Comments on: MBE Question of the Day #51 http://barexambrief.com/2010/02/18/mbe-question-of-the-day-51/ All things related to studying for and passing the bar exam, brought to you by the staff of MicroMash Bar Review Tue, 07 Feb 2012 20:33:11 +0000 hourly 1 http://wordpress.org/?v=3.2 By: Steve http://barexambrief.com/2010/02/18/mbe-question-of-the-day-51/comment-page-1/#comment-999 Steve Fri, 19 Feb 2010 15:21:45 +0000 http://barexambrief.com/?p=1011#comment-999 B. agent control B. agent control

]]> By: Maryann Herman http://barexambrief.com/2010/02/18/mbe-question-of-the-day-51/comment-page-1/#comment-998 Maryann Herman Fri, 19 Feb 2010 15:06:50 +0000 http://barexambrief.com/?p=1011#comment-998 Answer B is correct. Statutes imposing vicarious liability on the innocent employer for the illegal acts of an employee in the scope of employment are generally upheld as constitutional. In evaluating the constitutionality of imposing vicarious liability, the issue of control over employees is the most important consideration. The statute in question deals with the kind of offense and imposes the type of penalty for which strict liability statutes are constitutional. Since this is a strict liability statute and thus no guilty intent is required, supervisors with authority over the persons who actually commit the offense can constitutionally be held vicariously liable. Note that the supervisor need not in fact exercise control over the sale; the power and responsibility to control sales is sufficient. Answer A is incorrect. It is incorrect to say that the Due Process Clause does not apply to regulatory offenses. All of the due process safeguards due to a criminal accused must be accorded a person charged with a regulatory offense. Here, the strict liability offense and the ensuing vicarious liability of the employer survive due process scrutiny. Answer C is incorrect. A crime that is defined in terms of an act, or an omission to act where there is a legal duty, is constitutional. It is not a violation of due process to punish without a voluntary act. A failure to act where there is a legal duty to act may be punished as well. All of the safeguards of the Due Process Clause due to a criminal accused must be accorded a person charged with a regulatory offense that creates vicarious liability for a failure to act. Here, however, the strict liability offense and the ensuing vicarious liability of the employer survive due process scrutiny. Answer D is incorrect. The regional manager's liability is based on a theory of vicarious liability. The criminal liability thus imposed is based on the power of the regional manager to control conduct and her responsible, supervisory relationship as employer with her employees. It is not based upon personal involvement in a sale. The regional manager can be held criminally liable, even though the store will likely be held liable to indemnify her for the fine. (Under this theory of vicarious liability, both the manager and the store could also be held liable.) Answer B is correct. Statutes imposing vicarious liability on the innocent employer for the illegal acts of an employee in the scope of employment are generally upheld as constitutional. In evaluating the constitutionality of imposing vicarious liability, the issue of control over employees is the most important consideration. The statute in question deals with the kind of offense and imposes the type of penalty for which strict liability statutes are constitutional. Since this is a strict liability statute and thus no guilty intent is required, supervisors with authority over the persons who actually commit the offense can constitutionally be held vicariously liable. Note that the supervisor need not in fact exercise control over the sale; the power and responsibility to control sales is sufficient.

Answer A is incorrect. It is incorrect to say that the Due Process Clause does not apply to regulatory offenses. All of the due process safeguards due to a criminal accused must be accorded a person charged with a regulatory offense. Here, the strict liability offense and the ensuing vicarious liability of the employer survive due process scrutiny.

Answer C is incorrect. A crime that is defined in terms of an act, or an omission to act where there is a legal duty, is constitutional. It is not a violation of due process to punish without a voluntary act. A failure to act where there is a legal duty to act may be punished as well. All of the safeguards of the Due Process Clause due to a criminal accused must be accorded a person charged with a regulatory offense that creates vicarious liability for a failure to act. Here, however, the strict liability offense and the ensuing vicarious liability of the employer survive due process scrutiny.

Answer D is incorrect. The regional manager’s liability is based on a theory of vicarious liability. The criminal liability thus imposed is based on the power of the regional manager to control conduct and her responsible, supervisory relationship as employer with her employees. It is not based upon personal involvement in a sale. The regional manager can be held criminally liable, even though the store will likely be held liable to indemnify her for the fine. (Under this theory of vicarious liability, both the manager and the store could also be held liable.)

]]> By: mimi http://barexambrief.com/2010/02/18/mbe-question-of-the-day-51/comment-page-1/#comment-990 mimi Thu, 18 Feb 2010 22:34:34 +0000 http://barexambrief.com/?p=1011#comment-990 answer B. Under the responsible corporate officer doctrine, a corporate officer who bears a responsible relationship to an illegal activity may be considered to have participated in that illegal activity. answer B. Under the responsible corporate officer doctrine, a
corporate officer who bears a responsible relationship to an illegal
activity may be considered to have participated in that illegal activity.

]]> By: RK http://barexambrief.com/2010/02/18/mbe-question-of-the-day-51/comment-page-1/#comment-988 RK Thu, 18 Feb 2010 18:35:48 +0000 http://barexambrief.com/?p=1011#comment-988 B is the best answer B is the best answer

]]> By: BV http://barexambrief.com/2010/02/18/mbe-question-of-the-day-51/comment-page-1/#comment-987 BV Thu, 18 Feb 2010 18:18:20 +0000 http://barexambrief.com/?p=1011#comment-987 I like B. The offense is part of a regulatory scheme and a public welfare offense. The penalty ($1,000 fine) is relatively low. Regional Manager was in a position of control. This is a "no intent" crime. It will be upheld. I like B. The offense is part of a regulatory scheme and a public welfare offense. The penalty ($1,000 fine) is relatively low. Regional Manager was in a position of control. This is a “no intent” crime. It will be upheld.

]]> By: gmevans http://barexambrief.com/2010/02/18/mbe-question-of-the-day-51/comment-page-1/#comment-986 gmevans Thu, 18 Feb 2010 16:57:04 +0000 http://barexambrief.com/?p=1011#comment-986 The answer is B. This is a regulatory offense. The regional manager though not involved in the day to day operations of the store is in the position to make sure that the laws are followed. The answer is B. This is a regulatory offense. The regional manager though not involved in the day to day operations of the store is in the position to make sure that the laws are followed.

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