Practice Problems for First Exam - Introduction to Law PDF

PRACTICE PROBLEMS (WITH ANSWERS) FOR THE FIRST EXAM INTRODUCTION TO LAW (CHAPTER 2); and THE ANATOMY OF A CIVIL TRIAL, JUDGES, COURTS AND THEIR JURISDICTION, AND ALTERNATIVE DISPUTE RESOLUTION (ADR) (CHAPTER 3) Good work and congratulations at taking a shot at some practice problems to ge...

PRACTICE PROBLEMS (WITH ANSWERS) FOR THE FIRST EXAM INTRODUCTION TO LAW (CHAPTER 2); and THE ANATOMY OF A CIVIL TRIAL, JUDGES, COURTS AND THEIR JURISDICTION, AND ALTERNATIVE DISPUTE RESOLUTION (ADR) (CHAPTER 3) Good work and congratulations at taking a shot at some practice problems to get ready for the exam!! The following are some sample practice problems for you to practice on. You will see that some of the problems are definitional type problems, while others are application type problems. You will also see that for some of the problems, I added some notes/explanation beside the answer to help you better see the “why” behind the correct answer. I also included some short answer/essay questions – even though the particular types of questions won’t be on the exam they are still a very good way to help you learn to apply the material and I highly recommend you do them. The first 24 or 25 pages or so of problems relate to Chapter 2 (Introduction to Law, which, I did not spend much time on in class because it is primarily a definitional chapter – and that’s why I am giving you lost of practice problems relating to that chapter/material). The remaining 26 or 27 pages or so of problems relate to the remainder of the material we covered (i.e., the Chapter 3 material – The Anatomy of a Civil Case; Judges; Courts and Jurisdiction; and ADR). ***Note that the majority of the problems on the exam will cover the Chapter 3 material. Do not be intimidated by the number of pages of practice problems … you can whip through these problems and pages pretty darn quickly (for the first exam I also wanted to error on the side of caution and give you plenty of problems to practice on). For whatever it’s worth … remember that even a guy like Michael Jordan, as good as he is/was, practiced simple things like free throws every day. The same lesson holds true for a class like Business Law 207. A big part of doing well in this class is proving your ability to apply (I repeat – apply) the concepts you are learning/we are studying. Doing practice problems is how you develop that skill. These are the type of problems you can expect to see on the exam. Who knows … some of them you may even see on the actual exam – a nice way to reward the students who roll up their sleeves and simply outwork the other folks in the class. Also, some students have advised me that they found it to be quite helpful to discuss and go over the practice problems with a study partner. Whatever your study strategy, push yourself to work hard and give your best effort. Good luck! -- Professor Carr 1 Chapter Two (Introduction to Law) -- Practice Problems True or False -- Circle T for True and F for False T F 1. Administrative agencies get the power to make law through a process called delegation. Answer: T T F 2. The government cannot be a party to a civil suit. Answer: F. For example, you can sue the government for money damages. T F 3. A state homicide statute is both criminal and substantive. Answer: T T F 4. To a legal positivist, morality or rightness is an essential component of any valid law. Answer: F T F 5. Because the U.S. Constitution says that the president only executes the laws, the President never makes laws. Answer: False. For example, the president can make/issue executive orders which are a type/form of law. T F 6. A treaty defeats an inconsistent state constitutional provision in case of clash between them. Answer: T. It does so because of the Supremacy Clause in the U.S. Constitution. T F 7. Today, our common law courts tend to take an instrumentalist attitude toward law, viewing it as a flexible tool for accomplishing various social purposes. Answer: T Multiple Choice – Circle the best answer. 1. Judge Dullard, an old family friend, is a trial judge in Indiana. He needs help in deciding Case A, which is now pending in his court. Because he knows that you are not yet failing your business law course (the quarter is far from over, however), he has called you for advice. Judge Dullard tells you: 2 Chapter Two (Introduction to Law) -- Practice Problems “I’m really in a quandary over Case A. There’s an Indiana statute, passed in 1982, that directly addresses the specific issue in the case, but I’ve found several Indiana Supreme Court cases from the 1960’s and 1970’s. All of those apply a common law rule that is the opposite of the rule stated in the statute. I’ve thought this over carefully, and I’m convinced that the rule contained in the statute makes for horrendous public policy, and that the common law rule is better. Can I decide Case A according to the common law rule?” What should you tell the judge? a. That he is bound by the statute because where there is a conflict between different types of law, the more recent statement of the applicable rule controls. b. That he is free to apply the common law rule, in view of the judiciary’s power to make and apply common law that is consistent with sound policy. c. That he is bound by the statute because statutes defeat inconsistent common law court made rules in case of a clash between them. d. That he must develop a new rule for Case A, because the conflicting common law and statutory rules cancel each other out. Answer: C. (And remember, statutes are passed by legislatures.) 2. The school of jurisprudence known as Legal Realism: a. Views laws as a social ordering process that reflects current American society’s dominant interests and values. b. Believes that unjust or immoral laws do not deserve to be regarded as law, and should not be enforced or obeyed. c. Would advocate obedience to any properly enacted law, regardless of whether that law is just or moral. d. Defines law as the behavior of those persons and institutions charged with enforcing and applying the law, rather that the law as it appears in written form. Answer: D 3. The common law: a. Only can change or grow through an amendment by the legislature. b. Applies only in situations that are governed by statutes or other positive law. c. Prevails over a conflicting constitutional provision. d. Is judge-made law that controls if no other type of law applies. 3 Chapter Two (Introduction to Law) -- Practice Problems Answer: D 4. Which of the following will defeat a federal administrative regulation in case of a clash between them? a. A state statute. b. A treaty. c. The common law. d. An equitable principle. Answer: B [The answer is B because a federal treaty is deemed to carry more weight/ is given a higher priority than a federal administrative agency regulation. And, remember that treaties can only be made/passed at the federal level.] 5. Which of the following jurisprudential schools would be most likely to say that judge should just follow the law as it’s written, and not worry about anything else? a. Natural law b. Legal positivism c. Legal realism Answer: B 6. In case of a clash between them, which of the following will defeat a federal administrative regulation? a. A state statute b. A state constitutional provision. c. A federal statute. d. A common law rule. e. Two of the above Answer: C [The answer is C because a federal statute is passed by congress and an administrative regulation is passed by an administrative agency. The former takes precedence over the latter if there is a conflict!!] 7. Which of the following is both civil and procedural? a. The law of negligence (which is a tort). b. A statute imposing a jail sentence for rape. c. The rules for presenting evidence at a trial. d. A statute imposing a fine for speeding. 4 Chapter Two (Introduction to Law) -- Practice Problems Answer: C. And re choice A, remember that while negligence is litigated in a civil proceeding the tort of negligence itself is substantive law, not procedural law. 8. This question lists some common statements about law. Which of those statements is most typical of natural law? a. “Justice is what the judge ate for breakfast.” b. “An immoral law isn’t really law.” c. “The law has to keep us with the changing times.” d. “You should obey the law because it’s the law” Answer: B Short Answer/Essay 1. Assume that since 2003, the following statute has existed in State X: “Any state government employee who makes personal use of state-owned paper or writing instruments, or of other similar state-owned supplies, shall be punished by having three fingers severed from each of his or her hands, and by being tarred and feathered and paraded in such condition down the main street of the town of his or her residence at 12:00 noon on the first Monday of the month following the state employee’s conviction for such offense” In addition, assume that even though the legislature of State X has left the statute in the Official Statutes of State X instead of repealing it, police and prosecutors in State X have never enforced it against any state government employee. Examine this statute, the foregoing facts, and the issues they suggest from the perspectives of each of the three schools of jurisprudence described in the text and your Cognella textbook. For each school, briefly discuss: the general approach that school would likely take to the examination of this statute (including the thing or things about the statute that would be the most interesting, important, or worthy of careful attention); and how an adherent to that school would view the validity or invalidity of the statute, including whether there is a duty to obey it (if that school of jurisprudence would make such a judgment). Answer: Legal Positivism: this school holds that law and morality are separate and distinct and that a law should be obeyed simply because it is the command of a recognized political authority. The extreme legal positivist would say that regardless of the objectionable or arguably immoral content of a law, it must be obeyed. Therefore, despite the content of the statute at issue here, an 5 Chapter Two (Introduction to Law) -- Practice Problems unwavering legal positivist would assert that the statute should be obeyed and enforced. Natural Law: This school holds that law and morality cannot be separated, that our positive law must be consistent with “higher” values, and that an unjust law is not valid law. The natural law adherent is likely to conclude that this statute is invalid and should not be obeyed. Although a problem with natural law is the question of whose notions of morality and values should be regarded as controlling, this statute’s extreme punishments would probably be regarded as immoral or unjust by virtually any breed of natural law thinker. Legal Realism: This school focuses on the frequent disparity between “law on the books” (i.e., what the unrepealed statute says) and “law in action” (i.e., what the enforcing authorities do). The legal realist asserts that the real law is revealed by what the enforcing authority does or fails to do. Here, a realist would say that even though the statute technically remains alive because it has never been repealed, the statute really is a dead letter (perhaps meaning that there is not duty to obey it) because no one enforces it. However, Legal Realists did not develop any consistent theory about the obligation to obey positive law, so we can’t say for sure what they’d conclude on this subject. As a practical matter, though, most judges who have been called legal realists would find a way to dodge this statute. 2. Laura Landowner visits Fred Halfbright, an attorney, with a problem. “My neighbor is intentionally letting his geese run over my property,” she says. “What can I do about it?” “Maybe you’ve got a suit for trespass to land,” Fred replies, “but let me do some research.” One week later, Fred tells Laura that there’s nothing he can do. “The doctrine of stare decisis says that like cases should be decided alike,” he says, “but I can’t find a real precedent for your case. I’ve been able to find intentional trespass cases involving sheep, goats, and even chickens, but I can’t find a goose case.” Has Fred intelligently applied the doctrine of stare decisis? Why or why not? Answer: No, Fred has not intelligently applied the doctrine of stare decisis. The tort of intentional trespass to land presumably exists to enable people to control conditions on the land they own (which should include a right to exclude intruders). If this is the relevant purpose, and there is a liability for trespassers by the various animals described earlier, why shouldn’t there also be liability for trespassers by geese? In other words, Fred has made what lawyers call an artificial distinction: one without a point, purpose, or moral justification. In this context, what’s the difference between intrusion by chickens and intrusion by geese? (None really.) 6 Chapter Two (Introduction to Law) -- Practice Problems 3. The U.S. Supreme Court is about to decide yet another important abortion case. Three of the court’s justices are preparing to decide the case in quite different ways. Justice Marvin Keen is carefully reading all the applicable precedents so that he can get the existing law right and apply it in this new case. Justice Emily Earnest is reading books on moral philosophy in order to make sure that her decision is ethically correct. Justice Sam Mellow is checking out the latest public opinion polls on the subject of abortion, so that his decision will be up-to-date and will give the people what they want. Which schools of jurisprudence are most clearly exemplified by the decision-making of Marvin, Emily, and Sam? Answer: Because he seeks simply to discover existing law and apply it to the case before him, Marvin basically is a legal positivist judge. Because Emily is concerned with what is morally right, and because she wants to ensure that the law also has this quality, she exemplifies natural law thinking. Because Sam wants the law to follow prevailing values and interests, he exemplifies the wing of sociological jurisprudence which says that the law ought to follow prevailing feelings and demands, whether right or wrong. Note: for the exam, don’t worry about the sociological jurisprudence school. I will only test on the schools discussed in your textbook and Cognella textbook. More True/False Practice Questions re: Chapter 2 1. Only the federal legislature can enact statutes. Answer: F [The answer is false because state legislatures can also enact statutes!] 2. Maryland Country was being sued by a former prisoner who claimed she was sexually harassed, assaulted and battered by the sheriff while being held in the county jail on a drunk and disorderly charge. This is a criminal lawsuit. Answer: F [The answer is false because this would be a civil lawsuit for money damages. Read the question closely!!] 3. The legal rights you have termed substantive law and the way you go about enforcing these rights is referred to as procedural law. Answer: T 7 Chapter Two (Introduction to Law) -- Practice Problems 4. Lacy Peters is suing Jack Smith for the intentional tort of emotional distress. Last year a similar case in this same court defined the requirements of this typical lawsuit. The prior case will have no influence on Lacy’s case. Answer: F 5. Wilfred was hit by Sally, a neighbor, when he went to confront Sally about her car blocking the entrance to his driveway. Wilfred can sue Sally in criminal court. Answer: F [The answer is false because this would also be a civil lawsuit for money damages. Also, only the state/government can bring a criminal action; not a private party, like Wilfred. Again, read the question closely!!] 6. Most administrative agencies such as FCC, INS, IRS, and EPA were created by Congress to oversee the respective legislation created by Congress. In other words, for example, the IRS was created to regulate and administer the Federal Internal Revenue Code enacted by Congress. Answer: T 7. Mitchell v. Noring is a contract case decided in 2005. The Anderson v. Holmes case being decided today is similar. The Mitchell case is a precedent. Answer: T 8. Nazi war criminals, those convicted of crimes against humanity by the international tribunal of judges at Nuremberg, were convicted by applying the principles of natural law. Answer: T More Multiple-Choice Practice Questions re: Chapter 2 1. Common law refers to: a. law that is the same or similar in all the states b. law that is made when judges decide cases and then follow those decisions in later cases c. law made by legislatures in the form of statutes d. the legal systems of European countries such as France, Germany, and Italy Answer: B 2. The three branches of government in the United States are: 8 Chapter Two (Introduction to Law) -- Practice Problems a. the executive, legislative, and administrative b. the executive, legislative, and statutory c. the executive, legislative, and judicial d. the executive, legislative, and international Answer: C 3. The doctrine of stare decisis: a. is based on English common law tradition. b. literally means “let the decision stand” c. help makes the law predictable d. All of the above Answer: D 4. Last year, Tim intentionally ran over Harry’s prize rose bushes. Judge Novack ruled that Tim must pay Harry the fair market value of the rose bushes. Today, in Judge Novack’s court, Jan says that Kristi intentionally destroyed her new apple tree. Judge Novack decides that Jan must pay Kristi the fair market value of the apple tree. This decision is an example of: a. stare decisis and contract law b. statutory law and civil law c. public law and jurisprudence d. stare decisis and civil law Answer: D 5. All powers not granted to the federal government by the U.S. Constitution are: a. retained by the states b. retained by Congress c. retained by the President d. retained by federal administrative agencies Answer: A 6. The legislature of the state of AAA makes a law that makes it a crime to assist someone in committing suicide. This law is called a(n): a. executive order b. ordinance c. statute d. stare decisis 9 Chapter Two (Introduction to Law) -- Practice Problems Answer: C 7. The President of the United States has been traveling the world, meeting with heads of foreign nations and has negotiated an agreement with regard to world environment policies. He is back in the U.S. and is asking the Senate to ratify the agreement. This is an example of: a. an executive order b. a statute, if Congress passed it c. an administrative law which will be administered by the EPA d. a treaty, if the Senate ratifies the agreement Answer: D 8. A law that violates the United States Constitution: a. is valid if Congress approves it by a super majority vote. b. is valid if the president vetoes the United States Supreme Court’s decision c. cannot be enforced by the states but could be enforced by Congress. d. cannot be enforced by any branch of state or federal government. Answer: D Because of the “supremacy clause” Because the U.S. Constitution takes in the constitution precedence over all other federal laws as well. (e.g. federal statues passed by congress; administrative rules and regulations passed by federal administrative agencies) 9. Congress enacted legislation in 1933 to regulate the securities industry and prohibit various forms of fraud with securities. The Securities Exchange Act of 1934 was passed a year later and in part created the Securities and Exchange commission as an independent regulatory entity whose function was to administer these acts, these rules and regulations are referred to as: a. statutes b. administrative laws c. executive orders d. common law Answer: B 10. Henry David Thoreau felt that war was unjust and therefore refused to pay his taxes when the United States declared war on Mexico. Thoreau felt that there was 10 Chapter Two (Introduction to Law) -- Practice Problems a higher law than the law of the land. Which theory of jurisprudence was he applying? a. Legal positivism b. Natural law c. Legal Realism d. Common law Answer: B 11. If Henry David Thoreau’s neighbor agreed that war was unjust but paid his taxes any ay because the law required him to pay the tax, then he would be applying the jurisprudence theory of: a. Legal Positivism b. Natural Law c. Legal Realism d. Common Law Answer: A 12. The United States Constitution divided power between the federal and state governments, and then divided federal power among three branches of government. Which of the following best describes this situation? a. Generally, the state constitutions are supreme, because the states were here first. b. Any power not granted to the state governments is reserved to the federal government c. The Legislative branch of the government makes statutes. d. The administrative branch of the government is charged with enforcing the nation’s laws. Answer: C 13. The notion of civil disobedience is founded on what principle? a. Legal Positivism b. Natural Law c. Legal Realism d. An individual should disobey the law when such disobedience will improve his/her own position in life. Answer: B 11 Chapter Two (Introduction to Law) -- Practice Problems 14. Jane was mugged and raped by a man who was waiting by her car, which was parked in the university parking lot. The local police apprehended the mugger. The first trial was initiated by the District Attorney’s office. Jane initiated the second lawsuit for money and damages. Classify each legal action. a. The first case was a criminal case. The second was a civil case. b. The first case was a civil case. The second was a criminal case. c. Both cases are criminal. d. Both cases are civil. Answer: A 15. Civil law regulates: a. rights and duties between persons and businesses in our society. b. behavior so threatening that society outlaws it altogether. c. only public law. d. only substantive law. Answer: A 16. Which of the following would be an example of a civil lawsuit? a. George is being prosecuted by the government for bank fraud. b. The government has initiated an action against Jeff for operating a motor vehicle under the influence of alcohol. c. Gretta hit Rita in the bar after getting a little too happy during happy hour. Rita is now suing for her injuries. d. None of the above are civil lawsuits. Answer: C 17. Curtis filed a lawsuit against Ulhoff to repay $1,000 according to the terms of a promissory note. The trial ended before it began with the trial judge granting a motion for summary judgment (i.e., remember that this is a “safety valve” motion to dismiss the case so that it does not/ is not allowed to proceed a trial.) in favor of Curtis. Ulhoff has appealed and the Supreme Court of Iowa has “remanded” the case. This means: a. Curtis automatically wins because he won in the lower court. b. Ulhoff automatically wins because he lost in the lower court. c. Neither party wins because the case is being thrown out. d. We don’t know who wins yet because the case is being returned to the trial court for additional consideration. Answer: D 12 Chapter Two (Introduction to Law) -- Practice Problems More Short Answer/Essay Practice Questions re: Chapter 2 1. The Doctrine of Stare Decisis is very important to the common law and our American Legal System. Explain how and why the common law developed, and the importance of stare decisis to it. Answer: The common law developed in England and as judges and lawyers began to record decisions, those prior cases set precedence for the cases that followed. The doctrine of stare decisis means “let the decision stand.” It makes the law more predictable, more equitable, and economizes the legal process. 2. Ralph was running for mayor of Yourtown, USA. He was in the process of knocking on residential doors, asking homeowners if he could put his campaign signs in heir front yards. Ralph was arrested under a local city ordinance, which made it a crime to put political signs in the front yards of residential homeowners even with the homeowners’ consent. Ralph claimed that the ordinance violated the U.S. Constitution’s freedom of speech. The county attorney argued that the local ordinance did not qualify as a statute, and therefore did not have to conform to constitutional principles. Who is correct? Why or why not? Answer: The term statute includes the ordinances and resolutions of the subdivisions of the state such as cities and counties. All forms of statutory law must conform to the United States Constitution. In this instance political speech is usually given a high degree of protection. However, if the city can justify its ordinance as something needed for the benefit of the general public, the statute may stand. 3. A state statute held it is illegal to make any negative comments about public officials. The Register and Chronicle printed a negative news story about a local chief of police. The chief then sued. The Register and Chronicle argued that the statute conflicted with the United States Constitution. The chief of police argued that the conflict with the United States Constitution did not matter since the statute was in line with the state constitution. What do you think? Answer: State Constitutions must not conflict with the principles of the United States Constitution. The Supremacy Clause holds that the U.S. Constitution is the supreme law of the land. 4. Give an example of how English legal history is intertwined with our current American legal institutions. Answer: The Doctrine of Stare Decisis, the use of a jury system, the use of mediation, the concept of collective responsibility, land is unique, and 13 Chapter Two (Introduction to Law) -- Practice Problems knowing and attacking procedural law is just as important as knowing the substantive law. 5. In 1993, President Clinton lifted the so-called “gag rule” which forbid abortion counseling in federally funded family planning clinics. From what source did President Clinton derive this power? Answer: This is an example of an executive order. An executive order is an order issued by a member of the executive branch of the government. This power is delegated by the legislative branch and is implied from the U.S. Constitution. 6. Peggy Lou filed a lawsuit against “We Fix ‘Em Rite”, an auto body shop, for the sloppy paint job it did on her 2000 BMW. Once the lawsuit was filed with the appropriate clerk of court, Peggy Lou personally dropped a copy of the lawsuit in the mail. “We Fix ‘Em” says it never received notice of the lawsuit. Local court rules require that a lawsuit be served by an independent process server or by the sheriff’s department. Is this an example of substantive law or procedural law? Explain the difference. Answer: This is an example of procedural law. It is the law that establishes the process for conducting the lawsuit. In this instance, the rule specifying the method and manner of service of process is to make sure that the defendant does in fact have notice of the lawsuit. The sheriff’s department or the process server would submit an affidavit to verify the defendant was given notice of the pending lawsuit. 7. The Civil Rights Act of 1964 made discrimination on the basis of race, sex, religion, and national origin illegal in employment practices. The Equal Opportunity Commission (EEOC) was created by Title VII of the Act. The role of the EEOC is a federal Agency that investigates claims of unlawful employment discrimination. If there is a finding of reasonable cause to believe the charge is true, the EEOC may negotiate a settlement on behalf of the injured party or may bring suit to stop the unlawful activity. How would you best describe these rules and regulations that govern the operations of the EEOC? What type of law is this? Answer: The EEOC is a federal administrative agency created by Congress to investigate and if necessary litigate Title VII disputes. First the EEOC will conduct a preliminary investigation to determine if there is a probable cause of discrimination. If there is probable cause, then the EEOC will attempt to eliminate the unlawful practice through informal methods. If that doesn’t work the EEOC has the authority from Congress to file suit in the appropriate federal court. The EEOC must investigate the claim first before the claimant can file a suit in federal court. These are administrative laws. 14 Chapter Two (Introduction to Law) -- Practice Problems 8. Larry, Curly, Moe, and Shep were stranded on a mountainside after their plane went down in a snowstorm. They had no means of radio communication and virtually no food or other supplies. After 18 days, Larry and Curly killed Shep, the weakest survivor. Larry, Curly, and Moe ate him. This allowed all three to survive until they were rescued. After the three were rescued, they were all charged with premeditated first-degree murder under the relevant state statute. Discuss the three schools of jurisprudence and how each would influence a finding of guilt or innocence for the three charged. Answer: The three theories of jurisprudence are legal positivism, natural law, and legal realism. The legal positivism would say the law is the law. Therefore, Larry and Curly are guilty and must pay the consequences of the state statute. If there is also a statute that makes one a principal of the crime even though he did not actually do the killing, then Moe could also be convicted. The natural law supporter would argue that in this instance the law is unjust and need not be obeyed because of the desperate circumstances of the men. The legal realists would argue that the case will be influenced by the judges’ and jury’s income, education, family background, race, religion, and other factors which they bring to the case. 9. In the early morning hours of June 7, Willie Pruitt and Daniel Lopez were in and around a Hy-Vee Food Store. While on the Hy-Vee premises, Pruitt displayed a knife and shoved a customer entering the store. At least one Hy- Vee employee, who was familiar with Pruitt and Lopez, spoke with them and determined they had been drinking and had weapons. Pruitt and Lopez left the Hy-Vee and went to the Kwik-Shop convenience store next door. It was there that Pruitt and Lopez got into a fight with Thomas Davis. Davis was pumping gas into his car at the Kwik-Shop when Pruitt approached him and the fight ensued. Lopez stabbed Davis in the back paralyzing him. Davis brought an action against Kwik-Shop and Hy-Vee alleging that each store had a duty to control Pruitt and Lopez and to protect him from harm. Is this lawsuit a civil or criminal lawsuit? What are the characteristics of each type? Answer: This is a civil lawsuit in tort. The characteristics of a civil lawsuit include the following: --The lawsuit is to determine the duties between parties. --The source of tort law is generally common law. 15 Chapter Two (Introduction to Law) -- Practice Problems --Money damages are typically sought. A money judgment is paid by one party to the injured party. Criminal lawsuits: --The government prosecutes the lawsuit. --Incarceration and/or fines are possible outcomes. --The burden of proof is stricter; beyond a reasonable doubt. In a civil case, it is beyond a preponderance of the evidence. More True/False Practice Questions re: Chapter 2 1. The Doctrine of stare decisis, though vital to the creation of the common law when this country was settled, is not important to our modern, complex society. Answer: F 2. The largest source of new law is created by court decisions. Answer: F. The answer is false because Congress (through statutes) and/or administrative agencies (through rules and regulations) are probably the source of the most newly created law. However, remember that courts/ court decisions are/remain darn important because, for example, many times Congress or administrative agencies pass statutes/regulations that have gaps in them, terms that are ambiguous, etc., and they look to courts (via their written appellate decisions) to fill in these gaps, interpret vague and ambiguous statutes, etc. 3. If a statute is clearly worded and not subject to more than one interpretation, a court does not have the power to invalidate it. Answer: F [If it’s unconstitutional (meaning it violates the federal or a state constitution), then a court can still invalidate it/strike it down!] More Multiple-Choice Practice Questions re: Chapter 2 1. The concept of stare decisis focuses most on: a. precedent. b. flexibility. c. legislative intent. d. change. Answer: A 16 Chapter Two (Introduction to Law) -- Practice Problems 2. Statutory law is to legislative bodies as common law is to: a. England. b. precedent. c. judges. d. administrative regulations. Answer: C 3. An administrative regulation: a. has the same legal effect as a statutory law created by Congress. b. is legally binding on the specific businesses targeted by the regulation but is not binding on non-specified individuals. c. has no legal effect until ratified by a court. d. can only be interpreted and enforced by the administrative agency that created the regulation. Answer: A More Short Answer/Essay Practice Questions re: Chapter 2 1. What is meant by the term “stare decisis”? Answer: It is a Latin term that means to “stand on decided cases” or “let the decision stand.” The term refers to the practice of courts following precedent cases when deciding on current cases involving similar facts and legal principles. 2. Sometimes it is said that statutory law really means little until it has been tested by the Courts. Explain. Answer: Statutory law, also known as codified or black letter law, may be subject to various interpretations until it is finally brought before a court. The court will determine if the statute is constitutional (if the law is challenged on that ground) and will interpret its application relative to the fact situation presented. Once done, this creates precedent and gives the public, lawyers and other judges as to how the law has been interpreted by the court. Other courts may interpret the law slightly differently given different fact situations; however, via the process of judicial review the statute becomes binding relative to the way in which the courts have interpreted it. 17 Chapter Two (Introduction to Law) -- Practice Problems 3. Administrative agencies are sometimes referred to as the fourth branch of government. Explain. Answer: In reality, most businesspersons have much more contact with and need to be more aware of various administrative regulations that directly affect their business operations as opposed to general principles of law. Thus, a business that wishes to sell food at retail must comply with many, many regulations before it can open the business and to stay in business. Since Congress (and state, county, and municipal) agencies have grown so much over the years and have so much power over the daily operations of business, such agencies are sometimes called by some as our fourth branch of government. More True/False Practice Questions re: Chapter 2 1. Law is a body of enforceable rules governing relationships among individuals and between individuals and their society. Answer: T 2. Proponents of natural law believe that government and the legal system should reflect universal moral and ethical principles that are inherent in human nature. Answer: T 3. The natural law philosopher assumes that people have created laws because there is no ideal state of being. Answer: F 4. The positivists believe that there can be no higher law than a nation’s positive law — law created by a particular society at a particular point in time. Answer: T 5. The body of rules that evolved in the king’s court, called the curia regis, was the beginning of the common law — law that was common to the entire realm. Answer: T 6. Judges use precedent when deciding a case in common law legal system. Answer: T 7. The doctrine of stare decisis helps makes the law more stable and predictable. 18 Chapter Two (Introduction to Law) -- Practice Problems Answer: T 8. Stare decisis is a doctrine obligating judges to follow precedents established within their jurisdictions. Answer: T 9. A court may sometimes depart from a precedent whenever it decides that the precedent is no longer correct in view of changed technology. Answer: T 10. If there is no precedent on which to base a decision, a court may consider legal principles and policies, fairness, social values, public policy, and concepts from the social sciences. Answer: T More Multiple-Choice Practice Questions re: Chapter 2 1. Which of the following is not true of the “law”? a. “Law” governs relationships among individuals. b. “Law” governs relationships between citizens and their governments. c. “Law” includes rules of conduct prescribed by private organizations to govern their members. d. “Law” includes rules of conduct prescribed by the controlling authority of a society. Answer: C 2. The common law began a. in the Islamic courts of predominantly Muslim countries b. as part of Roman law c. as a body of general rules that was applied in the courts throughout England. d. As a group of legal principles enacted by continental European nations. Answer: C 3. The general body of law that evolved from the king’s court (curia regis) after the Norman Conquest of England in 1066. 19 Chapter Two (Introduction to Law) -- Practice Problems a. is referred to as the common law. b. was first developed in Rome. c. is referred to as the civil law. d. Was first developed in the Islamic courts. Answer: A 4. In the case of Simmons v. Hart, decided in 2005, a state supreme court held that a minor (i.e., someone under the age of 18) could cancel a contract for the sale of a car. A similar case, Chavez v. Jones, is being decided today by a trial court in the same state. If stare decisis is used to decide the Chavez case a. the court will probably allow the minor to cancel the sale. b. the court will probably not allow the minor to cancel the contract. c. It is impossible to tell because the Simmons case has nothing to do with the Chavez case. d. It is impossible to tell because the Simmons case is not a precedent for the Chavez case. Answer: A 5. The doctrine of stare decisis a. applies only to decisions rendered by the Supreme Court of the United States. b. prevents a court from following a rule it established at an earlier date in a case with similar issues and facts. c. prevents different states from following different precedents once one state has established a rule of law. d. none of the above. Answer: D 6. Which of the following descriptions of stare decisis is false? a. It makes a law less predictable. b. It helps courts to be more efficient. c. It makes the law more stable. d. None of the above. Answer: A 7. If there is no precedent on which a court can base a decision, the court can consider a. legal principles underlying previous court decisions or existing statutes. b. social values and customs. 20 Chapter Two (Introduction to Law) -- Practice Problems c. public policy. d. all of the above. Answer: D 8. When there is a case with no binding precedent, a court a. cannot refuse to decide a case b. can postpone deciding the case. c. can postpone deciding the case until there is a precedent. d. can postpone deciding the case indefinitely. Answer: A 9. A state law that violates the U.S Constitution a. can be enforced by that state’s government only. b. can be enforced by the federal government only. c. can be enforced by the United States Supreme Court only. d. cannot be enforced. Answer: D 10. Which of the following is not a source of law? a. State constitutions passed by popular vote. b. Ordinances passed by a city council. c. Rules issued by an administrative agency. d. Rules issued by a chamber of commerce. Answer: D 11. Legislation is a synonym for a. statutory law. b. stare decisis. c. administrative law. d. case law. Answer: A 12. Which of the following is the highest-ranking (superior) law? a. A statute passed by a state legislature b. A rule created by a state administrative agency c. A case decided by a state court 21 Chapter Two (Introduction to Law) -- Practice Problems d. A provision in a state constitution Answer: D [The answer is D because all the other listed choices are deemed to have a lower priority/ importance than the state constitution.] 13. Civil law is concerned with disputes between a. persons only. b. persons and the public as a whole only. c. persons and between citizens and their governments. d. persons and between persons and the public as a whole. Answer: C. Note that in this question the word “persons” can/does also mean consumers, businesses, etc. 14. Which of the following cases would involve private law? a. A citizen refuses to pay income tax. b. A person sues another person to recover for injuries received in an automobile accident. c. A person is arrested for burglary. d. A citizen refuses to vote. Answer: B 15. There is a word that explains why administrative agencies and chief executives have the power to make administrative regulations and executive orders. What is it? a. Inherent authority. b. Delegation. c. Stare Decisis. d. Executive power. Answer: B 16. Which of the following types of law is made by legislature? a. Administrative regulations. b. Executive orders. c. Statutes. d. Two of the above. Answer: C. Note that administrative agencies, which are created via acts of legislatures, create/make administrative rules and regulations. 22 Chapter Two (Introduction to Law) -- Practice Problems 17. Which of the following defeats a federal statute in case of a clash between them? a. A state statute. b. A state constitution. c. An equitable principle. d. None of the above. Answer: D 18. Which of the following is both civil and substantive law? a. A state’s common law contract law. b. A state murder statute. c. A state’s rules for the conduct of a civil trial. d. A state’s rules for appealing a civil judgment. Answer: A [Note: ‘B’ is criminal and substantive. ‘C’ is civil and procedural. ‘D’ is also civil and procedural.] 19. Legal positivists typically say that: a. An unjust law is not law. b. Validly enacted laws should be obeyed, just or not. c. The law should keep up with the changing times. d. Justice is what the judge ate for breakfast. Answer: B 20. Which of the following statements is most typical of legal realists? a. “Law is the command of the supreme law-making authority.” b. “The first requirement of a sound body of law is that it corresponds with the actual feelings and demands of the community, whether right or wrong.” c. “What legal decision-makers actually do is more important than the legal rules written down in books” d. “An immoral or unjust law is not a law at all.” Answer: C 21. The doctrine of stare decisis: a. Says that courts should follow the plain meaning of statutes and not worry about anything else. b. Says that courts should look at legislative history when interpreting statutes. c. Says that common law rules, once established, can never change. 23 Chapter Two (Introduction to Law) -- Practice Problems d. Says that, in common law cases, like/similar cases should be decided alike. Answer: D More Short Answer/Essay Practice Questions re: Chapter 2 1. Classify a state’s law of contracts in terms of the following three opposed classifications: civil/criminal, substantive/procedural, and public/private. In each case, justify the choice you made. Answer: Contract law is civil because it governs disputes between private parties. It is substantive because it creates rights and duties that affect people as they act in a society. It is private because it sets out a framework of legal rules that let people determine their own rights against, and obligations toward, each other. 2. Stare decisis says that like cases should be decided alike. Yet the text and your Cognella textbook says that stare decisis enables the common law to evolve and change. How can this apparent inconsistency be resolved? Answer: Stare decisis lets courts distinguish prior cases. But it is always possible to distinguish a prior case because some fact always differs from the present case. That being so, courts can set up new rules to handle particular kinds of cases while still following — or pretending to follow — stare decisis. One example is the familiar technique of “limiting a precedent to its facts.” 3. It is the year 2012, and a Supreme Court is about to issue a decision on the constitutionality of a state statute forbidding sexual relations between humans and animals. Rita Righteous, a Supreme Court justice, was well known for her natural law views before she arrived on the court, and she still holds them. From this fact alone, can you predict how Rita will vote on this issue? If not, what else would you need to know? Assume that under natural law principles, it is all right for judges to let those principles dictate how they will decide legal matters. Answer: No, we cannot predict Rita’s decision merely the fact that she believes in natural law. The crucial thing here is the content of her natural law. If it has a strong libertarian content — if it involves strong natural rights of a “personal” nature — this would push toward invalidating the statute. But if she adheres to a form of natural law (Aquinas’ conception?) that would condemn sexual 24 Chapter Two (Introduction to Law) -- Practice Problems relations with animals, then she would regard the statute as a just law that ought to be enforced and obeyed. 25 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems True False Practice Questions Re: Chapter 3 1. Only a state court can refuse to enforce a state statute that, in the court’s view, violates the Constitution. Answer: F [The answer is false because a federal court can also do so.] 2. Jurisdiction relates to the power of a court to hear and decide a case. Answer: T 3. A long arm statute is a law that permits courts to obtain jurisdiction over non- resident (i.e., out of state) defendants. Answer: T 4. In rem jurisdiction enables a court to exercise jurisdiction over property owned by a defendant. Answer: T 5. In rem jurisdiction refers to the power of a court to enter a personal judgment against a party to the action. Answer: F [As to why this is false, see No. 4 above.] 6. Only cases involving federal questions (i.e., questions of federal law) can originate in federal courts. Answer: F [Cases can also originate in federal courts under and pursuant to diversity jurisdiction.] 7. One basis for federal court jurisdiction over a case is “diversity of citizenship” with more than $75,000 being involved. Answer: T 8. For purposes of diversity of citizenship, a corporation is a citizen only of the state in which it is incorporated. Answer: F [See the master/study outline in your Cognella textbook on diversity jurisdiction] 26 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems 9. A cause of action based on the Constitution, a treaty, or a federal statute is said to involve a “federal question.” Answer: T 10. Appellate courts normally examine the record of the case on appeal and determine whether the trial court committed an error of law. Answer: T 11. An arbitrator’s decision typically is binding on the parties, while a mediator’s decision is not. Answer: T 12. One of the purposes of the pretrial conference is to get the parties to stipulate (i.e. agree) to facts that are not in dispute. Answer: True. Remember this is the part of the case where the court/judge set the case for trial, address any housekeeping matters that remain in the case, tries to get the parties to agree to narrow the issues and/or facts in dispute in the case, maybe pressures the parties to settle, may pressure the parties to go to ADR, etc. 13. A party who receives a favorable judgment after a trial cannot appeal that judgment. Answer: F [E.g., technically, a plaintiff who obtains a favorable $$$ jury verdict — but not as high/favorable as he/she hoped — can appeal that award!] 14. With respect to alternative dispute resolution [ADR], the trend is toward the use of ADR as an alternative to civil lawsuits. Answer: T 15. In the mediation process, the mediator proposes, selects, and imposes a solution on the parties. ? Answer: False. The mediator can’t impose anything – only “suggest”/pressure the parties to come to an agreement/settlement. 16. A mini-trial is a procedure used by courts to reduce caseloads. Answer: False. A mini trial is a form of ADR that the parties agree to use/undertake to settle their dispute. 17. Arbitration decisions may be legally binding. 27 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: T 18. In certain instances, an arbitration award may be set aside. Answer: T [E.g., where there was a fraud by one of the parties at the arbitration, the arbitrator was biased or corrupt, there is a significant error of law that appears on the face of the arbitrator’s written arbitration award, etc.] 19. Increasingly, the courts are requiring that parties attempt to settle their differences through some form of alternative dispute resolution [ADR] before preceding a trial. Answer: T 20. The two primary methods of dispute resolution are litigation and mediation. Answer: F [It’s litigation and arbitration.] 21. The majority of disputes are resolved by negotiation. Answer: T. Think of negotiation as part of the “bargaining in the shadow of the law” process!! 22. Arbitration is always faster and cheaper than litigation. ? Answer: F [See the three San Francisco Chronicle articles that I inserted in your Cognella textbook. Those articles make clear that it’s not “always” cheaper and faster.] 23. A trial court is the ONLY court that hears testimony from witnesses, receives evidence, may have a jury, etc. Answer: T [Appellate courts (which are not trial courts) don’t/won’t do this, i.e. re-litigate the case.] 24. The person who files or requests an appeal is called the “appellee” Answer: F [It’s “appellant”; the person/party who did not appeal is called the “appellee”] 25. A motion to dismiss can be filed by one of the parties provided the parties agree on all the facts of the case. 28 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: F [This question is a red-herring. “Agreeing on all the facts of the case” has nothing to do with whether a motion to dismiss can be filed by a party.] 26. In a civil case, the plaintiff must prove her case beyond a reasonable doubt. Answer: F [It’s “beyond a preponderance of the evidence.”] 27. Jury instructions are read by the judge to the jury before the attorneys make their closing arguments. Answer: F [They are read right after the closing arguments] 28. An appeals court can rule that a trial court’s ultimate ruling/decision was correct even if the trial court made some minor errors during the trial. Answer: T 29. A decision in a case decided in a U.S. district court is final. Answer: F [One can appeal from the U.S. district court to a U.S. court of appeal!] 30. U.S. district courts have appellate jurisdiction in federal matters. Answer: F [U.S. District courts don’t; U.S. Courts of appeal have such jurisdiction!] 31. Decisions in cases decided in U.S. courts of appeal are final. Answer: F [This is false because one could still appeal to the U.S. Supreme Court!] 32. The United States Supreme Court can review any decision by any U.S. court of appeal. Answer: T 33. In certain cases, the United States Supreme Court must issue a writ of certiorari. ? Answer: F [Not “must … it “may!] 34. The refusal by the United States Supreme Court to issue a writ of certiorari unless at least four justices approve of it is called the “rule of four.” Answer: T 29 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems 35. An answer can deny, but cannot admit, the statements or allegations set out in a complaint. Answer: F [See the master/study outline in your Cognella textbook on complaints and answers.] 36. There is no difference between depositions and interrogatories. Answer: F [Depositions = oral questions answered under oath; interrogatories = written questions] 37. State appellate courts review the trial court record to determine whether the trial court correctly found the facts. Answer: F [They can only review the record to determine whether the trial court made an error of law, not whether it made an error of fact.] 38. For federal district court diversity jurisdiction to exist, the amount in controversy must exceed $75,000. Answer: T 39. In rem jurisdiction is based on the fact that property of the defendant is located within the state. Answer: T 40. Interrogatories are a form of discovery requiring a party to submits to the other side/party written answers to written questions submitted to him. Answer: T 41. State court “long-arm” jurisdiction is in personam jurisdiction. Answer: T 42. For a state trial court to have the power to decide a case, it must have been both in personam jurisdiction and in rem jurisdiction. Answer: F [You only need one of them (and subject matter jurisdiction, of course).] 43. In response to the plaintiff’s complaint, the defendant must timely file a pleading called the answer. 30 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: T 44. One difference between arbitration and mediation is that an arbitrator’s decision binds the parties, while a mediator’s does not. Answer: T 45. A federal statute can preempt state law only when the statute explicitly says that it preempts state law. Answer: F 46. A court that is without subject matter jurisdiction cannot render a judgment which binds the parties in the case. Answer: T 47. Suppose that P, who lives in State A, wants to sue D, who lives in State B. The only way that P can sue D is to use the federal courts’ diversity jurisdiction. Answer: F [This is false because P could sue using federal question jurisdiction (assuming the requirements of it were satisfied); or, state court jurisdiction/sue in state court (again, assuming the requirements were satisfied).] 48. The Supreme Court must decide all appeals coming from the federal courts of appeals. ? Answer: F [This is false because the Supreme Court has the option — it “may” (via its certiorari power/jurisdiction) elect to hear/take/decide a case.] 49. As a general rule, trial courts decide both questions or law and questions of fact. Answer: T Multiple Choice Practice Questions Re: Chapter 3 1. The federal district courts: ? a. Hear appeals from the federal courts of appeals. b. Only hear cases that involve questions of federal law. c. Do not make factual determinations and only consider legal issues. d. None of the above. 31 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: D [Re: B remember that they also hear and decide diversity cases! Re: C remember that appellate court do this, not trial courts like federal district courts.] 2. Which of the following motions, if granted by the judge, basically “takes the case away from the jury” and gives a judgment to one party during the trial (i.e., while the trial is still in progress)? a. The motion to dismiss. b. The motion for summary judgment. c. The motion for a directed verdict. d. The motion for a new trial. Answer: C. Remember that this is the motion normally made by the defendant in open court right at the end of/when the plaintiff finishes putting on his/her case. 3. Which of the following is the pleading that the defendant normally files in response to the plaintiff’s complaint? a. The reply. b. The answer. c. The counterclaim. d. The interrogatory. Answer: B 4. Which of the following will give a state trial court the power to hear a civil case? a. Diversity jurisdiction and in rem jurisdiction. b. Subject-matter jurisdiction and in rem jurisdiction. c. In personam jurisdiction and in rem jurisdiction. d. Long-arm jurisdiction and in rem jurisdiction. Answer: B [See the master/study outline in your Cognella textbook for the details as to why the answer is B. Note that diversity and federal question jurisdiction relate to federal courts, not state courts!!] 5. Which of the following is not a recognized method of alternative dispute resolution (ADR)? a. The mini-trial. b. Court-annexed arbitration. c. Summary judgment d. Summary jury trial. 32 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: C [Remember that C is a motion that one of the parties brings before the trial starts and after discovery closes; it’s not a form of ADR!] 6. Which of the following normally comes latest in the course of a civil case? a. The answer. b. The motion for a directed verdict. c. The motion for a summary judgment. d. The motion to dismiss. Answer: B 7. Potter sues Davis for “aesthetic pollution.” The basis for his suit is Davis’s extreme ugliness. Potter’s complaint details Davis’s ugliness in many separate, numbered paragraphs. Potter’s suit, however, does not stand a chance, because no legal rule requires one to pay damages for being ugly and for causing aesthetic dissatisfaction to some other party. Thus, Davis wants to defeat Potter’s case as fact as possible. His best procedural device for doing so is: a. The answer. b. The motion to dismiss for failure to state a claim upon which relief can be granted (or demurrer). c. The motion for summary judgment. d. The motion for judgment notwithstanding the verdict. e. Discovery. Answer: B 8. Don is upset about the computer his company purchased from Computers, Inc. Don and the attorney for Computers, Inc. agreed to let Laurie, an expert in computer technology, work with them to help settle the dispute. Laurie discusses the matter with both sides and after a few weeks of shutting back and forth between parties, is successful in helping the parties reach a solution. This is an example of: a. negotiation. b. mediation. c. arbitration. d. all of the above are correct. Answer: B 9. What is a commonly touted (i.e., purported) advantage of alternative dispute resolution as compared to litigation? 33 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems a. ADR is cheaper and faster than a formal lawsuit. b. ADR allows the parties to reach an agreement to their problem that will be mutually satisfactory to both parties. c. ADR takes away the fear of “total defeat” so often present in litigation and allows both sides to work together to reach a mutually agreeable settlement. d. ADR allows a third party, often a non-lawyer, to get involved in the dispute and work to resolve the problem. e. All of the above. Answer: E 10. Which of the following types of ADR is most formal? a. Mediation b. Negotiation c. Mini trial d. Arbitration. Answer: D 11. “Jurisdiction” refers to: a. the proper geographic place to file a lawsuit. b. the authority of a court to decide a particular type of case. c. the study of law. d. all of the above are correct. Answer: B 12. Which of the below statements is correct? a. ADR, with exceptions, is a voluntary process on the part of both sides. b. ADR allows the parties more latitude to discover information about the other side than does formal litigation procedures. c. ADR eliminates the need for lawyers to be involved in the resolution of disputes. d. ADR has been criticized as a process that forces the parties to reach a solution may be unsatisfactory to both since neither party wishes to risk going to court. Answer: A 13. Tonya slipped and hurt herself in a Mega Toy Store. Mega Toy Store is incorporated in Delaware. Its principal place of business (headquarters) is Nevada. It has stores in every state. Tonya is also a resident of Nevada but fell in a Mega Toy Store located in Arizona. Tonya’s medical bills alone were nearly 34 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems $150,000. Of the choices listed below, if Tonya decides to sue Mega Toy Store for negligence (a state law claim): a. she may file her lawsuit in Nevada state court. b. she must file her lawsuit in a federal court in Nevada given these facts. c. she must file her case in federal court in Arizona, where the accident took place d. since this is a personal injury lawsuit (for negligence) and not a case involving a question of federal law, Tonya cannot file her case in Delaware state court. e. Tonya must file her case in a Nevada state court. Answer: A [See the master/study outline in your Cognella textbook on jurisdiction for details as to why the answer is A. Also pay attention to the “must” vs. “may” words and distinction!] 14. Big Corp. is incorporated under Nevada law and has its principal place of business in Texas. Adam, a resident of Texas, wants to sue Big Corp. relative to a product liability claim (a state law claim). Adam is suing for $1 million. The injury occurred in Texas. Under these facts ________: a. Adam may sue Big Corp. either in a Texas state court or a Texas federal court. b. Adam must sue Big Corp. in a federal court. c. Adam may sue Big Corp. in a Texas state court but Big Corp. can file a motion to dismiss and have the case removed or transferred to a federal court in Nevada. d. Adam must sue Big Corp. in a Texas state court. Answer: D [Again, see the master/study outline in your Cognella textbook on jurisdiction for details.] 15. About how many cases does the United States Supreme Court actually decide to hear in any given year? a. 30 to 40 b. Roughly 50 c. Roughly 80 d. 150-160 Answer: C 16. Which of the following discovery technique can only be used against the opposing party (not a witness)? a. Interrogatories. b. Request for admissions. c. Physical or mental examinations. 35 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems d. All of the above are correct. Answer: D 17. A court can enter a summary judgment (i.e., grant a party’s motion for summary judgment) only if: a. both sides have clearly stated their arguments and their version of the facts. b. both sides have agreed on the appropriate law to be applied but disagree as to the facts surrounding the case. c. both sides agree on the facts surrounding the case but disagree on the appropriate law to be applied. d. both sides agree on the facts surrounding the case and how the law should be interpreted relative to the facts. Answer: C 18. A jury trial would not be allowed in: a. a lawsuit claiming money damages resulting from a breach of contract. b. a bankruptcy case. c. a criminal case involving a minor offense. d. a case wherein the plaintiff claims she was the victim of defamation. Answer: B [The answer is B because all bankruptcy cases are heard in a specialized court — U.S. bankruptcy court, and there/in such cases you are not entitled to a jury trial as a matter of right (as to why — to make a long story short it’s just a policy decision that Congress made long ago.)] 19. Roxanne was injured when she fell in a hole while walking across her landlord’s parking lot. She and her lawyer hope they can settle Roxanne’s claim. Which of the following statements is correct about settlements? a. A case can be settled provided it has not been formally filed with the court. b. A case can be settled provided that formal discovery has not yet commenced. c. A case can be settled provided the jury has not been formally sworn in by the judge. d. A case can be settled at any time. It can be settled between parties even if the jury has heard all the evidence and is contemplating a decision. Answer: D 20. In a civil case, the plaintiff must prove her case by evidence showing she is: 36 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems a. entitled to prevail on her claim on grounds that she is, at a minimum, slightly more entitled than the other party to prevail. b. clearly entitled to prevail on her claim. c. entitled to prevail on her claim by clear and convincing evidence. d. entitled to prevail on her claim beyond a reasonable doubt. Answer: A [The answer is ‘A’ because this is the preponderance of the evidence standard. It’s just rephrased/in different words!!] 21. John witnessed a terrible car accident. Unfortunately, john has an advanced terminal illness and may not be alive at the time of the trail. The best discovery method to use relative to getting John’s information to a jury is: a. interrogatories. b. a videotaped deposition. c. send him a request for production of documents. d. for John to tell his minister what happened so the minister can tell the jury what John said. Answer: B 22. Does a jury hearing a civil case have to reach a unanimous verdict? a. Yes. b. It depends on state law. In some states a unanimous verdict is required; in other states it is not. c. It depends on whether or not the parties can agree to have their case decided by less than a unanimous verdict of the jury; if not, then the decision must be unanimous. d. No. Every state has passes legislation allowing for a super majority of the jury to be sufficient in a civil case. Answer: B [Note: In California we require verdicts to be at least 9-3 (we have, usually, 12-member jury panels in civil cases); Note: that in criminal cases, the verdict must be unanimous!] 23. When an appellate court hears a case: a. it will hear the testimony of key witnesses. b. it will listen to oral arguments of the attorneys and read briefs completed by each attorney. (Not testimony) c. it will review the transcript of the trial and review the court file to determine whether the facts were correctly determined by jury. d. all of the above are correct. (Nope, it’s whether the trial court correctly determined the law, not the facts!) 37 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: B 24. A person can be selected as a juror: a. only if she has no knowledge of the cases. b. only if she does not know either of the parties, the attorneys, or witnesses to be called. c. only if she has not read or heard about the case and has a preconceived notion of who is at fault. d. only if she has the ability to reach an impartial decision based on the evidence of the case. Answer: D 25. Immediately after the plaintiff has finished presenting her case to the judge/jury at trial, the defendant may move for a a. motion for a directed verdict. b. motion for a summary judgment. c. motion for a judgment n.o.v. (notwithstanding the verdict). d. motion for a judgment on the pleadings. Answer: A 26. Randi lives in Oregon. She was involved in a car accident while in Idaho. The man who hit her car lives in Wyoming and he has never been to Oregon or done business there. Randi wishes to sue the man for negligence (i.e., a claim that arises under state law, not federal law) to recover the $28,000 it cost to repair her car. Of the choices listed below the most appropriate court for her to file her lawsuit in is: a. in a federal court in Idaho. b. in a state court in Oregon. c. in a state court in Wyoming d. in a federal court in Oregon. Answer: C [See master/study outline in your Cognella textbook as to why the answer is C. Remember that the defendant lives in Wyoming so obviously a state court in Wyoming has personal jurisdiction over him!! The plaintiff (Randi) obviously won’t be excited to go to Wyoming and sue, but that is her only choice under the listed answer options to the question. Also, remember that the defendant could be sued in a STATE court in Idaho (as the accident took place there and per Idaho’s long arm statute), but that is not one of your answer options in the question!! The defendant can’t be sued in Oregon because he does not live there, nor did 38 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems he go there and conduct any business activities (and therefore Oregon’s long arm statute can’t be used against him!).] 27. Your next-door neighbor is a resident of your state. One night, he drives over a portion of your property causing substantial damage to your lawn. You could sue your neighbor in your state court. a. only if your state has a long arm statute covering automobile accidents. b. only if your state has a probate court. c. by asking the court to assert in personam jurisdiction over you neighbor. d. by asking the court to assert in rem jurisdiction over your neighbor. Answer: C [Again, as to why the answer is C, see the master/study outline in your Cognella textbook on jurisdiction.] 28. For a court to exercise valid authority over a case. a. the defendant must expressly consent. b. the court must have jurisdiction. c. there must be a pretrial hearing. d. there must be discovery. Answer: B 29. A long arm statute enables a. a federal court to decide certain states cases. b. a state court to decide certain federal law claims. c. a court of one county to decide claims arising in another county. d. a state court to decide certain claims against non-residents. Answer: D 30. To bring a case before the United States Supreme Court, a party asks the court to issue a writ of a. diversity of citizenship. b. certiorari. c. appeal. d. either b or c. Answer: B 31. The United States Supreme Court may review a lower court decision that a. a state law is unconstitutional. 39 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems b. an act of Congress is unconstitutional c. a federal law is unconstitutional. d. all of the above. Answer: D 32. In a California court, Smith files a suit against Jones, who lives in New York. The dispute concerns an office building in Los Angeles. In this suit, the California court has a. in personam jurisdiction over the parties. b. in rem jurisdiction over the property. c. both a and b. d. none of the above. Answer: B [See the master/study outline in your Cognella textbook. This is an example of in rem jurisdiction – note that the subject of the lawsuit is property (an office building).] 33. Mark has lived on a parcel of land for thirty years, believing that he owns it. Now Mary, who is the resident of another state, appears, claiming she owns it. Mark wants a court to decide who owns the land. This could be done based on a. in rem jurisdiction. b. in personam jurisdiction. c. subject matter jurisdiction. d. none of the above. Answer: A [See comment at No. 32 above. Ditto.] 34. Diversity of citizenship is a basis for a. federal district courts to exercise original jurisdiction. b. federal appellate courts to exercise original jurisdiction. c. the Congress to exercise original jurisdiction. d. any court to exercise in rem jurisdiction. Answer: A 35. A federal district court has the power to resolve an automobile accident lawsuit if a. the amount in question is at least $75,000. b. the plaintiff and defendant are from different states. c. both a and b. d. none of the above. 40 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: C 36. A state superior court can hear a case even if it involves a. citizens of two different states. b. more than $75,000. c. a question involving the application of state law. d. all of the above. Answer: D. Now, as a practical matter the case might be filed by the plaintiff in a federal court, but, note under this question and these facts, if the plaintiff so chose, he/she could file the case in state court. 37. Under our legal system, it is possible that a particular lawsuit could be heard a. only by a state governor. b. only by the attorney general. c. in either a state court or a federal court. d. by Congress and a state court. Answer: C 38. Federal courts have exclusive (i.e. sole) jurisdiction in cases involving a. patents and copyrights. b. bankruptcy. c. both a and b. d. none of above. Answer: C. As to why the answer is C, see the master/study outline in your Cognella textbook where it discusses “Specialized Federal Courts”. 39. A state court system can include a. trial courts. b. appellate courts. c. a supreme court. d. all of the above. Answer: D 40. Appellate courts a. review the records of cases to determine if a lower court committed an error of law. b. hear cases when a change of venue becomes necessary because of adverse pretrial publicity. 41 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems c. hear cases only when questions of federal law have been reviewed and found unconstitutional by a lower court. d. both a and b. Answer: A 41. Federal trial courts are called (Not appellate) a. circuit courts. b. district courts. c. municipal courts. d. superior courts. Answer: B. Federal trial courts are called federal district courts. Federal appellate courts are called federal courts of appeal!! 42. Federal cases originate (i.e., start/are filed) in a. the U.S. courts of appeals. b. the U.S. district courts. c. the U.S. Claims court. d. the U.S. Court of Federal Claims. Answer: B 43. The federal court system is composed of a. trial courts. b. appellate courts. c. The United States Supreme Court. d. All of the above. Answer: D 44. Which statement is true? a. Federal district courts hear appeals from state courts. b. There is at least one federal district court in each state. c. Federal district courts include bankruptcy and tax courts. d. Federal district courts are appointed by Congress. Answer: B [A is not right and is a red herring; C is not correct because bankruptcy, tax courts, etc. are “specialized” federal courts, they are not general federal district courts. D is not correct because it is not Congress, it’s the President] 42 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems 45. The term of office for a federal judge (which includes a US Supreme Course justice) is a. four years. b. six years. c. fourteen years. d. life. Answer: D. Supreme Court judges, like all federal judges, are appointed for life! 46. United States Supreme Court justices are a. appointed by Congress. b. nominated by the president and confirmed by the Senate. c. appointed by the attorney general. d. elected by the people of the state in which they reside. Answer: B 47. The United States Supreme Court consists of a. five members. b. seven members. c. nine members. d. any number determined by the president. Answer: C Fact Pattern 3-1 (Questions 48-50 apply) Gina and Denny are involved in an automobile accident. Gina initiates a lawsuit against Denny by filing a complaint. 48. Refer to Fact Pattern 3-1. The sheriff serves Denny with a summons. If Denny chooses to ignore the complaint a. Gina will be awarded the damages sought in her complaint (via a default judgment in her favor). b. Denny must be served with a second summons. c. Gina must file an amended complaint. d. Denny will have a judgment entered in his favor. Answer: A 43 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems 49. Refer to Fact Pattern 3-1. If Denny files a motion called a demurrer, Denny is asserting that a. Gina’s statement of the facts is not true. b. Even if Gina’s statement of the facts is true, Gina did not suffer an injury that the law will compensate. c. Even if Gina’s statement of the facts is true, only questions of law are at issue. d. Gina’s statement of the law is not true. Answer: B 50. Refer to Fact Pattern 3-1. If Denny responds to Gina’s complaint by filing a counterclaim a. Gina will be awarded the damages sought in her complaint. b. Denny will be given time to file an amended answer. c. Gina will be given time to file a response (i.e., an answer of her own). d. Denny will have a judgment entered in his favor. Answer: C 51. Which of the following is not a method of alternative dispute resolution? a. Mediation b. Arbitration c. Negotiation d. Civil lawsuit Answer: D 52. An arbitration clause a. can be found in many contracts entered into/signed before a dispute arises. b. requires that any disputes arising under a contract be resolved by arbitration. c. is usually enforced under state and federal statutes. d. all of the above. Answer: D 53. Which of the following courts normally determines both legal and factual issues? a. State supreme courts. b. The federal district courts. c. The federal courts of appeals. d. State intermediate appellate courts. 44 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems Answer: B 54. Which of the following will not give a state trial court the power to hear a civil case? a. Subject-matter jurisdiction plus in personam jurisdiction. b. Subject-matter jurisdiction plus in rem jurisdiction. c. In personam jurisdiction plus in rem jurisdiction. d. All of the above will give a state trial court the power to decide a civil case. Answer: C [As to why this is C, see the master/study outline on jurisdiction in your Cognella textbook.] 55. Which of the following is true about alternative dispute resolution (ADR)? a. ADR has become less important in recent years as the states have improved their court procedures and cut down on their caseloads. b. The main objection to ADR is that it always costs the parties more time and money than regular court procedures. c. Although ADR uses relatively informal procedures, all ADR methods require that the party deciding the dispute be a licensed attorney. d. None of the above. Answer: D 56. Which of the following comes latest in the course of a civil case? a. The answer. b. The motion for summary judgment. c. The motion to dismiss. d. The motion for a directed verdict. Answer: D 57. Which of the following motions is made at trial and, if successful, basically “takes the case away from the jury” by resulting in one party’s winning a civil case? a. The motion to dismiss. b. The motion called a demurrer. c. The motion for a summary judgment. d. The motion for a directed verdict. Answer: D. And, all of the other motions listed are filed and heard BEFORE a trial takes place!! 58. Depositions are 45 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems a. Signed and sworn statements regarding matters of fact. b. Documentary evidence introduced at trial. c. A form of discovery involving oral statements. d. Written statements made during an arbitration. Answer: C 59. For federal “diversity” jurisdiction to exist: a. The case must begin in a federal court of appeals. b. The amount in controversy must exceed $75,000. c. The plaintiff and the defendant must each be citizens of the same state. d. The case must involve a controversy between two different states. Answer: B 60. Which of the following comes earliest in the course of a civil case? a. The answer. b. The motion for summary judgment. c. The motion to dismiss. d. The motion for a directed verdict. Answer: A 61. Which of the following basically involves a “mini-trial” or a “trial by affidavit/paper”? a. The answer. b. The motion for summary judgment. c. The motion to dismiss. d. The motion for a directed verdict. Answer: B 62. State trial courts: a. Do not decide factual questions. b. Always have subject-matter jurisdiction if the amount in controversy exceeds $75,000. c. Both arbitrate and mediate disputes. d. Decide questions of fact and questions of law. Answer: D 46 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems 63. In a civil suit, a plaintiff normally must prove each element of her case: a. By clear and convincing evidence. b. By a preponderance of the evidence. c. Beyond a reasonable doubt. d. By a practical tendency. Answer: B [See your Cognella textbook and refer to class discussion. This question is testing you over whether you know/can identify the burden of proof in a CIVIL case (remember that in a criminal case the burden of proof is "beyond a reasonable doubt" which is a much higher/more difficult standard for the state/people/the prosecution to satisfy than the standard/burden of proof in a civil case).] 64. P gets a state court civil judgment against D, but does not pay. Which of the following is one of the tools available to P to enforce the judgment against D (assuming D has assets, they can be located, etc.)? a. Mediation. b. Long-arm jurisdiction. c. Writ of execution. d. In rem jurisdiction. Answer: C Short Answer/Essay Practice Questions Re: Chapter 3 1. Consider the following four motions: (1) the motion to dismiss for failure to state a claim upon which relief can be granted (i.e., also called the demurrer); (2) the motion for summary judgment; (3) the motion for a directed verdict; and (4) the motion for judgment notwithstanding the verdict. Which of these motions can be made by both the plaintiff and the defendant? Which is made the latest in the course of civil litigation? Which involve at least some consideration of factual issues? Answer: The motion for summary judgment and the motion for a directed verdict can be made by either party. (The demurrer is made by the defendant and the motion for judgment notwithstanding the verdict by the losing party after the trial.) The motion for judgment notwithstanding the verdict is made the latest — after the jury has reached a verdict. The motion for summary judgment (e.g., affidavits and 47 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems discovery information), the motion for a directed verdict (amount and persuasiveness of evidence favoring the nonmoving party), and the motion for judgment notwithstanding the verdict (same) all involve some consideration of factual issues. Because it assumes the truth of the facts stated in the complaint for purposes of the motion, the demurrer does not involve the consideration of fact questions. 2. What common characteristic is shared by in personam jurisdiction and in rem jurisdiction? What is the crucial difference between these types of jurisdiction? Answer: Both in personam jurisdiction and in rem jurisdiction are territorial in the sense that they involve people, things, or activities residing, existing, or occurring within a state’s borders. Either of these two types of jurisdiction, when combined with a court’s subject matter jurisdiction, will give the court the power to render a judgment that is binding on the parties. The crucial difference between in personam jurisdiction and in rem jurisdiction is that the former is based on the residence, location, or activities of a person within the state, wheras the latter is based on the fact that property is located within the state. 3. Potter sues Donald in an effort to get title to some land claimed by Donald and located inside the state of Texas. Donald has never been inside Texas in his life, has never had any contacts of any kind with the state, and refuses to appear in Texas to defend Potter’s suit. Later, after Potter wins a default judgment against Donald, Donald shows up in Texas to claim that the judgment was invalid because he was totally outside Texas, Texas courts, therefore had no jurisdiction over him, and for this reason they could not affect his rights to the land. Is Donald right? Why or why not? Assume that subject matter jurisdiction exists. Answer: Donald is wrong. Although the utter absence of contacts with Texas would prevent Texas from having in personam jurisdiction over Donald, Texas courts still would have in rem jurisdiction over him. Remember … in rem jurisdiction is based on the location of property within a state, and Donald’s land was located inside Texas!! 4. What two kinds of jurisdiction are necessary for a state court to have jurisdiction over a case? Describe each briefly. Answer: A state must have subject-matter jurisdiction and either in personam or in rem jurisdiction. Subject matter jurisdiction concerns the court’s competence to handle the type of case in question (e.g., criminal, tax, etc.). In personam jurisdiction is based on the location and activities of the defendant himself, and how they relate 48 Chapter Three [Anatomy of a Civil Case; Judges & Courts; & ADR]-- Practice Problems to the state. In rem jurisdiction is based on the location of property within t