Identify Factors Favoring Each Party - Next Generation Bar Exam

1. A former employee's covenant bars competition nationwide for five years, although the employer operates in one city. What factor favors the employee?

   The restriction is far broader than the employer's legitimate interest. Unreasonable geographic scope and duration weigh against enforcement.

2. A driver who hit a child running into the street was driving at the speed limit in a school zone during dismissal. What factor favors the child on breach?

   The foreseeable presence of children in a school zone at dismissal. Reasonable care may require driving below the limit when children are expected.

3. In determining whether a contract is unconscionable, which factors favor the party challenging it?

   Unfair bargaining process and unreasonably one-sided terms. Courts generally require both procedural and substantive unconscionability.

4. In a preliminary injunction analysis, which factor favors the defendant when the plaintiff's harm is compensable by damages?

   The lack of irreparable harm. Irreparable harm is a required showing for the movant.

5. In a negligence case, what factor favors a defendant on the question of breach?

   A burden of precaution high relative to the probability and gravity of harm. When the cost of precaution outweighs the risk, failure to take it is less likely negligent.

6. In a forum non conveniens analysis, what factor favors the plaintiff?

   The plaintiff's choice of forum, particularly a home forum. A domestic plaintiff's choice of home forum receives strong deference.

7. In a dispute over whether a fixture passes with land, which factor favors treating an item as a fixture?

   Annexation to the land with apparent intent that it remain permanently. Courts consider annexation, adaptation to the land, and intent.

8. A hiring party sets a worker's hours, supplies tools, and supervises the work daily. What factor favors employee status?

   The hiring party's control over the manner and means of the work. Daily supervision and set hours show the right to control.

9. In a balancing test, what is meant by a factor favoring a party?

   A fact that, under the applicable test, makes a ruling for that party more likely. Identifying favoring factors requires knowing what the test weighs.

10. Under the reasonableness test for covenants not to compete, which factors favor enforcement?

    Protection of a legitimate business interest and reasonable limits on time, geography, and scope. Overbroad restrictions favor the employee.

Study these flashcards