Identify whether the statement is “True” or “False”

General Instructions

This Final Examination consists of 18 questions worth a total of 100 points, on 4 pages, including this cover sheet. Please make certain you have all the pages before you begin.

The examination is “open book”, which means you may use any materials you have available to you. However, you must work alone.

Please put all your answers on a separate answer sheet or book. There are no page limitations.

For the True or False questions (nos. 1-15), please merely indicate whether you agree with the statement (“True”) or disagree with the statement (“False”). Read the statements carefully. Don’t provide any explanations or comments. I won’t read them. Really.

For the Short and Medium Answer questions (nos. 16 and 17), please be certain to answer the questions asked and all the questions asked.

For the Essay question (no. 18), again please be certain to answer all the questions asked and only the questions asked. If you need to make assumptions in order to answer the question, or a part of the question, please specifically state those assumptions. If you believe that you have not been given enough facts to answer the questions, please state which particular facts you would need to know in order to fully answer.

True/False      (15 x 3 points each = 45)

Identify whether the statement is “True” or “False”

1. Whether characterized as an “unforeseeable plaintiff” problem, or a claim lacking “proximate causation”, a negligence lawsuit would not result in recoverable damages if the plaintiff’s injuries are significantly removed in time and space from the actions of the defendant.

• Article IV of the United States Constitution sets forth the enumerated powers of the fourth, equal branch of the federal government, the Administrative Agencies (a/k/a “the Bureaucracy”).

• Only the Supreme Court of the United States may issue advisory opinions.

• Punitive damages are typically available as a remedy in contract breach cases.

• If one party to an express agreement knows the other party is joking and doesn’t really intend to go through with the transaction, but he accepts the offer anyway, he will be able to enforce the agreement as long as there is consideration.

• Whether there exists a sufficient defense to an intentional tort, such as consent or assumption of risk, is a substantive (rather than procedural) issue.

• The traditional measurement of damages in a contract breach cause of action is restitution, to ensure that the non-breaching party is not worse off than if the bargain was never struck.

• Deductive reasoning does not apply when there is a statute directly on point.

• An Appeals Court of the State of Illinois is not strictly bound by a decision of the U.S. Supreme Court, though such a case would provide persuasive authority.

1. State laws will always preempt federal case or common law precedents, because of the principle of legislative supremacy.

1. Because the concept of Judicial Review is not explicitly set forth in Article Three of the U.S. Constitution, the judicial branch of the federal government is justifiably considered subordinate to the other two branches.

1. Possession of marijuana by an Illinois resident, which is a federal crime as well as a crime under the laws of the neighboring state of Indiana, is an example of a situation involving both vertical and horizontal federalism.

1. Whether an issue is characterized as substantive or procedural is solely based on whether it is derived from a binding or non-binding precedent.

1. If there is a criminal statute penalizing specific conduct, it cannot also constitutionally expose the defendant to a claim for money damages in a civil lawsuit based on the same underlying acts.

1. A plaintiff’s own actions are never relevant to strict liability (defective product) cases as a matter of public policy and substantive tort law.

Short answer (1 x 5 points = 5)

1. How does the constitutional structure of the U.S. national government achieve both a “separation of powers” between the branches and provide “checks and balances” amongst them? Be specific, and give at least one example from each branch of government.

Medium answer (1 x 10 points = 10)

17        We spent a lot of time in class Sunday discussing the Lucy vs. Zehmer case. For purposes of this question, choose either the plaintiff Lucy’s position or the defendant Zehmer’s position, and present the argument supporting his side of the case. Be sure to discuss the evidence and demonstrate how the evidence comports with your client’s factual position, address and minimize the significance of the contrary evidence, and relate it to your client’s version of the facts and the law as it applies to this case.

Essay (40 points)

18. Herman Schafley (“Herman”), a new immigrant to the United States, answers an internet E-Bay advertisement offering various pieces of used furniture for sale by Jon Smith (“Smith”), a college student returning to his family home in suburban Chicago after graduating from his university. When Herman comes to the apartment of Smith to purchase the collection for the advertised $200 price, he gets in an argument with Smith over whether a sofa partially

included in the advertisement photograph is part of the offered items or not. Holding his fist in the air, and after slapping down $200 on the kitchen table, Herman tells the student he will “clean his clock” if he doesn’t let him take the disputed sofa along with the other items.

The student reluctantly agrees, and Herman leaves, with the furniture (including the disputed sofa). On his way out the door, Herman knocks an expensive flower vase of Smith’s on to the floor, shattering it beyond repair, saying “that serves you right, you miserable kid – you better lock your door tonight”. Frightened by the unexpected and hostile turn of events, and shaken from the drama, Smith faints, falling on the floor and breaking his nose.

Later, he calls the police, who come to the apartment and discuss the situation with him. The police tell Smith they will investigate the matter, but urge him to go to the hospital for his nose injury, and further recommend that he see a lawyer.

Smith comes to you for legal advice regarding any claims or recourse he may have against Herman for his conduct. What’s your advice? Specifically, address whether Smith has any civil causes of action against Herman. Be specific and evaluate the merits of each. Include a consideration of any defenses Herman might raise, as well as potential remedies (damages).

SAMPLE SOLUTION

The separation of powers is the model that divides the government into three separate branches: executive, legislature and the judicially. Each of these arms of government has separate and independent powers (Holcombe, 2018). Having separate branches of government ensures that no one is powerful than the other through the checks and balances where each branch is given certain powers to check and balance the other branches (O’Regan, 2015). The president, who is the head of the executive branch, is the commander in chief of the military forces however, the congress, which is a legislative unit, appropriates funds for military (Greene, 2014). Also, the legislature votes to declare war while the Senate must ratify the peace treaties. The congress enjoys the power of purse, this means it controls money used in funding executive actions (Persson et al., 1997). Although the president…