(9)A homeowner who regularly borrowed garden
tools from his neighbor went to the neighbor’s
house to borrow the neighbor’s leaf blower. The
neighbor was not at home, but the leaf blower
was in his unlocked garage with his other
garden tools, and so the homeowner took it.
Unbeknownst to the homeowner, the neighbor had
drained the oil from the leaf blower’s motor. The
homeowner ran the leaf blower for an hour; the
motor was totally destroyed because it had no oil.
The value of the leaf blower at the time that
the homeowner took it was $300. An identical
new leaf blower costs $500. The cost of
repairing the motor is $150. A new motor will
cost $250.

If the neighbor sues the homeowner on a
theory of conversion and is successful, what
damages can he recover?
(A) $300, but the homeowner will keep the leaf
blower.
(B) $500, but the homeowner will keep the leaf
blower.
(C) $150.
(D) $250.

(28)A tourist from State A was severely injured in
a bar fight in State B. The tourist filed a battery
action against one of the bar’s patrons, seeking
$100,000 for his injuries. The defendant patron
claims that the tourist is mistaken about who hit
him. The patron says that he did not touch the
tourist. The patron claims that it was the bar’s
bouncer—who looks like the patron—who hit
the tourist and then continued to pummel him.
The bouncer claims that he never touched or
harmed the tourist.

Can the patron assert a third-party claim
against the bouncer to bring him into the action?

(49)The accused was driving his beat-up old car
along a narrow road when he was passed by the
victim in her new car. The victim’s daughter
was lying down in the back seat and could not
be seen. The accused sped up, drew even with
the victim, and repeatedly rammed his car
into the side of the victim’s car. After several
collisions, the victim was forced off the road,
rolling down a cliff for several yards. Due to the
rolling, both the victim and her daughter were
severely injured. The accused was charged with
attempted murder of both of them. At his trial,
he testifies that he was angry because of the
cavalier way the victim passed him in her new
car, and that his only intent in smashing into her
car was to scratch and dent it so that she would
not be so haughty in the future.

Assuming that the jury believes this testimony, of whom may the accused be convicted of
attempted murder?

(169)A parcel of property was devised to a husband
and a wife “as joint tenants with right of survivorship” through the will of the husband’s
mother. After title had passed to them, the
husband and the wife experienced marital difficulties and legally separated. Unbeknownst to
the husband, the wife quitclaimed her interest in
the property to a bona fide purchaser for value.
Shortly thereafter, the husband and the wife
reconciled. The next month, the wife was killed
in an auto accident. The purchaser of the wife’s
interest filed a suit for partition of the property.
The husband filed an appropriate counterclaim
for quiet title, asserting that he was owner of the
entire parcel by right of survivorship.

How should the court rule?
(A) For the purchaser, because he owns an undivided one-half interest in the property.
(B) For the purchaser, because the husband
and the wife are presumed to have taken
title from the mother as tenants in common
under modern law.
(C) For the purchaser, because the husband and
the wife were legally separated when he
purchased his interest from the wife.
(D) For the husband, because he succeeded to the entire ownership when the wife died

(20)It was common practice in a particular state
for a security interest in land to be structured as a
deed absolute, which gave a lender absolute title
to the borrower’s property as security for the loan.
The lender would reconvey only on complete
payment of the loan by the debtor party, and
could dispose of the land immediately without
a foreclosure sale on default. A new governor
of the state whose campaign platform was built
around abolishing the deed absolute mortgage
encouraged the legislature to enact a bill that
immediately outlawed use of the deed absolute,
declaring that all such deeds would be considered
mere liens against the secured property. The law
applied not only to loans made in the future, but
also to the thousands of such loans in existence at
the time the legislation was passed. As soon as the
governor signed the legislation, lending institutions and individuals who had loaned money
secured through deeds absolute challenged the
constitutionality of the new law.

What is the strongest argument that the
challengers can make?

(A) As applied to loans outstanding at the time
the bill was enacted, the law is an ex post
facto law, and such laws are banned by the
federal Constitution.
(B) Lenders using the deed absolute have been
singled out by the governor and his followers
in the legislature as political scapegoats,
and such discrimination against the lenders
violates the Equal Protection Clause.
(C) Lenders had property rights in the secured
property and such rights were summarily
abrogated by the new law, constituting an
unconstitutional taking of property without
due process of law.
(D) As applied to loans outstanding at the
time the bill was enacted, the law impairs
the contract rights of the lenders and such
rights are guaranteed by the Contracts
Clause of the federal Constitution.

(12)A motorist was driving to a luncheon in a car
that he knew did not have operating headlights.
On the way there he was rear-ended by another
driver who had been driving 20 m.p.h. over
the speed limit posted on that stretch of road.
He suffered personal injuries and his car was
extensively damaged. The jurisdiction makes it
a misdemeanor to drive a vehicle that does not
have operating headlights.

If the motorist brings an action against the
other driver and the above facts are established,
will he prevail?
(A) Yes, because the other driver violated the
speeding statute, but the motorist’s damages will be reduced because of his violation
of the headlight statute.
(B) Yes, because the other driver violated
the speeding statute, and the motorist’s
damages will not be reduced despite his
violation of the headlight statute.
(C) No, because the motorist’s violation of the
headlight statute constitutes negligence per
se.
(D) No, because the motorist has not established that driving 20 m.p.h. over the speed
limit created an unreasonable risk of injury
to others

(59)While driving in State A on vacation, a man
collided with a car driven by a woman. The
woman, whose domicile is in State B, was
also on vacation in State A at the time of the
accident. The woman filed a negligence action
against the man, who was domiciled in State
C, in a federal court in State C, alleging negligence and seeking damages for the injuries she
sustained in the State A accident.

Does the State C federal court have personal
jurisdiction over the man for purposes of this
action?

(39)A computer programmer sent a computer
virus anonymously via e-mail to a business. The
programmer believed that the virus would just
disable the business’s e-mail program for a short
time without causing any additional damage,
although he was aware that it very infrequently
caused widespread damage to the infected
computer. However, because of a hidden bug in
the business’s e-mail program, the virus infected
the computer’s entire hard drive, eventually
rendering it unusable. Not only did the business
lose important data, it also had to replace the
computer, at a cost of over $1,000. The jurisdiction in which this occurred has a modern
criminal code patterned after the Model Penal
Code. One of its statutes makes it a criminal
offense to “knowingly cause over $200 in
damage to another’s property.”

May the programmer be found guilty of
violating the statute?

(46)An owner of three acres of lakefront property
subdivided it and sold two acres to a buyer,
retaining the one acre actually fronting on
the lake. The deed for the two acres expressly
included an easement over the westernmost
30 feet of the one-acre parcel retained by the
owner for access to the lake. The buyer recorded
his deed in the county recorder’s office, which
maintained an alphabetical grantor-grantee index
only. Fifteen years later, the owner died, leaving
the one-acre parcel to his wife. She sold it to a
developer that planned to build condominiums.
A month later, the buyer died, and his two acres
passed by will to his nephew. Three weeks after
taking title to the property, the nephew visited
the property and discovered that the developer
had erected a chain link fence all along the
boundary between the nephew’s land and the
acre of lakefront land. The nephew brings an
action to enjoin the developer from obstructing
his easement across the acre of lakefront
property.

Which of the following best describes why the
nephew should prevail in this litigation?
(A) Because the developer and the nephew
can trace their predecessors in interest to a
common grantor whose covenants run with
the land, the developer is estopped from
interfering with the nephew’s use of the
easement.
(B) The nephew’s easement is a legal interest
that the developer has record notice of, even
though there is no tract index.
(C) Because there is no tract index, the developer was under an obligation to determine the riparian rights of any adjacent
landowners before erecting the chain link
fence.
(D) The nephew’s easement is a legal interest
that attaches not just to a legal estate but to
the land itself and, running with the land,
it binds successive owners of the servient
estate whether or not they have notice of it.

(21)A philanthropist told his friend, who was
a state governor, that he planned to build a
museum. The governor thought that the museum
would bolster the state’s tourism industry and
offered to arrange to have the state purchase
land and grant it to the museum to enable the
philanthropist to build a bigger museum with his
money than originally planned. The philanthropist agreed, and the museum was built.

The philanthropist undertook the hiring of
the museum’s senior staff. He was of German
descent and was ashamed of Germany’s actions
during World War II. To assuage his own
conscience, he refused to hire anyone whom he
believed to be of German descent. A restoration
expert applied for a job as chief curator of the
museum, but the philanthropist refused to hire
him because of his German background. The
restoration expert discovered the philanthropist’s
rationale and brings suit against the museum,
claiming that the hiring practice violates his
constitutional rights.

How is the court most likely to rule?

(52)After leaving ceremonies at which the chief
justice of a state supreme court had been named
distinguished jurist of the year, an associate
justice was interviewed by the press. The
associate justice told a reporter that the chief
justice “is a senile imbecile who lets his clerks
write all his opinions. He hasn’t had a lucid
thought in decades, and he became a judge by
being on the payroll of the mob.” Enraged, the
chief justice brought an action for defamation
against the associate justice.

Which of the following, if established by the
chief justice in his defamation action, would
permit recovery against the associate justice?
(A) The associate justice negligently made the
statements, which were false, and caused
the chief justice actual injury.
(B) The associate justice made the statements
knowing they were false.
(C) The associate justice made the statements
because he hated the chief justice and
wished to destroy his reputation in the legal
community.
(D) The associate justice made the statements
in order to ensure that the chief justice’s
political career was nipped in the bud.

(64)A plaintiff filed a negligence action against
two defendants in federal district court, invoking
the court’s diversity of citizenship jurisdiction.
Prior to serving their answers, the defendants
filed a motion to dismiss for lack of subject
matter jurisdiction. The court denied the motion,
concluding that subject matter jurisdiction was
proper. The defendants then filed their answers
responding to the merits of the complaint and
denying negligence. The defendants’ answers
also contained motions to dismiss the action for
lack of personal jurisdiction. Five weeks later,
the defendants filed a motion to dismiss the
action for improper venue.

If the court determines that venue in fact
is improper, how should the court rule on the
defendants’ venue motion?

(180)A defendant was arrested and charged with
selling narcotics. After he was given Miranda
warnings, he said: “I am not talking and I want
my lawyer!” He placed a call to his attorney
who told him: “Do not talk until I get there!”
The defendant was then placed in a cell with an
undercover informant who had been instructed
to try to get the defendant to talk about a recent
murder in the area. While in the jail cell, the
informant started talking about the murder,
which the defendant had, in fact, committed.

After a few hours of listening to the informant’s
incorrect story about the crime, the defendant
got agitated and he hissed: “That’s not where
the gun is hidden, you moron!” A police officer
standing nearby heard the defendant and told the
detectives what he had heard. The defendant was
removed from the cell and again given Miranda
warnings. The defendant did not respond to the
Miranda warnings. During questioning by the
police about the murder, the defendant again got
agitated and stated: “I’m not talking, and that’s
not where the gun is hidden!” The defendant’s
attorney finally arrived after his client was
charged with murder. At his trial for murder, the
defense moved to suppress the defendant’s first
statement made to the informant.
How should the court rule?

(51)A photographer borrowed $100,000 from
a bank, secured by a mortgage on his home,
to build a studio and darkroom in the home.
The bank properly recorded the mortgage.
After completing this project, the photographer
decided to remodel his kitchen and borrowed
$25,000 from a lending company, also securing
the loan with a mortgage on his home. The
lending company did not record its mortgage.
After the remodeling was complete, the photographer borrowed $15,000 from an investor,
secured by a mortgage on his home, to redo his
in-ground pool. Learning of this transaction, the
lending company raced to the recording office
and recorded its mortgage. The next day, the
investor recorded its mortgage.

A few months later, the photographer
defaulted on all three mortgages, having not
made any principal payments. The lending
company brought a foreclosure action, joining
the investor in the proceeding. The foreclosure
sale resulted in $150,000 in proceeds after all
expenses and fees were paid. A statute of the
jurisdiction in which the photographer’s home is
located provides: “Any conveyance of an interest
in land shall not be valid against any subsequent
purchaser for value, without notice thereof,
unless the conveyance is recorded.”

Which of the following statements is true?
(A) The bank is entitled to $100,000 of the
foreclosure proceeds, the lending company is entitled to $25,000 of the proceeds,
the investor is entitled to $15,000 of the
proceeds, and the buyer at the foreclosure
sale is entitled to the remaining $10,000 in
proceeds.
(B) The buyer at the foreclosure sale will take
the home subject to the bank’s mortgage,
the lending company is entitled to $25,000
of the proceeds, the investor is entitled to
$15,000 of the proceeds, and the photographer is entitled to the remaining $110,000
in proceeds.
(C) The buyer at the foreclosure sale will take
the home subject to the bank’s and the
investor’s mortgages, the lending company
is entitled to $25,000 of the proceeds,
and the photographer is entitled to the
remaining $125,000 in proceeds.
(D) The buyer at the foreclosure sale will take
the home subject to the bank’s and the
investor’s mortgages, the lending company
is entitled to $25,000 of the proceeds, and
the buyer at the foreclosure sale is entitled
to the remaining $125,000 in proceeds.

(31)After a widely publicized accident in which
an elderly motorist drove onto the sidewalk and
struck and killed several pedestrians, the state
legislature revised its motor vehicle statutes.
The new legislation required motorists over
the age of 70 to undergo more frequent and
more thorough testing to maintain their drivers’
licenses. A 75-year-old former race car driver
who was required by the new legislation to be
tested every year to maintain his driver’s license
brought suit in the federal district court in the
state, alleging that the legislation results in
unconstitutional age discrimination.

Which of the following statements best
reflects the burden of persuasion that the court
will apply in the driver’s suit?
(A) The state must show that the law is substantially related to an important government purpose.
(B) The state must show that the law is rationally related to a legitimate government
interest.
(C) The driver must show that the law is not
rationally related to a legitimate government interest.
(D) The driver must show that the law is
not substantially related to an important
government purpose.

(72)A farmer kept a pet bear at his farm. The bear
was very old and had no teeth, no claws, and
very little energy, but people liked to see the
bear when they visited the farmer because no
one else in the region had a pet bear. When the
farmer first obtained the bear many years ago,
he had a large steel cage constructed to house
the animal. The cage had an electronic lock that
only opened with a security code. Even though
the bear was now old and harmless, it was
always kept locked in the cage. One night during
a severe storm while the farmer was out of town,
a bolt of lightning hit the cage and the door
opened. The bear left the cage and wandered
off. The next morning, a 10-year-old girl was
waiting on a rural road for her school bus. The
bear emerged from a wooded area about 100 feet
from where the girl was standing and headed
towards her. She screamed and turned to run,
tripping on the road and breaking her arm when
she fell.

If the girl sues the farmer on a theory of strict
liability for her bodily harm, will she prevail?
(A) No, because the bear was in fact a nondangerous animal.
(B) No, because the damage she suffered was
not the type of damage that a bear would
normally cause.
(C) Yes, because the bear is a wild animal.
(D) Yes, because pet bears were not commonly
kept in the community.

(127)A car owner sued a crane operator for negligence in a federal court because the crane
operator backed over and crushed her car.
During jury selection, the car owner’s lawyer
wished to exercise one of her peremptory
challenges to excuse some potential jurors.

Which of the following reasons would provide
the best grounds for the crane operator’s lawyer
to object to the peremptory challenge?

(A) Excusing the only potential male juror
because he is a crane operator, just like the
defendant.
(B) Excusing a second African-American juror.
(C) Excusing the juror with multiple tattoos.
(D) Excusing the juror who has b

(134)A kidnapper and his cohort hatched a scheme
to kidnap the son of a wealthy man and hold
him for ransom. After conducting a surveillance
of the wealthy man’s home, they decided that
they would have to have inside help to disable
the alarm at the home. They agreed that the
kidnapper would contact the man’s butler, who
they learned was heavily in debt and frequented
a local racetrack during his time off. The butler
would be offered money to disconnect the alarm
on the night of the planned kidnapping. Shortly
before the kidnapper was to go to the track to
make contact with the butler, the cohort had a
change of heart about the scheme and contacted
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40. LECTURE HANDOUT
the butler. He warned the butler not to have
anything to do with the kidnapper. The butler
met with the kidnapper anyway and pretended
to go along with his proposal, accepting the
down payment that the kidnapper offered. After
meeting with him, the butler contacted the
authorities.
The kidnapper and cohort are charged with
conspiracy in a jurisdiction that follows the
common law rule for conspiracy.

What is the most likely result?
(A) Both the kidnapper and cohort are guilty of
conspiracy because the cohort agreed with
the kidnapper to commit the offense.
(B) The cohort is not guilty of conspiracy
because he withdrew from the conspiracy
by contacting the butler.
(C) The cohort is not guilty of conspiracy
because he withdrew from the conspiracy
by contacting the butler, and the kidnapper
is not guilty of conspiracy with the butler
because one cannot be a conspirator by
oneself.
(D) The kidnapper is guilty of conspiracy with the butler

(66)A landowner owned two adjoining parcels
of land containing a number of lakes. She
conveyed the eastern parcel, which contained a
campground, to a fisherman. The deed transferring the parcel granted to the fisherman “and to
invited guests of the campground all hunting and
fishing rights and use of the lakes on the western
parcel for the benefit of the campground.” Subsequently, the fisherman assigned his hunting and
fishing rights to a hunter.
When the landowner discovered the hunter
hunting and fishing on her land, she brought an
appropriate action to declare his rights void.
If the court rules for the landowner, it will be
because the fisherman’s right to hunt and fish on
the western parcel is:
(A) A profit appurtenant.
(B) A profit in gross.
(C) An easement in gross.
(D) A license.

(89)As permitted by state law, a large city in
the state adopted an ordinance legalizing slot
machines in shopping malls within the city.
Several prominent city residents were upset by
the new ordinance because gambling violates
one of the main tenets of their religion. Seeking
relief, the citizens contacted their representative in Congress and asked the representative to
sponsor a bill making it illegal to place gambling
machines in shopping malls throughout the
country. The representative sponsored such a bill.
Congress made a factual finding that the activity
regulated has a substantial economic effect on
interstate commerce and passed the statute.
If the statute banning gambling machines in
shopping malls is challenged on constitutional
grounds by a proper plaintiff in federal court,
would the court likely uphold the statute?
(A) No, because it was based on the citizens’
religious tenets and so violates the First
Amendment Establishment Clause.
(B) No, because the statute does not regulate
the channels or instrumentalities of interstate commerce.
(C) Yes, because Congress has made a factual
finding that the activity regulated has a
substantial economic effect on interstate
commerce.
(D) Yes, because there is a conceivable rational
basis for concluding that the activity
regulated, in aggregate, substantially affects
interstate commerce.

(104)An engineer licensed by the state was the
principal design engineer for a wastewater treatment plant’s aeration system. Detailed recommendations for designing aeration systems for
this type of plant had been published by a panel
of engineers after lengthy study. The engineer
fully complied with the recommendations in
his design. Nevertheless, the treatment plant’s
aeration system suffered a major failure, causing
the release of bacteria-laden water into a river
that damaged a fish hatchery run by the plaintiff.

If the plaintiff sues the engineer and prevails,
what is the likely explanation?
(A) The engineer knew of a better design that
he could have used that would have prevented the failure.
(B) The engineer had neglected to renew his
license in a timely manner, so he did some
of the design work while his license was
expired, in violation of a state statute.
(C) The engineer was involved in an abnormally dangerous activity.
(D) The engineer was a member of the panel
that developed the design standards.

(179)A car driver properly sued a truck driver for
negligence in federal court for crashing into the
driver’s car at an intersection. The truck driver
had been issued a speeding ticket at the accident
scene, after which he had mailed in the citation
admitting he was speeding, paid the fine of $100,
and never went to court.
At trial, the car driver wants to use the
speeding citation as an admission of responsibility for speeding, so as to preclude the truck
driver from relitigating whether he was speeding
at the time of the accident.

Is the court likely to preclude the truck driver
from relitigating the issue?
(a)Yes, because he admitted to speeding when
he paid the citation.
(B) Yes, because he had the opportunity to go
to court and litigate the issue and chose not
to.
(C) No, because he did not litigate the issue
when he paid the citation.
(D) No, because it is not relevant to the car
driver’s case.

(135)A mob enforcer shot a pawnshop owner in
the kneecap, intending to put him in the hospital
because he was not paying his protection fees to
the mob. However, the pawnshop owner hit his
head on the edge of the counter when he fell. He
suffered a blood clot and died as a result.

A statute in the jurisdiction provides that a
criminal homicide constitutes murder in the first
degree when it is committed by an intentional
and premeditated killing, murder in the second
degree when it is committed while the defendant
is engaged in the commission of a dangerous
felony, and murder in the third degree for all
other types of murder at common law. Another
statute provides that manslaughter is a killing in
the heat of passion on adequate legal provocation
or a killing caused by criminal negligence.

The crimes below are listed in descending
order of seriousness.

If the enforcer is charged with the pawnshop
owner’s killing, what is the most serious crime
for which he can be convicted?
(A) Murder in the first degree, because the killing was the result of intentional and premeditated conduct.
(B) Murder in the second degree, because the
killing occurred during the commission of
the felony of assault with a deadly weapon.
(C) Murder in the third degree, because the
enforcer had the intent to commit serious
bodily harm.
(D) Manslaughter, because the enforcer acted
with criminal negligence.

(56)A driver borrowed $75,000 from a bank to
purchase a tract of land on which to operate
his trucking company, securing the debt with a
mortgage on the land. The bank promptly and
properly recorded its mortgage. A few years
later, the driver financed the installation of a
truck wash on the land with a $50,000 loan
from a finance company, secured by a mortgage
on the land. The finance company promptly
and properly recorded its mortgage. The driver
subsequently defaulted on the bank’s mortgage,
leaving an outstanding balance on the bank’s
loan of $60,000. However, the driver continued
to make payments to the finance company. The
bank brought a foreclosure action, joining the
finance company in the proceeding. The jurisdiction provides a statutory right of redemption
for lienholders.

Does the finance company have any recourse
prior to the foreclosure sale to protect its
interest?
(A) Yes, the finance company may pay off the
bank’s mortgage to preserve its own interest on the land.
(B) Yes, it can exercise its statutory right of
redemption.
(C) No, because the driver has not defaulted on
the finance company’s mortgage.
(D) No, because only the mortgagor holds the
right to redeem the property.

(155)A state’s pension program provided supplemental state pension benefits to surviving
spouses and children of state employees. The
program provided that when the spouse remarried, what spouse’s benefits would be gradually terminated based on a statutory formula.
Because of statistics showing past disparities
between the household income levels of male
surviving spouses and female surviving spouses,
different formulas were used for the termination
schedule depending on whether the surviving
spouse was male or female.

A widower of a state employee was informed
after he remarried that his pension benefits
would be terminated in 90 days according to
the applicable formula. Upon learning that a
similarly situated widow would have continued
to receive benefits for six months after remarrying, the widower decided to file suit in federal
court, alleging that the state program is unconstitutional because it is discriminatory and it
unfairly burdens his right to marry.

Which of the following best states the burden of pursuasion?
(A) The state must demonstrate that the program is narrowly tailored to achieve a
compelling government interest.
(B) The state must demonstrate that the
program is substantially related to an
important government interest.
(C) The widower must demonstrate that the
program is not substantially related to an
important government interest.
(D) The widower must demonstrate that the
program is not rationally related to a legitimate government interest.