JD Advising Simulated MBE Quiz
1. A city allows concerts to be held in its city park stadium. However, after hearing complaints about the noise level, the city passes an ordinance that requires groups that rent out the city park stadium to use the city’s audio equipment found in the city park stadium. A particular band of a unique genre states that the city’s audio equipment found in the city park stadium is insufficient for the various songs it plans on performing. The city nonetheless insists that the band use the city’s equipment. The band sues for a violation of its First Amendment rights.
Will the band be successful?
(A) Yes, because the ordinance is not narrowly tailored to serve an important government interest.
(B) Yes, because although the ordinance is constitutional on its face, it is unconstitutional as applied to the band.
(C) No, because the ordinance serves an important government interest and there are no less restrictive means by which it can satisfy that interest.
(D) No, because the ordinance is rationally related to a legitimate government interest.
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(C) is the correct answer. A park is a public forum so ordinances regulating the time, place, or manner of speech are subject to a higher level of scrutiny.
Exam Tip: Do not confuse a public forum with a public place. A public forum is a forum that is “historically associated with the free exchange of ideas”—like streets, sidewalks, and parks. Something like an airport is not a public forum (though it is a public place) because it is not historically associated with the free exchange of ideas. Keeping this in mind will help you answer these time, place, and manner questions correctly.
Any law regulating speech that takes place in a public forum must be content neutral (which it is as it does not discriminate based on content). It must also be narrowly tailored, and it must leave open alternative channels of communication.
The ordinance at hand serves an important government interest (reducing the volume at concerts to protect its citizens), and the ordinance is tailored to meet that interest. It is also content neutral, as mentioned above, and it leaves open alternative channels of communication as the band can still “speak,” just not using its own equipment.
(A) is incorrect because this will be considered narrowly tailored to an important government interest. Remember that most interests are considered to be “important,” including interests like reducing noise, pollution, traffic, or increasing the aesthetics of the city. Thus, in this case, the question is whether the restriction is narrowly tailored. It is. In this case, the band can still be heard—it might just not be at the volume it wants to be heard at!
(B) is not correct because it is not unconstitutional as applied to the band. The ordinance is valid on its face and thus constitutional even as applied to the band.
(D) is incorrect because it applies the non-public forum test. A park is a place where the free exchange of ideas historically takes place so it is a public forum.
2. A buyer mailed a signed order to a seller that stated, “Please send me 1,000 pens at whatever price you are currently selling them for.” The seller received the order on June 1. Later that afternoon, the seller mailed the buyer a signed letter stating that he accepted the buyer’s offer at the current price of $2.00 per pen. The seller properly addressed, stamped, and mailed the letter to the buyer. On June 2, the buyer called the seller and left a voicemail message saying that he revoked his offer to purchase pens. On June 3, the seller listened to the buyer’s voicemail message. On June 4, the buyer received the seller’s letter.
Is there a contract between the buyer and the seller on June 4?
(A) No, because the buyer effectively revoked the offer prior to receiving the seller’s written acceptance.
(B) No, because the offer was too indefinite since it did not contain a price term.
(C) Yes, because the offer was irrevocable for a reasonable time.
(D) Yes, because the seller accepted the buyer’s offer before the buyer attempted to revoke it.
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(D) is the correct answer. The letter by the buyer was an offer because it manifests an intent to enter into a contract and it has specific terms (quantity, identity of the offeree, and the price.) (Note: The offer will not fail for lack of a specific price term. Although the price term was not specifically stated, it was still present given that the buyer agreed to buy the pens at whatever price the seller was selling them for.)
The seller’s reply operated as an acceptance. Remember that, under the mailbox rule, the acceptance is effective upon dispatch rather than receipt. Thus, when the buyer tried to revoke his offer, it was ineffective.
(A) is incorrect because the seller accepted prior to the buyer’s attempted revocation. (One cannot revoke an offer after it was accepted!)
(B) is incorrect because even though the price was not explicitly stated, it was easy to identify (it was whatever the seller’s current price was).
(C) is incorrect because as a general rule, an offer is revocable at any time prior to acceptance. (There are exceptions—e.g., if it is a firm offer or option contract, if there is beginning performance on an offer to enter into a unilateral contract, or if there is reasonably foreseeable substantial reliance on the offer. None of the exceptions are present here.)
3. A man and a woman own neighboring pieces of land. The man wants to build an in-ground pool in his backyard. Fearing that if not properly maintained the pool could cause damage to her yard and attract unwanted plants and animals, the woman makes the man promise to have the pool cleaned and maintained by someone qualified once every two weeks while in use. This promise was reduced in writing and contained the following clause: “It is our intent that this agreement will bind our successors unless an agreement is reached between the owners at that time.” The man and the woman had this written agreement added into the deeds of both pieces of property.
One year later, the man granted his land to his son, and the woman granted her land to her daughter. There were no discussions about the pool maintenance promise. Two months later, the daughter noticed that the pool was in disrepair as no one had cleaned it since the son moved in, although he had been using it. The daughter filed for an injunction demanding that the son resume cleaning his pool.
Who will prevail?
(A) The son, because there was no horizontal privity between the man and the woman.
(B) The son, because there was no horizontal privity between the son and the daughter.
(C) The daughter, because she is an original party to the contract and can enforce it against the other original party or any party in privity.
(D) The daughter, because she sought an injunction.
Check The Answer Here!
(D) is the correct answer. Both a covenant and a servitude restrict how an owner can use his land. They consist of written promises to do or to refrain from doing something on the land. The difference between a covenant and a servitude is the remedy sought. If the plaintiff wants money damages, he will sue under a theory of breach of a real covenant. If the plaintiff wants something like an injunction that forces the other party to comply, he will sue in equity under a theory of an equitable servitude.
Both covenants and equitable servitudes can run with the land if the land is transferred. If the legal theory is a covenant, for the burden to run, we need both vertical and horizontal privity, intent, notice, and that the condition must touch and concern the land. For the benefit of a covenant to run, we need all of these requirements except for horizontal privity. For an equitable servitude to run with the land, we only need intent, notice, and that the condition must touch and concern the land.
In this case, the daughter is seeking an injunction forcing the son to clean his pool, making this an equitable servitude situation. Since the son is a grantee of the property, for the son to be held to the promise between the man and the woman, we need intent, notice, and the touch and concern elements. We clearly have intent as the facts tell us about a specific written clause in the agreement explicitly stating the intent for the promise to run. We also have notice as the promise was contained in the deed. This constitutes proper record notice. The requirement of properly maintaining the pool certainly touches and concerns the land as it makes the pool more useful, usable, and valuable. Thus, all of the requirements are met and the equitable servitude will run with the land.
(A) is incorrect because, while it is true that there is no horizontal privity between the man and the woman (a mere neighbor contractual relationship does not suffice), horizontal privity is not required for an equitable servitude to run with the land.
(B) is incorrect because, as explained above, horizontal privity is not required. Even if it was, we would need horizontal privity between the man and the woman and not between the son and the daughter.
(C) is incorrect because it does not recognize the elements of an equitable servitude that are needed. Just because the woman is an original party to the contract does not mean she can enforce it against the other original party or any party in privity. The woman would have to show that all of the requirements of an equitable injunction were met in order to enforce the contract.
