MultiState Bar Examination (MBE) 1 – Sample

On August 1, Geriatrics, Inc., operating a �lifetime care� home for the elderly, admitted Ohlster, who was 84 years old, for a trialperiod of two months. On September 25, Ohlster and Geriatrics entered into a written lifetime care contract with an effective commencement date of October 1. The full contract price was $20,000, which, as required by the terms of the contract, Ohlster prepaid to Geriatrics on September 25. Ohlster died of a heart attack on October 2. In a restitutionary action, can the administratrixof Ohlster�s estate, a surviving sister, recover on behalf of the estate either all or part of the $20,000 paid to Geriatrics on September 25?

While walking home one evening, Harold, an off-duty police officer, was accosted by Jones, a stranger. Jones had been drinking andmistakenly thought Harold was a man who was having an affair with his wife. Intendingto frighten Harold but not to harm him, Jonespulled out a knife, screamed obscenities, and told Harold he was going to kill him. Frightened and reasonably believing Jones was going to kill him and that using deadly force was his only salvation, Harold took out his service revolver and shot and killed Jones. Harold is charged with murder. Harold�s claim of self-defense should be

Anna entered a hospital to undergo surgery and feared that she might not survive. She instructed her lawyer by telephone to prepare a deed conveying Blackacre, a large tract of undeveloped land, as a gift to her nephew, Bernard, who lived in a distant state. Her instructions were followed, and, prior to her surgery, she executed a document in a form sufficient to constitute a deed of conveyance. The deed was recorded by the lawyer promptly and properly as she instructed him to do. The recorded deed was returned to the lawyer by the land record office, Anna, in fact, recovered from her surgery and the lawyer returned the recorded deed to her. Before Anna or the lawyer thought to informBernard of the conveyance, Bernard was killed in an auto accident. Bernard�s will left all of his estate to a satanic religious cult. Anna was very upset at the prospect of the cult�sacquiring Blackacre. The local taxing authority assessed the next real property tax bill on Blackacre to Bernard�s estate. Anna brought an appropriate action against Bernard�s estate and the cult to set aside the conveyance to Bernard. If Anna loses, it will be because

In a prosecution of Doris for murder, the government seeks to introduce a properly authenticated note written by the victim that reads: �Doris did it.� In laying the foundation for admitting the note as a dying declaration, the prosecution offered an affidavit from the attending physician that the victim knew she was about to die when she wrote the note. The admissibility of the note as a dying declaration is

As Paul, a bartender, was removing the restraining wire from a bottle of champagne produced and bottled by Winery, Inc., the plastic stopper suddenly shot out of the bottle. The stopper struck and injured Paul�s eye. Paul had opened other bottles of champagne, and occasionally the stoppers had shot out with great force, but Paul had not been injured. Paul has brought an action against Winery, Inc., alleging that the bottle that caused his injury was defective and unreasonably dangerous because its label did not warn that the stopper might suddenly shoot out during opening. The state has merged contributory negligence and unreasonable assumption of risk into a pure comparative fault system that is applied in strict products liability actions. If the jury finds that the bottle was defective and unreasonably dangerous because it lacked a warning, will Paul recover a judgment in his favor?

Swatter, a baseball star, contracted with the Municipal Symphony Orchestra, Inc., to perform for $5,000 at a children�s concert as narrator of �Peter and the Wolf.� Shortly before the concert, Swatter became embroiled in a highly publicized controversy over whether he had cursed and assaulted a baseball fan. The orchestra canceled the contract out of concern that attendance might be adversely affected by Swatter�s appearance. Swatter sued the orchestra for breach of contract. His business agent testified without contradiction that the cancellation had resulted in Swatter�s not getting other contracts for performances and endorsements. The trial court instructed the jury, in part, as follows: �If you find for the plaintiff, you may award damages for losses which at the time of contracting could reasonably have been foreseen by the defendant as a probable result of its breach. However, the law does not permit recovery for the loss of prospective profits of a new business caused by breach ofcontract.� On Swatter�s appeal from a jury verdict for Swatter, and judgment thereon, awarding damages only for the $5,000 fee promised bythe orchestra, the judgment will probably be

Road Lines is an interstate bus company operating in a five-state area. A federal statute authorizes the Interstate Commerce Commission (ICC) to permit interstate carriers to discontinue entirely any unprofitable route. Road Lines applied to the ICC for permission to drop a very unprofitable route through the sparsely populated Shaley Mountains. The ICC granted that permission even though Road Lines provided the only public transportation into the region. Foley is the owner of a mountain resort in the Shaley Mountains, whose customersusually arrived on vehicles operated by Road Lines. After exhausting all available federal administrative remedies, Foley filed suit against Road Lines in the trial court of the state in which the Shaley Mountains are located to enjoin the discontinuance by Road Lines of its service to that area. Foley alleged that the discontinuance of service by Road Lines would violate a statute of that state prohibiting common carriers of persons from abandoning service to communities having no alternate form of public transportation. The state court should

Shore decided to destroy his dilapidated building in order to collect the insurance money. He hired Parsons to burn down thebuilding. Parsons broke into the building and carefully searched it to make sure no one was inside. He failed, however, to see a vagrant asleep in an office closet. He started a fire. The building was destroyed, and the vagrant died from burns a week later. Two days after the fire, Shore filed an insurance claim in which he stated that he had no information about the cause of the fire. If Shore is guilty of felony-murder, it is because the vagrant�s death occurred inconnection with the felony of

Plaintiff challenged the constitutionality of a state tax law, alleging that it violated the equal protection clauses of both the United States Constitution and the state constitution. The state supreme court agreed and held the tax law to be invalid. It said: �We hold that this state tax law violates the equal protection clause of the United States Constitution and also the equal protection clause of the state constitution because we interpret that provision of the state constitution to contain exactly the same prohibition against discriminatory legislation as is contained in the equal protection clause of the Fourteenth Amendment to the United States Constitution.� The state sought review of this decision in the United States Supreme Court, alleging that the state supreme court�s determination of the federal constitutional issue was incorrect. How should the United States Supreme Courtdispose of the case if it believes that this interpretation of the federal Constitution by the state supreme court raises an important federal question and is incorrect on the merits?

A federal statute prohibits the construction of nuclear energy plants in this country without a license from the Federal Nuclear Plant Siting Commission. The statute provides that the Commission may issue a license authorizing the construction of a proposed nuclear energy plant 30 days after the Commission makes a finding that the plant will comply with specified standards of safety, technological and commercial feasibility, and public convenience. In a severable provision, the Commission�s enabling statute also provides that the Congress, by simple majorities in each house, may veto the issuance of a particularlicense by the Commission if such a veto occurs within 30 days following the requiredCommission finding. Early last year, the Commission found that Safenuke, Inc., met all statutory requirements and, therefore, voted to issue Safenuke, Inc., a license authorizing it to construct a nuclear energy plant. Because they believed that the issuance of a license to Safenuke, Inc., was not in accord with the applicable statutory criteria, a majority of each of the two houses of Congress voted, within the specified 30-day period, to veto the license. On the basis of that veto, the Commission refused to issue the license. Subsequently, Safenuke, Inc., sued the Commission in an appropriate federal district court, challenging the constitutionality of the Commission�s refusal to issue the license. In this suit, the court should hold the congressional veto of the license of Safenuke, Inc., to be