(175)A motorist from State A struck and injured a
pedestrian in State B. The pedestrian, a State B
resident, brought an action in a State B federal
court against the State A motorist, seeking
$100,000 in damages. The summons and
complaint were served on a receptionist at the
motorist’s place of business in State A. State A’s
rules permit service of process in this manner,
while State B’s rules do not.

If the motorist moves to dismiss the complaint
on the basis of improper service of process, is
the court likely to dismiss the action?
(A) Yes, because, under choice of law rules, the
court will apply the law that a state court in
State B would apply.
(B) Yes, because the federal rules do not permit
service on an individual defendant by delivering process to a third party found at the
defendant’s place of employment.
(C) No, because the federal rules permit service
under the rules of the state in which service
will be effected.
(D) No, because the federal rules permit service
on a person of suitable age and discretion at
the defendant’s place of employment.

(200)As a result of an automobile accident at an
intersection, the plaintiff sued the defendant,
claiming that the defendant’s car was traveling at
a high rate of speed and went through a red light
just before the crash. A witness for the plaintiff
testified that he observed the accident and that
the plaintiff’s car was traveling at a low speed
with a green light at the time of the accident.

Which of the following will the court find
NOT admissible to admit to impeach the credibility of the witness?
(A) A certified copy of a certificate of conviction for felony assault and battery seven
years ago.
(B) The testimony of the witness’s friend that,
last month, while having a drink at a bar,
the witness told her that the plaintiff’s light
was red.
(C) A record of an arrest one week ago for
embezzlement.
(D) On cross-examination of the witness, the
question, “Isn’t it a fact that you lied to your
employer last year concerning your meal
expenses on a business trip?”

(163)The National Park Service recently created a
new personnel level for field employees, which
became the highest salaried position available
to Park Service field employees. The position is
restricted to employees over six feet in height.
A female ranger who is five feet, three inches
tall seeks your advice as to whether she can
challenge the validity of the height restriction in
federal court.

If you decide to file suit on her behalf,
which of the following would be your strongest
argument against the validity of the restriction?
(A) Because most women are less than six feet
tall, the restriction is unconstitutional as a
violation of the Equal Rights Amendment.
(B) Because most women are less than six feet
tall, the restriction is an invalid discrimination on the basis of gender in violation
of the Due Process Clause of the Fifth
Amendment.
(C) Because most women are less than six feet
tall, the restriction is an invalid genderbased discrimination in violation of the
Equal Protection Clause of the Fourteenth
Amendment.
(D) The restriction denies the ranger a property
right without an opportunity for a hearing
before a neutral decisionmaker, in violation of the Due Process Clause of the Fifth
Amendment.

(14)A jogger found a stray dog in the park. She
took the dog home with her and placed an ad in
the paper to try to find the dog’s owner. Soon
thereafter, the owner of the dog contacted the
jogger. He came to the jogger’s home and identified the dog as his. He offered to pay the jogger
a $200 reward at the end of the week. The jogger
thanked the dog owner but turned down the
reward.
At the end of the week, however, the jogger
changed her mind, so she called the dog owner
and told him that she would like the reward after
all. He refused to pay her, and she sues him for
breach of contract.
What will the jogger recover?
(A) Nothing, because she rejected the dog
owner’s offer.
(B) Nothing, because there was no consideration to support a contract.
(C) $200, because the technical defense of the
Statute of Frauds will be overcome by the
dog owner’s moral obligation to pay.
(D) $200, because the dog owner could not
have revoked his offer until the end of the
week, and he failed to do so before the
jogger accepted.

(73)Concerned about the rising death toll on the
state’s highways, a state legislature enacted
a statute providing for a summary one-year
suspension of the driver’s license of any person
convicted of three speeding violations within a
12-month period. The statute provided that an
administrative hearing is immediately available
upon request. However, that hearing is limited
to a determination of whether the licensee is the
same person who was convicted of the speeding
violations.
A driver received three speeding citations in a
three-week period and was convicted of all three
charges. Her license was promptly suspended
under the authority of the state statute. Without
first seeking an administrative hearing, the
driver files a suit in federal district court
challenging the constitutionality of the statute.

Should the court uphold the constitutionality
of the state law?
(A) Yes, because driving an automobile on the
state’s highways is a privilege and not a
right.
(B) Yes, because the state’s interest in promptly
removing unsafe drivers from its roads
outweighs the driver’s right to a prior
hearing under these circumstances.
(C) No, because the law creates an irrebuttable
presumption that all drivers falling within
the ambit of the statute are unsafe.
(D) No, as a denial of due process without a
prior hearing.

(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.

(189)The victim collapsed at her desk while
drinking her morning coffee and was rushed
to the hospital. Later that night, the victim’s
brother went to visit the victim in the intensive
care unit. Barely conscious, the victim said,
“I’ve thought about this all day and it must have
been my assistant. She brought me my coffee
this morning before I could make it for myself,
and she’s never done that before. Don’t let her
get away with murder.” The victim soon lost
consciousness and lapsed into a coma, and she
remains in this vegetative state. It was determined that she was poisoned. The assistant is
arrested and charged with attempted murder.

At the assistant’s trial, the prosecution wishes
to call the victim’s brother to testify to the
victim’s statement about the assistant.

The court should find the statement:
(A) Admissible, because it is a dying declaration.
(B) Admissible, because it is an excited utterance.
(C) Admissible, as a statement of identification.
(D) Inadmissible, because it is hearsay not
within any exception.

(157) A testing lab purchased a wind tunnel as a complete unit from a machinery company.
The machinery company used an electronics
company for the design and installation of the
unit’s electronic control systems, which regulated
air speed and triggered the emergency shut-off
devices.

A technician was installing a scale model of
a prototype aircraft that was to be tested in the
wind tunnel when the electronic control system
of the tunnel malfunctioned, causing the huge
fans that created the air flow to start up. The
powerful air flow pinned the technician against
the grating covering the intake ducts, asphyxiating him before he was discovered and the fans
could be shut off.

In an action by the technician’s survivors
against the electronics company, proof that the
machinery company failed to inspect the wind
tunnel has which of the following legal effects?
(A) If the electronics company is held liable
to the plaintiffs, it may bring an action for
indemnity against the machinery company
based on the failure to inspect.
(B) The failure of the machinery company to
inspect the tunnel is a superseding cause
that relieves the electronics company of
liability to the plaintiffs.
(C) The failure of the machinery company
to inspect the tunnel is attributable to the
electronics company under the doctrine of
respondeat superior.
(D) The failure of the machinery company to
inspect the tunnel has no legal effect on the
electronics company’s liability

(15)Two brothers who were certified public
accountants worked together at a large
accounting firm practicing their chosen profession. The older brother was concerned about
his younger brother’s apparent inability to show
up at his job by 9 a.m. each morning, sober and
clear-eyed. One day, after the younger brother
showed up late for work yet again, the older
brother told him that if he would show up at the
office sober and ready to work by 9 a.m. each
morning for the next 10 months, he would pay
him $15,000 at the end of that time. The younger
brother accepted the offer and complied with its
terms from that day forward. Nine months later,
the older brother died unexpectedly. One month
after that, the younger brother filed a claim with
his brother’s estate for the $15,000.

Will the younger brother prevail in his claim?
(A) No, because he will be unable to prove the
terms of the oral contract between him and
his brother, because his brother is dead.
(B) No, because his brother’s offer to pay was
terminated on his death.
(C) Yes, because he has performed under a
valid contract, and thus his brother’s estate
must now perform.
(D) Yes, because he changed his position for the
worse in reliance on his brother’s promise,
and thus his brother’s executor is estopped
from denying that the contract existed.

(74)Auto workers went on strike in a town heavily
reliant on the auto industry. While negotiations between the union and management were
ongoing, a person intercepted and recorded a
phone call between the union’s president and
management’s chief negotiator. A state statute
makes it illegal to record a phone call without
the consent of the parties being recorded. The
statute also makes it illegal to play an illegally
recorded conversation on television or radio.

The person who recorded the call anonymously sent the recording to a local TV
station. The TV station news anchor played the
recording on air.

Can the anchor who played the recording be
prosecuted under the statute?
(A) No, because the anchor did not record the
conversation, and the information is truthful and about a matter of public significance.
(B) No, because once media organizations
obtain information, the First Amendment
gives them a right to publish it.
(C) Yes, because allowing publication of such
recordings would encourage further violations of an otherwise valid law.
(D) Yes, because the television station should
have brought an action to test the validity of
the law before playing the recording on air.

(184) A jetliner crashed in Turkey, injuring
numerous Turkish passengers. The owner of
the jetliner and many of the injured passengers
contend that the crash was caused by the negligent operation of a hot air balloon that strayed
from its course into the flight path of the jetliner.

The owner of the hot air balloon is a State A
corporation based in the District of State A. The
jetliner’s owner (a Turkish corporation) and a
number of the injured Turkish passengers filed a
civil action against the corporation in the United
States District Court for the District of State A.
Each plaintiff’s claim exceeds $75,000.

If the court dismisses the action, what is the
most likely basis for its decision?
(A) Lack of personal jurisdiction over the Turkish plaintiffs.
(B) The doctrine of forum non conveniens.
(C) Lack of subject matter jurisdiction.
(D) Lack of personal jurisdiction over the
owner of the hot air balloon.

(138) The plaintiff sued the defendant, the owner
of an art gallery, alleging that the defendant
charged him a price higher than what was
originally quoted to him for the purchase of
a rare sculpture. During the plaintiff’s testimony, he stated that he purchased the sculpture
from the gallery on a particular date and then
realized two days later that his credit card was
charged in an amount over that which he was
originally quoted by the defendant. During its
defense, the defendant presented the testimony
of the art gallery’s clerk, who testifies that she
remembers the plaintiff coming into the gallery
and purchasing the sculpture a week before the
date testified to by him, because he signed the
purchase order with such an unusual signature.

If the plaintiff objects to this testimony,
should the trial court admit it?'
(A) No, because the content of the purchase
order is hearsay not within any exception.
(B) No, because the date of purchase is a collateral matter.
(C) Yes, because the purchase order is a past
recollection recorded.
(D) Yes, because the clerk’s testimony is
relevant evidence as to the date the sculpture was purchased.

(114)An owner purchased a home in a new subdivision, paying 20% of the purchase price as
a down payment and financing the rest of her
purchase through a mortgage with a lender. The
owner lived in her home for three years and
always made her mortgage payments promptly.
She then decided to put her house on the market.
While the house was being marketed, the owner
continued to make all mortgage payments
promptly. She sold the house to a buyer, who
purchased the property subject to the mortgage.
After the buyer took possession, the lender
received no further mortgage payments from
either the owner or the buyer.

In most states, which of the following best
describes the remedy or remedies available to
the lender?
(A) The lender may foreclose on the land, but
may not sue either the owner or the buyer
on the underlying debt.
(B) The lender may foreclose on the land or it
may sue the owner on the underlying debt.
(C) The lender may foreclose on the land or it
may sue the buyer on the underlying debt.
(D) The lender may foreclose on the land or
it may elect to sue either the owner or the
buyer on the underlying debt.

(3)A large insurance company instituted a
supplemental benefit plan for its own employees.
Under the plan, any employee who had worked
for the company for at least 25 years would be
permitted to designate a charity to receive, on
the employee’s retirement, a donation in the
employee’s name of six months’ worth of the
employee’s salary. The plan gave participating
employees an unqualified right to change the
beneficiary at any time before payment was
made. An employee nearing retirement enrolled in the plan and named his favorite church as the
beneficiary of the donation. The church received
a letter from the company informing it that the
employee had named it beneficiary of his plan
and indicating the approximate amount that it
would receive upon the employee’s retirement in
10 months. The letter did not inform the church
of the employee’s right to change beneficiaries
before that time. Church elders, anticipating the
gift, authorized restoration work to the church
building, making plans to pay for the work with
the funds from the employee’s benefit program.

Six months later, the employee converted to a
different religion and changed the beneficiary of
his plan to his new church. When the employee
retired, the company paid the benefit to his new
church. His old church, which had paid for the
restoration work on its completion, demanded
payment of the benefit from the company. When
payment was refused, the church sued the
company.

Which party is likely to prevail?
(A) The church, because the interests of justice
require it.
(B) The church, because its rights as thirdparty beneficiary had vested when it was
informed in writing that it was the beneficiary.
(C) The company, because the agreement
between the employee and the company
allowed the employee to change the beneficiary of the benefit plan.
(D) The company, because it had a duty to pay
the employee’s new church as the named
beneficiary of his plan

(36)A state statute prohibited the sale or possession of any food product containing more than
one part per billion of a dangerous pesticide. An
out-of-state driver taking her recreational vehicle
through a corner of the state was stopped at a
state inspection station. When the state trooper
learned that the pantry of her RV was stocked
with food, he asked to test a few samples of her
baked goods. The samples contained about 600
parts per billion of the prohibited pesticide, and
all of the other baked goods in her possession
were tested and found to have the same level of
pesticide. All of her baked goods, worth about
$150, were confiscated and destroyed.

The state in which the driver lived has no
laws governing the pesticide level of baked
goods. A federal law designed to protect agricultural workers requires that any food product
containing more than 500 parts per billion of the
toxic pesticide must be labeled as such and be in
special containers. The driver brings an action
in federal court asserting that the state statute is
invalid because it is preempted by the federal law.

How should the court rule as to this claim?
(A) For the state, because the purposes of the
federal law are different from those of the
challenged statute.
(B) For the state, because regulation of food
quality is a power reserved to the states by
the Tenth Amendment.
(C) For the driver, because the federal law does
not expressly permit states to enact more
stringent pesticide level controls.
(D) For the driver, because the federal law and
the state statute regulate the same subject
matter

(6) A police officer went to the defendant’s house
and placed him under arrest for operating an
auto theft ring. As the defendant was being
arrested, he told his wife, “You had better
call our lawyer; I don’t want to sign anything
unless she’s with me.” The defendant was given
Miranda warnings on the way to the police
station. Meanwhile, the defendant’s lawyer
called the station and told the desk sergeant that
she was on her way and to have the defendant
call her as soon as he arrived. The sergeant
assured her that the defendant would be held
without questioning for several hours until the
district attorney arrived. When the defendant
arrived at the station, the arresting officer and
another officer immediately put the defendant in
an interrogation room and questioned him about
a bank robbery that had taken place two days
ago. They did not inform him of the call from
his lawyer, but he agreed to talk as long as he
did not have to put anything in writing or sign
anything without her okay. He made incriminating statements about the robbery, and he was
eventually indicted for that crime as well. Prior
to trial on the robbery charge, the defendant’s
lawyer moved to suppress the arresting officer’s
testimony about the defendant’s statements.

How should the court rule?
(A) Deny the motion, because the questioning
was about a different crime from the one
for which the defendant was in custody.
(B) Deny the motion, because the defendant’s
statements were made voluntarily after
receiving Miranda warnings.
(C) Grant the motion, because the defendant
was not informed that his lawyer was trying
to see him, and his lawyer was misinformed
that he would not be questioned right away.
(D) Grant the motion, because the defendant’s
refusal to write or sign anything indicates
that he did not knowingly and intelligently
waive his right to the assistance of counsel.

(137) A balloonist sued the manufacturer of deflation panels for hot air balloons after one of the
panels failed while his balloon was descending,
causing the balloon to crash and the balloonist
to suffer severe injuries. At trial, the balloonist
calls as a witness a structural engineer, who
testifies that, common to industry practice, her
opinion is based on several reports done by an
independent laboratory on the burst strength
and material composition of the deflation panel
closures. The balloonist’s attorney then asks the
engineer whether, in her opinion, the closures
caused the deflation panel to give way. The
manufacturer objects.

Should the court admit this testimony?
(A) No, because the engineer did not perform
the laboratory tests herself.
(B) No, because the laboratory reports are
hearsay not within an exception.
(C) Yes, but the balloonist must offer into
evidence the reports to which the engineer
referred, so that the manufacturer may
cross-examine as to them.
(D) Yes, because structural engineers reasonably rely on such reports in the course of
their profession.

(140)At the defendant’s trial for assault with a
deadly weapon, the defendant’s counsel calls a
witness to the stand and asks him, “What is the
defendant’s reputation for honesty and veracity
in your community?” The prosecutor objects
before the witness can answer.

Should the court admit the testimony?
(A) Yes, because reputation evidence is admissible under these circumstances to establish
a character trait.
(B) Yes, because the prosecution put the defendant’s character at issue when they filed
charges against him.
(C) No, because the evidence offered is irrelevant to any material issue in the case.
(D) No, because the evidence offered is
inadmissible hearsay.

(142)On March 1, the purchasing agent for a
suburban school district sent a “quotation request
form” to a supplier of school furniture requesting
an offer for the sale of 20 student chairs. The
form was on school district letterhead and signed
by the purchasing agent. It specified that the
offer must be held open for four months and that
the price term must be no higher than $30 per
chair. The supplier telephoned the purchasing
agent and told him that he would sell the school
district 20 chairs at $20 per chair. He also
agreed to hold the offer open for four months.
The purchasing agent thanked the supplier for
the offer and indicated that he would get back to
him within that time period. On May 1, before
the purchasing agent had responded to the
supplier’s offer or taken any action in reliance
on it, the supplier e-mailed the purchasing agent
stating that demand for student chairs had been
higher than expected and that the offer was
terminated. On May 2, the purchasing agent
called the supplier, told him that the school
district was treating his offer as still being open,
and accepted it on its terms.

Did the purchasing agent’s call on May 2
create a legally enforceable contract with the
supplier?
(A) Yes, because the contract is for the sale of
goods valued at less than $500.
(B) Yes, because the school district accepted
the offer within three months.
(C) No, because the supplier did not sign the
form specifying the length of time that the
offer would be held open.
(D) No, because a firm offer under the UCC is
not effective if its term is more than three
months

(8) To encourage minority business and foster
pride in minority heritage, a state adopted legislation exempting magazines and other periodicals from the state’s receipts tax if 20% of the
magazine is devoted to articles concerning
minorities (a commission was set up to sample
magazines to determine on a yearly basis whether
they should be exempt). A publisher produced
a sports magazine in the state that occasionally
contained articles about minority athletes, but
the commission determined that the publisher’s
magazine was not eligible for the receipts tax
exemption. After paying the tax assessed on her
magazine, the publisher sued for a refund.

How will the court most likely rule?
(A) Against the publisher, because taxpayers do
not have standing to challenge tax exemptions.
(B) Against the publisher, because the state
has a compelling interest in encouraging
minority business.
(C) In favor of the publisher, because the tax
violates the Equal Protection Clause.
(D) In favor of the publisher, because the tax
violates the First Amendment freedoms of
speech and press.

(69)A state statute has adopted the common law
definition of larceny. Another statute provided as
follows:

It shall be an affirmative defense to a
crime if the defendant establishes by clear
and convincing evidence that, due to a mental
disease or defect, he was unable to appreciate
the criminality of his conduct or conform his
conduct to the requirements of the law.

A homeowner was leaving town for two
weeks and he asked his neighbor to stop by the
house each day and water the plants. While at
the homeowner’s home, the neighbor found the
keys to the homeowner’s new car. The neighbor
took the car and drove it into town to show his
friends. The neighbor told all of his friends
that he had purchased the car. The homeowner
returned home three days early, saw that the car
was missing, and called the police. Later that
day, the neighbor was arrested and charged with
larceny.

At the neighbor’s trial, the neighbor testified
that he intended to return the car. Additionally,
two psychiatrists testified that, due to a mental
defect, the neighbor suffered from an extreme
inferiority complex and delusions of grandeur.
The doctors further testified that his mental
condition caused him to take the car and to tell
other people that he owned it. At the conclusion
of the evidence, the court’s instructions to the
jury included the following:

1. If you find by a preponderance of the
evidence that the defendant intended to return
the car, you should find the defendant not guilty.
2. If you find by a preponderance of the
evidence that, due to a mental disease or
defect, the defendant was unable to appreciate
the criminality of his conduct or conform his
conduct to the requirements of the law, you
should find the defendant not guilty.
The neighbor was found guilty and he
appealed, claiming that the jury instructions
violated his constitutional rights.

How should the appellate court rule?'
(A) Both instructions were constitutional.
(B) Both instructions were unconstitutional.
(C) Instruction 1 was unconstitutional; Instruction 2 was constitutional.
(D) Instruction 1 was constitutional; Instruction
2 was unconstitutional.

(121)The defendant, a competitive athlete, was
charged with the murder of another athlete
against whom she was scheduled to compete
in two weeks. Autopsy results revealed that
the victim was poisoned with a lethal mixture
containing a variety of substances. During the
prosecution’s case in chief, evidence was introduced establishing that a bottle of a particular
drug, which was among the substances listed in
the autopsy report, was discovered in the defendant’s medicine cabinet when she was arrested.
On direct examination by her own attorney, the
defendant states that when she was arrested and
the bottle of the drug was found, she told the
officers, “My doctor prescribed that for me to
cope with the excruciating back pain from which
I suffer.”

If the prosecution moves to strike this testimony, how should the court rule?
(A) For the defendant, because it is a prior consistent statement.
(B) For the defendant, because it tends to
explain prosecution evidence.
(C) For the prosecution, because it is hearsay
not within an exception.
(D) For the prosecution, because it is a selfserving statement.

(106) At the defendant’s trial for grand theft auto
and other offenses, the prosecution offers to
introduce the testimony of a police officer. The
officer will testify that he showed a photographic
lineup containing the defendant’s picture to a
witness who had seen the defendant fleeing from
the stolen vehicle at the conclusion of a highspeed chase, and the witness selected the defendant’s picture. The witness has left the state and
she refuses to return.

Should the court admit the evidence?
(A) Yes, because the witness is unavailable to
testify.
(B) Yes, because it is a prior identification.
(C) No, because it is inadmissible hearsay.
(D) No, because the picture has not been
properly authenticated

(48)A father told his adult daughter that if she
gave up smoking for the next 12 months, at the
end of that time he would give her $10,000.
She agreed to stop smoking, but later that day
had doubts about whether her father would
actually pay up if she complied. She contacted
her stepmother, who told her to go ahead and
quit smoking, and she would make good on the
father’s promise to pay her if he refused to do
so. That very day, the daughter quit smoking and
never smoked again. Eleven months after his
conversation with his daughter, the father died.
One month later, the daughter sought payment
of the $10,000 from her father’s estate, which
refused to pay. The daughter then asked her
stepmother for the $10,000 but the stepmother
also refused to pay. The daughter filed a claim
against her stepmother for $10,000. She proves at
trial that she has submitted a claim for $10,000
to the executor of her father’s estate and has been
refused payment.

What is the best argument for the court’s
rejecting this claim against her stepmother?
(A) The contract between the daughter and her
stepmother was illusory.
(B) The daughter has not been damaged by any
breach because the only effect—that she
quit smoking—was salutary.
(C) The contract between the daughter and her
stepmother was oral.
(D) No consideration flowed to the stepmother
under the contract.

(117) The owner of a chain of natural food stores
located within a particular state contracted
with landowners and construction firms in a
neighboring state in preparation for the opening
of several new stores in the neighboring state.
The chain’s products are stored and sold in
bulk within the stores. Consumers remove the
amount of product they want from bins within
the stores, place the product in plastic bags, and
then present their bags at a checkout counter.
Statutes in the neighboring state in which the
chain owner would like to open its new stores
prohibit the sale of food in bulk due to the
health hazards associated with bulk storage and
contamination from consumer access to food
sold from bins. The state has prosecuted other
grocers’ violations of the statute in the past.

The chain store owner seeks an injunction
against state officials in the federal district
court with jurisdiction over the matter. The state
officials move to dismiss the suit on the ground
that the corporation lacked standing to sue.

What would be the probable outcome?
(A) The suit would be dismissed, because the
owner has suffered no injury.
(B) The suit would be dismissed, because the
challenged state legislation has no effect on
civil liberties.
(C) The federal court would hear the suit,
because a federal question—interstate
commerce—is involved.
(D) The federal court would hear the suit,
because the owner has undertaken substantial steps to open outlets in the state.