier for breach of contract, is the customer likely to prevail? (A) No, because the customer's letter added a term, making it a counteroffer. (B) No, because the subsequent sale to a bona fide purchaser for value cut off the claims of the customer. (C) Yes, because the customer's letter was an acceptance of the supplier's offer, since the warranty of merchantability was already implied in the sale. (D) Yes, because the supplier's letter was a firm offer that could not be revoked for a reasonable time.

Question # 9 - Real Property

A credit card company obtained and properly filed a judgment against a man after he failed to pay a $10,000 debt. A statute in the jurisdiction provides as follows: "Any judgment properly filed shall, for 10 years from filing, be a lien on the real property then owned or subsequently acquired by any person against whom the judgment is rendered." Two years later, the man purchased land for $200,000. He made a down payment of $20,000 and borrowed the remaining $180,000 from a bank. The bank loan was secured by a mortgage on the land. Immediately after the closing, the deed to the man was recorded first, and the bank's mortgage was recorded second. Five months later, the man defaulted on the mortgage loan and the bank initiated judicial foreclosure proceedings. After receiving notice of the proceedings, the credit card company filed a motion to have its judgment lien declared to be the first lien on the land. Is the credit card company's motion likely to be granted? (A) No, because the bank's mortgage secured a loan used to purchase the land. (B) No, because the man's down payment exceeded the amount of his debt to the credit card company. (C) Yes, because the bank had constructive notice of the judgment lien. (D) Yes, because the bank is a third-party lender and not the seller of the land.

Question # 10 - Criminal Law and Procedure

A woman charged with murder has entered a plea of not guilty by reason of insanity. At her trial, in which the questions of guilt and sanity are being tried together, the evidence shows that the woman stalked the victim for several hours before following him to an isolated hiking trail where she shot and killed him. Expert witnesses for the defense have testified that the woman knew that killing was illegal and wrong, but that she suffered from a serious mental illness that left her in the grip of a powerful and irresistible compulsion to kill the victim. If the jury believes the testimony of the defense experts, under what circumstances could the jury properly acquit the woman of murder? (A) Only if the jurisdiction follows the M'Naghten test for insanity. (B) Only if the jurisdiction follows the ALI Model Penal Code test for insanity. (C) If the jurisdiction follows either the M'Naghten or the ALI Model Penal Code test for insanity. (D) Even if the jurisdiction has abolished the insanity defense.

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Question # 14 - Criminal Law and Procedure

A valid warrant was issued for a woman's arrest. The police learned that a person with the woman's name and physical description lived at a particular address. When police officers went to that address, the house appeared to be unoccupied: the windows and doors were boarded up with plywood, and the lawn had not been mowed for a long time. A neighbor confirmed that the house belonged to the woman but said that the woman had not been there for several months. The officers knocked repeatedly on the front door and shouted, "Police! Open up!" Receiving no response, they tore the plywood off the door, smashed through the door with a sledgehammer, and entered the house. They found no one inside, but they did find an illegal sawed-off shotgun. Upon her return to the house a few weeks later, the woman was charged with unlawful possession of the shotgun. The woman has moved to suppress the use of the shotgun as evidence at her trial. Should the court grant the motion? (A) No, because the officers acted in good faith under the authority of a valid warrant. (B) No, because the officers did not violate any legitimate expectation of privacy in the house since the woman had abandoned it. (C) Yes, because the officers entered the house by means of excessive force. (D) Yes, because the officers had no reason to believe that the woman was in the house.

Question # 15 - Constitutional Law

An employer owed an employee $200 in unpaid wages. A law of the state in which the employer and the employee reside and in which the employee works provides that the courts of that state must decide claims for unpaid wages within 10 days of filing. After the employee filed a claim in state court pursuant to this law, the employer filed a voluntary bankruptcy petition in federal bankruptcy court. In the bankruptcy proceeding, the employer sought to stay further proceedings in the unpaid wages claim on the basis of a federal statute which provides that a person who files a federal bankruptcy petition receives an automatic stay of all proceedings against him or her in all federal and state courts. No other federal laws apply. In addition to the supremacy clause of Article VI, what is the most obvious constitutional basis for the imposition of a stay of the unpaid wages claim in the state court? (A) Congress's power to provide for the general welfare. (B) Congress's power to provide uniform rules of bankruptcy. (C) Congress's power to regulate the jurisdiction and procedures of the courts. (D) Congress's power to regulate commerce among the states.

Question # 16 - Real Property

A husband and wife acquired land as common law joint tenants with right of survivorship. One year later, without his wife's knowledge, the husband executed a will devising the land to his best friend. The husband subsequently died. Is the wife now the sole owner of the land?

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(A) No, because a joint tenant has the unilateral right to end a joint tenancy without the consent of the other joint tenant. (B) No, because the wife's interest in the husband's undivided 50% ownership in the land adeemed. (C) Yes, because of the doctrine of after-acquired title. (D) Yes, because the devise to the friend did not sever the joint tenancy.

Question # 17 - Evidence

A plaintiff has sued a defendant, alleging that she was run over by a speeding car driven by the defendant. The plaintiff was unconscious after her injury and, accompanied by her husband, was brought to the hospital in an ambulance. At trial, the plaintiff calls an emergency room physician to testify that when the physician asked the plaintiff's husband if he knew what had happened, the husband, who was upset, replied, "I saw my wife get run over two hours ago by a driver who went right through the intersection without looking." Is the physician's testimony about the husband's statement admissible? (A) No, because it relates an opinion. (B) No, because it is hearsay not within any exception. (C) Yes, as a statement made for purposes of diagnosis or treatment. (D) Yes, as an excited utterance.

Question # 18 - Contracts

In a telephone conversation, a jewelry maker offered to buy 100 ounces of gold from a precious metals company if delivery could be made within 10 days. The jewelry maker did not specify a price, but the market price for 100 ounces of gold at the time of the conversation was approximately $65,000. Without otherwise responding, the company delivered the gold six days later. In the meantime, the project for which the jewelry maker planned to use the gold was canceled. The jewelry maker therefore refused to accept delivery of the gold or to pay the $65,000 demanded by the company. Is there an enforceable contract between the jewelry maker and the company? (A) No, because the parties did not agree on a price term. (B) No, because the parties did not put their agreement in writing. (C) Yes, because the absence of a price term does not defeat the formation of a valid contract for the sale of goods where the parties otherwise intended to form a contract. (D) Yes, because the company relied on an implied promise to pay when it delivered the gold.

Question # 19 - Real Property

A landlord leased a building to a tenant for a 10-year term. Two years after the term began, the tenant subleased the building to a sublessee for a 5-year term. Under the terms of the sublease, the sublessee agreed to make monthly rent payments to the tenant. Although the sublessee made timely rent payments to the tenant, the tenant did not forward four of those payments to the

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Question # 22 - Constitutional Law

Congress enacted a statute directing U.S. ambassadors to send formal letters to the governments of their host countries, protesting any violations by those governments of international treaties on weapons sales. The President prefers to handle violations by certain countries in a less formal manner and has directed ambassadors not to comply with the statute. Is the President's action constitutional? (A) No, because Congress has the power to implement treaties, and therefore the statute is binding on the President. (B) No, because Congress has the power to regulate commerce with foreign nations, and therefore the statute is binding on the President. (C) Yes, because Congress has no jurisdiction over matters outside the U.S. borders. (D) Yes, because the President and his subordinates are the exclusive official representatives of the United States in foreign affairs.

Question # 23 - Real Property

A woman who owned a house executed a deed purporting to convey the house to her son and his wife. The language of the deed was sufficient to create a common law joint tenancy with right of survivorship, which is unmodified by statute in the jurisdiction. The woman mailed the deed to the son with a letter saying: "Because I intend you and your wife to have my house after my death, I am enclosing a deed to the house. However, I intend to live in the house for the rest of my life, so don't record the deed until I die. The deed will be effective at my death." The son put the deed in his desk. The wife discovered the deed and recorded it without the son's knowledge. Subsequently, the son and the wife separated, and the wife, without telling anyone, conveyed her interest in the house to a friend who immediately reconveyed it to the wife. The woman learned that the son and the wife had separated and also learned what had happened to the deed to the house. The woman then brought an appropriate action against the son and the wife to obtain a declaration that the woman was still the owner of the house and an order canceling of record the woman's deed and the subsequent deeds. If the court determines that the woman owns the house in fee simple, what will be the likely explanation? (A) The deed was not delivered. (B) The wife's conduct entitles the woman to equitable relief. (C) The woman expressly reserved a life estate. (D) The woman received no consideration for her deed.

Question # 24 - Contracts

A man sent an email to a friend that stated: "Because you have been a great friend to me, I am going to give you a rare book that I own." The friend replied by an email that said: "Thanks for the rare book. I am going to give you my butterfly collection." The rare book was worth $10,000; the butterfly collection was worth $100. The friend delivered the butterfly collection to the man, but the man refused to deliver the book. If the friend sues the man to recover the value of the book, how should the court rule? (A) For the man, because there was no bargained-for exchange to support his promise. (B) For the man, because the consideration given for his promise was inadequate. (C) For the friend, because she gave the butterfly collection to the man in reliance on receiving the book.

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(D) For the friend, because she conferred a benefit on the man by delivering the butterfly collection.

Question # 25 - Torts

Toxic materials being transported by truck from a manufacturer's plant to a warehouse leaked from the truck onto the street a few miles from the plant. A driver lost control of his car when he hit the puddle of spilled toxic materials on the street, and he was injured when his car hit a stop sign. In an action for damages by the driver against the manufacturer based on strict liability, is the driver likely to prevail? (A) No, because the driver's loss of control was an intervening cause. (B) No, because the driver's injury did not result from the toxicity of the materials. (C) Yes, because the manufacturer is strictly liable for leaks of its toxic materials. (D) Yes, because the leak occurred near the manufacturer's plant.

Question # 26 - Constitutional Law

Congress enacted a statute that authorized the construction of a monument commemorating the role of the United States in liberating a particular foreign nation during World War II. Another statute appropriated $3 million for the construction. When the United States became involved in a bitter trade dispute with the foreign nation, the President announced that he was canceling the monument's construction and that he would not spend the appropriated funds. Although the actual reason for the President's decision was the trade dispute, the announcement stated that the reason was an unexpected rise in the federal deficit. Assume that no other statutes apply. Is the President's decision constitutional? (A) No, because the President failed to invoke his foreign affairs powers in his announcement. (B) No, because the President is obligated to spend funds in accordance with congressional directions. (C) Yes, because the President is vested with inherent executive power to control federal expenditures. (D) Yes, because the President's decision is a valid exercise of his foreign affairs powers.

Question # 27 - Real Property

A woman borrowed $100,000 from a bank and executed a promissory note to the bank in that amount. As security for repayment of the loan, the woman's brother gave the bank a mortgage on a tract of land solely owned by him. The brother did not sign the promissory note. The woman subsequently defaulted on the loan, and after acceleration, the bank instituted foreclosure proceedings on the brother's land. The brother filed a timely objection to the foreclosure. Will the bank succeed in foreclosing on the tract of land? (A) No, because the bank has an equitable mortgage rather than a legal mortgage. (B) No, because a mortgage from the brother is invalid without a mortgage debt owed by him. (C) Yes, because the bank has a valid mortgage. (D) Yes, because the bank is a surety for the brother's mortgage.

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(A) There is no contract, because the parties attached materially different meanings to the price term. (B) There is no enforceable contract, because the developer is entitled to rescission due to a mutual mistake as to a basic assumption of the contract. (C) There is a contract formed at a price of $1,000 per acre. (D) There is a contract formed at a price of $1,100 per acre.

Question # 31 - Criminal Law and Procedure

Two defendants were being tried together in federal court for bank robbery. The prosecutor sought to introduce testimony from the first defendant's prison cellmate. The cellmate would testify that the first defendant had admitted to the cellmate that he and the second defendant had robbed the bank. The prosecutor asked the court to instruct the jury that the cellmate's testimony could be considered only against the first defendant. Can the cellmate's testimony be admitted in a joint trial over the second defendant's objection? (A) No, because the first defendant made the statement without Miranda warnings. (B) No, because the limiting instruction cannot ensure that the jury will not consider the testimony in its deliberations regarding the second defendant. (C) Yes, because the first defendant's statement was a declaration against penal interest. (D) Yes, because the limiting instruction sufficiently protects the second defendant.

Question # 32 - Torts

A man and his friend, who were both adults, went to a party. The man and the friend had many drinks at the party and became legally intoxicated. They decided to play a game of chance called "Russian roulette" using a gun loaded with one bullet. As part of the game, the man pointed the gun at the friend and, on her command, pulled the trigger. The man shot the friend in the shoulder. The friend has brought a negligence action against the man. Traditional defenses based on plaintiff's conduct apply. What is likely to be the dispositive issue in this case? (A) Whether the game constituted a joint venture. (B) Whether the friend could validly consent to the game. (C) Whether the friend was also negligent. (D) Whether the man was legally intoxicated when he began playing the game.

Question # 33 - Real Property

A mother executed a will devising vacant land to her son. The mother showed the will to her son. Thereafter, the son purported to convey the land to a friend by a warranty deed that contained no exceptions. The friend paid value for the land and promptly recorded the deed without having first conducted any title search. The friend never took possession of the land. The mother later died, and the will devising the land to her son was duly admitted to probate.

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Thereafter, the friend conducted a title search for the land and asked the son for a new deed. The son refused, because the value of the land had doubled, but he offered to refund the purchase price to the friend. The friend has sued to quiet title to the land. Is the friend likely to prevail? (A) No, because the friend failed to conduct a title search before purchasing the land. (B) No, because the son had no interest in the land at the time of conveyance. (C) Yes, because of the doctrine of estoppel by deed. (D) Yes, because the deed was recorded.

Question # 34 - Criminal Law and Procedure

A prosecutor presented to a federal grand jury the testimony of a witness in order to secure a defendant's indictment for theft of government property. The prosecutor did not disclose to the grand jury that the witness had been convicted four years earlier of perjury. The grand jury returned an indictment, and the defendant pleaded not guilty. Shortly thereafter, the prosecutor took the case to trial, calling the witness to testify before the jury. The prosecutor did not disclose the witness's prior perjury conviction until the defense was preparing to rest. Defense counsel immediately moved for a mistrial, which the court denied. Instead, the court allowed the defense to recall the witness for the purpose of impeaching him with this conviction, but the witness could not be located. The court then allowed the defense to introduce documentary evidence of the witness's criminal record to the jury before resting its case. The jury convicted the defendant. The defendant has moved for a new trial, arguing that the prosecutor's failure to disclose the witness's prior conviction in a timely manner violated the defendant's right to due process of law. If the court grants the defendant's motion, what will be the most likely reason? (A) The defendant was unable to cross-examine the witness about the conviction. (B) The prosecutor failed to inform the grand jury of the witness's conviction. (C) The court found it reasonably probable that the defendant would have been acquitted had the defense had timely access to the information about the witness's conviction. (D) The court found that the prosecutor had deliberately delayed disclosing the witness's conviction to obtain a strategic advantage.

Question # 35 - Constitutional Law

A motorist who resided in State A was severely injured in a traffic accident that occurred in State B. The other vehicle involved in the accident was a truck owned by a furniture manufacturer and driven by one of its employees. The manufacturer's headquarters are in State B. Its products are sold by retailers in State A, but it has no office, plant, or agent for service of process there. The motorist brought an action against the manufacturer in a state court in State A. The manufacturer appeared specially to contest that court's jurisdiction over it. The court ruled that it had jurisdiction over the manufacturer by virtue of State A's long-arm statute. At trial, the court instructed the jury to apply State A law, under which a plaintiff's contributory negligence is a basis for reducing an award of damages but not for denying recovery altogether. Under State B law, contributory negligence is a complete defense. The jury found that the manufacturer was negligent and that its negligence was a cause of the motorist's injuries. It also found that the motorist was negligent, though to a lesser degree than the manufacturer, and that the motorist's negligence contributed to the accident. It returned a verdict in favor of the motorist and awarded her $1 million

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Is the victim's testimony concerning his previous statement to the passerby admissible? (A) No, because the prosecutor has failed to show that it is more likely than not that the victim had personal knowledge of the perpetrator's identity. (B) No, because the victim has no memory of the attack itself and therefore cannot be effectively cross-examined. (C) Yes, because the victim is subject to cross-examination, and there is sufficient showing of personal knowledge. (D) Yes, because it is the victim's own out-of-court statement.

Question # 38 - Constitutional Law

Congress recently enacted a statute creating a program that made federal loans available to family farmers who had been unable to obtain loans from private lenders. Congress appropriated a fixed sum of money to fund loans made pursuant to the program and gave a designated federal agency discretion to decide which applicants were to receive the loans. Two weeks after the program was established, a family farmer applied to the agency for a loan. Agency officials promptly reviewed her application and summarily denied it. The farmer has sued the agency in federal district court, claiming only that the denial of her application without the opportunity for a hearing violated the due process clause of the Fifth Amendment. The farmer claims that she could have proved at such a hearing that without the federal loan it would be necessary for her to sell her farm. Should the court uphold the agency's decision? (A) No, because due process requires federal agencies to provide a hearing before making any factual determination that adversely affects an identified individual on the basis of his or her particular circumstances. (B) No, because the denial of a loan may deprive the farmer of an established liberty interest to pursue her chosen occupation. (C) Yes, because the applicable statute gives the farmer no legitimate claim of entitlement to receive a loan. (D) Yes , because the spending clause of Article I, Section 8, gives Congress plenary power to control the distribution of appropriated funds in any manner it wishes.

Question # 39 - Torts

A woman signed up for a bowling class. Before allowing the woman to bowl, the instructor required her to sign a waiver explicitly stating that she assumed all risk of injuries that she might suffer in connection with the class, including injuries due to negligence or any other fault. After she signed the waiver, the woman was injured when the instructor negligently dropped a bowling ball on the woman's foot. The woman brought a negligence action against the instructor. The instructor has filed a motion for summary judgment based on the waiver. What is the woman's best argument in opposition to the instructor's motion? (A) Bowling is an inherently dangerous activity. (B) In circumstances like these, it is against public policy to enforce agreements that insulate people from the consequences of their own negligence. (C) It was unreasonable to require the woman to sign the waiver before she was allowed to bowl. (D) When she signed the form, the woman could not foresee that the instructor would drop a bowling ball on her foot.

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Question # 40 - Constitutional Law

A state law provides that only U.S. citizens may serve as jurors in the state courts of that state. A woman who is a lawful resident alien and who has resided in the state for many years was summoned for jury duty in a state court. The woman's name was selected from a list of potential jurors that was compiled from a comprehensive list of local residents. She was disqualified from service solely because she is not a U.S. citizen. The woman has filed an action for a declaratory judgment that the state law is unconstitutional. Who should prevail in this action? (A) The state, because a state may limit to U.S. citizens functions that are an integral part of the process of self-government. (B) The state, because jury service is a privilege, not a right, and therefore it is not a liberty interest protected by the due process clause of the Fourteenth Amendment. (C) The woman, because the Constitution gives Congress plenary power to make classifications with respect to aliens. (D) The woman, because the state has not articulated a legitimate reason for prohibiting resident aliens from serving as jurors in the state's courts.

Question # 41 - Torts

A pedestrian was crossing a street in a crosswalk when a woman walking just ahead of him was hit by a truck. The pedestrian, who had jumped out of the way of the truck, administered CPR to the woman, who was a stranger. The woman bled profusely, and the pedestrian was covered in blood. The woman died in the ambulance on the way to the hospital. The pedestrian became very depressed immediately after the incident and developed physical symptoms as a result of his emotional distress. The pedestrian has brought an action against the driver of the truck for negligent infliction of emotional distress. In her defense, the driver asserts that she should not be held liable, because the pedestrian's emotional distress and resulting physical symptoms are not compensable. What is the strongest argument that the pedestrian can make in response to the driver's defense? (A) The pedestrian saw the driver hit the woman. (B) The pedestrian was acting as a Good Samaritan. (C) The pedestrian was covered in the woman's blood and developed physical symptoms as a result of his emotional distress. (D) The pedestrian was in the zone of danger.

Question # 42 - Contracts

A buyer purchased a new car from a dealer under a written contract that provided that the price of the car was $20,000 and that the buyer would receive a "trade-in allowance of $7,000 for the buyer's old car." The old car had recently been damaged in an accident. The contract contained a merger clause stating: "This writing constitutes the entire agreement of the parties, and there are no other understandings or agreements not set forth herein." When the buyer took possession of the new car, she delivered the old car to the dealer. At that time, the dealer claimed that the trade-in allowance included an assignment of the buyer's claim against her insurance company for damage to the old car. The buyer refused to provide the assignment.

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Internet any information concerning the employer." The purpose of the statute was to prevent employees from revealing their employers' trade secrets. Is the statute constitutional? (A) No, because it is not narrowly tailored to further a compelling government interest. (B) No, because it targets a particular medium of communication for special regulation. (C) Yes, because it leaves open ample alternative channels of communication. (D) Yes, because it prevents employees from engaging in unethical conduct.

Question # 46 - Real Property

A man owned a large tract of land. The eastern portion of the land was undeveloped and unused. A farmer owned a farm, the western border of which was along the eastern border of the man's land. The two tracts of land had never been in common ownership. Five years ago, the farmer asked the man for permission to use a designated two acres of the eastern portion of the man's land to enlarge her farm's irrigation facilities. The man orally gave his permission for such use. Since then, the farmer has invested substantial amounts of money and effort each year to develop and maintain the irrigation facilities within the two-acre parcel. The man has been fully aware of the farmer's actions. Nothing regarding this matter was ever reduced to writing. Last year, the man gave the entire tract of land as a gift to his nephew. The deed of gift made no reference to the farmer or the two-acre parcel. When the nephew had the land surveyed and discovered the facts, he notified the farmer in writing, "Your license to use the two-acre parcel has been terminated." The notice instructed the farmer to remove her facilities from the two-acre parcel immediately. The farmer refused the nephew's demand. In an appropriate action between the nephew and the farmer to determine whether the farmer had a right to continue to use the two-acre parcel, the court ruled in favor of the farmer. What is the most likely reason for the court's ruling? (A) The investments and efforts by the farmer in reliance on the license estop the man, and now the nephew as the man's donee, from terminating the license. (B) The nephew is merely a donee. (C) The farmer has acquired an easement based on prior use. (D) The farmer received a license coupled with an interest.

Question # 47 - Torts

Upon the recommendation of her child's pediatrician, a mother purchased a vaporizer for her child, who had been suffering from respiratory congestion. The vaporizer consisted of a gallon-size glass jar, which held water to be heated until it became steam, and a metal heating unit into which the jar fit. The jar was covered by a plastic cap with an opening to allow the steam to escape. At the time the vaporizer was manufactured and sold, there was no safer alternative design. The booklet that accompanied the vaporizer read: "This product is safe, spillproof, and practically foolproof. It shuts off automatically when the water is gone." The booklet had a picture of a vaporizer sending steam over a baby's crib. The mother used the vaporizer whenever the child was suffering from congestion. She placed the vaporizer on the floor near the child's bed. One night, the child got out of bed to get a drink of water and tripped over the cord of the vaporizer as she crossed the

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room. The top of the vaporizer separated from the base, and boiling water from the jar spilled on the child when the vaporizer tipped over. The child suffered serious burns as a consequence. The child's representative brought an action for damages against the manufacturer of the vaporizer. The manufacturer moved to dismiss after the representative presented the evidence above. Should the manufacturer's motion be granted? (A) No, because a jury could find that the manufacturer expressly represented that the vaporizer was spillproof. (B) No, because the vaporizer caused a serious injury to the child. (C) Yes, because it should have been obvious to the mother that the water in the jar would become boiling hot. (D) Yes, because there was no safer alternative design.

Question # 48 - Contracts

A buyer agreed in writing to purchase a car from a seller for $15,000, with the price to be paid on a specified date at the seller's showroom. The contract provided, and both parties intended, that time was of the essence. Before the specified date, however, the seller sold the car to a third party for $20,000. On the specified date, the buyer arrived at the showroom but brought only $10,000. When the seller did not appear at the showroom, the buyer called the seller and asked whether the seller would accept $10,000 for the car immediately and the remaining $5,000 in six weeks. The seller told the buyer that he had sold the car to the third party. If the buyer sues the seller for breach of contract, will the buyer be likely to prevail? (A) No, because the contractual obligations were discharged on the ground of impossibility. (B) No, because the buyer was not prepared to tender her performance on the specified date. (C) Yes, because the buyer's breach was not material. (D) Yes, because the seller anticipatorily repudiated the contract when he sold the car to the third party.

Question # 49 - Criminal Law and Procedure

A state statute divides murder into degrees and defines murder in the first degree as murder committed willfully with premeditation and deliberation. The statute defines murder in the second degree as all other murder at common law and defines voluntary manslaughter as at common law. A man hated one of his coworkers. Upon learning that the coworker was at a neighbor's house, the man grabbed his gun and went to the neighbor's house hoping to provoke the coworker into attacking him so that he could then shoot the coworker. After arriving at the house, the man insulted the coworker and bragged that he had had sexual relations with the coworker's wife two weeks earlier. This statement was not true, but it enraged the coworker, who grabbed a knife from the kitchen table and ran toward the man. The man then shot and killed the coworker. What is the most serious homicide offense of which the man could properly be convicted? (A) Murder in the first degree. (B) Murder in the second degree. (C) Voluntary manslaughter, because he provoked the coworker. (D) No form of criminal homicide, because he acted in self-defense.