This is what I mean about the goddamned MBE

Two examples, one not so bad, one that makes me bleed at the eyes. I've decided to annotate the second so you can get a better feel for my thought process in... studying these questions.

1) Congress enacted a law requiring all civil service employees to retire at age 75, except when such employees are employed by the armed services. Civil service employees of the armed services are required to retire at age 65. Portman is an employee of the Department of the Armyl he is 65 years old. He files suit in the federal district court seeking a declaratory judgment that would prevent the Army from requiring him to retire before age 75.

Portman's strongest argument in support of his contention that the statute's provisions regarding civil service employees of the armed services are invalid is that this provision:

A) Denies him the privileges and immunities of national citizenship.

B) Denies him a property right without just compensation

C) Is invidious discrimination on the basis of age in violation of the Fifth Amendment

D) Is not within the enumerated powers of Congress under Article I, Section 8.

If you picked the right answer, you are, first and foremost, a more careful reader than I am. This is a classic example of a MBE question that actually penalizes you for broad knowledge of the law. If you picked B) because the other answers seemed like the plaintiff wouldn't recover, you were right... but completely wrong by the lights of the MBE. The correct answer is C, even though the standard of review is rational basis. Why is the correct answer C? Because the MBE creators know that BarBri tells you that age discrimination is not a suspect class and receives rational basis review, and hope that you'll miss the fact that this is one of the few times rational basis review might actually apply... just not a case that would ever actually occur, or a case that bears any reasonable relation to any case you learned about in law school.

2) In July of last summer, George, a grape grower, contracted with Walter's Winer to deliver "500 tons of premium quality pinot chardonnay grapes grown on my ranch Grapeacre [Cute.] in Grape County [Too cute]." The price was to be $1000 per ton and delivery was to be on or before September 15. In August of the same year, George entered into an identical contract with Vinnie's Vintner Co. to sell 300 tons of premium quality pinot chardonnay grapes. [Okay. This looks like a great grape contract. Was it in writing, though? Statute of frauds?]

George completed his harvest by September 10 and had 800 tons of premium quality grapes. On September 11th, an unexpected rain ruined 400 tons [it always goddamn does], and George notified Walter and Vinnie on that day that he would only be able to deliver 250 tons to Walter and 150 tons to Vinnie [Breach? Not yet]. On September 14th, Vinnie purchased an additional 150 tons of premium quality pinot chardonnay grapes from Godfrey, one of several other available sources for premium quality pinot chardonnay grapes [Reliance! This is going to be a question about remedies]. These grapes along with the 150 tons from George gave Vinnie the 300 tons he needed.

On September 15, what is Walter Winery's legal position with regard to George's failure to deliver the 500 tons of grapes required by his contract? [Perfect tender rule! No requirements contract! Seller bears the risk of loss until delivery! He's in breach!]

A) If Walter has given George a written notice of termination, Walter will have the right to refuse to accept the 250 tons of grapes [Looking good...] but will have no cause of action for damages against George. [Huh? Well, maybe...]

B) Even if Walter has given George a written notice of termination, Walter must accept the 250 tons of grapes and will have no cause of action for damages against George. [Totally bogus.]

C) Since Vinnie's purchase establishes that it is possible for George to perform by obtaining additional grapes from other available sources, Walter may accept the 250 tons from George and recover damages for George's failure to deliver the balance of the amount specified by the contract. [Dodgy. Acceptance and suit?]

D) Since George's contract was Walter was entered into before his contract with Vinnie, George is bound to deliver the entirety of his grape crop to Walter. [No class I have taken in law school has dealt with the issue of priority of fruit debt. I guess I'm out of luck.]

Ready? It's excused by failure of a presupposed condition, i.e. that the crop wouldn't fail. I gues people who deal with farmers deserve what they get. "A crop failure," the book tells us, "resulting from an unexpected cause excuses a farmer's obligation to deliver the full amount as long as he makes a fair and reasonable allocation among his buyers. George has done this by allocating pro rata between Walter and Vinnie. Nevertheless, under UCC 2-616 the buyer may either accept the proposed modification or terminate the contract. Thus, B is wrong. C is wrong because even though alternative sources are available, George is not obligated to use them because the contract was tied to a designated parcel of land --"My [George's] ranch." D is wrong becuase it is contrary to the provision of UCC section 2-615, which permits the farmer to make an allocation." Which leaves us with the question: just how unexpected is an "unexpected rain" causing crop failure? Why, by God, it seems like it happens every year in California, and probably more generally every year wherever grapes are goddamn well grown. You'd think that someone would have found some sort of legal solution. No? The UCC is the best you can do? It costs me a point?

If I ever meet a member of the Board of Bar Examiners, I will walk away quickly and quietly, lest I be overcome and tort them. Because this is meaningless.

Pro rata allocation of grapes? Give me anarchy; at least I'll die a clean death, rifle in hand.