Note: the sample interrogatories
do not appear in the same order as they do in the actual materials.
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| Define
an option contract. |
An
option contract is one where the offeror suspends her
power to revoke her offer for
the duration of the option contract in exchange for consideration
received from the offeree.
It is important to note here the difference between a
“power” and a “right.” The only
time a party has a “right” is after the contract
has been formed. Prior to the moment of formation, the
offeror has the “power” to revoke the offer
and the offeree has the “power” to accept. |
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| What
is the legal definition of the defense of duress? When
is duress a defense to a contract? |
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Legally
speaking, duress is any serious threat to one's life,
limb or property. Duress will allow a party to avoid
a contract when it can be shown that the party benefitting
from the contract actually caused the duress.
if I come upon a man dying of thirst as I'm driving
through the Arizona desert and I charge him $1,000 for
a bottle of water, he may not avoid the contract on
grounds of duress. The contract may be unconscionable,
but it is not the product of duress. The only way it
could be duress is if I was responsible for getting
him stranded in the desert in the first place. |
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| What
is the difference between a “good” and a “service”?
Why is this difference important? |
The difference
between a good and a service is not as clear cut as you
might think. A “good” in some situations will
be considered to be a “service” in another
context. This distinction is important because services
are not covered by Article II of the U.C.C.
To determine whether something is a good or service, look
to the primary nature of the transaction. For example,
a mechanic might put oil and transmission fluid in your
car during a tune-up. In this situation the oil and transmission
fluid are part of a service and are not goods. Thus, in
this situation, they are not covered by Article II of
the U.C.C.
If you were to go to an automotive supplies store and
buy oil and transmission fluid, they would be goods since
the primary nature of the transaction was the sale of
goods.
Another example: if you receive blood during surgery,
the blood is a service because the primary nature of the
transaction is a service, i.e., surgery. |
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| What
is an express warranty? |
An express
warranty is one that is expressly given by the seller
to the buyer. In order to be an express warranty, the
buyer must prove that the express warranty was what induced
him to enter into the contract and purchase the chattel.
In short, the buyer must prove that the warranty was the
“basis of the bargain” –
i.e., the reason why the sale was consummated. If the buyer
proves this and the chattel does not perform as promised,
the buyer has a cause of action against the seller for
breach of express warranty.
An express warranty can arise in one of three ways:
oral or written
representations about a chattel, e.g., this bug spray will
repel mosquitos;
a detailed description of the chattel, e.g., this bug spray
contains 30% DEET. (DEET is a powerful insect repellant);
OR
a sample
or model which creates an express warranty that all the
goods will conform to the sample or model.
Two important things should be noted about express warranties.
First, if the seller gives an express warranty to a buyer,
the seller may not legally include language in the contract
that disclaims or counteracts the warranty. Of course,
on the bar exam, this is exactly what the seller will
try to do. It is up to you to point out to the bar examiner
that any such language will have no legal effect.
Second, if there is no express warranty in the contract,
point this out to the bar examiner before you discuss
whether there is an implied warranty.
don't let the bar examiners
fool you by basing the essay on an atypical chattel. Pets
- dogs, cats and bunnies - are chattels. So are race horses.
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| May the
holder of a reversionary interest sue a possessory owner
for waste? |
| Yes.
Since the holder of a reversion may ultimately become
the owner of the property, she may properly object to
“waste” committed by the holder of the lesser
estate. |
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| What
is an easement by prescription? |
An easement
by prescription is one that is acquired in a manner similar
to adverse possession. The person claiming an easement
by prescription must show that she made actual use of
the land, open & notoriously, hostilely, and for the
required statutory period.
Unlike adverse possession, the element of exclusivity
is not required with an easement by prescription since
the easement holder is not excluding anyone from the land. |
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| What
is foreclosure? |
| Foreclosure
is the process by which the mortgagor's interest in the
property is terminated. Once the mortgagee (i.e. the bank)
forecloses on the property, the mortgagor no longer has
any legal interest in the property. Usually this occurs
when the property is sold by the mortgagee. |
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| What
is a special warranty deed? |
|
A
special warranty deed is one in which
the grantor warrants that HE did not create any defects
in the title to the property. However, this warranty
does not protect the grantee from defects in title created
by prior holders of the property. Thus, the grantee
should get title insurance to protect against defects
not created by the grantor.
Compare this with a general warranty deed which, as
stated in Answer 30 of these materials, contains a covenant
for quiet enjoyment, a covenant of warranty, and a covenant
for further assurances. These three warranties protect
the grantee against title defects created by third parties.
Do not be fooled by the name! A “special”
warranty deed gives the holder of land much less protection
than a general warranty deed.
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| When
is relevant evidence nevertheless excluded on a discretionary
basis? |
| A court
has the option of excluding relevant evidence if it would
mislead the jury, result in unfair prejudice, cause undue
delay or confuse the issues. Only evidence that is unfairly
prejudicial will be excluded. Most evidence is prejudicial
in one way or another. The goal in a trial, after all,
is to prejudice the jury against your opponent. This rule
just makes sure that such prejudice is not unfair. |
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| Who qualifies
as an expert witness? |
| Anyone
with specialized knowledge, skill, experience or training
can be qualified as an expert and give their opinion.
For example, a heroin addict is an expert on heroin addiction
and could be qualified as an “expert” by the
judge! |
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| Does
an owner/occupier of land have any duty towards people
who are not on her land? |
| Yes.
A landowner has a duty to not cause or allow his land
to exist in such a state that it threatens persons off
of the land. For example, if a building owner neglects
his property and it collapses and injures people off the
land, the land owner would be liable. Thus, he has a duty
to those who are not on his land. The same would be true
of a land owner who excavates her property: she would
have a duty to passers-by to eliminate the risk of falling
into the excavation. |
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| In a
contributory negligence jurisdiction, when will contributory
negligence not operate as a defense? |
| Contributory
negligence will not be a defense when the defendant's
actions rise to the level of being willful, wanton or
reckless and the plaintiff's conduct constitutes only
slight or ordinary negligence. Willful, wanton or reckless
behavior is tantamount to intentional actions. This exceeds
even gross negligence. |
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| Articulate
the definition of voluntary manslaughter? |
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As
is the case with first degree murder, the defendant
who is charged with voluntary manslaughter had the intent
to kill. However, if the defendant was acting in the
heat of passion when he or she committed the murder,
the crime will be reduced from first degree premeditated
murder to voluntary manslaughter. In basic terms, first
degree intent-to-kill murder is “cold blooded”
murder; voluntary manslaughter is "hot blooded,"
i.e., in the "heat of passion." To reduce a
charge of intentional murder to voluntary manslaughter,
the defendant must show that:
| a
reasonable person would have felt provoked AND |
| this
defendant felt provoked. |
| a
reasonable person would not have had time to cool
off AND |
| this
defendant did not cool off. |
This is really a two part test measured both objectively
(would a reasonable person have felt provoked; could a
reasonable person have cooled off) and subjectively (did
this person feel provoked; was this person unable to cool
off). |
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| What
are the two categories of involuntary manslaughter? |
There
are two categories of involuntary manslaughter. Category
1 is “criminally negligent” manslaughter and
Category 2 is “unlawful act” manslaughter.
Criminally negligent manslaughter requires a degree of
negligence that exceeds the level of negligence needed
to establish tort liability. Thus, if someone dies because
of another person's negligence, it is not automatically
involuntary manslaughter. Look for facts that would indicate
that the defendant acted recklessly or wantonly. Ordinary
negligence will not suffice for a charge of involuntary
manslaughter.
a nightclub owner who failed to provide sufficient exits
in case of fire was convicted of involuntary manslaughter
where a fire killed 490 persons at his club. Since a person
of ordinary intelligence would have appreciated the danger,
he had no defense in claiming that he was not aware of
the risk.
a skier who skied into another person resulting in the
latter person's death. Eyewitness testimony established
that the defendant skier was going down the mountain at
a reckless speed, thus warranting a conviction of manslaughter.
Unlawful act manslaughter is the proper charge when a
death occurs during the commission of, or because of,
an unlawful act. This includes acts that are misdemeanors
and felonies. A death that occurs during the commission
of a felony that would not support a charge of felony
murder is involuntary manslaughter. Examples of felonies
that would not support a charge of felony murder are selling
alcohol to minors, statutory rape, or forging a prescription
for drugs, and so on. A death that occurs during these
felonies would be involuntary manslaughter, not felony
murder. |
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| Can information
that would be inadmissible at trial nevertheless be used
to develop probable cause for the issuance of a search
warrant? |
| Yes.
Information that would be inadmissible at trial can nevertheless
be used to develop probable cause for the issuance of
a search warrant. There is no requirement that evidence
used for a showing of probable cause be admissible at
trial. Thus, hearsay statements and a person's criminal
record may be considered by a magistrate when deciding
whether to issue a search warrant. Of course, evidence
obtained in violation of an exclusionary rule (i.e. 4th,
5th, or 6th Amendment) could not be considered by the
magistrate. |
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| When
is “consent” a valid exception to the warrant
requirement? |
Consent
will operate as a valid exception to the warrant requirement
only when it is
voluntarily and knowingly given by
someone who had the apparent authority to give it.
This element
is a favorite on the essay section of the test. This element
will usually be at issue if the person giving consent
an adult.
if the
police come to search my house without a warrant and my
14 year old daughter gives them permission, is consent
valid? There is no clear answer here. You must advocate!
If you are my attorney, you would say that consent was not valid
because my 14 year old daughter could not understand the
legal significance of the search and therefore her consent
was not “knowing.” You could also argue that
she was intimidated by the police due to her tender age
and therefore her consent was not “voluntary.”
The prosecution would argue that consent was “voluntary”
and “knowing” because a 14-year old has the
maturity to understand what will happen if she gives her
consent. You must marshal your facts to support whichever
side you are representing.
This element will usually be at issue if the person giving
consent an adult.
Thus, consent will be valid even if the person granting
it did not actually have such authority. This assumes,
of course, that the police can show that they had a good-faith
reason to believe that the person who gave consent actually
had authority. |
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| Articulate
the difference between ripeness and standing. |
Standing
and ripeness are sometimes confused insofar as they both
require actual injury or imminent injury. The difference
is that ripeness concerns the matter at hand: a law has
injured or will injure someone imminently; exactly who
doesn't matter. What is important is that there is a live
“ripe” case or controversy for the court to
decide.
Standing refers to the rights of a particular person.
If a particular person cannot show injury or imminent
injury, then they have no standing. The case may still
be ripe if another person can show injury or imminent
injury. |
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| In the
context of the First Amendment, articulate what is meant
by “overbreadth” and “vagueness”? |
“Overbreadth”
refers to the fact that a law prohibits things that are
in fact legal in addition to prohibiting illegal conduct.
Thus, since such a law prohibits legal conduct, it would
be a violation of substantive due process
to allow a conviction under such a law.
Example:
the Supreme Court struck down a law that made it illegal
to use “opprobrious” language towards a policeman.
Since “opprobrious” language includes protected
speech as well as unprotected speech, the law was struck
down as being overbroad.
“Vagueness”
refers to the fact that a law is not capable of being
comprehended by a citizen of ordinary intelligence. This
is a violation of procedural due process. Why? Because
the cornerstone of procedural due process is notice. If
a law is vague and cannot be understood, then it does
not provide notice of what is forbidden.
Thus, to convict someone of a crime without
first giving them notice of the law would violate procedural
due process. For example, a state statute that made it
a crime to use “offensive” language would
be vague since the term “offensive” means
many different things to many different people.
the correct answer
in a multistate question may just say “due process”
and not mention “overbreadth” or “vagueness.”
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