Multistate Bar Examination Questions 1992 See Caveat Inside ® PREFACE The Multistate Bar Examination (MBE) is an objective six-hour examination developed by the National Conference of Bar Examiners (NCBE) that contains 200 questions. It was first administered in February 1972, and is currently a component of the bar examination in most U.S. jurisdictions. CAVEAT! The 581 questions contained in this document appeared on MBEs administered between 1972 and 1991. Because of their dated nature, many of the questions may test principles that have been altered by changes in the law and thus are no longer suitable topics to be tested. As a result, some of the answers shown in the answer key may be incorrect under currently accepted principles of law. Further, many of these questions do not reflect the current style of MBE questions, and a number of the questions appear in formats that are no longer used on the MBE. The questions and answers in this document are provided only for the purpose of providing applicants with a sample of the range and general format of questions that appeared on previously administered MBEs, not as examples of the content currently tested or of the material to be studied for the substance of the examination. Many of these questions are currently in use, sometimes with alteration, by commercial bar review courses under a licensing arrangement with NCBE. Because these questions are available in the marketplace, NCBE is choosing to make them available online. DO NOT USE THESE QUESTIONS TO STUDY CONTENT FOR THE MULTISTATE BAR EXAMINATION!! Applicants are encouraged to use as study aids the MBE Online Practice Examinations 1 and 2, both available for purchase online at www.ncbex2.org/catalog. These study aids, which include explanations for each option selected, contain questions from more recently administered MBEs that more accurately represent the current content and format of the MBE. Copyright © 1992 by the National Conference of Bar Examiners. All rights reserved. MULTISTATE BAR EXAMINATION QUESTIONS 1992 TABLE OF CONTENTS Directions...................................... 2 Questions . 3 Answer Key .................................. 143 DIRECTIONS Each of the questions or incomplete statements below is followed by four suggested answers or completions. You are to choose the best of the stated alternatives. Answer all questions according to the generally accepted view, except where otherwise noted. For the purposes of this test, you are to assume that Articles 1 and 2 of the Uniform Commercial Code have been adopted. You are also to assume relevant application of Article 9 of the UCC concerning fixtures. The Federal Rules of Evidence are deemed to control. The terms “Constitution,” “constitutional,” and “unconstitutional” refer to the federal Constitution unless indicated to the contrary. You are also to assume that there is no applicable community property law, no guest statute, and no No-Fault Insurance Act unless otherwise specified. In negligence cases, if fault on the claimant’s part is or may be relevant, the statement of facts for the particular question will identify the contributory or comparative negligence rule that is to be applied. 2 QUESTIONS 1. Davis decided to kill Adams. He set out for in the head. Noting that Lender was getting the Adams’s house. Before he got there he saw better of the fight, Mann pointed a gun at Lender Brooks, who resembled Adams. Thinking that and said, “Stop, or I’ll shoot.” If Lender asserts Brooks was Adams, Davis shot at Brooks. The a claim against Mann based on assault, will shot missed Brooks but wounded Case, who was Lender prevail? some distance away. Davis had not seen Case. (A) Yes, because Mann threatened to use In a prosecution under a statute that proscribes deadly force. any attempt to commit murder, the district (B) Yes, unless Mann was related to Borrower. attorney should indicate that the intended (C) No, if it was apparent that Lender was victim(s) was/were about to inflict serious bodily harm upon Borrower. (A) Adams only. (D) No, because Lender was the original (B) Brooks only. aggressor by threatening Borrower with a (C) Case only. battery. (D) Adams and Brooks. 4. Peter sued Don for breach of contract. The 2. A state statute requires any person licensed court admitted testimony by Peter that Don to sell prescription drugs to file with the State and his wife quarreled frequently, a fact of no Board of Health a report listing the types and consequence to the lawsuit. Don seeks to testify amounts of such drugs sold if his or her sales in response that he and his wife never quarreled. of such drugs exceed $50,000 during a calendar The court year. The statute makes it a misdemeanor to “knowingly fail to file” such a report. (A) must permit Don to answer if he had objected to Peter’s testimony. Nelson, who is licensed to sell prescription (B) may permit Don to answer, whether or not drugs, sold $63,000 worth of prescription drugs he had objected to Peter’s testimony. during 1976 but did not file the report. Charged (C) may permit Don to answer only if he had with committing the misdemeanor, Nelson objected to Peter’s testimony. testifies that he did a very poor job of keeping (D) cannot permit Don to answer, whether or records and did not realize that his sales of not he had objected to Peter’s testimony. prescription drugs had exceeded $50,000. If the jury believes Nelson, he should be found Questions 5–7 are based on the following fact (A) guilty, because this is a public welfare situation. offense. (B) guilty, because he cannot be excused on Ames had painted Bell’s house under a contract which the basis of his own failure to keep proper called for payment of $2,000. Bell, contending in good records. faith that the porch had not been painted properly, (C) not guilty, because the statute punishes refused to pay anything. omissions and he was not given fair warning of his duty to act. On June 15, Ames mailed a letter to Bell stating, “I (D) not guilty, because he was not aware of the am in serious need of money. Please send the $2,000 value of the drugs he had sold. to me before July 1.” On June 18, Bell replied, “I will settle for $1,800 provided that you agree to repaint the 3. Lender met Borrower on the street, demanded porch.” Ames did not reply to this letter. that Borrower pay a debt owed to Lender, and threatened to punch Borrower in the nose. A Thereafter Bell mailed a check for $1,800 marked fight ensued between them. Mann came upon the “Payment in full on the Ames-Bell painting contract scene just as Lender was about to kick Borrower as per letter dated June 18.” Ames received the check on June 30. Because he was badly in need of money, 3 Ames cashed the check without objection and spent 8. The requirement that candidates for license the proceeds but has refused to repaint the porch. must be graduates of barber schools in Aurora is probably 5. Bell’s refusal to pay anything to Ames when he finished painting was a (A) unconstitutional as an undue burden on interstate commerce. (A) partial breach of contract only if Ames had (B) unconstitutional as a violation of the properly or substantially painted the porch. privileges and immunities clause of the (B) partial breach of contract whether or not Fourteenth Amendment. Ames had properly or substantially painted (C) constitutional, because the state does not the porch. know the quality of out-of-state barber (C) total breach of contract only if Ames had schools. properly or substantially painted the porch. (D) constitutional, because barbering is a (D) total breach of contract whether or not privilege and not a right. Ames had properly or substantially painted the porch. 9. The requirement that candidates for licenses must be citizens is 6. After cashing the check Ames sued Bell for $200. Ames probably will (A) constitutional as an effort to ensure that barbers speak English adequately. (A) succeed if he can prove that he had painted (B) constitutional as an exercise of the state the porch according to specifications. police power. (B) succeed, because he cashed the check (C) unconstitutional as a bill of attainder. under economic duress. (D) unconstitutional as a denial of equal (C) not succeed, because he cashed the check protection. without objection. (D) not succeed, because he is entitled to 10. Assume that a resident of the state of Aurora recover only the reasonable value of his was denied a license because she graduated services. from an out-of-state barber school. Her suit in federal court to enjoin denial of the license on 7. In an action by Bell against Ames for any this ground would be provable damages Bell sustained because the porch was not repainted, Bell probably will (A) dismissed, because there is no diversity of citizenship. (A) succeed, because by cashing the check (B) dismissed, because of the abstention Ames impliedly promised to repaint the doctrine. porch. (C) decided on the merits, because federal (B) succeed, because Ames accepted Bell’s jurisdiction extends to controversies offer by not replying to the letter of June between two states. 18. (D) decided on the merits, because a federal (C) not succeed, because Bell’s letter of June question is involved. 18 was a counteroffer which Ames never accepted. 11. Which of the following is the strongest ground (D) not succeed, because there is no on which to challenge the requirement that consideration to support Ames’s promise, candidates for barber licenses must have been if any.