MBE-MEE Doctrines, Rules and Tests

Question 1

What is the “doctrine of abstention”?

Answer 1

“Abstention” is when a federal court declines to exercise jurisdiction because the federal constitutional issue presented is based on an unsettled question of state law.
Tip: If the state court resolves the state law issue first, the federal court may not need to hear the case at all.

Question 2

What is the “merger doctrine” (CRIMINAL LAW)?

Answer 2

The “merger doctrine” states that lesser included offenses (crimes consisting of only some of the elements of a greater crime) merge into the greater offense upon conviction (to avoid being convicted of both).
Tip: Merger applies to the crimes of solicitation and attempt, but NOT conspiracy.

Question 3

What is the “merger doctrine” (in LAND SALE CONTRACTS)?

Answer 3

Under the “merger doctrine,” once closing occurs the contract merges with the deed.
The merger, i.e., subsummation of the contract into the deed, extinguishes any rights the grantee had to sue under the contract.

Question 4

What are the two elements of the “Pinkerton rule”?

Answer 4

Under the “Pinkerton rule”, a conspirator will be liable for the crimes of their co-conspirators IF those crimes were:
1. committed in furtherance of the conspiracy; AND
2. foreseeable, meaning “a natural and probable consequence” of the conspiracy.
Tip: The Pinkerton rule is a judicially created doctrine.

Question 5

What is the legal standard for “imperfect self-defense” doctrine?

Answer 5

“Imperfect self-defense” is a doctrine that reduces murder to manslaughter if the defendant:
1. was at fault (i.e., the initial aggressor); OR
2. honestly, but unreasonably believed that deadly force was necessary.
Tip: This is a common law doctrine that some states still recognize as a way of reducing a murder charge to manslaughter.

Question 6

What is the “reply letter doctrine” in evidence law?

Answer 6

The “reply letter doctrine” allows a writing to be authenticated by showing that it was written in response to a letter mailed to the alleged author (e.g., the identity of a witness-author may be shown when witness-author received a letter from another person in response to an original letter by witness-author).

Tip: The contents of the writing must show that it was unlikely that anyone other than the alleged author wrote it.

Question 7

What is the doctrine of “cy pres”?

Answer 7

• The doctrine of “cy pres” allows the court to carry out a will or trust that, for some reason, is impossible to carry out as directed.
• The court will follow the general intention of the testator as nearly as possible.

Question 8

What is the doctrine of part performance?

Answer 8

The doctrine of part performance is an EXCEPTION to the general rule that
land sale contracts must be evidenced by a signed writing that satisfies the Statute of Frauds.

Question 9

What is the doctrine of “equitable conversion”?

Answer 9

Once a contract for the sale of land is executed, the doctrine of “equitable conversion” gives equitable title to the BUYER, who will then be considered the owner of the land in equity, while legal title and right to possession remain with the SELLER until the closing.
Tip: The majority rule is that if the property is destroyed before closing, without fault from either party, the risk of loss remains with the buyer.

Question 10

What is the doctrine of ADEMPTION?

Answer 10

“Ademption” is a doctrine used to determine what happens when property
bequeathed under a will is no longer in the testator’s estate at the time of the testator’s death.
Tip: Ademption does not apply to general devises.

Question 11

What are the two approaches or DOCTRINES to water rights in the U.S.?

Answer 11

1. the riparian doctrine: owners of land contiguous to a stream or lake may make reasonable use of the natural flow of that water:
2. the prior appropriation doctrine: water rights are determined by the priority of appropriation of the water.

Question 12

What is the doctrine of “transferred intent”?

Answer 12

Under the doctrine of “transferred intent,” if a defendant acts with the necessary intent to cause an intentional tort against one particular person, but in trying to accomplish that tort, causes injury to a different victim, the defendant’s intent is transferred to the actual victim, even if both the victim and the harm were unexpected.

Tip: Transferred intent may only be invoked if both the tort that occurred and the tort that was intended are one of the following:
- assault,
- battery,
- false imprisonment,
- trespass to land, OR
- trespass to chattels.

Question 13

What is the “attractive nuisance doctrine”?

Answer 13

The “attractive nuisance doctrine” imposes a special duty of care on a land occupier with respect to artificial conditions on the land that involve a risk of harm to children unable to recognize the danger involved.
* APPLIES after a landowner discovers children trespassing; and
* HOLDS that the landowner owes a duty of due care to warn or protect children from artificial conditions involving a risk of death or serious bodily harm.
Tip: To be a child trespasser, the child must be so immature that they cannot understand the danger involved.

Question 14

What are the elements of the attractive nuisance doctrine?

Answer 14

Where there is an attractive nuisance, courts will impose upon a landowner the duty to exercise ordinary care to avoid a reasonably foreseeable risk of harm to children caused by artificial conditions on the property. This is typically applied when a minor is engaged in an activity appropriate for children.
The plaintiff must show that:
1. the defendant was aware of the dangerous condition;
2. the owner knows minors frequently are near this condition;
3. the condition will likely cause injury; AND
4. the expense of remedying the situation is slight when compared to the magnitude of the risk.

Question 15

What is the doctrine of “res ipsa loquitur”?

Answer 15

Arises when P does not have direct evidence of D’s negligence, but her injuries suggest D was negligent.

Elements of res ipsa loquitur:
(1)- Injury would not occur without negligence;
(2)- D had exclusive control over instrumentality that caused the injury; and
(3)- P did not contribute to the injury

Question 16

What is the “last clear chance” doctrine?

Answer 16

Under the doctrine of “last clear chance,” courts hold that a plaintiff’s contributory negligence would not bar or reduce recovery if the defendant, immediately prior to the accident, had the “last clear chance” to avoid the accident and failed to do so.
Tip: The doctrine of last clear chance was meant to soften the complete defense of contributory negligence at common law.

Question 17

What is the doctrine of “respondeat superior”?

Answer 17

The doctrine of “respondeat superior” allows for an employer to be vicariously liable for tortious acts committed by an employee within the scope of employment.
Tip: Intentional torts often are held to be outside the scope of employment unless they are committed in furtherance of the employer’s business

Question 18

What is the “vagueness” doctrine?

Answer 18

The “vagueness” doctrine prohibits laws that do not provide reasonable notice about which acts are either required or prohibited; any such laws will be found unconstitutional under the Due Process Clause.

Question 19

What is the doctrine of “after-acquired title”?

Answer 19

Under the doctrine of “after-acquired title,” when a grantor purports to convey an estate that they do not actually have title to at the time of the conveyance, if the grantor subsequently acquires title, the title passes by operation of law to the grantee under the earlier deed.
Tip: This doctrine is also called “estoppel by deed.”

Question 20

What is the Family Purpose Doctrine?

Answer 20

The Family Purpose Doctrine states that an automobile owner will be liable for a family member’s consented-to but negligent operation of the vehicle;

NOTE: This doctrine is one the two situations in which a bailor will be liable for negligent or intentional harm inflicted by the bailee, outside of the bailor’s presence, include:

The other situation is called the “permissive use statutes”, which state that an automobile owner will be liable for ANYONE’S negligence while that person is driving their automobile with consent.

Question 21

Which doctrines establish causation when multiple parties are concurrently liable?

Answer 21

Where there are multiple defendants and which tortfeasor caused the harm is in question, the jury may determine causation by using:
1. the market share liability doctrine;
2. the alternative liability doctrine; OR
3. the joint venture/joint enterprise doctrine.

Question 22

What is the alternative liability doctrine from the case Summers v. Tice?

Answer 22

The alternative liability doctrine permits a jury to find two defendants liable when each was negligent, and either could have caused fault.

Question 23

What is the “Abstention” doctrine?

Answer 23

The “Abstention” is when a federal court chooses not to hear a case, even if all the formal jurisdiction requirements are met. The federal court relinquishes its jurisdiction to state court, often used to avoid conflict between federal and state laws.
Tip: A federal court will retain jurisdiction over a challenge to the
constitutionality of a state law but abstain from deciding until the state court decides the meaning of the state law.

Question 24

What is the “Doctrine of Worthier Title”?

Answer 24

The “Doctrine of Worthier Title” provides a presumption that when a grantor conveys a future interest to the grantor’s own heirs, the grantor actually intended to keep the interest in himself.

Question 25

What is the doctrine of “equitable subrogation”?

Answer 25

Under the doctrine of “equitable subrogation,” a person other than the mortgagor who pays off the mortgage may step into the shoes of the now-paid-off mortgagee.
Tip: This allows new lenders to assume the “place in line” of prior mortgage holders and place themselves in a senior position for a mortgage on the property.

Question 26

What is the “Erie doctrine”?

Answer 26

The “Erie doctrine” applies when a federal case is brought under diversity jurisdiction.
A conflict between federal and state law may present an Erie problem.
THE PURPOSE OF THE ERIE DOCTRINE IS TO PREVENT FORUM SHOPPING.
Source: Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)

Question 27

What is the doctrine of “relation back”?

Answer 27

The doctrine of “relation back” applies when pleadings are amended to add claims or defendants after the statute of limitations has run.
The amended pleading will be treated as if it was filed when the original pleading was
filed.
Source: Fed. R. Civ. P. 15(c)

Question 28

What is the “incorporation doctrine”?

Answer 28

The “incorporation doctrine” is a constitutional doctrine through which the first ten amendments of the United States Constitution (known as the Bill of Rights) are made applicable to the states through the Due Process Clause of the Fourteenth Amendment.

Question 29

What is the “fruit of the poisonous tree doctrine”?

Answer 29

Under this doctrine, all evidence derived or obtained as a result of illegal government conduct is inadmissible in criminal proceedings against the defendant as “fruit of the poisonous tree.”

Question 30

What is the “completeness doctrine”?
h the evidence originally introduced.

Answer 30

Under the “completeness doctrine”, when a party introduces all or part of a writing or recorded statement into evidence, an adverse party may introduce evidence of any other remaining part or any related writing or recorded statement that due to fairness should be considered contemporaneously wit

Question 31

What is the “Wait and See” or “Second Look Doctrine” for the Rule Against Perpetuities?

Answer 31

Under this doctrine, the validity of any suspect future interest is determined on the basis of the facts existing at the end of the life estate rather than at the creation of the interest.

When faced with a RAP question:
1. classify the future interest to see if RAP applies;
2. identify the measuring life;
3. identify when the interest must vest or fail; AND
4. analyze whether the interest will vest or fail within 21 years of the life in being.

Question 32

What is an “implied reciprocal servitude” (common scheme doctrine)?

Answer 32

A court will imply a reciprocal servitude if:
1. the original owner intended a common scheme or plan (evidenced by a recorded plat, general pattern of restriction, or oral representation of early buyers); AND
2. the purchaser had notice (actual, inquiry, or record) of the scheme.
Tip: The common scheme doctrine applies only to negative covenants and equitable servitudes.

Question 33

What is the “joint venture doctrine”?

Answer 33

The “joint venture doctrine” holds that a jury may impute one defendant’s tortious conduct on others who are engaged in a common enterprise. There must be an explicit or implied agreement to engage in the tortious conduct.

Question 34

What is the “market share liability doctrine”?

Answer 34

The “market share liability doctrine” permits a jury to apportion damages based on the manufacturer’s market share of a defective product. Courts have held this only applies to products that are mutually interchangeable in their capacity to cause harm.

Question 35

What is the “mirror image rule”?

Answer 35

At common law, an acceptance had to be a “mirror image” of the offer. If a purported acceptance deviated from the offer in any way (change, add, or omit terms), it was deemed a qualified or conditional acceptance and did not form a contract.
Tip: The mirror image rule does not apply to U.C.C. contracts.

Question 36

What is the “mailbox rule”?

Answer 36

The “mailbox rule” states that acceptance of an offer is effective upon dispatch.
Tip: The acceptance of an option contract is effective only upon receipt, NOT dispatch.

Question 37

What is the “parol evidence rule”?

Answer 37

Under the “parol evidence rule,” a party cannot introduce extrinsic evidence of prior or contemporaneous agreements offered to contradict, vary, or modify an unambiguous writing which the parties intended to be a full and final expression of an agreement.

Question 38

What are the seven exceptions to the parol evidence rule?

Answer 38

Parol evidence MAY be introduced to prove:
1. defects in the formation of the contract (such as fraud, duress, mistake or illegality);
2. parties’ intent regarding ambiguous terms in the contract;
3. problems with the consideration (e.g., the consideration was never paid);
4. a prior valid agreement that is incorrectly reflected in the written instrument in
question;
5. a related agreement, if it does not contradict or change the main contract;
6. a condition that had to occur before contract performance was due; OR
7. subsequent modification of the contract.

Question 39

What is the “best evidence rule”?

Answer 39

When a party wants to prove the material terms of a writing (e.g., recording,
photograph, X-Ray), the “best evidence rule” requires the original writing to be produced.
Tip: The best evidence rule is also known as the “original document rule”.
Source: Fed. R. Evid. 1002

Question 40

What are the four exceptions to the best evidence rule?

Answer 40

The best evidence rule does not apply (the original writing does not need to be produced) when:
1. the facts to be proved exist independently of the writing (e.g., a witness has independent knowledge of something that was memorialized in writing);
2. the writing is only of minor or collateral importance;
3. the writing contains voluminous records that can be summarized; OR
4. the writing is in the form of a certified public record.
Sources: Fed. R. Evid. 1005-07

Question 41

What is the rule of convenience?

Answer 41

The rule of convenience holds that a class closes based on the perspective that only people in existence at the time of the death of the testator are intended to take under the will.
Tip: A call for distribution of the class gift will usually close the class for rule of convenience purposes.

Question 42

What is the “Rule Against Perpetuities” RAP?

Answer 42

• The “Rule Against Perpetuities” (RAP) states that no future (or contingent) interest is valid if it might not vest within 21 years after a life in being at the time of it’s creation.
  *The RAP prevents people from using deeds or wills to exert control over the
  ownership of property for a time beyond the lives of people living at the time the instrument was created.
  Tip: A RAP analysis has multiple steps, including identifying whether the future interest that was created falls under the RAP.
  The RAP measuring life is the remaining life of a person who is in existence at the time when the gift or conveyance vests.
  AdaptiTip: The measuring life must be a human life and there can be more than one measuring life.

Question 43

What are the four interests the Rule Against Perpetuities DOES NOT apply to?

Answer 43

1. interests held in the grantor (reversions, possibilities of reverter, and rights of reentry);
2. vested remainders held in individuals;
3. charity-to-charity dispositions; AND
4. options to purchase for current tenants.
   Tip: The Rule Against Perpetuities APPLIES to class gifts.

Question 44

What is the “Shelter Rule”?

Answer 44

The “Shelter Rule” holds that a person who takes from a bona fide purchaser will prevail over any interest over which the bona fide purchaser would have prevailed.
Tip: The Shelter Rule applies even when the person who took from the bona fide purchaser had actual knowledge of the prior unrecorded interest.

Question 45

What is the “eggshell plaintiff” rule?

Answer 45

The “eggshell plaintiff” rule is the concept that the tortfeasor takes their victim as they find them, meaning all courts hold the defendant liable for the full extent of the plaintiff’s injuries, even if the plaintiff suffers an unforeseeable high level of damage due to a pre-existing vulnerability or medical condition.

Question 46

What is the “deadly weapon rule”?

Answer 46

​​When a defendant intentionally uses a deadly weapon and kills someone, the court may presume that they acted with the intent to kill.
Tip: A “deadly weapon” is any object calculated or likely to result in death or serious bodily harm

Question 47

What is the “collateral source rule”?

Answer 47

The “collateral source rule” prevents a defendant from introducing evidence that the plaintiff received financial assistance from other sources (e.g., insurance) as a way to reduce an award for damages

Question 48

What is the “Rule in Shelley’s Case”?
ts both the life estate and the remainder)

Answer 48

The “Rule in Shelley’s Case” provides that a conveyance that attempts to give a person a life estate, with a remainder to that person’s heirs, will instead give both the life estate and the remainder to the person, thus giving that person the land in fee simple absolute (full ownership without restriction).
(e.g.: Life estate to grantee + remainder to grantee’s heirs = FEE SIMPLE ABSOLUTE to grantee (because grantee ge

Question 49

What is the “last shot rule”?

Answer 49

Under the “last shot rule,” at common law, where the seller’s form and the buyer’s form differ, the last form sent is deemed a conditional acceptance and therefore a counteroffer.
AdaptiTip: Distinguish from acceptance rules under U.C.C. $ 2-207.

Question 50

What is the U.C.C. “knockout rule”?

Answer 50

Under the U.C.C. “knockout rule,” conflicting terms cancel each other out and neither enters the contract. The contract consists of the otherwise agreed upon terms, and the court will supply “gap fillers” as needed.

Question 51

What is the final judgment rule?

Answer 51

A final judgment is an ultimate decision made on the merits of the case. Generally, only final judgments may be appealed.
Tip: Some interlocutory orders may be appealed before final judgment.

Question 52

The “rule of mutuality” in issue preclusion?

Answer 52

The “rule of mutuality” means that only parties to a prior litigation may assert issue preclusion.

Question 53

What is the “merchant’s confirmatory memo rule” and how does it affect the Statute of Frauds written requirement?

Answer 53

The U.C.C. Statute of Frauds may be satisfied when two merchants enter an oral agreement and within a reasonable time one of them sends the other a written confirmation of the agreement. In such a circumstance, the Statute is satisfied against the recipient merchant if:
1. they have reason to recognize the confirmation’s contents; AND
2. fail to object to the confirmation within 10 days of receipt.

Question 54

What is the “pre-existing duty rule”?

Answer 54

The “pre-existing duty rule” provides that a promise to do something that one was already legally obligated to do will not provide consideration for a new bargain.
Tip: The pre-existing duty rule often arises in the context of contract
Modification.

Question 55

What is the “Battle of the Forms” rule?

Answer 55

The “Battle of the Forms” rule determines whether additional terms will be included as part of the contract. This depends on the status of the parties as merchants.
If one or more parties is NOT a merchant, any additional terms are a proposal and will not become part of the contract unless the other party assents.
If BOTH parties are merchants, any additional terms automatically become part of the contract UNLESS:
1. the offer expressly limits acceptance to its terms;
2. the addition is a material alteration; OR
3. the offeror objects to the additional term within a reasonable time

Question 56

What is the “material benefit rule”?

Answer 56

In a minority of jurisdictions, under the “material benefit rule” courts will enforce a contract with past consideration, IF the promise conferred a material benefit on the promisor, and the benefit was not intended as a gift.
Tip: Under the Second Restatement, courts will only enforce the promise to the extent it is proportional to the benefit conferred.

Question 57

What is the “certainty rule”?

Answer 57

The “certainty rule” is the concept that to be recoverable damages must be
reasonably certain and not speculative.

Question 58

What is the “exclusionary rule”?

Answer 58

The “exclusionary rule” prohibits the introduction of evidence obtained in violation of the 4th, 5th and 6th Amendments, including physical evidence and statements, in a criminal proceeding.

Question 59

What are the exceptions to the exclusionary rule?

Answer 59

Evidence will not be held inadmissible as fruit of the poisonous tree if:
1. police had an independent source;
2. discovery of the evidence was inevitable;
3. there was intervening acts of free will by the defendant;
4. there is attenuation (the evidence is too remote from the unlawful search and seizure); OR
5. the police relied in good faith on a defective warrant.

Question 60

What standard of review is used to remedy a violation of the exclusionary rule in Constitutional law?

Answer 60

Harmless error review allows for admission of illegally seized evidence to be upheld on appeal if the government can show that it was harmless beyond a reasonable doubt.

Question 61

What is the “independent source” exception to the “exclusionary rule”?

Answer 61

If the police can show that evidence initially discovered during, or as a consequence of, an unlawful search was later obtained from an “independent source” untainted by the initial illegality, such evidence will not be excluded.

Question 62

What is the “inevitable discovery” exception to the exclusionary rule?

Answer 62

If the police can show that the discovery of evidence would have been inevitable regardless of illegality, the evidence will not be excluded.

Question 63

What is the “good faith” exception to the exclusionary rule?

Answer 63

If the government can show that the police relied in “good faith” on a defective search warrant or a statute that was later changed or declared invalid, such illegally obtained evidence will not be excluded.

Question 64

What is the “attenuation” exception to the exclusionary rule?

Answer 64

Under the “attenuation” exception, evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by an intervening circumstance.

Question 65

What is the “knock and announce” rule?

Answer 65

Unless exigent circumstances exist, the arresting officers must “knock and announce” their identity and purpose before entering the premise. A violation of the “knock and announce” rule does not automatically trigger the exclusion of evidence seized after the violation.
Tip: If the officers have reasonable suspicion that knocking and announcing would be (i) futile, (li) dangerous, or (li) inhibiting to the investigation, they may bypass the knock and announce requirement.

Question 66

What is the year and a day rule?

Answer 66

Under the common law, the death of the victim must occur within one year and one day from the defendant’s wound inflicting conduct for a homicide prosecution to stand.
Tip: Many states have abolished application of this rule through statute.

Question 67

What is the “misdemeanor-manslaughter” rule?

Answer 67

Under the “misdemeanor-manslaughter” rule, an unintentional killing that occurs during the commission or attempted commission of a misdemeanor that is malum in se (i.e., conduct that is inherently wrong), or of a felony which is not inherently dangerous is categorized as involuntary manslaughter.

Question 68

What is the “Wharton Rule” for conspiracy?

Answer 68

The Wharton Rule holds that where two or more people are necessary for the commission of the underlying offense (e.g., adultery, bigamy), there is no conspiracy unless the agreement involves an additional person who is not essential to the definition of the crime.

Question 69

What are the 4 exemptions to the hearsay rule?

Answer 69

1. admissions;
2. prior inconsistent statements;
3. prior consistent statements; AND
4. prior statements of identification.

Question 70

What is the rule for remoteness?

Answer 70

A conviction is too remote if it has been more than 10 years from the date of
conviction or release from confinement, whichever is later.

Question 71

What is the “Learned intermediary” rule?

Answer 71

If a prescription drug is administered by a medical professional, duty to warn is satisfied if the medical professional is informed of the risks b/c there is a presumption the doctor will inform the patient.

Question 72

What is the “Rule 403 balancing test”?

Answer 72

Under the “Rule 403 balancing test,” relevant evidence may be excluded if it’s probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Source: Fed. R. Evid. 403

Question 73

What is the common law rule “caveat emptor”?

Answer 73

At common law there were no implied warranties in the sale of a home, the buyer was responsible for inspecting the quality and suitability of the property before purchase (“buyer beware”).
Tip: This approach has been abandoned for newly built homes due to the implied warranty of fitness or quality.

Question 74

What is the risk-utility test?

Answer 74

P must prove:
Reasonable alternative design was available to D; and
Failure to use that design rendered the product not reasonably safe

Question 75

What is the substantial factor test for actual cause?

Answer 75

Actual cause exists when D’s negligence was a substantial factor in bringing about P’s injury
⭐️ Used when there are multiple causes or tortfeasors that could have caused P’s injuries

Question 76

What is the Klaxon doctrine?

Answer 76

In diversity cases, federal courts apply the choice-of-law rules of the state in which the federal court sits.

Question 77

What are the 2 tests to determine whether there are a design defects?

Answer 77

(1)- Consumer Expectation test; and
(21)- Risk-Utility test

Question 78

What is the Doctrine of Marshaling Assets? (REAL PROPERTY / MORTGAGES)

Answer 78

Holder of a senior security interest must proceed:

(1) First, against property without junior security interests;
(2) Second, against property that has whichever junior interest was more recently created; and
(2) Lastly, against property that has whichever junior interest was more remotely created

Question 79

What is the economic loss rule?

Answer 79

Under the economic loss rule, there is no recovery on a strict products liability theory if a defect in a product causes damage only to the product itself, as opposed to personal physical injury or injury to other property. In such cases, the owner of the damaged product is limited to contract remedies for damage to the product.