Missed Multiple Choice Questions

Front 1

The Fourteenth Amendment, Section 5 Enabling Clause permits?

Back 1

The Fourteenth Amendment, Section 5 Enabling Clause permits Congress to pass legislation to enforce the equal protection and due process rights guaranteed by the Amendment, but not to expand those rights or create new ones. Under the separation of powers doctrine, the job of defining such rights falls to the Supreme Court.

Front 2

Witness wrote statement identifying robber, robber then threatened witness so they wouldn't testify. W is a no show at trial and prosecution seeks to introduce the written statement. Should it come in?

Back 2

Yes. Pursuant to FRE 804(b)(6), a party who engages in wrongdoing intended to procure the unavailability of a declarant that does cause the declarant to be unavailable forfeits any right to object to the admissibility of hearsay evidence of the declarant’s statements. While use of the statement could raise some constitutional Confrontation Clause issues, as the witness’s statement could be considered testimonial, the witness’s unavailability was due to the defendant’s wrongdoing. Further, the defendant acted with the particular purpose of making the witness unavailable. Accordingly, the forfeiture-by-wrongdoing exception does apply.

Answer choice A is incorrect because the out-of-court identification of a defendant by a witness who has perceived him is admissible as non-hearsay only if the witness who made the identification is on the stand and is subject to cross-examination.

Front 3

Larceny by trick definition

Back 3

At common law, a person who obtains possession of, but not title to property owned by another by lies, with the intent to unlawfully convert and later does so, is guilty of larceny by trick.

Front 4

A state (or the federal government) may not require a person on whom a criminal penalty would be imposed to...?

Back 4

A state (or the federal government) may not require a person on whom a criminal penalty would be imposed (e.g., a defendant) to disprove an element of the offense.

Front 5

When can a TRO be issued without notice?

Back 5

A TRO may be issued without notice to the adverse party if: (i) the movant can establish, under written oath, that immediate and irreparable injury will result prior to hearing the adverse party’s opposition; and (ii) the movant has made all reasonable efforts to provide notice and can provide the court with a reason why notice should not be required. In this case, the company did not make any effort to provide its competitor with notice, and thus the TRO was improper.

Front 6

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, what happens?

Back 6

When a jury is instructed to deliver both a general verdict and to answer special interrogatories, and the answers are consistent with each other but not with the general verdict, the court may:

(i) approve a judgment that is consistent with the answers, notwithstanding the general verdict,

(ii) direct the jury to reconsider its answers and verdict, or

(iii) order a new trial.

Front 7

Rule 4(k)(2)

Back 7

Rule 4(k)(2) provides for personal jurisdiction by a federal court when no state court can exercise jurisdiction over the defendant, it requires both that the claim against the defendant be based on federal law and that there be minimum contacts such that the exercise of personal jurisdiction in federal court is consistent with the laws of the United States and the United States Constitution.

Front 8

When do Rule 11 sanctions not apply?

Back 8

Under Rule 11, the court generally has discretion to impose a monetary sanction against the plaintiff’s attorney for violating Rule 11(b). However, under Rule 11(c), the court is not permitted to impose a monetary sanction against a represented party for violating the requirement that legal contentions be warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.

Front 9

Federal Exception to Probate Jx?

Back 9

While federal courts generally do not exercise diversity jurisdiction over probate matters, this restriction is narrowly construed and primarily applies to the probate of a will or the administration of a decedent’s estate. If the applicable state law recognizes the validity of a paid-on-death account, which permits the owner of the bank account to designate a person to take the account upon the owner’s death,then the property does not pass by the decedent’s will and is not included in the decedent’s estate. Thus, the action does not fall within the probate exception to diversity jurisdiction.

For a statutory interpleader action, the amount in controversy need only exceed $500, rather than the $75,000 otherwise required for a diversity action.

For a statutory interpleader action, diversity jurisdiction is met if any two claimants are citizens of different states.

Front 10

Must a civil federal jury verdict be unanimous?

Back 10

Yes. Under the federal rules, the verdict of a civil jury must be unanimous unless the parties otherwise agree.

When polling reveals that the verdict is not unanimous, the court is not required to order a new trial, but may instead order the jurors to deliberate further.

Front 11

When must a court treat a motion to dismiss like a MSJ?

Back 11

In ruling on a motion to dismiss for failure to state a claim upon which relief can be granted, the court may consider only the allegations in the complaint, any exhibits attached to the complaint, and any matters subject to judicial notice. When a defendant files a motion to dismiss for failure to state a claim upon which relief can be granted and attaches materials outside the pleadings to the motion, the court must treat the motion as a summary judgment motion if the court considers such materials in reaching its decision on the motion.

Front 12

How do you serve the US when they are a D is a civil case?

Back 12

When the United States is a defendant in a civil action, service must be made on the U.S. Attorney General as well as the U.S. attorney for the district in which the action has been filed. A party must send a copy of the summons and complaint by registered or certified mail to the U.S. Attorney General.

Front 13

A plaintiff seeking a preliminary injunction must establish that:

Back 13

A plaintiff seeking a preliminary injunction must establish that:

(i) she is likely to succeed on the merits;

(ii) she is likely to suffer irreparable harm in the absence of relief;

(iii) the balance of equities is in her favor; and

(iv) the injunction is in the best interest of the public.

Front 14

When must a motion for relief from judgment based on newly discovered evidence be filed?

Back 14

A motion for relief from a judgment under Rule 60(b) that is based on newly discovered evidence must be filed within a reasonable time and no later than one year from the entry of the judgment.

Front 15

When must a party respond to an amended pleading?

Back 15

Unless the court orders otherwise, a party must respond to an amended pleading within the later of 14 days after service of the amended pleading or the time remaining for response to the original pleading.

Front 16

Is there a ministerial exception to the First Amendment?

Back 16

Yes. In Hosanna – Tabor Evangelical Church and School v. EEOC, 132 S.Ct.694 (2012), the Supreme Court unanimously recognized the existence of a “ministerial exception” grounded in the First Amendment Religious Clauses that precluded the application of employment discrimination laws concerning the employment relationships between a religious organization and its ministers. Requiring a church to accept or retain an unwanted minister interferes with the internal operations of a religious organization in violation of the Free Exercise and Establishment Clauses of the First Amendment.

Front 17

Can a state prevent a prisoner from voting?

Back 17

Yes. As permitted by Section 2 of the Fourteenth Amendment, a state may prohibit a felon from voting, even one who has unconditionally been released from prison.

Front 18

Say there was a state law for gardeners to pass safety tests and pay a fee. This law substantially impacts one racial group. What standard of scrutiny would apply?

Back 18

The rational basis standard of review applies to laws that draw distinctions based on age, wealth, or most other classifications (such as “gardeners”), and those that have a disparate impact on a particular class without a discriminatory intent. Because there is no discriminatory intent in this legislation, rational basis review would apply.

Front 19

When can a state discriminate against out-of-state commerce?

Back 19

A state law discriminates against out-of-state commerce if it protects local economic interests at the expense of out-of-state competitors. A state may behave in a discriminatory fashion if it is acting as a market participant (buyer or seller), as opposed to a market regulator. If the state is a market participant, it may favor local commerce or discriminate against non-resident commerce as can any private business.

Front 20

Is the federal government and its instrumentalities (such as a national bank) immune from taxation by the states?

Back 20

Yes. The federal government and its instrumentalities (such as a national bank) are immune from taxation by the states.

Front 21

What scrutiny would a law limiting campaign contributions receive?

Back 21

Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be “closely drawn” to correspond with a sufficiently important interest. Laws may limit contributions to individual candidates, but not to ballot measures.

Front 22

What scrutiny is there for laws that discriminate against same sex couples and with whom does the burden lie?

Back 22

Discrimination on the basis of sexual orientation does not provoke heightened scrutiny. Accordingly, the rational basis standard would apply. A law meets the rational basis standard of review if it is rationally related to a legitimate state interest. This is a test of minimal scrutiny and generally results in the law being upheld. Laws are presumed valid under this standard, so the burden is on the challenger to overcome this presumption by establishing that the law is arbitrary or irrational. Note, however, that the government cannot impose a burden on or deny a benefit to a group of persons solely based on animosity toward the class that it affects.

Front 23

When a jury’s verdict does not properly follow the court’s instructions, can the court set aside the verdict and order the jury to resume deliberations?

Back 23

When a jury’s verdict does not properly follow the court’s instructions, the court may set aside the verdict and order the jury to resume deliberations.

Front 24

The seventh amendment guarantees the right to?

Back 24

Under the Seventh Amendment, a party to a civil action has the right to a trial by jury with regard to an action at law (i.e., an action for damages). If an action involves both legal and equitable claims and there are common factual issues, then the jury determines the legal claims first and the court subsequently determines the equitable claims. The court is bound by the jury’s findings on the legal claims in determining the equitable claims.

Front 25

What discovery tools may be used against a nonparty witness?

Back 25

A plaintiff may take an oral deposition of a nonparty witness, such as the former employee, as long as the nonparty is given proper notice. By contrast, all of the other devices listed (interrogatories, physical exams, and requests for admission) can be used only against a party.

Front 26

What is mutuality of remedy?

Back 26

A buyer of land is entitled to specific performance for breach when the buyer's remedy at law (i.e., money damages) is considered to be inadequate. Under the doctrine of mutuality of remedies, the seller of land is also accorded the right to obtain specific performance, even though the seller obtains only money, not land from the buyer.

Front 27

What is the rule for transferring forum for convenience of the party?

Back 27

In order for a federal district court to transfer an action to another federal district court for the convenience of the parties and witnesses and in the interest of justice, the transferor court must determine that the action could have been initiated in the transferee court or that all parties consent to the transfer.

Front 28

Well-Pleaded Complaint Rule?

Back 28

Under the well-pleaded complaint rule, federal question subject-matter jurisdiction exists only when the federal law issue is presented in the plaintiff’s complaint. It is not sufficient that a defendant’s counterclaim, even a compulsory counterclaim, arises from federal law.

Front 29

Is the exclusionary rule applicable to civil proceedings?

Back 29

No. The primary remedy for Fourth Amendment violations is the “exclusionary rule,” which prevents the introduction at a subsequent criminal trial of evidence unlawfully seized. The remedy provided by the exclusionary rule generally applies only to criminal trials; it is not applicable to civil proceedings

Front 30

What are the options for a party after repudiation?

Back 30

Upon repudiation, the promisee can treat the repudiation as a breach, or ignore it and demand performance. A repudiation may be retracted until such time as the promisee: (a) acts in reliance on the repudiation; (b) signifies acceptance of the repudiation; or (c) commences an action for breach of contract. Notice of the retraction must be sufficient enough to allow for the performance of promisee's obligations.

Front 31

Accomplice

Back 31

An accomplice is a person who, with intent that the crime be committed, aids or abets a principal prior to or during the commission of the crime. The accomplice’s assistance to the principal may be verbal encouragement, financial assistance, or physical assistance, provided that the accomplice has the requisite intent to encourage or assist in the commission of the crime. An accomplice is responsible for the crime to the same extent as the principal. If the principal commits crimes other than the crimes for which the accomplice has provided encouragement or assistance, an accomplice is liable for the other crimes if they are the natural and probable consequences of the accomplice’s conduct.