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Independence - Integrity - Fairness - Quality Service

Bar Examination Sample Q&A - February 2005

Questions and Sample Answers

February 2005

Criminal Law
Constitutional Law




Icarus is an acknowledged expert on special music effects. He works through a national production company, The Body Electric. Icarus pioneered usage of a new music synthesizer technique called “coldplay.” He invented the synthesizer involved, but The Body Electric holds the patent.

Icarus threatens to resign over money. The Body Electric decides three years after he joins the company to allow two modifications to his original employment agreement. For each new client attracted because of coldplay, in addition to his initial standard industry compensation of $75,000 per year with 10% annual cost of living increases, he would receive stock options but only if the client stayed with the company at least seven years. They further agree if he should amicably resign, all patent rights related to coldplay would revert to him.

His original employment agreement contained the following provision:

I agree that if I leave The Body Electric for whatever cause, in consideration for my employment, severance and benefits, I will not do technical electronics work in the continental United States that competes with The Body Electric or involves service to its past or present clients.

After almost a decade at the company, Icarus is forced to either resign or accept a pay cut. He leaves disgruntled by his treatment and threatens litigation. He therefore is denied patent rights to coldplay. Having given up his passport in a dispute many years ago with the Drug Enforcement Administration, he cannot leave the country. He is nonetheless entitled to severance pay and benefits commensurate with his seniority at the company as long as he does not compete in the continental United States.

After starting his own shop in Manhattan, he draws previous clients he had recruited to The Body Electric. They would have eventually earned him stock options had he not been constructively terminated.

The Body Electric watches the exodus of its clients and wants to stem the flow immediately. They come to you seeking advice on how to halt his service to certain former clients as well as future clients. They also want to know whether they are entitled to any money damages and, if so, what amount.




TO: Body Electric
FROM: Applicant
RE: Icarus Options

At your request, I have researched and evaluated your possible options for halting Icarus’ service to former and future Body Electric clients and for seeking monetary relief for your damages. You should prevail in curtailing Icarus’ activities but not from stopping them entirely. You should institute a civil action against Icarus seeking a temporary restraining preliminary injunction, and a permanent injunction, as well as compensatory damages.

I. The Non-Competition Agreement – Reasonability

Icarus signed a non-compete agreement at the commencement of his Body Electric employment. His only consideration at the time for signing the agreement was his employment itself; no bonus or additional consideration was given. This presents a minor and overcomeable problem. If the non-compete was not supported by valid consideration, it is entirely invalid. There are options to argue here. First, his own employment was consideration for the agreement. Because the non-compete was signed at the start of his employment it is likely supported by the consideration of his employment and if it had been executed later after he was already an employee, additional consideration would have been required. Here, though his employment was conditioned on signing the agreement so it serves as valid consideration. As an alternative, Icarus was given a severance and benefits package upon termination that will continue for the time that he does not compete. This money supports the ongoing nature of the agreement and could arguably serve as consideration because it was explicitly mentioned in the agreement itself. The agreement is unlikely enforceable on consideration grounds.

Non-competes have other special enforcement problems. Because they restrain trade and restrict an employee’s livelihood, they must be reasonable. Non-competes which are reasonably limited in scope, geographical area, and time are deemed enforceable. Each non-compete agreement is tested for enforceability depending on the facts and circumstances. A non-compete that is unlimited in time may be enforceable, depending on the geographical area covered and the scope of the covered acts. Similarly, a national ban is sometimes appropriate, depending on the industry involved and if the agreement is for a limited time. The agreement Icarus signed is for the entire United States, is not limited in time, and covers all former and future Body Electric clients. Icarus is barred from technical electronics work that competes with you.

Unfortunately, the agreement as written is too broad and its terms are not likely to be fully enforceable because the breadth makes it unreasonable. However, the overbroad scope does not void the agreement. Courts can engage in a process called “blue lining,” whereby the Court strikes or revises the unreasonable portions of a non-compete agreement.

My research has determined that it is likely that the agreement here will be blue lined in this manner. You will have to determine what is important to you to argue – is time more important? If revised, the agreement’s geographic scope will possibly be limited to New Jersey, or an area covering a radius of a certain number of miles from your headquarters. If a national area is more important, we could argue that the time should be limited to, for example, 6 months. Your ability to seek the relief of enforcing the non-compete is in some ways granted by your ability to compromise and prioritize. If you argue that the non-compete must be enforced as is and is not severable, the court will deem it unenforceable.

II. The Non Compete – Enforceability

Even reasonable non-competes will not be enforced absent a compelling need. Non-compete enforcement is an equitable remedy meaning the Court will consider the overall “fairness” to each side and will balance those interests. You must show, in seeking injunctive relief that your need to enforce the legal reasonability provisions is supported by compelling reasons that your business will inevitably be hampered by the continuing competition. We will contend that enforcement is fair because Icarus is receiving money from Body Electric and freely signed the agreement in exchange of employment.

In evaluating whether to enforce the non-compete, the court will consider whether you have “unclean hands.” Whether you have engaged in unfair behavior that should bar enjoining Icarus. Icarus will argue that the modification of his contract seven years ago whereby he was entitled to certain stock options and return of his patent rights should he amicably resign is valid and that you breached contract.

It is unclear if the modification was in writing. Even if oral, it is enforceable if supported by consideration. Your agreement is to give him certain stock options and return of the patent rights in exchange for him continuing employment in the face of his threat to resign over money is mutual detriment – i.e., consideration. You could argue its unenforceability because he did not resign “amicably”- however, the fact that he was given the option of taking a pay cut or resigning, and that he chose to resign could make his leaving “amicable.” I recommend arguing against the enforceability of the patent rights return section based on the amicable language.

III. Money Damages

You would be entitled to money damages for your clients that Icarus is now serving. If the stock option modification is deemed enforceable, your money award will likely be reduced by an estimated value. More research into clients Icarus has and your actual harm is needed.


To: Partner
From: Applicant
Re: Body Electric Potential Claims

Based upon your request, I have outlined below how we can attempt to stop Icarus from servicing former clients and future clients of Body Electric.

I. Overview of the law and its application to Body Electric

Body Electric and Icarus have entered into an employment contract. This type of contract is governed by common law. A contract is a legally enforceable agreement between two or more parties. An executory bilateral contract requires an exchange of promises with mutual assent by the parties along with consideration (bargained for legal detriment or benefit) between the parties. There are various defenses to contract formation including the statute of frauds, illegality, incapacity, infancy, mutual mistake, etc. If a contract has been formed, and is enforceable, and one party does not perform per the conditions of the contract, the other side can sue for breach.

The original contract entered into between Icarus and Body Electric contains what is commonly referred to as a “non-compete” provision which restricts the ability of the employee from competing with his former employer after leaving the company. The courts have held that those provisions are enforceable if they are reasonable in terms of geography and duration. Basically, a non-compete provision cannot prevent someone from earning a livelihood after leaving his former employer.

In this case, the non-compete provision states that Icarus cannot do technical electronics work in the continental U.S. that competes with Body Electric. This includes service to its past or present clients. The provision is silent with regard to duration of the restriction. We can certainly argue Icarus has breached this provision of his employment contract. He is clearly no longer employed by Body Electric. He has set up his own shop and has attracted previous clients that he had at Body Electric. He is providing support and service to those clients at the expense of business to Body Electric. Moreover, we expect him to continue to try to lure future clients from Body Electric. Icarus has breached the terms of his original employment agreement.

The major issue facing us is that the provision in his contract may be deemed unenforceable by a court because it is overly broad in scope. The non-compete provision is for the continental U.S. A court would likely hold this is too broad and unenforceable. The provision is also not limited to a certain time frame which can be construed to mean of infinite duration. Again a court would not likely uphold this duration.

The good news is the agreement is in writing and hence satisfies the statute of frauds which requires service contracts of greater than a 1 year duration to be in writing.

Opposing counsel will also likely argue the modification to the agreement in which Icarus was to receive stock options for new clients brought into the company if they stayed with the company for at least seven years lends further support to Icarus’s ability to attract these clients on his own. The modification does not state specifically that Icarus must still be in the employ of Body Electric to receive the stock options. Therefore, opposing counsel may argue that Body Electric has in fact breached the modification agreement by not paying Icarus stock options for clients that have stayed for 7 years with Body Electric. As a further note on the statute of frauds, the modification agreement also satisfies it because it is in writing.

We can attempt to bring a preliminary injunction against Icarus which would eventually lead to a permanent injunction to keep him from servicing former clients and future clients. A preliminary injunction is an equitable remedy where we must show that Body Electric is undergoing immediate and irreparable harm from Icarus’s actions, that the harm will continue unless Icarus is stopped, and that we are likely to win on the merits of the case. Based on the issues surrounding the enforceability of the non-compete clause, it maybe uncertain whether a court will grant the injunction.

If we bring a suit for breach of contract we can also try to collect money damages from Icarus. These money damages would be based on the lost profits to Body Electric from Icarus recruiting away clients. This will be easily calculable based on the revenue of Icarus from former Body Electric clients.

Another important point that works against us in the enforceability of the non-compete agreement is Icarus can argue that he has had a problem making a living since leaving Body Electric. In particular, he no longer has a passport and hence cannot work outside the U.S. In our favor, he was getting severance pay and benefits commensurate with his Body Electric employment. However again a court is likely to conclude that if the non-compete clause is enforced, Icarus will not be able to earn a living.

In conclusion, we can bring an action against Icarus for breach of his employment agreement and seek an injunction and damages, however there is a good probability we will not be successful because of the overly broad scope of the non-compete provision in the contract.

Let me know if there are further questions.

One final issue we may face is Icarus’s patent rights. The modification agreement is vague in terms of “amicably resigns” in the clause for patent rights. This may be construed by a court to mean that if Icarus resigns from Body Electric, he will have ownership rights to the patent. Partial evidence may be admissible to properly construe this vague term. We need to try to maintain all patent rights for Body Electric and the fact that Icarus left the company disgruntled may not be determine true in him not having a right to the patent. This is an issue he may bring against us if we initiate suit against him, and pose a further risk to us if we lose the patent rights.




In 1960, Abigail deeded property to the Board of Education. The deed recited the property was transferred on the condition it be used only for educating elementary school children. The Board of Education immediately began operating an elementary school on the property and built a playground. A fence was erected around the playground.

In 1982, with the population of elementary school-aged children declining, the Board of Education ceased operating a school on the property and instead leased the property to the township. The township used the property as a senior citizens’ center. The playground was not used and the fence fell into disrepair during the time the senior citizens’ center was located at the property. 

In 1990, Abigail passed away leaving Bertha as her sole heir.

In 1995, the Board of Education stopped leasing the property to the township and began operating a preschool for developmentally disabled children at the property. The playground was refurbished and the fence was repaired.

Bertha recently found a copy of the deed. She wants the property. She had a survey prepared of the property and learned one half of the fenced-in playground is located on an adjoining property.

Bertha comes to your law firm. She wants to know what her rights are respecting the property and the part of the fenced-in playground located on the adjoining property. You are asked to analyze her rights.



TO: Bertha
FROM: Attorney
RE: Rights regarding property

I have prepared the following memorandum for you describing your rights to the property.

The 1960 conveyance of land to the Board of education created a fee simple on condition subsequent by Abigail. This conveyance establishes a right of re-entry in the grantor. The right of re-entry is exercisably by the grantor when the express condition is not met.

Here, Abigail (grantor) granted land to the Board of Education on the condition that it was used for educating elementary school children. This condition was satisfied by the Board of Education and they therefore were entitled to use the land.

In 1982 when the school board leased the property to the township, the township used the property as a senior center. This use of the property was inconsistent with Abigail's specified use. Abigail therefore could have, at the time the condition was violated, re-enter the land and used the land for her own purpose. Abigail failed to exercise this right of re-entry and allowed the Board of Education lease to the senior center to remain in existance.

Upon Abigail's passing, you as her heir inherited the property as your own. 

Upon one's inheritance of property they take the place of the grantor. As such, from 1990 until 1995 (when the Board again chose not to use the property for elementary education purposes), you (Bertha) as the new grantor, taking Abigail's place could have enforced the right of re-entry.

Currently, the property is being used for the specified purpose. A preschool for developmentally disabled children serves the same function as required by the original condition (education of elementary school children). Both serve to educate young children. You may be able to claim that elementary age children are older than preschool age children and therefore the condition no longer exists. If this argument proves successful you will be able to exercise your right of re-entry onto the property and take possession of it.

With respect to your rights regarding the fence on the property on the adjoining lot, you may be able to claim adverse possession to the parcel and claim possession of it for yourself as well. In the alternative, at the very least, a prescriptive easement may have been established which would give you the right to use the land.

Adverse possession requires, actual possession like the landowner would use the land, open and notorious, hostile (without permission), continuous for the statutory period of time (typically 21 yrs). 

Here the fence was placed on the adjoining property (open and notorious) for everyone to see. The possession was actual to that of the landowner because land is used for playground purposes, it appears based on the facts that the fence was placed on the property without the landowners permission. The statutory period of adverse possession, assuming 21 years, was met because the period of Abigail's possession and the Board's possession was well over 21 years. Abigail and the Board's time of adverse possession can be tacked together because both were in privity of estate. Should the tacking (statutory period) require additional past 21 years, this too is satisfied because the years you now own the land can be tacked on (over 35 years) to the continuous years and satisfy a longer statutory period. Inheritance of property also establishes privity with the previous owner.

Should a court find against adverse possession, you will be able to claim a prescriptive easement on the land which arises from the same set of facts and elements described above for adverse possession. The difference is that the land now will not be yours (as in adverse possession), you merely will be granted a right to use the land.

Therefore, a claim of adverse possession appears successful, but in the alternative, a claim of a prescritive easement is valid as well.

Dear Bertha,

You have asked our firm to determine your rights with respect to the property deeded to the Board of Education, as well as the part of the fenced in playground located on the adjoining property. The following is a summary of your rights:

Board of Education Property
When Abigail deeded the property to the Board of Education she conveyed to them a present interest known as a fee simple determinable. A fee simple determinable is a defeasible fee of potentially indefinite duration but subject to a condition. Should the condition occur, the property interest ends, and the property automatically reverts back to the grantor. A fee simple determinable is created by clear durational language of condition. Therefore, the Board of Education has a fee simple determinable in the property as created by Abigail's language "on condition that it be used only for educating elementery school children," and Abigail, or her heirs have a possibility of reverter, if and when the condition is broken.

When the Bd. of Ed. ceased operating a school on the property and leased the property to the township for a senior citizen's center, they broke the condition and their freehold present interest in the property reverted back to Abigail and her heirs. Therefore, you are the freehold interest holder of the property in fee simple absolute. We should institute an action for the court to determine your rights in the property and transfer legal title back to you from the School Board.

Of course, the school Bd. will argue that Abigail did not create a fee simple determinable or in the alternative, created only a fee simple subject to a condition subsequent with only a right of re-entry upon the condition breaking. However, the language of the deed is clear that she intended to create a fee simple determinable, because if she only reserved a right of re-entry or power of termination, that language must have been expressly stated in the grant. Here, a court will find clear expression of a fee simple determinable.

The Bd. of Ed. will also argue that Abigail's failure to exercise her rights in the property, terminated them, and even if not, the property is now being used for the education of children, therefore the condition is not broken. It is arguable whether the Bd. of Ed. use of the school is in compliance with the condition because the children are preschool age and not elementary age. Nevertheless, the interest was not revived in the Bd. of Ed. simply because they are now somewhat in compliance with the condition. Their interest in the property terminated automatically back in 1982 when the ceased operating a school and reverted back to Abigail.

Fenced-in Property
The fenced-in portion of the playground located on an adjoining property has been acquired through adverse possession, and a court will determine that you are the rightful owner. To acquire property by adverse possession, there must be continuous, open and notorious, actual and hostile use for the requisite statutory period. In most jurisdictions the statutory period is 21 years. Here, the Bd. of Education erected the fence in 1960 and used the property openly and continuously for 22 years. The use was hostile to the owner, because it was without permission, and it was actual because the rightful owner or a reasonable person could see the use and operating of the school. Therefore, the Bd. of Education acquired the property by adverse possession.

It is irrelevant that the playground was not used and that the fence fell into disrepair during the senior citizens use, because adverse possession can tack onto subsequent owners and the fence remained erected during that time to demonstrate hostility against the rightful owner. Therefore, since the Bd. of Education acquired the property through adverse possession, and their ownership in the property ceased upon breaking the condition, the property and the ½ acquired reverted back to Abigail and subsequently to you.

Hence, we should also have the court determine your rights in the ½ of the playground through adverse possession, and transfer legal title to you.

Should you have any questions, please do not hesitate to contact me.






Dot and Art went into a jewelry store in New Jersey. While Dot kept the store clerk occupied Art fled with several diamond rings. Dot followed.

When Dot left the store she discovered Art was gone. Dot became nervous and ran up to a car outside the store. She opened the driver’s door, held a gun to the driver while shouting “get out,” and she drove off without noticing that the driver’s child was in the backseat. Shortly thereafter Carl, who was intoxicated, ran a stop sign and struck the vehicle Dot was driving. Dot and Carl suffered bruises, but the driver’s child was thrown from the backseat and killed. Dot and Carl were arrested at the scene of the accident.

Hoping to gain favor with the police, Dot told the police where Art lives and that he stole the jewelry. The police converged on Art’s house, but no one was there. An officer staked out the house and when Art arrived and opened his garage, the officer arrested Art inside the garage. The officer then walked through the garage and after some time found the diamond rings mixed in a glass jar with nuts and bolts.

When Dot was arraigned, Mary, the mother of the dead child, waited for Dot to leave the courthouse. When Mary saw Dot, she pulled out a gun, fired a shot at Dot, missed her but killed Dot’s attorney. 

What crimes have Dot, Art, Carl, and Mary committed? Do any of them have any defenses? You are the law clerk assigned to the trial judge who was asked for a memorandum addressing these issues.




DATE: FEB 24, 2005
Re: Crimes of Dot, Art, Carl, & Mary

You have asked me to assess the criminal liability of Dot, Art, Carl & Mary under New Jersey Law. I will treat the liability of each defendant separately below, except I will address Art & Dot’s liability together.

I. Art & Dot’s Liability
A. Conspiracy to commit larceny
Art and Dot are likely guilty & of conspiracy to commit larceny with Dot. A conspiracy is formed when two or more people intentaially enter an agreement to commit a crime and take an overt act in furtherace of that criminal objective. Here, it appears that Art & Dot agreed to steal from the jewerly store and made several overt acts in in furtherance of the crime. Even though Art is also likely guilty of larceny, the completed crime, conspiracy does not merge with the substantive offense, meaning Art can be liable for both larceny and conspiracy to commit larceny.

There is not evidence of a verbal agreement between Art and Dot; however we could infer such an agreement from the conduct of the defendants, In this case, acting together in a coordinated manner to enable Art to steal the jewlery is likely sufficient evidence that a conspiratorial agreement was formed.

B. Larceny as to Art & Dot
Both Art and Dot can be charged with the substantive offense of larceny. Larceny occurs when a person takes and carries away personal property belonging to another with the intent to permanently deprived them of possession. Here Art carried away the diamond rings with the intent to permanently keep them and he is therefore clearly guilty of larceny Dot can be charged with larceny because she is respasible for the substantive offenses committed by her co-conspirator, Art, in furtherance of and during the cause of the conspiracy and which were foreseeable. Here, the stealing of the rings was the objective of the conspiracy, so it meets both the in futherace of & in the cause of tests.

Art may be able to protest the introduction of the rugs into evidence because his arrest & search of his garage was made without a warrant. Under the 4th Amendment of the U.S. Constitution, any search or seizure must be made pursuant to probable cause and a valid warrant issued by a neutral magistrate. While a warrant is not usually needed to arrest an individual in a public place, a warrant is typically needed, barring exigent circumstances, to arrest an individual in his house. The police, in this case, arrested Art in his garage, which will likely be considered part of his house as it is attached. Therefore, a warrant should have been obtained prior to arrest, or alternatively the police could have waited until Art left his house. There does not appear to be any exigency which would excuses the lack of a warrant as there was no evidence that evidence would be destroyed or that Art would flee.

Moreover, while normally police may conduct a search incident to arrest of the areas within a defendant’s control, if the arrest is illegal, then the search incident to the illegal arrest will also be invalid because it is considered fruit of the poisonous tree. The fruit of the poisonous tree doctrine requires the suppression of evidence found as the result of an illegal search or seizure.

Even if the rings themselves are suppressed, there is still a good case against Art for larceny if Dot or other witnesses testify. The rings can not be used in the prosecutor’s case in chief but could be use for impeachment. 

C. Dot’s liability for robbery, kidnapping, and murder
Dot has potential liability for robbery, kidnapping and murder which occurred during her flight from the store.
First, Dot is likely to be guilty of robbery. Robbery has the same elements as larceny (see above) but also requires the defendant 1.) to use force or threat of force and 2.) to be in the presence of the victim. By holding a gun to the drivers head and stealing his car, Dot has clearly committed robbery. Second, Dot may be liable for kidnapping since there was a child in the backseat when she stole the car. Likely, Dot will not be held liable for kidnapping because she lacked the intent to forcibly take the child and force the child to travel with her to another location or to hide the child in a secret place. Dot did not notice the child until after she was driving.

Dot likely however is guilty of murder as to the child. The child was killed in the cause of Dot’s flight from the larceny, but more importantly from the armed robbery. Probably, the child’s death will fall under the felony murder rule. Even though it appears to be Carl’s intoxicated driving which was the primary cause of the accident which led to the child’s death, since he ran a stop sign, Dot may be liable simply because she was a “but for” cause of the death, which occurred during her immediate flight from a felony. Typically, there is a foreseeability limitation as to the felony murder rule, however it appears sufficiently freseeable that a traffic accident might have another person during flight from a felony to attach liability. 

Dot therefore is guilty of robbery of the car, likely not guilty of kidnapping, and possibly guilty of felony murder.

D. Art’s liability for Dot’s actions Robbery, kidnapping & murder
As mentioned above, a conspirator is liable for the substantive crimes committed by co-conspirators which are in furtherance of, and during the course of a conspiracy, provided the acts are foreseeable. Art is likely guilty of Dot’s substantive offenses which occurred while she fled. Dot’s actions were arguably in furtherance of the conspiracy because they were assisting her flight to avoid detection. Moreover, they were during the course of the conspiracy because typically immediate flight from the scene of the crime is still considered part of the conspiracy. The conspiracy is not over until all of the objects of the conspiracy are complete. Art’s best argument against liability for Dot’s actions is that they were not foreseeable. This is a factual question, but likely Art will lose. It is foreseeable that Dot might use force in the cause of fleeing and get into an accident as a result. Art very well may be found guilty of the substantive offenses committed by Dot in fleeing the jewerly store.

II. Carl’s Liability
Carl is likely to be found guilty of, at a minimum, of involuntary manslaughter, and may be found guilty of murder. In addition Carl is clearly guilty of driving under the influence. Involuntary manslaughter can be found where a defendant acts with criminal negligence which causes the death of another. It is criminally negligent to drive drunk, run a stop sign & crash into another car. Carl can be found guilty therefore of involuntary manslaughter.

Carl may be found guilty of murder if the jury finds that Carl acted not just with criminal negligence but with malice. Malice means that a defendant acted with a reckless disregard of human life. By driving while intoxicated, Carl may have acted with sufficient recklessness as to constitute malice and murder.

Intoxication would not be a defense to either murder or manslaughter if Carl’s intoxication were voluntary. Voluntary intoxication is only a defense to specific intent crimes. Carl may have a defense if his intoxication were involuntary if the intoxication was sufficient to negate the intent of criminal negligence for manslaughter or malice for murder.

III. Mary’s Liability
Mary could be guilty of 1st degree premeditated murder for death of Dot’s attorney. Premeditation can be formed in only a matter of moments, and here, the evidence that Mary waited outside the courthouse for Dot is sufficient in all likelihood to demonstrate premeditation. Moreover, the shooting was deliberate and intentional – Mary shot with the specific intent of killing Dot. Even though Mary missed Dot and hit her attorney she will be liable for murder on a theory of transferred intent. 

Mary could try to argue she is only guilty of voluntary manslaughter. Murder can be downgraded to manslaughter where the defendant has alleged the killing was motivated by (1) an event that a reasonable person in the defendant’s position would find provoking (2) the defendant was in fact provoked (3) a reasonable person would not have had time to cool off; and (4) the defendant did not in fact cool off. The death of Mary’s child was a provoking event sufficient to implicate this rule. The question is under the third & fourth prongs of whether there was a sufficient cooling off period to make the partial defense of provocation viable. This will be a jury call.

Alternatively, we may recognize voluntary manslaughter if Mary was suffering from extreme emotional distress (EED) when she shot at Dot & killed the attorney. EED does not require a cooling off period and if recognized might give Mary an alternative means of seeking a voluntary manslaughter verdict.


TO: Judge
From: Applicant
Re: Crimes of Dot, Art, Carl and Mary

Below outlines the crimes and likely defenses of Dot, Art, Carl, Mary.

I. Crimes/Defenses of Dot
Dot has committed the crimes of conspiracy to commit larceny, accomplice liability for larceny, robbery, and maybe kidnapping. She may also be charged with felony murder.

Dot has conspired with Art to commit larceny of the jewelry store. Conspiracy requirements an agreement between two or more people to commit a crime, an intent to commit a crime, and an overt act towards the crime’s commission. Dot and Art had a plan to commit theft from the store by Dot occupying the clerk while Art stole the jewelry. Dot would also be liable under accomplice liability for larceny because she had the intent to steal the rings, and also aided, and abeted the perpetrater in the commission of the crime.

Dot committed robbery when she held a gun to a driver and forced her out of the car to take the car. A robbery is a larceny committed with force or intimidation from the person of another. Dot may also be tried for kidnapping which is the intentional restraint of someone in a constrained area and when they are transported or ransomed for money. This charge will not likely stick because she was not aware the baby was in the car she stole. 

Dot may also be charged with involuntary manslaughter or felony murder. Because the baby was killed during the commission of a dangerous felony (robbery) committed by Dot, she could be charged with felony murder. A charge of involuntary manslaughter could also be brought under a misdemeanor-manslaughter type theory based on the larceny committed in the jewelry store.

Dot may defend by trying to suppress her statements made at the crime scene as a violation of her 5th amendment right against compelled self-incrimination. The facts do not state whether she was given Miranda warnings (right to remain silent and an attorney) before she implicated also Art at the crime scene. It appears that her statements were voluntary and not subject to custodial interrogation, which would work against her in suppressing them.

II. Crimes defenses of Art 
Art may be charged with conspiracy to commit larceny, larceny, and under conspiracy liability for robbery. He may also be possibly charged with felony murder or involuntary manslaughter.

Larceny is the trespassory taking and carrying away of the personal property of another with the intent to deprive the person of the property. Here, Art stole diamond rings from the jewelry store while Dot occupied the clerk. He would also be liable for conspiracy to commit larceny (see supra discussion regarding Dot).

Moreover, under a theory of conspiracy liability for Dot’s actions, he may be liable for the robbery committed by Dot. A co-conspirator is liable for all crimes committed in the scope of the conspiracy that are foreseeable. It is foreseeable that by leaving Dot at the crime scene by taking off with the car, she would commit further unlawful acts. She did in fact in committing the robbery that led to the death of the baby. Art as a co-conspirator can be properly charged with robbery, felony murder or involuntary manslaughter as previously discussed for Dot.

Art may defend by trying to suppress evidence obtained from the search of his house and the seizure of his person. The 4th amendment protects against unconstitutional searches and seizures by government officials. To effectuate an arrest (seizure) of a person in their home, an arrest warrant based on probable cause is required. The police arrest Art in his home (garage constitutes part of house) without a warrant which violated Art’s 4th amendment right. Moreover, the police executed an unlawful search of his house by searching and seizing the diamond rings located in the garage. Absent exigent circumstances, the police need a search warrant based on probable cause to search the house of someone. In this case, the police did not have a warrant, and Art under the 4th amendment can suppress the use of the rings against him. Note however, that Dot will not be able to suppress the rings as evidence against her because she had no reasonable expectation of privacy in Art’s garage. Basically she lacked standing to object to the search of Art’s garage.

III. Carl’s claims and defenses
Carl can be charged with reckless driving and possibly involuntary manslaughter. He will also be charged with driving while intoxicated. One may also be liable for involuntary manslaughter if he acts with gross negligence or recklessness that leads to the death of another. In this case Carl acted with gross negligence by driving intoxicated and running a red light. This was the cause of his car striking Dot’s car and resulting in the baby’s death.

Car may try to defend based on the criminal actions of Dot, however this is unlikely to be successful.

IV. Crimes/defenses of Mary
Mary may be charged with first degree murder for the death of the attorney and attempted murder of Dot.

Murder is the killing of another with malice aforethought. Malice can take three forms including the intent to kill another. In this case, Mary clearly intended to kill Dot by shooting at her at point blank range. Under the transferred intent doctrine, she would be liable for killing the attorney. Attempt requires an intent to commit a crime and a substantial step toward the commission. This was clearly satisfied relative to Dot.

Mary may try to defend under an insanity defense due to the death of her baby. Let me know if there are further questions.




Bruiser Billings skied Aspen every spring. On this occasion, he departed the ski lodge after refreshments and fell at the exit, breaking a leg. He sued the Aspen lodge for negligent maintenance of the premises. He lost.

On appeal, he disputes several evidentiary rulings after unsuccessful objections by his trial counsel:

1. A woman at the lodge bar testified she had been pursued romantically by Bruiser all night before the accident. She said she overheard him admitting to a waitress he was so drunk he could hardly see.

2. The manager at the lodge testified he was told by a waitress about the high number of alcoholic drinks Bruiser consumed before leaving the bar.

3. A ski instructor at Aspen testified he had observed Bruiser earlier that week on the slopes. The instructor considered him a danger to the sport because of his recklessness on skis.

4. Bruiser’s ex-friend Charley testified about his previous irresponsible behavior at a party in Detroit two years before. 

5. A building maintenance supervisor testified about safety procedures at the building.

6. An engineering dynamics expert testified about the exit area of the building and assessed risk probabilities and floor friction cooefficient ratios. 

You are the law clerk for the appellate judge. Analyze the issues and discuss the appropriate evidentiary principles. Assess the merits of the objections. 



To: Judge Jones
From: Applicant 
Re: Evidence

You have asked me to evaluate the lower court’s evidentiary rulings. By this memorandum of law (which for ease of use I have broken down into issues) I hereby respond to your request.

Given the way the facts are presented, I will assume that all of the testimony was elicited on Aspen’s direct case and not as the result of a direct or cross by Bruiser where the issue of opening the door would be more relevant. I also note that as a general matter a trial court has great discretion to determine whether certain evidence is admissible, relevant, duplicative, and/or an appropriate use of judicial resources in the management of its courtroom.

Bruiser Admission That He was Drunk Was Appropriately Admitted.
The issue here is whether Bruiser’s statement was hearsay. Hearsay is an out of court statement used to prove the truth of the matter asserted. Bruiser’s statement is hearsay. The question is then whether it falls under an exception. In this case, it does. Bruiser’s statement is an admission by a party opponent, which is an exception to the hearsay rule irrespective of whether the declarant is available. Additionally, Bruiser’s admission is relevant that is it is probative on a material issue namely whether Bruiser fell b/c of Aspen’s negligence or his own. 

On a side-note, I note that witness could have also testified as to what she herself observed about Bruiser because lay witness’s can offer opinions about intoxication.

Manager’s testimony about the number of drinks consumed was inappropriately admitted.
This testimony is hearsay and does not fall under any relevant exception. 
Manager testified about what someone else told him she saw. There is no exception to this. Aspen should have called the waitress herself. Aspen may argue that this statement was a present sense impression of manager’s or an excited utterance of waitress (both of which would be exceptions), but this is not probable under the facts.

The one good argument Aspen may have is to argue that waitress had a business duty to report the number of drinks all customers had so that manager could prepare a business record. A business record regularly kept in the course of business and entered at the time of the incident would be a hearsay exception. But the facts as presented do not support this conclusion.

Ski instructor’s testimony was inappropriately admitted.
Evidence should only be admitted if it is relevant i.e. probative on a material issue. In this case Bruiser fell when he left the lodge. It does not seem he fell while skiing. Therefore testimony as to whether Bruiser was a reckless skier or a careful skier has no probative value. Moreover, it may be prejudicial to Bruiser insofar as a jury may conclude that if he was reckless on the ski slope, he is reckless in everyday life.

The one caveat to this would be if the recklessness testimony came in as extrinsic evidence to rebut some claim made by Bruiser on his case in chief, i.e. if Bruiser opened the door. Nothing in the records suggests this is the case.

Charley’s testimony was inappropriately admitted.
Much like instructor’s testimony, Charley’s testimony lacks probative value. What Bruiser did or did not do two years ago is irrelevant to the issue at hand. No doubt Aspen’s counsel would argue that Bruiser has a “habit” of being irresponsible. But “irresponsibility” is not a recognized habit and it is also not relevant to the issues at hand. Bruiser that whatever Aspen generally does is irrelevant to the procedures actually taken 

The only possible exception to this would be if Bruiser somehow opened the door on his case in chief to Bruiser’s safe nature. But it seems unlikely that this would have happened b/c in a civil case character traits for particular characteristics is not relevant. 

The maintenance man’s testimony was appropriately admitted.
Because the issue in this case is whether Aspen met the standard of care required for its invitees like Bruiser, testimony regarding Aspen’s safety procedures is relevant to the issue of whether Aspen met its duty. The only issue here would be an argument by Aspen on the day of the incident. Without seeing the context of the questioning it is difficult to know whether Bruiser has a point, but as a general matter maintenance testimony about procedures is admissible.

Bruiser may also argue that Aspen is effectively bolstering, that is testifying about what it is supposed to do and then stating that it did what it was supposed to do. This argument is without merit because Aspen has the right to show that it acted in accordance with its procedures and therefore that it properly maintained the premises.

The engineering expert’s testimony was appropriately admitted.
An expert’s testimony is admissible if it relates to a matter outside the ken of the ordinary jury and the expert has some specialized knowledge. An expert can testify based on his own observations, facts told him, facts heard at trial or facts generally relied upon in the field. If an expert is using certain scientific tests, there must also be indicia of general acceptance of those tests in the scientific community. Assuming the expert met these qualifications as determined by the trial judge, his testimony would be admissible. In this case, without knowing exactly how Bruiser pleaded his case (e.g. how did he fall), it is difficult to second guess the trial judge as to the relevancy and probative nature of expert’s testimony, but there is at leas an arguable inference that the composition of the exit area and floor friction coefficient ratios may be relevant to explaining why the plaintiff’s fall was not the result of negligence on Aspen’s part.


Road Map

Woman’s testimony re romantic pursuit inadmissible. FRE 403. Testimony re drunkenness admissible as an admission.

Manager’s testimony inadmissible hearsay, not within any exception.

Ski instructor testimony inadmissible character evidence. Also inadmissible under FRE 403.

Charley’s testimony inadmissible character evidence and inadmissible under FRE 403.

Maintenance supervisor testimony admissible.

Expert admissible if subject matter (fraction & coefficient ratios) relevant to cause of injury. FRE 702 Dauber v. Merrell Dow 

Mr. Billings has grounds to object to part of the woman’s testimony, specifically that dealing with his romantic pursuit on the night before the accident. That testimony is not relevant to the issue of whether Aspen Lodge or Mr. Billings bore responsibility for the accident. It could also be deemed as prejudicial, under FRE. 403 in that what little probative value it contains is outweighed by the prejudicial effect of painting Mr. Billings as a chauvinistic or overly-aggressive Casanova. 

However, the testimony regarding what Mr. B. told the waitress is admissible, as it is probative of the issue or whether Mr. B. was hung over on the morning of the accident, and was thus responsible for his own injuries. That declaration also does not run afoul of the hearsay rules, because it constitutes a party (Mr. B.) admission. 

The manager’s testimony is hearsay not within any exception, & was thus inadmissible. It was a statement offered for the truth of its contents (that Mr. B. drank a lot of alcohol) by a declarant who was not subject to cross-examination by Mr. B.

The ski instructor’s testimony was inadmissible character evidence offered to prove that Mr. B. acted in conformity therewith on the day of the accident. Mr. B’s recklessness a week before the accident does not necessarily mean that he was reckless on the day of the accident. As such, that testimony also lacked relevance & was not probative of Mr. B’s conduct on the day of the accident.

Charley’s testimony was inadmissible character evidence, inadmissible under FRE 403 because its prejudicial effect substantially outweighed what probative value, if any, it might have contained, an was simply not relevant to the issue of whether Mr. B. or the Lodge bore responsibility for Mr. B’s injuries, a full 2 years after the Detroit party.

The maintenance supervisor’s testimony was admissible because it was relevant and probative, particularly in a case centered upon negligent maintenance, on the issue of whether or not the building was negligently maintained.

Provided that “floor friction co-efficient ratios” and “assessed risk probabilities” are relevant to whether or not the building was negligently or properly maintained, or otherwise went to the issue of the causation of Mr. B.’s injuries, then the expert’s testimony would be admissible, provided it satisfied the requirements of FRE 702. A qualified expert, by reason of knowledge, skill, experience or education, may testify if such testimony would assist the trier of fact, provided that the expert’s opinion & conclusions rest on a reliable foundation of fact, & utilize a methodology either widely accepted within the relevant scientific or expert community, and is otherwise capable of replication or verification. Daubert v. Merrell Dow Pharmaceuticals, ___ U.S. (___).

In conclusion, the trial court admitted a substantial amount of inadmissible evidence in violation of the Rules of Evidence. As such, Mr. B. should be entitled to a new trial.




Barry owns a five-acre farm on which he boards horses. In return for a monthly fee, Barry provides food, water and shelter to the animals, whose owners are allowed access to their horses from dawn to dusk.

The farm’s perimeter is marked by a fence manufactured and recently installed by Phil. The only access to the property is through a gate in the fence which is opened by a security guard to horse owners and others who legitimately seek entry onto the land.

Cynthia boards her favorite horse at Barry’s farm. One night, while watching the 11:00 news, she learns of a potentially serious outbreak of an equine virus that is spread from one horse to another. Alarmed, and unwilling to wait until morning, she decides to immediately remove her mare from the farm in order to keep the animal away from other horses.

Cynthia drives to the farm, only to find the gate is locked and the security guard nowhere in sight. Just when she is about to return home in frustration, she remembers hearing Barry complain the previous week that the fence to the north of the gate was decayed, thereby allowing easy access to the property. Within minutes, Cynthia finds the decaying section of fence, easily walks through it and enters onto the farm.

By now, it is nearly midnight, and Cynthia finds a dozen horses, including hers, in the corral, located in the center of the farm. She opens the corral door, and leads her horse out of the corral and, minutes later, off the farm property, exiting through the decayed fence. 

In her haste, however, Cynthia forgets to close the corral door, and by the time dawn arrives, all of the horses have escaped from the corral. Three of the horses leave the farm through the decayed fence and enter onto adjacent land owned by Tony, where they trample his award winning flower beds, which had cost Tony twenty-thousand dollars to plant. Now, due to recent price increases, it will cost thirty-thousand dollars to restore.

Tony consults your firm regarding his potential recovery against Barry, Phil and Cynthia. The senior partner asks you to prepare a memorandum, outlining the causes of action and possible defenses of all three individuals.



To: Appellate Judge
From: Applicant
Re: Tony's Recovery

All 3 will be held liable by Cynthia will have contributed the most fault and therefore will be liable for a greater sum of the damages.

Barry is the owner of the farm and boards horses. A landowner has a duty to his fellow neighbors not to cause damage to their property. He also had a duty to take care of the horses using reasonable care. The property has a gate around it but there was a decaying section in the fence. A landowner has a duty to keep its property in reasonable condition. Barry should have known of the decaying fence and fixed it. If he used reasonable care and was unaware of the decaying section, he will not be liable in a negligence action. In an action of negligence there needs to be a duty, breach, causation, and damages. If it can be shown that Barry's breach led to the damage on Tony's land, Barry will be liable for negligence. Barry owed a duty to Tony as his neighbor to prevent horses from breaking out and causing damage to Tony's field. 

If the horses were considered wild animals, then if they trespass, there will be strict liability for trespass. Wild animals will be held to strict liability even the first time they trespass on to someone else's property. A domesticated animal is treated differently. If owner did not know of animals wild habit, then owner will not be liable for strict liability of tort for damage caused by domesticated people the first time he does damage. However, from that point on, the owner will be put on notice of the dangerous behavior and will be held to a strict liability for any future incident.

Barry himself did not let the horses loose. However, if the fence did not have any decaying sections, Cynthia would never have been able to let her horse out. Therefore, Barry breached his duty to use reasonable care in guarding the horses to Tony.

Phil was the manufacturer of the fence. A manufacturer can be held strictly liable for making a defective product. To prove a case of strict liability, you need to show that 1.) Manufacturer was in the business of making this kind of product, 2.) There was a dangerous defect made in product when the product was still in possession of manufacturer, 3.) There was no substantial change in product when it was in buyer's possession, 4.) It caused damages.

Here, Phil was a manufacturer and installer of fences. Phil had made a lot of fences probably before and knew how to install them. If it can be shown that the fence was defective while still at Phil's manufacturing plant, and without any substantial change it caused damages, Phil will be held strictly liable.

Also, Phil knew the fence was to keep these horses enclosed. If the fence decayed, the horses would get loose causing lots of damages. Therefore, Phil had a duty to make sure fence was not defective when installing it.

Cynthia intentionally broke into barn and released her horse. First, she trespassed on to the property and was reckless in doing so, so she would be liable in any damages caused to Barry because of the trespass on his property. Also, due to Cynthia's carelessness, the horse's got out and caused damage to Tony's property. Cynthia was the direct cause of damage to Tony. "But for" Cynthia's negligence, Tony would probably not have suffered any damages.

However, the fence was decaying which Barry owned. Was Barry a superceding or intervening cause? We need to answer 2 questions. 1.) Was the event foreseeable? 2.) Was the harm caused the type of harm which would have been caused anyway? If the answer is yes to either one, then it's a intervening cause. If the answer is no to both, then it's a superceding cause. Had Cynthia not left open the gate, its not likely the horses would have gotten out and caused the type of damage they did. Therefore, Cynthia should be liable for the damage to Tony's property. 

There was supposed to be a security guard watching the horses. Had he been there, Cynthia would never have been able to let her horse out. If Barry was negligent in not having the guard that day, and he owed a duty to Tony, he will be liable for being negligent. However, its likely that the guard was only supposed to be there during the day, and not at midnight when this incident happened. The door was locked which would have been sufficient to keep the animals from getting out.

Since the flowers planted by Tony were unique, since they were award winning, and were now totally destroyed, there will be a conversion penalty in which they will have to pay Tony for the market value of the flowers.

Since all 3, Barry, Phil & Cynthia had some negligence, how will the liability be distributed? Some states like NY have a pure comparative negligence jurisdiction so every one will be liable for their fault. There will be contribution among them and they will each be held liable. Each one will be liable for their percentage of fault. If any were more than 50% liable, they would be severally and wholly liable. Here, it does not look like anyone was really negligent besides for Cynthia. There is no proof that the fence was defective due to Phil. Barry maybe liable for maintaining a negligent fence but there was a superceding cause that did the damage and it was not really due to the defective fence. Cynthia will be held liable and negligent because it can be said that "but for" her negligence, no damages would have happened. Therefore all 3 will be liable, but Barry and Phil will be nominally liable compared to Cynthia.


Tony v. Phil
Tony may asset causes of action against Phil for strict products liability, negligence, and breach of warranty. Tony's success on all three depend upon whether the fence's decay was caused by something other than natural wear and tear. Because the fence was recently installed, this does not appear likely.

Negligence - The facts indicate that Phil constructed to keep intruders out of Barry's land and keep horses in. Thus, Phil had a duty to construct the fence in a reasonable manner. If the fence's decay was caused by Phil's constructing the fence in an unreasonable manner, then Phil breached that duty. Moreover, the horses escaped through a decayed section of the fence, and then entered onto Tony's land. But for the decayed fence, the horses would not have been able to do so. Thus, Tony can establish legal causation. Also, because Tony's land was so close, it was foreseeable that the horse's would reach this land, thus making Tony a foreseeable plaintiff and establishing proximate causation. Finally, because his flowers have been ruined, Tony has established damages. Thus Tony has a valid claim against Phil for negligence.

Strict Products Liability - Because Phil manufactured the fence in addition to installing it, Tony may assert a cause of action against Phil for strict products liability. Two types of strict products liability are at issue here: manufacturing defect and defect in design. (Failure to warn does not arise.)

Manufacturing defect - Even if Phil used all amounts of due care, if the fence failed because of a defect that occurred in the manufacturing process, Phil is liable to Tony. The elements of causation and damage are identical to those discussed above.

Defect in Design - If the fence failed because of a defective design (such as failure to use a proper material) then Phil is liable to Tony. Causation and damage are identical to the negligence analysis.

Breach of Warranty - The UCC may provide a remedy to Tony as well. This depends on if his state adopted a version extending the warranties to all foreseeable persons. (Some states extend only to users, or persons within their households. We assume extended to all foreseeable persons.) These warranties, however, will only apply if Phil is considered a "merchant." Because Phil manufactured the fence, we assume that he is, and thus will apply the UCC warranties.

Fitness for a particular purpose - a merchant who represents his goods as being fit for a particular purpose is strictly liable if his goods are not fit for this purpose, and this deficiency causes damage. Here, it is safe to assume that Phil represented (implicitly if not explicitly) that his fence would keep persons out of and horses inside of the property. The fence failed, and Phil breached this warranty. Damages have been discussed above, note that the UCC defines its scope of coverage.

Merchantability - a merchant warrants that a product he sells is merchantable. If it is not, and it fails, then the merchant is liable to persons protected by the UCC. Here, the fence was recently installed but had already decayed. Because this caused damage and we assume that Tony is protected by the UCC, Phil will be liable to Tony.

Phil has several defenses. With the UCC warranties and strict liability actions, it must be observed that Phil did more than sell a product. He installed it as well. In fact, if the service involved in installing the fence outweighs the aspects of selling the fence, then the UCC may not apply at all. This if the fence was ready-made and easily installed - the UCC applies. But, if the fence needed to be assembled and did not resemble a finished product before application of Phil's services, this fence would not be covered by the UCC.

The distinction between services and products applies to the strict product liability action as well. If the damage resulted because of the services aspect of Phil's installation of the fence, he cannot be held liable for strict products liability. Rather, Tony must seek recovery through negligence.

Phil may also argue that Cynthia's criminal conduct was a supervening event that excuses his negligence. Phil's argument fails because it appears the fence was designed for security purposes. Thus, Cynthia's criminal conduct was foreseeable and Phil will not be excused from his negligence. (This would not even apply to the strict liability and UCC claims.)

Tony v. Barry - Tony has two causes of action against Barry. First, Barry is strictly liable to Tony because his animals escaped, entered Tony's land, and caused damage. A person is strictly liable for the damages his animals cause when they escape. Barry does not have any defenses to this action.

Second, Barry may be liable in negligence for failing to fix the fence in time. Although Phil installed it, and may be liable as well, Barry still had a duty to maintain the fence. Furthermore, Barry possessed knowledge that the fence was failing at least one week prior to the accident. Thus Barry breached his duty and was negligent. The causation and damage analysis are identical to those addressed in Phil's negligence analysis.

Barry may defend himself on the grounds that Cynthia's conduct was a supervening event. Barry's defense has some merit because the horses were retained inside a corral and could not have escaped had Cynthia not trespassed. However, the facts also show that Barry had retained a security guard. Thus it appears Barry took on the duty of watching for criminals, and if Barry breached this duty to provide security, even though this undertaking may have been gratuitous, Barry cannot defend himself on the grounds of Cynthia's conduct.

Tony v. Cynthia
Tony has a cause of action against Cynthia for negligence. The facts indicate that Cynthia failed to close the corral. Moreover, Cynthia knew of the outside fence's decayed condition because she took advantage of it herself. Even though Cynthia was a trespasser, she still had a duty to prevent harm to the horses and others, and it was foreseeable that is she failed to secure the corral, that horses could escape.

Cynthia cannot defend herself on the grounds that Barry and Phil were negligent themselves. This merely presents a situation of multiple tort-feasors where each contributed to harm. Thus, even though Barry and Phil may have been negligent, Cynthia is still liable. Also, Cynthia cannot defend herself on the grounds that she was trying to protect her property. This defense would only be relevant to an action asserted against her by Barry for trespass. Cynthia was still obligated to use a reasonable duty of care, and the situation does not indicate that there was such an emergency that a reasonable person would have failed to secure the corral.




In response to various state laws legalizing the use of medicinal marijuana, the federal government amended the Controlled Substances Act (“CSA”). The CSA prohibits the manufacture, possession or distribution of marijuana. The legislative history indicates the CSA was designed, among other things, to deter state and local governments from “encouraging the intrastate distribution and possession of medicinal marijuana because such activity contributes to swelling interstate traffic in this substance.” Penalties for violating the CSA include, but are not limited to, monetary fines.

Previously, the State of Inebriation had enacted the Compassionate Use of Marijuana Act (“CUMA”), which permits qualifying residents to “obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a licensed physician.” CUMA conditions eligibility for the permit on the individual’s residency in Inebriation for at least six months. The purposes of the residency requirement are two-fold: 1. “limit the burden on Inebriation’s health care system from increased requests for medicinal marijuana use permits,” and 2. “ensure that the permits will be issued in such a way as to promote residents’ continued positive contributions to society.” CUMA’s principal sponsor, F. Theodore Higgins, commented on the Assembly floor. “[w]e need CUMA’s residency requirement to discourage migration of scam artists and miscreants.” CUMA violators are subject to potential criminal and civil sanctions. 

Joanne, who suffers from a debilitating medical condition, moved to Inebriation two months ago. Joanne’s new husband, Clarence, also has a debilitating medical condition, but he has resided in Inebriation for two years. Joanne and Clarence visit their Inebriation-based physician, Doctor, to obtain a medicinal marijuana permit. Despite Joanne’s qualifying medical condition, Doctor advises he cannot issue her a medicinal marijuana permit. Doctor, however, does issue a permit to Clarence.

Clarence cultivates a small marijuana garden in the couple’s backyard, and they both use the crop solely for their own medicinal purposes. The federal government discovers Clarence’s garden, impounds the crop and issues him a civil citation. After a trial in federal court, Clarence is assessed a fine. Seeking to make an example of Joanne for her non-compliance, Inebriation issues her a civil citation. After an Inebriation court proceeding, Joanne is also fined.

After exhausting their respective appeals in the federal Circuit Court and Inebriation’s Supreme Court, Joanne and Clarence’s petitions for certification to the United States Supreme Court have been granted and consolidated. You are a law clerk for the Supreme Court Justice assigned to prepare the bench memorandum discussing Joanne and Clarence’s defenses raised in the proceedings below. Assume the case is justiciable, and all relevant issues have been raised and addressed in the lower court proceedings.



To: Justice
From: Clerk
Re: CSA & Inebriation CUMA

You have asked me to discuss the defenses of Joanne (J) & Clarence (C) on the proceedings below.

I. Preemption of CUMA by CSA.

Where there is a direct conflict between federal and state law, Federal law will be deemed supreme under the Supremacy Clause of the U.S. Constitution. Federal law may either expressly or impliedly preempt a field of law. Federal law expressly pre-empts when it states that no state shall regulate in the area of the law. Federal law impliedly pre-empts when it leaves no room, because the breadth of its own regulations, for states to regulate in the same area. 

Here, the CUMA directly conflicts with the CSA. The CUMA permitted residents to obtain and use marijuana. The CSA expressly prohibits manufacture, possession or distribution of marijuana. To obtain is to have just as possess is to have. The state law conflicts with the Federal law.

The CSA arguably expressly pre-empts the CUMA. The legislative history of the CSA indicates that its purpose was to deter states from encouraging marijuana use. This history indicates that the CSA drafters intended to prevent states from regulating in the area. 

Because the CUMA is preempted by the CSA, the law is unenforceable and could not be the basis of the action against J. Nor could the CSA be the basis of their permit C allegedly operated under in growing his marijuana.

II. Validity of CSA
The above argument is premised on the validity of the CSA.. The CSA is a valid exercise of Congress' extensive power to regulate interstate commerce.. Congress may regulate nearly all activity that alone, or in the aggregate, impacts interstate commerce. Congress may not regulate local, criminal activity that is non-economic in nature. 

Here, J & C will have argued that the CUMA regulates local activity that is criminal and has no economic impact. They should not prevail. As above, Congress has the most broad powers under the Commerce Clause, which, via the Necessary & Proper Clause, are to be broadly construed.

The legislative history of the CSA provides that Congress' intent was to prevent states from allowing in-state marijuana use to swell interstate marijuana traffic. This is precisely the type of conduct that, in the aggregate, can impact interstate commerce and is therefore, impermissible under Congress' Commerce Clause powers. 

III. Equal Protection Claim
J & C also likely raised the defense that the CUMA violated their Equal Protection rights. 

Under the 14th Amend equal protection clause, all persons are entitled to equal protection of the law Equal Protection requires that similar persons be treated similarly by the government. Where distinctions are made that deprive people of a fundamental right, the highest level of scrutiny is applied and the burden is on the state to show the constitutionally of their action. 

Here, the fundamental right infringed by the CUMA is the right to travel. A long residency requirement restricts a person's right to travel because it denies him/her the ability to move freely without penalty. 

Strict Scrutiny requires that requires a government distinction be necessary to achieve a compelling government interest. The State of Inebriation is clearly a state actor. As such, the distinction between those who are residents for 6 months and those who are not must be compelling. 

The CUMA provides 2 reason, neither of which is sufficient to clear the hurdle of necessity imposed by strict scrutiny. The first purported reason may stem from the states' police power, but is not enough to justify deprivation of constitutional rights. 

Accordingly, J's defense that the CUMA denies her equal protection by denying her fundamental right to travel is valid. As such, the CUMA should be in part, because the invalid residency requirement and, in part because it is expressly or impliedly pre-empted by enactment of the CSA. 

Please advise me as to further assignments on this matter.


I. The State of Inebriation's CUMA act is unconstitutional because it is preempted by the federal CSA act and is therefore violative of the Supremacy Clause of the United States Constitution.

A. Supremacy Clause
The U.S. Constitution provides that the laws enacted by Congress shall be the supreme law of the land.

B. Preemption
When Congress through a federal act establishes law that is in direct conflict with a state's law, the state law is preempted and the federal law will control. A state may enact laws which expand a detail of federal regulation (not stricter rules of enforcement, etc.) so long as Congress has not expressly occupied the field of regulation.

C. Congress and its enactment of CSA have expressly occupied the field of regulation regarding marijuana and therefore Inebriation's CUMA is no longer valid. By enacting the CSA, Congress has preempted Inebriation's CUMA. Given the legislative history behind CSA, there is no argument which can be asserted against the preemption of CUMA. For these reasons, Inebriation’s regulations regarding marijuana use are void and the civil citation levied against Joanne may be dismissed.

D. Given the federal preemption of CUMA, the civil citation assessed against Clarence was lawful.

Again, because Inebriation may not impose its own regulation with regard to marijuana, Clarence is subject to the federal regulation. Therefore, the fine against him was unlawful.

II. Congress' enactment of CSA was a valid exercise of its powers under the Commerce Clause.

A. Commerce Clause. 
The Commerce Clause allows Congress to regulate activity having an effect an impact on business and transactions (commerce). 

B. Congress acted lawfully given the legislative history of the act.
Because intrastate activities and regulations regarding controlled substances may be a substantial effect on activities in another state, Congress' act was a proper exercise of its Commerce Clause powers.

III. Assuming arguendo, that Inebriation’s CUMA is not preempted and is a valid of exercise of state power having no negative implications of the commerce clause, Inebriation's 6-month residency requirement is a constitutional violation of Joanne's federal rights.

A. The requirement discriminates against non-residents and is therefore subject to strict scrutiny.

Because the requirement discriminates against out of staters, the question must be asked whether the regulation is narrowly tailored to achieve an important government interest. Inebriation claims that the 6-month waiting period eases the burden on its health care system. However, this is not a compelling reason to disallow doctor prescribed medical treatment and to deny a citizen's liberty interests. Therefore, the residency requirement will be struck and Joanne may be allowed to seek medicinal treatment.

MPT Synopsis

The National Conference of Bar Examiners (NCBE) is the copyright owner of the February 2005 MPT question administered in New Jersey. The NCBE has not authorized the verbatim publication of the question.
The problem is set in the fictitious state of Franklin, in the fictitious Fifteenth Circuit of the United States. The test materials include a File and a Library. The file contains factual information about the case and may contain information that is not relevant. The Library contains the legal authority needed to complete the task and may also include some information that is not relevant.
The case concerns the case of Matt and Sarah Barnett. The Barnetts are considering bringing an action against Tony Gordon, the owner of an apartment building for where the Barnetts were seeking an apartment.
The applicant is asked to draft a memorandum to the director of litigation that covers whether the facts of the Barnett’s case supports their claim of a violation of the Franklin Administrative Code and whether Mr. and Mrs. Barnett each have a claim for damages.


You have asked me to draft a memorandum that describes in detail how the facts in the Barnett case support our claims that:

(1) Tony Gordon violated §§ 107(a) and 107(b) of the Franklin Administrative Code and (2) that Matt and Sarah Barnett are each entitled to bring an action to recover substantial damages from Tony Gordon.

Violations of §107

First, we can make a strong showing that, provisions of § 107 apply to Gordon. As an initial matter, we can show Gordon was the owner of the property at issue, which brings him under the umbrella of §107, which applies to owners, among other parties. He is an owner because he is identified in the flier as “Owner” and because he described himself as the owner when Matt called him.

We can also show that Helena Pall, Gordon’s sister was authorized to act as his agent during the rental transaction.

Under the case of Rosa v. Brusco, an agency relationship between a landlord and someone showing an apartment exists where: the person is authorized to show the apartment, has keys, and had the initial authority to determine whether to submit applications for further consideration to the manager and owner. If such a relationship is shown, under the rule of Rosa v. Brusco, the actions of the agent are imprinted to the owner.

Here, Pall had the authority to show the apartment because Gordon told Matt on the phone he could pick up keys with Pall. She also had keys, given to her by Gordon. We can also show she had initial authority to determine whether to submit applications for further consideration to Gordon because she apparently decided, when Matt and Sarah first came to the apartment together, to tell them “sorry it’s been rented.” Gordon did not direct her to say this, because he stated that evening on the phone that Pall must have been “confused.”

Thus, Gordon was the owner and the facts support our position that Pall’s action can be imprinted to Gordon, so that § 107 applies to Gordon.


To show a violation of 107(a) which we can do, we should argue that, as the facts make clear, Gordon and Pall refused to rent or lease this housing accommodation (defined in § 102 as any building or portion thereof which is used or occupied or is intended arranged or designed to be used or occupied as the residence or sleeping place of one or more persons – This includes the house in question, because the house is intended as a residence) on the basis of Sarah’s actual or perceived race, color, national origin and/or alienage or citizenship status. The refusal is clear from the nature of the course of the events. First, Matt, a white man who likely sounds American by birth, made an appointment without incident, with Gordon. Then Matt went to see the apartment with Pall, again without incident. Then Matt went to see the apartment with Pall, again without incident. Matt made a subsequent appointment for himself and Sarah over the phone with Gordon, also without incident. It was not until Pall saw Sarah, outside of her window that she stated the apartment had been rented. The only difference between this visit and Matt’s previous ones was Sarah’s presence. Because of friend Brian’s “test,” we know the apartment was not rented. Though it is not clear from the record, the color of Sarah’s skin, as well as her accent, if Pall heard her speak were the basis of Pall’s reaction.

Furthermore, we can argue the increase in rent from $1,000.00 to $2,500.00 (a 150% increase), occurred only after Sarah spoke with Gordon, revealing her accent to him, and after she and Matt both met with Pall, which would have conveyed her foreign national origin, alienage and citizenship status, on the basis of which a party may not discriminate under § 107 (applying the definition of alienage or citizenship status in § 102 (21)). The excessive hike in rent appears to be a constructive refusal to rent, especially if Gordon and Pall were aware of Matt and Sarah’s modest means and large family, which require a large amount of financial resources.

Thus, we can show Gordon refused to rent to Matt and Sarah on the basis of Sarah’s race, color, national origin or alienage or citizenship status.

107 (b)

Gordon will also be found to have violated §107(b). This action requires that the owner discriminate in the terms, conditions, or privileges of rental or lease. Gordon did that here.

As demonstrated above, Gordon and Pall raised the proposed rent 150% upon hearing of Sarah’s race, color, national origin or alienage or citizenship status. This is, in addition to a constructive refusal to rent, discrimination in the terms and conditions of rental or lease, because the amount of rent is a fundamental part of the lease contract.

Thus, Gordon violated §107(b).

Recovery under §120

Both Matt and Sarah are “aggrieved persons” under Section 109 because they have both suffered injury as a result of an unlawful discriminatory practice (shown in violation of §107 (a) and (b), above).


Under the rule established in Sethi v. Austin, a claim for compensatory damages may be based entirely on mental anguish. The award must be supported by competent evidence concerning the extent of the injuries and a showing that a sufficient causal connection exists between the respondent’s illegal acts and the complainant’s injuries. The trial record will frequently include a comparison between a complainant’s life before and after the discriminatory incident, tracking changes in interests, self-perception, and attitude toward the future.

Before the discrimination, Matt was “excited,” he knew that his current residence for his large family was too small. After the discrimination, he was disappointed, angry, and put out. He is very upset, started smoking again, and his ulcers have flared up, he has had to see his doctor.

Thus, Matt is an aggrieved party.

Sarah also was excited before the discrimination. She was aghast at the discrimination, and angry. She was outraged after a phone conversation with Gordon, embarrassed, and demoralized. After a phone discussion with Gordon, she withdrew, feeling alternately angry and depressed. She found it difficult to face work and missed a day of work. She is not sleeping, she has lost weight, and she has no enthusiasm for work. She is seeing a psychotherapist for depression and anger.

Thus, Sarah can show mental anguish and is an aggrieved party who can recover, as per the rule of Sethi v. Austin.


TO: Kellis Parker
RE: The Barnett Assignment
FROM: Applicant

I. Brief Statement of Facts

Towards the end of January, Matt Barnett, married father of three, noticed a flier for a reasonably priced three-bedroom apartment. Matt contacted Tony Gordon, the owner of the apartment, and arranged to pick up a key and look at the apartment. Matt picked up the key the next day from Helena Pall, Gordon’s sister. Pall showed Matt the apartment and, in general, acted very friendly towards him. The next day when Matt and Sarah, who is black, went back to Pall’s to borrow the key again, Pall refused to meet them and told them the apartment had been rented. Later that night, when the Barnetts spoke with Gordon, he implored them to revisit the apartment since it had not been rented. The next day the Barnetts returned to Pall’s to retrieve the key. After viewing the apartment, they returned the key to Pall, who informed them the rent would be $2,500/month. The Barnetts then called Gordon and he informed them the apartment had been rented. The Barnetts have all suffered injury from what they consider behavior predicated on racial prejudice. They seek redress.

II. Claims under 107

The Franklin Administrative Code authorizes the Franklin Commission on Human Rights to adjudicate housing discrimination claims, including claims based on racial discrimination. See §101. Any “person aggrieved” by an unlawful discriminating practice may petition the Commission for a hearing and determination. See §109. The term “person aggrieved” includes any person who has suffered injury as a result of unlawful discriminatory practice. § 102(2). In this case as is further discussed in Section III, both Barnetts have suffered injury so they pass the preliminary test for seeking a hearing.

The second test is whether the action complained of is an “unlawful discriminatory practice” as defined by §107. In this case, the Barnetts will likely succeed in claiming violations of both §107(a) and 107 (b) by Tony Gordon.

A. Claim under §107(a)

The Barnetts have a claim against Tony Gordon under §107(a) based on both his conduct, and the conduct of his agent, Helena Pall. 107(a) prohibits an owner, lessee, or managing agent, or other person having the right to rent … to refuse to sell, rent, … or otherwise deny or withhold from any person.”

1. Actions of Gordon

Gordon violated this provision by refusing to rent he apartment to the Barnetts. Gordon informed the Barnetts the apartment had been rented, but when Sarah sent a white friend, Brian, to ask about the apartment, she learned the apartment was still available. It is possible Gordon’s assistant was wrong about the apartment’s availability, but assuming the assistant was truthful, the Barnett’s have a clear case against Gordon. Gordon was interested in selling the Barnetts the apartment after speaking with Matt and after Matt met Pall. Gordon’s position did not change after Pall met Sarah. Gordon will argue that race had nothing to do with his decision, and will likely cite the fact that he still wanted the Barnetts to rent the apartment after Pall had already learned Sarah’s race. This argument is not persuasive, however. The fact strongly suggests that Gordon had not talked to Pall before he spoke with the Barnetts that night. Matt’s interview shows that Gordon was surprised and confused by his sister’s behavior, and the fact that he asked if they wanted the apartment shows he did not already know his sister had refused to let them see it. Consequently, this conversation will not support any defense for Gordon. Instead, it supports our case, as it shows the marked change in Gordon. After Sarah called Gordon about the rental price, Gordon did not offer any explanation for his sister’s behavior or even seem confused by the allegations; instead he merely stated that the apartment had been rented. This is a far cry from the night before when he had been openly seeking to rent to the Barnetts. The onus is on Gordon to prove there was a non-discriminatory reason for his refusal to rent. If he cannot meet this burden, which is likely, the Barnetts will win.

2. Actions of Pall

107 includes the actions of any person who has the right to rent. In this case, Pall is an agent of Gordon and Gordon may be liable for her behavior under 107(a). In Rosa v. Brusco, the Appellate Curt ruled that a person is an agent if they are authorized to show apartments, have keys to the apartments, and determine whether an application will be sent to the manager. In this case, like in Rosa, Pall had the key to the apartment and was authorized to show it. Although Pall was not called a managing agent, the Rosa Court stated that job titles are not dispositive on the question of whether an agency relationship exists. Pall additionally seems to have authority to recommend or deny potential renters. It is Pall who lives in the building and meets potential renters since Gordon lives elsewhere. Based on Pall’s responsibilities, she may be deemed an agent. If Pall is deemed and agent, Gordon will be liable for her violations of 107(a). Pall refused to show the apartment to Matt and Sarah; this behavior is arguably within 107(a)’s prohibition on “withholding or denying” and housing accommodation.

B. 107(b)

Gordon may be liable under 107(b) based on Pall’s conduct. If Pall is deemed an agent (See above), she “discriminated in the terms/conditions” of the rental when she told the Barnetts that the rent was $2,500/month. The flier asserted that the rent was $1,000/month and the price remained set at $1,000/month until Pall met Sarah. The facts support the contention that this differential rent was based on Sarah’s race. It was only after Pall learned the Barnetts were an interracial couple that she began acting strangely. Consequently, the burden falls on Gordon to explain his, and his agent’s actions.

III. Damages

§120 authorizes the Commission to take affirmative action including directing the rent of housing, directing the payment of compensatory damages, imposing a civil penalty, requiring training or monitoring, and directing payment of court costs and fees. In this case, both Matt and Sarah are entitled to seek redress under §120. Each has suffered “injury” as a result of Gordon’s conduct. Since the Barnetts are not interested in getting the apartment, I will focus my analysis to the order of compensatory damages.
In Sethi v. Austin, the Appellate Court ruled that a person may receive compensatory damages provided they can support their claims of mental anguish with details and incidents from his/her life. In this case, both Matt and Sarah can recover for their injuries.


Matt can recover for his mental anguish. As a result of this incident, Matt’s ulcers have flared up, he has resumed smoking, and he is very upset. His doctor’s visit and the resumption of smoking are sufficient to satisfy Sethi. In addition to recovery for anguish, Matt can likely recover for the cost of the extra ulcer medications. He can show that the extra medications are only after this incident.


Sarah can also recover for her mental anguish. She has missed work, has seen a therapist, lost weight, and is constantly angry/depressed. These physical symptoms are sufficient means of “proving” injury and anguish under Sethi. There is a definite change in her pre-Gordon life and post-Gordon life. Sarah can also recover for her therapist visits.

The Barnetts can likely also get an order directing Gordon to pay a civil penalty since his actions certainly seem willful. He chose to not rent after hearing of Sarah’s race and lied to the Barnetts about the apartment’s availability. This behavior is volitional and intentional, so §120(c) would be satisfied.