Bar Exam Essay Example

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Questions & Sample Answers

 

OK – time for some MBE practice! While the questions below are not actual Bar Exam questions, they are sample questions that you can try. They are in a mix of subjects, so give them a shot and let’s see how you do.

Question 1

A “disturbing the peace” ordinance passed by a city government prohibited the “assembly of three or more persons, on a city sidewalk, who conduct themselves in such a way that it annoys or disturbs people passing by . . .” A group of friends assembled on a sidewalk that was a major thoroughfare in the downtown business district, and gave impromptu speeches about the need to invest in education. They spoke about the decline in school standards and the resultant “dumbing down” of the country. They were arrested and prosecuted under the ordinance. Their appeals led to challenging the constitutionality of the city ordinance in a federal district court. What is the likely decision of the federal court?

1. The ordinance is constitutional. Cities have a right, in fact, a duty to protect its citizens. Because the friends were disturbing to people on a busy sidewalk, the city had the right to control such disturbances.

2. The ordinance is unconstitutional because it violates the “void for vagueness” doctrine

3. The ordinance is unconstitutional because it denies people who would try to exercise their first amendment right to free speech from receiving due process of law

4. The ordinance is constitutional. It informs people of what is prohibited and where it is prohibited. It informs people that they may not act a certain way that would disturb the public peace.

Question 2

A bill collector showed up at the home of a woman who was recently widowed. The collector showed her a credit card bill for $15,000 that her husband had run up while he was alive. She had previously known nothing about this credit card, and was shocked to see what her husband had done. This bill collector told her that his company would not let this debt go unpaid, and that according to the contract her husband had signed, she was now responsible for the bill. He never showed her the contract. He warned her that she could be arrested and prosecuted if the bill was ignored. He put a promissory note for $15,000 with interest in front of her, with a pen, and told her that if she did not sign it immediately he would have no choice but to turn the matter over to the state prosecutor. The widow was scared, and did not want her husband’s good name and standing in the community to be negatively affected. So she signed the note, and the man left with the signed contract in hand. She could not make the payments, so seven months later, the collection company sued her. Her attorney filed a motion to have the note declared void due to duress. What is the most likely decision of the court based on the principles of duress?

1. The note was signed by the widow under duress so it is voidable by her. The very fact that this man violated the Fair Debt Collection Practices Act by showing up at her house is duress. Therefore, the contract is voidable by her.

2. The contract is not voidable because the widow did not have to sign the paperwork. There was no imminent danger. The man wasn’t threatening her physically, he was not about to harm her. She could have taken time to think and consult a lawyer if she wanted, so the contract is enforceable.

3. The widow was put in a state of utter fear – by this man showing up at her door, unannounced, and demanding that she sign the note. She was left feeling that she had no choice, so the contract is voidable by her.

4. The threat of going to jail was irrational. It can never be considered as a threat if it is not enforceable. There were no police officers there to arrest her, the statements made by the bill collector were not true statements of law, and thus, the contract is enforceable.

Question 3

A business man rented a second-floor office space for his accounting business. It was located partly on top of a finance company. This man knew one of the employees at this finance company, so he knew that they kept an extraordinarily high amount of cash on hand at any given time. After a few months, he got the idea that he could break into the building in the dead of night when no one was around, and get the money. He decided to surveil the building. He started by getting the blueprints. Then he purchased drilling tools and brought them into his office. He kept an eye on the finance company’s comings and goings and determined the best time to attempt to drill small holes in the floor of his office. Before he started drilling, however, he inserted tiny cameras through the floor so he could better assess the situation. The tiny cameras revealed that security guards stood watch over the company’s grounds at night, far more than were there during the day. After learning this he got fearful and decided it wasn’t worth the risk. He moved his tools back home, and decided not to attempt to get money out of the place. His nocturnal activities had not gone unnoticed, however, and he was arrested a couple of weeks later after security guards reported to the police that there were strange activities going on above them at night. Does he have a viable defense to attempted burglary charges?

1. No. Abandonment is not a viable defense to a crime of attempt. The original intent is what matters in and inchoate crime, and quitting part of the way through does not negate that original criminal intent.

2. Yes. As long as a person abandons their plan to commit a crime, they have a viable defense to attempt.

3. Yes. He abandoned the crime before it occurred. He had no intent on resuming any criminal activity, so it was complete abandonment and serves as viable defense.

4. No. When he inserted the lens to spy on the bank, he had completed an attempt. Since the attempt already took place it can not be abandoned. Even though he didn’t take it further out of fear of being caught, the attempt was complete and there is no defense.

Question 4

4 seven-year-old boys crawled through some holes in the fence surrounding their school playground. There were multiple holes in this fence, and children routinely crawled under the holes to go and play in a narrow creek beside the school. However, across the creek was a construction site where new townhomes were being built. Both school employees and construction workers had witnessed kids playing in the creek after crawling under the fence in the past. However, construction had halted on this particular day, so no workers were in sight. So the boys began running through the partially built structures and exploring everything they could find. One boy climbed to the third floor of a partially built home, but slipped on some plastic that had been left on the floor. He slipped over the edge and fell directly onto the concrete floor three stories below, breaking his neck and dying instantly. The fence they’d crawled through was owned and maintained by their public school. There had been 3 prior incidents where children had escaped and gone to play in the creek during school hours. The construction site was owned by Acme Construction Company. The deceased boy’s parents brought a wrongful death action against both the county school district and Acme Construction Co. Both defendants filed motions to dismiss as a matter of law. They claimed that because the children were trespassers on the construction site, they asserted that they owed no duty of care. The trial court agreed and dismissed the claim against both defendants. An appeal was filed. Will the appellate court affirm the dismissal?

1. No. The Court will reverse the dismissal because it was foreseeable that children would be curious and go onto the land owned by the construction company. And it was known that there were dangerous conditions on the other side of the fence, in both the creek and the construction site. This combination triggers a duty to protect the children.

2. Yes and No. The court will uphold the dismissal for the construction co. because the children were trespassers and as such, do not enjoy protection from the property that was trespassed upon. But, no, the court will not uphold the dismissal for the school because the children were their responsibility. The school owned the playground and owed a duty to the children to keep it in a safe condition; part of that safety meant fixing the holes that allowed them to escape, which would be dangerous even if the construction site wasn’t there.

3. Yes. The children were trespassers, so neither party owes them the duty of care.

4. No. The court will reverse the dismissal. The court would then enter judgment against the defendants because they have a strict liability in their duty to protect children.

Answers

Question 1 #2 is Correct
The ordinance is unclear and subjective in its description of what activity is actually prohibited. If a person of reasonable intelligence cannot know what specific activities are prohibited, this makes a law too vague to be enforced. Furthermore, any law prohibiting behavior must include specific standards regarding enforcement. Without such standards, the law can be applied in a discriminatory fashion. A vague law without parameters puts too much arbitrary power in the hands of law enforcement.

Question 2 #3 is Correct
There are a couple of qualifiers for the defense of duress to be applicable.
The pressure must be strong enough to negate a person’s freedom of choice and ability to reject a contract.
The pressure exerted must be imminent.
A person of reasonable intelligence would feel that they had no way to protect themselves, except to sign the contract.

There is clearly legal duress in this situation, as the facts fulfill all three elements listed. The man demanded that she sign right there and then, or he threatened to get the prosecutor involved. The pressure was certainly imminent, and a reasonable person would have felt intimidated into acquiescing.

Question 3 #4 is Correct
This man completed his attempt when he installed and used the tiny cameras to spy on the company downstairs. He had the intent to rob, and he made a substantial step towards carrying out that attempt by installing the cameras. It is true that his fear of being caught caused him to abandon his intent to rob the bank, but it was too late. He’d already committed the attempt. Furthermore, fear of being caught (or any outside influence) that motivates abandonment forfeits that as a defense.

Furthermore, a defendant cannot abandon a completed attempt. See United States v. Crowley, 318 F.3d 401, 410-11 (2d Cir. 2003) when a defendant has completed the crime of attempt; i.e., has the requisite intent and has taken a substantial step towards completion of the crime, the crime of attempt has already been committed. US v. Young, 613 F. 3d 735, 746 (8th Cir. 2010). In addition, abandonment does not work when the accused proceeded well into the execution and then turned away because the plans are found to have been frustrated. Boyles v. State, 46 Wis. 2d 473, 175 N.W.2d 277 (1970); see W. LaFave & A. Scott, Handbook on Criminal Law 448 (1972). See also, Model Penal Code § 5.01(4).

Question 4 #1 is Correct
Most jurisdictions have some form of the attractive nuisance doctrine. Landowners have a duty to protect young children from danger when it is foreseeable that youngsters will come onto a property and be exposed to dangerous conditions that, because of their age, the children cannot appreciate or even know exist. If the children are older, and/or the danger is obvious, then the rule is less likely to apply. But when the children are under 12 and the danger is not obvious to such children, it triggers a landowner duty to protect them. In this case, there had been 3 earlier incidents where kids escaped from the schoolyard under the damaged fence. Although those other children never went to the construction site (probably because there were workers there) they did play in the creek, which in itself poses certain dangers. In fact, even if there were no creek – the simple fact that kids can escape during school hours and wander off is an inherent danger.

The burden to the school and the construction company to take safety measures was minimal in comparison to the obvious risk to any children escaping under the fence. Both defendants knew of the risk due to prior instances of escapees in the area. See Restatement of Torts 2d Sec. 339. Before a duty will be imposed on an owner or party in possession, therefore, it must be shown that he knows or should know that children frequent the premises and it must be that the cause of the child’s injury was a dangerous condition on the premises. Unless these two prerequisites are met, the harm to the child will not be deemed sufficiently foreseeable such that the law will impel the owner or party in possession to remedy the condition. Logan v. Old Enterprise Farms, 139 Ill.2d 229, 236, 564 NE 2d 778 (Ill Supreme Court 1990).

How did you do? Good luck, and keep on practicing – that’s the name of the game!

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