old exam 3 - BLAW 2361 — Exam 3 {Fall Zillfl} Name:...

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Unformatted text preview: BLAW 2361 — Exam 3 {Fall Zillfl} Name: Tesas law applies. Put your name and lIlI in the seantron boxes and fill in the bubbles. Put an a in a eirele beside your name on the seantro [1. Turn in the exam and seantmn [impro per staeli will eost five points}. True-False: Seantrou {a} = true. th] = false. Exams will be pielted up at ll:l5 {1" elass} and 1:45 [211d elass}. No laptops. inones. ete. allowed. I. Jon is an independent eontraetnr or ABC Co... whieh has ti independent eontraetors and I2 employees. When he was hiredI nothing was said about the duration of his employment or reasons for termination. ,3. year later, ABC fired Jon and be sued claiming religious diserimination it] Vifllflllfl-I‘J of Title 1It'll. .lon should: a. Lose - Title it'll does not apply to ABC, and even if didI .lon Ls not proteeted by the aet. Ii. Lose— Title VII applies to ABC, but Jon is not protected by the net. e. Loses- people working at-will, as Jon is, have no legal rights in the employment realm. d. Lose —Title 1It’ll does not prohibit diseritnination based on one‘s religious beliefs. e. Win it he ean prove that his religious beliefs were the reason for his termination. Title VII applies only it” an employer has at least 15 employees. and independent eootraeton do not count in that ealeulation. If an employer is revered by Title 1|i’ll. its independent eontraeturs are not pruteeted. All employees. inetuding ut-wilt. are proteeted it their employer is eoeered by Title VII. 2.!“ ll] a.m. on Nov. I. .Ion sent Bob a letter stating: "This is an offer of employment at $lllll,[lllll per year and a 52D.iltl-ll bonus to he paid in 12 monthly installments. with work to begin on Bee. 1. This offer can be aeeepted only by eertifled letter reeei'ted in ouroffiee by Nov. 5." Bob reeetsred this at 9 a.rn. on Nov. 2 and sent a certified letter to Jon‘s office stating: “Aeeept offer except I desire bonus to be paid by Dee. 31.“ Jon reeeit'ed this at 3 a.m. on Nov. 3. At It! a.m. on Nov. .3. Bob emailed .Ion: “Disregard letter. Aeeept your offer." .Ion immediately t'on nd this in his inbos but did not respond. At the end of the day on Nov. 5, there had been no further eonttnunieation between Jon and Bob. The result is: a. Contraet formed when Bob mailed his eertified letter. b. {.‘ontraet formed at 3 a.m. on Nos“. .3. e. Contraet formed at ll'l n.m. Nov. .3 1when Bob sent his email. d. Contract formed when Joe found Bob‘s email in his inbos. e. No eontraet. The re rtil'ied letter was a eouutemi‘l‘er as it did not satisfy the mirror image rule: it rejected the offer at H mm. New. .1. when Joe received it. The Ill a.m. Nov. 3 email was not an ueeeptanee ol’ the offer laeeause the eounterol‘lerh'ejeetion had extinguish ed the otter two hours earlier: thus. the lit a.m. email a as a new ol‘t‘er whieh was not accepted heeouse silenee is generally not eonstrued as an aeeeptanee of an offer. 3. ABC Co. sent .Ion a four-page, single-spaced offer letter. Paragraph lit slates: “IT [5 lJNHERSTDDD TH ALT JON is All} INDEPENDENT C DHTRACT {1R 0]“ MIC.“ The HR Manager disenssed this paragraph with Jon bel'ore the letter was sent. .lon signed the letter and returned it. Paragraph 14 is: a. Irrelevant il'.lon satisfies iudieiallrestablished eriteria i' or employee status. b. Choice a would be true escc pt that paragraph 14 supe rcetles those criteria hecause it is conspicuous and uses the term “independent contractor." c. Binding because Jon consented to it with full awareness of its meaning. d. Binding if Jon was hired at—will but not binding if he was not. Cnnspieuousness. at-will status. and consent are not conclusire [In flit: issue of independentcontractor status. The test discusses the applicable criteria. and I reviewed them in class. -l. in #3. when .lun started work he was given a personnel manual that said “Employees should rest assured that they may work here as long as they do their job well." After ten months. ABC fired .lon because he got a tattoo. If .Ion sues for breach of contract, which argumentts] would a court likely accept: a. The quotation tll'au annual salary in the letter created an implied contract of employment for a year. b. The manual statement was a contractual guarantee that-Ion could be fired only if he did not do his job 1stroll. c. a court would likely accept both arguments. d. A court would likely not accept either amument. Montgomery County Hospital District 1'. Brown establishes that rogue assurances ol'inb security in personnel manuals are not legally binding. An employer will he held to l'lll'trE altered an employee‘s at— u-ill status only if it unequivocally and specifically expresses its intent to do so. The quotation of an annual salary does not create an implied contract ofemployment I'ttrn year. 5. Tom has a car he wants to sell for Slililril. He asks Bob to sell it. as-is. for at least that sum. Hob contacts Sam. who says he will hey it for SLIJIJIJ it‘ Torn will pay for any repair work that a mechanic deems necessary. Hub agrees. a mechanic says 5450' in work is needed and Bob and 5am sign a contract calling for Sam to pay 52.000 - 545d = 51.550. flab signs the contract. “Bob Smith. as agent for Tom Jones." When he learns of the sale. Tom teth Sam the contract is void because Bob exceeded his authority in selling for $155“ and not on an as-is basis. Sam sues for breach of contract. A. court would likely conclude that.+ a. Tom is correct. h. The en ntraet was roidable at Tom's option. so Tom could either 1roid it or enforce it. c. Tom must honor the agreement with Sam but has a claim against Hob for 5451}. d. A court would likely rewrite the contract to substitu le 51.450 for $1.00“ 50 T0111 flu I121 film“- Tom is obligated to Sam based on apparent authority because he made Hob his agent and gave hint limited express authority to contract on his behalf. hut Sam had no reason to know of the limitation and therefore was reasonable in assuming that Ilult had unlintited authority. Bob breached his fiduciary obligation of obedience. E. Jones accepted Smith’s bid of Slitldillfl to build a he use by June 1. When Smith started construction. he found gas lines that would have to he re-rnuted before the foundation could be poured. This added Stigilllfl to his costs. Either housing projects in the area had this problem. but Smith didn't know that. Smith told Jones he wouldn‘t build unless Jones agreed to modify the contract to say fllfiflflfl. and Jones agreed in writing. No force mojeure agreement is involved. As modified. the contract is: a. Enforceahle based on new bargained-for consideration" h. Enforceahle under the equal dignitics rule. because it. like the original contract. ls written. c. Enforceablc under article 1 of the DEC. whether or not it was supported by consideration. d. Unent'orceahle. In light of the nee-esisting duty rule. the modified contract was not supported by bargainedrl'or consideration. Under the original contract. Smith was obligated to llulltl the house for Sllflflfl'fl'. That was a bilateral contract supported by bargained—tor consideration. Because the need to oe-route the lines was foreseeable. Smith did not give new consideration to support the promise ofthc extra Emil-ier when he agreed to build the house in exchange [or that money. The equal dignities rule and the UCC ttl'tvionsly do not apply here. '3'. Jon tested Kate. “In consideration. ofthe great times we’ve had I promise you SEMI-ll." He tested Eric. “I will sell my ear to you [or a dollar.“ Both replied. “Nice!” Which promise is supported by bargained—for consideration and is therefore binding: (31} Kate: Lib EL“?- i'll bfllht ldl “Eithffu The promise to Kate is unenforceable because it was made in exchange for something that was not only not bargained-tor. but was already done [past consideration}. The promise to Eric is enforceable because the law generally does not inquire into the adequacy oi'consideratinlt as In ng as one pa rty gives or promises something of value as the qnfd'pm em: for What the other party gives tl-l' [It'll-Mites- 3. Joe. age 17.. announced his intent to move into an apartment. His pa rents went along grudgingly. but made it clear that he was always welcome to return. Joe signed a one-year lease with Slippery Siope Apartments1 Inc. ESSA}, but after a month he decided to return home. When he told the SSA manager that he was leaving, the manager said that if he did not pay the rest of the ren t, a lawsuit for breach or contract would he filed. It the manager sues, a court would lilter rule for: a. SSA — it'it tries to mitigate its losses by rue-renting the apartment. it can recover any rent owed on the lease. b. ssa - the lease could he rescinded only it both parties agreed to do so. e. Joe, and he owes nothing on the lease. d. ssa - a contract for an apartment is a necessity. and minors cannot disat'firm contracts for necessities. Contracts involving minors are yoidnhle at the option of the minor. not the adult; therefore, .lo-e tall yoid this contract and will owe nothing more on it. Because the parents niade it clear that he was welcome to return, this was not a contract for a necessity. and in any es-ent minors can disafi'trm contracts for necessities. 9. Feldman emailed Bible. “I will build your house for $240.tltlll." The email itemized the parts of the hid. which totaled SIdtlJltll]. Bible saw the $24I].illl[l figure and replied. “I accept." The next day Feldman em oiled, “Error in yesterday‘s email; bid should be filo-BMW." Bible claims there is a contract for 51413313}; Feldmnn claims the contract is for Elfiflflflfl or there is no contract. at. court will likely conclude: a. Bible is correct. h. Under the t.:irenmstaneeaI Feldman may disal'firm the contract for $24fllflflt}. e. Choice h would be true il'this were a verbal contract. but not here where the agreement is written {emails}. d. L'nder Texas law. a contract to build a house cannot be disat‘firmed. There was a unilateral mistake. but because Blhle should have known ot‘it, Fcldman can disefl'lrnt the co otract. 1iiir'heth er a contract is ycrbal or written has no beat-i ng on the parties‘ right to disafflrnt based on unilateral or to nine] mistake. anti housing contracts are not treated differently from othercontracts. Ill. Mellow Johnny*s Bike Store conducted a hike excursion. It had customers sign a sis-page. single- spaced contract. Paragraph 1“:ch stated that they “agree to hold Mellow Johnny‘s harmless for any injury sustained in the excursion. rcga rdless of the cause." a rider fell and asserted that his bike he was negligentlyr maintained. When he sued .lobnny‘s. it raised paragraph lltc} as an affirmative defense. 1|Who wins? a. Rider- hold-harmless agreements are unenforceable in Texas. b. Johnny’s. ifthe rider knowingly and voluntarily agreed to paragraph Elie}. c. Rider— paragraph 11th appears to he unenforceable under the criteria stated by Texas courts. d. Johnny’s n Paragraph 2 1 {cl is enforceable because it exempts Johnnyis from liability for any Injury in customer may sustain “regardless of the cause.“ Under Texas law. there are two problems with paragraph Elie]. First. hold-harmless agreements must be conspicuous. attd a cotttract provision in the same type and font as the rest of a sis-page single~ spaced letter wouht not be conspicuous. Second. ii'one wants to escape liability for his own negligence. the agteemettt must specifically use tltc word negligence: global provisions like “regardless of the euuse" {in not put the public on lmtice that the person providing the service intends not to be liable for an injury even where his own negligence was the flame. I]. Smith slipped in Wal-Mafl and broke his leg. Not knowing what Smith's losses might be in medieals. etc.. his attorney wrote to Wal—Mart stating his intent to sue if Wal-l'i’lart didn‘t offer compensation. Will-Marl sent Smith a check for SlllJllltl and a form stating “Smith releases Wei-Mart from further liability.“ Smith cashed the check. signed the form. and returned it to Wal—Mart. nweek later, Smith‘s doctor told him his bills would he more than he guessed. and Smith notified 1i‘lial-l'i’lart that he was canceling the settlement. A court would likely rule that the settlement agreement is: a. Ent‘o rceablc — there was haggainetl-for consideration here. b. Enforceable because the parties knowingly and voluntarily agreed to it. c. LTnenfo rcea ble — there was no bargained—for consideration here. If. Unenl‘nrceable because Texas law does not permit accords and satisfaction. This was an unlinnidated debt because the amount of the loss had not been ascertained when the settlement agreement was made. 'l'hus. eaclt party gave consideration to support the agreement — Smith. because he gave up his right to litigate the issue of whether he was entitled to more than he settled for. anti 1i'e'al-l'ir'lart. because it gave up its right to litigate the issue ofwbether it owed less than it settled for. Choice b is incorrect because we have discussed in class several examples ofllte fact that an agreement is not enforceable sintply because the parties knowingly and voluntarily agreed In it. I1. Anne En. employs Roy as a delivery man. One day he goes to a store and buys a Blackberry. He tells the salesman that Acme has auth orieed him to buy it. He shows the salesman a credential. provided by Acme. that shows he works in Acute Delivery. and he tells the salesman to bill Acme. When the bill arrives at Acme, its Vice President refuses to pay it. The seller argues that Acme is liable. Who is liable for the purchase: a. Acme is not liable because it did not give Roy a power of attorney. so Roy is solely llahle. b. Acme is liable. but because Acute is a disclosed principal. Roy is not liable. c. Acme a tlLsclnsetl rinci al is not liable based on ex ress im lied ora rent anthnri lia blc. so He is d. Ilecause Acme is a partially disclosed principal, both it and Roy are liable. e. Acme is liable based on implied authority. but because Acme is a disclosed principal. Roy I! not liable. Acme is a disclosed principal because the salesman knew that Roy was attempting to contract on hehatt of a principal and knew the identity or that principal. Acme is not liahlc. however. because it did not give tiny es press authority to ma he this purchase: there is nothing to indicate that a delivery men would customarily be regarded as having the implied authority to malice this hind oi'pnrchase on hehall‘oi‘its em ploye r; and heme did nothing that would reasonably lead a third party to believe that its agent had this contracting an thority. An agent. by itselt. cannot create the appearance ofnuthority to contract on hehnlt'ot‘a principal. Therct‘orc. Roy is solely liable for the purchase. Li. In till. assume Roy is making a delivery in his own car from the Acme store in San Marcos to Seguin. l-lalt’way down the highway. he received a test message from his boss. While replying. he swerved and hit a bicyclist on the shoulder of the road. The hicyclist seed Roy For negligence and joined Acme under responded! superior. Ifthejnry finds Roy negligent. Acme is: a. Not liable since the tort occurred oil company premises. h. Not liable under the going and coming rule. c. Not liable because Roy was on a detour antl frolic when the tort occurred. d. Not liable hccanse Roy was in his own car when the tort occurred. e. Liable since Roy was involved in job-related testing when the accident occurred. An employer is liable for its agent‘s tort if the agent was an employee in the course and scope of em ployment when the tort occurred. and that depends prima rily on whether the agent was acting in his employer‘s or his own interest. Here. Roy was acting primarily in furtherance of his em ployer‘s interests when this tort occurred: therefore. he was not on a detour and frolic. The going and coming rule does not apply as it involves torts committed during commutes to and from the workplace. The fact that Roy was driving his own car and that the tort occurred oil‘ company premises is irrelevant. l4. 1When ARC Insurance Co. hired Joe. they signed a contract with a paragraph stating that on termination ot‘the relationship1 .loe would not, for two years. initiate or respond to contacts with anyone who was a elie nt ofABC while he was employed there, or who had contacts with ABC whether or not they ever became its client. no matter where they live. Two years later .lo-e quit ABC to start his own firm and began contacting people he had met while worldng at ABC but who had never become his or its clients. ABC sent him a letter stating its intent to seek an injunction to enforce the no-compete. In a lnxtiranit.I will] should prevail: a. ARC — the no-eotnpete is ancillary to an otherwise enforceable agreement and supported by Eonsid cration. h. ABC — the Ito-compete is written and signed by both parties. c. ABC - neither it nor h alone is snl'l'tciettl for ABC to win. but the hire combined are sufficient. d. .lne — The “HE of the net-compete is broader than necessau to protect ABC‘s lggitimate business interests. Ta hen from the Haas-s case. Employers [and sclicrs ol' husin esses] can enforce noncompcte agreements If they are ancillary to an otherwise en t'orccahle agreement [true here. as the no—compete is ancillary to the em ploy-meat contract}. so ptmrted liy lat rgaincd—I'or consideration ttrue here. as ABC's consideration is its agreement to hire Joe and his consideration is his agreement to accept employment and to do so pursuant to the no—com petet. and not broader than necessary to protect the employer‘s legitint ate husiness interests. l-lere. Milt: does not have a valid interest in enforcing a no—eontpetc to the extent that it prohibits its forater employee from having any contact with clieanwith whom he did not personally deal when. he was employed by ABC. who became clients of ABC after he quit working there. or who never became its clients. 15. On May 1. Smith contracted to deliver til-ti widgets to Jones by August 1. 0n June I. Jones heard that Smith is facing bankruptcy, so he sent Smith this letter: “Should you fail. by June 5. to assure me that you will fulfill our contract. I will treat the contract as breached. cover by trying to find another supplier. and sue you for any loss I sustain by having to do so.“ Smith does not respond. What is true: a. Because Smith did not respond. Jones cannot treat the contract as breached as ofJune 5. b. Smith is not in breach until August 1. so Jones must wait until then and then sue Smith il' he fails to perform. c. Smith may do what his letter states. although he is not obligated to attempt to cover+ cl. Smith may do what his letter states: and lie is obligated to attemgl to gover. Anticipatory breach or contract occurred when the requested assurance that the contract would he perforated was not furnished by .lune S. and the mitigation of damages principle requires Jones to make a. reasonable effort to cover by finding another supplier. 16. [in March 1. Smith hired Soc as an accountant. starting on June 1. The contract states: “Contract contingent on See graduating from Texas State in May." Due to unforeseen Events. she does not graduate: in the meantime she spent $1,000 on new work attire+ What is true: :1. Given the non-graduation. Smith may choose to either void or enforce the contract. b. The contract was never enforceable but Sue should he reimbursed the $2.0m] based on promissory cstoppel. c. This contract was valid and enforceable as of March l but became void on June 1. d. The contract was never enforceable and Sue is not entitled to reimbursement. Taken directly from my class esample involving the supposed sale of my house in Lakeway and the contract to purchase the house in Kyle. The failure oftbe condition precedent means the obligations created by this contract never became enforceable and there is no contractual or other right to reitn hn rsemcnt ofthe $2.tlthl. Promissory estoppel would not apply because. given the existence of the condition precedent in the contract. Smith made on promise on which Sue reasonably relied in buying the new attire. 17. Smith hired Jones to deliver ilIH} widgets by June I. At the time. Jones assumed he would use his regular fleet of truclts. On May IS. a storm destroyed Jones‘ fleet. There are other shipping options. but they would triple Jones' costs. Jones wants to cancel the contract because [1} it is impossible to perform based on the assumptions he had when he agreed to it. and [1} it would be commercially unreasonabie to force him to ship given that other options would triple his costs. There is no force otnjeure clause. Jones can cancel based on: {a} {l l. {b} {1]. {c} {l} or {1}. 1d} neither t 11 nor [1}. in Texas. commercial impracticability is not a defense to nonpcrforntance ofn contract on the ground that performance has become more costly than was anticipated when the contract was formed. and impossibility does not apply given the existence of other shipping options. If one wants to be protected in the event of unforeseen circumstances that arise after a contract is outdo. one should include in the contract an Act of I[ind provision [which the other party would obviously have to agree to}. 18. Paula hired Barnett to locate real estate that she could use for nm ta] property. She said she wanted a four-plea for under Slflddlilt} that could rent for at least Sldilil] per month per unit. Barnett found a four-plea for SlbflJJlJll that was renting for $1.290 per unit. It was such a good deal that he bought it for himself. at. month later he found a second property for S Ilt'EIJtlJI] that rented for $1.000 per unit. Paula bought it. When she learned about the first fourrples. Paula told Barnett that he had acted improperly. Barnett claimed that he did what she asked —- he found a property for under SEdlIJJDIJ that rented for Shillili per unit. a. Barnett violated on ethical or legal duties to Paula. b. Barnett may have behaved unethically. but has violated no legal duties. c. Barnett violated his fiduciagy dug of loyalfi to Paula. d. Since Paola received the opportunity she requested Barnett is not liable for damages. Barnett has a fiduciary duty to act in his priocipal‘s best interests. not his own. and he violated that duty a hen. without telling Paula. he bought for himselfa property that fully met her needs. The fact that he later found another property that also met her needs is irrelevant. given the fact that the first property was better from ltcr standpoint than the second one. There would also have been a breach of fiduciary duty even it‘thc second property was identical to the first. given that Barnett did not find the second property until a month after he found the first one. it}. Linda owns a ha rdwa re store. When Linda was not present an employee. Dawn. injured a customer when she negligently took. a hike off a sheif. The customer sues Dawn and Linda under respondent superior. a. Linda is liable only ii'she negligently hired, trained. or supervised Bawn. b. Because Linda was not present. she is not liable to the customer. c. Universally it is considered unethical to hold people liable for negligence they couldn‘t prevent. d. Linda can he held liable to the customer for Dawn"s negligence. Straightforward application ufrespomients'uperiordoctrine. which applies witltu ut regard to any fault. or the lack thereof. on the employer’s part. Down committed a tort and clcariy was in the course and scope nl'employmcnt when she did so as she was acting in the furtherance nfher emptuye r's interest in Selling the hike. Iii. Rene. an openly gay male. has mannerisms that h co—worlters regard as effeminate. After weeks of verbal abuse. he complained to management but nothing was done. Finally the conditions became so intolerable that he quit and sued his employer under Title 1|r'l]. True—False: Even though Title VII does not prohibit discrimination based on sexual orientation. Rene has a cause election for his constructive discharge if he proves that his co—workers abused him because he did not act like they thought males should act. True in all respects. 21. Sally sues for sesu al harassment by a snperviso r. Discovery reveals that. while the so p-crvisor regularly calls male and female workers vulgar names. he has insulted more women than men and has used sex-specific terms ["hiteh." "slut." etc.) in referring to women but non-ses-specit‘ic terms in insulting men. True-False: flcca use the supervisor treated both sexes badly. Sally has no claim for set: discrimination under Title VII or the Texas Commission on Human Rights Act. False. That is the old “equal opportunity lta rasser“ interpretation. but the new view ofthc courts is that sex discrimination can occur when both sexes are treated badly ifone is treated significantly worse than the other. or where one see is subjected to sex-related abuse to which the other sex is not subjected. 11. in its job application. Smith Co. asks: “Do you attend church?" 10% of applicants who answer “No” get to the next stage of the hiring process, compared to 63% who answer “Yes.” Jolt... who did not get to the nest stage.I sued claiming religious discrimination under Title it'll. True—False: Because Smith Co. asks the same question of every job applicant. it cannot be guilty of discrimination under Title 1it'll. False. Because the EEUI‘L‘ 4:5 rule is not satisfied here {the 29% success rate is not at least 30% otthe 68",”... success rate]. there is a prime foe-tie ease oi” disparate intpael discrimination based on religion. which is pnthihited by Title 1|It'll. The employer could defend asking this question only if it can demoustrate a legitimate business necessity {not desirability} for the information obtained. 13. Joe. age 53. is tired tor declining sales perl'ormance. Based on corn meats he overheard supen'isors make. e.g.. “he‘s so old he must have come over on the May flower,“ he argues that he was fired because of his age. True-False: Ii'he sues under the Age Discrimination in Employment Act. Joe can win only if he proves that his age was the sole reason for his termination. He can offer the stray comments into evid encc {assume no hearsay problem}, but they will not be eonelnsive on the issue of whether he was terminated based on his age. True in all respects. 1-1. True—False: in a quidpro and sexual harassment case. e.g.. where an employer denies a woman a promotion because she refuses to have sex with him, the employer can successfthr defend it it had policies in place that prohibit sexual harassment and conducted workshops to familiarise its workforce with what constitutes aetionahle harassment. False. Employers have no defense and are strictly liable for quid pro and sexual harassment involving a tangible employment action. which would include a non—promotion. 25. True-False: Race and color can never be a bona fide occupational qualification EBFDQI, so an employer who takes those categories into account in making an employment decision (promotion. hirin g. etc.) can never have a BF-DQ defense in a Title 1|tr'Il lawsuit: rellglon. national origin. and ses can, howeyer. be a BFDQ. meaning that given the right facts, an entployer would not violate Title VII in taking those categories into account in making an employment decision. True in all respects. 26. BDNUS: 1|Irlll’hich at" these fact scenarios was NflT involved in any ollhe employment law cases I assigned you to read last week: a. Man was sent to work at a hot oil treating plant. h. flil drilling worker sought overseas employment with a. company. e. Woman bcea me involved in dispute over claims that she had various kinds orinappropriate physical contact with a co-woriter. d. Man was injured during ride on bus provided by the city in which he lived. c. All of these scenarios were involved. ...
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This note was uploaded on 02/28/2012 for the course BLAW 2361 taught by Professor Bible during the Fall '08 term at Texas State.

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old exam 3 - BLAW 2361 — Exam 3 {Fall Zillfl} Name:...

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