MBE Practice Exam 2 Questions with 100% Correct Answers

The user of a power tool sued the tool's manufacturer in state court. The action was based on a strict product liability claim that the manufacturer's failure to adequately warn the user of a defect in the power tool caused the user's injury. The manufacturer properly removed the case to federal court. The applicable law of the state that governs the existence of the strict product liability claim also recognizes a rebuttable heeding presumption. This presumption assumes that an injured plaintiff would have heeded an adequate warning if one had been given. Under state law, this presumption does not shift the burden of persuasion on this issue to the manufacturer. The manufacturer did not present evidence that the user would not have heeded a different warning had it been given. The court instructed the jury that it must apply the presumption that the warning, if given, would have been heeded. Is the court's instructi Answer choice C is correct. In a diversity action, when state substantive law determines the existence of a claim or defense, state law also governs the effect of presumptions related to that claim or defense. Because state law determines the existence of the user's strict product liability claim, state law governs the effect of the heeding presumption that is related to that claim. Since the manufacturer failed to offer evidence in rebuttal to the presumption, the court properly gave it preclusive effect. Answer choice A is incorrect because, as noted with respect to answer choice C, a rebuttable presumption that has not been rebutted must be given preclusive effect. The trier of fact does not have a choice in such case as to whether to apply the presumption. Answer choice B is incorrect because a state law presumption related to a claim or defense is treated as going hand-in-hand with the related state substantive law on the claim or defense, rather than as a state evidentiary rule that the federal court is not required to apply. Answer choice D is incorrect because, although the Federal Rules of Evidence do apply the bursting bubble approach to presumptions, here state law governs as to the effect of the presumption. In this case, state law also applies the bursting bubble approach to presumptions, but this is irrelevant because the manufacturer did not offer evidence to rebut the presumption. After a female politician is injured in a riot following a heated public debate, a state enacts the following statute: "Any words targeting women or minorities likely to produce violence or rioting are prohibited on any public property." Is the statute constitutional? a. No, because the statute punishes only speech targeting specific groups. b. No, because the state cannot restrict speech in public forums. c. Yes, because the state can prohibit fighting words. d. Yes, because laws affecting women and minorities receive heightened scrutiny. Answer choice A is correct. Statutes designed to punish speech that expresses certain viewpoints are unconstitutional. Even though the state appears to be enacting a "fighting words" regulation, which can be constitutional to prevent immediate breaches of the peace, such regulations cannot punish only fighting words that express certain viewpoints. For example, the Supreme Court has struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender. Here, the restriction applies only to speech affecting women or minorities and is therefore unconstitutional as written. Answer choice B is incorrect because the state may restrict certain types of speech, even if occurring in a public forum. Such speech includes obscenity, subversive speech, fighting words, defamation, or commercial speech. Answer choice C is incorrect because while the state may be able to restrict fighting words, it cannot restrict fighting words that express only certain viewpoints, as is done here. Answer choice D is incorrect because while discrimination against women or minorities may demand heightened levels of scrutiny, no discrimination occurs here. This answer choice misstates the issue and applicable law.