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MBE Practice Exam Cards Flashcards

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1
Q

What are the 3 factors for the collateral order doctrine

A

Under the collateral-order doctrine, a court of appeals has discretion to hear and rule on a district court order if it (1) conclusively determines the disputed question, (2) resolves an important issue that is completely separate from the merits of the action, and (3) is effectively unreviewable on appeal from a final judgement

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2
Q

When is diversity of parties considered?

A

at time complaint is filed

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3
Q

In general, who can file cases under diversity jurisdiction

A

US citizens and lawful resident aliens

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4
Q

In a class action under DJ, can parties join if they don’t meet the AIC?

A

Yes, they can join under supplemental jurisdiction as long as one party meets AIC

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5
Q

In DJ - When first plaintiff meets requirements and another plaintiff wants to join under permissive joinder, what do you need?

A
  • doesn’t destroy diversity

- does not have to meet AIC since first plaintiff does

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6
Q

In DJ - when a defendant wants to join under permissive joinder, what do you need?

A
  • doesn’t destroy diversity
  • Claims against each D must meet the AIC

(Defendant who is joining needs to meet both diversity requirements because there’s no supplemental jurisdiction for Ds who join under permissive joinder)

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7
Q

___________ counterclaims don’t need to meet AIC

A

compulsory

permissive counterclaims need to meet AIC because supplemental jurisdiction doesn’t apply for them

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8
Q

What is rule 4k2?

A

A federal court may exercise PJ over a foreign D, even though the court would not otherwise have PJ over the D due to D’s lack of “minimum contacts” with the forum state

  • P’s claims have to be based on federal law
  • D must have sufficient contacts with the US as a whole
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9
Q

Once a court with PJ renders a judgement, does a court in another state need minimum contacts to render the judgement?

A

no!

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10
Q

How long does a D have to respond to an amended complaint?

A

14 days after amended complaint was served

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11
Q

When filing a pleading, does an attorney need to have complete evidentiary support?

A

No, so long as she’s reasonably sure she will get it after an investigation or discovery and she tells the court that in the pleading

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12
Q

What are the 4 requirements for a class action?

A
  • numerosity
  • common questions
  • typiciality
  • adequate representation
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13
Q

What kind of class actions require notice?

A

Common questions of law or fact predominate and class action is superior to other available methods for fairly and efficiently adjudicating the controversy

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14
Q

When do pretrial disclosures need to be made?

A

at least 30 days before trial

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15
Q

When do initial disclosures need to be made?

A

at or within 14 days of the discovery conference

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16
Q

When do expert witness disclosures need to be made?

A

At least 90 days before date set for trial

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17
Q

What kind of judgements can be appealed?

A

final judgements only

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18
Q

When does a litigaent have third party standing?

A

when there’s a special relationship between the litigant and the injured party (i.e. private school asserting its students’ rights to attend despite a statute requiring attendance at public schools)

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19
Q

What is the difference between the Dormant Commerce Clause and the Commerce Clause? (When should you choose each one for an answer)

A

Dormant Commerce Clause – restricts the power of the STATES to act with regard to interstate commerce

Commerce Clause – gives CONGRESS power to regulate any activity that is commercial or is an essential part of regulation of a large economic activity that in the aggregate has a substantial economic effect upon or effect on movement in interstate commerce

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20
Q

Section 5 of the 14th Amendment does what?

A
  • lets Congress pass legislation to enforce the EPC and DP rights of the 14th Amendment
  • DOES NOT let Congress expand those rights or make new ones
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21
Q

When Congress delegates legislative power what needs to happen?

A

Needs to give an intelligible principle - can be ANYTHING and doesn’t have to be specific

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22
Q

Reasonable restrictions on voting get what level of scrutiny?

A

Rational Basis

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23
Q

Unreasonable restrictions on voting get what level of scrutiny?

A

Strict Scrutiny

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24
Q

What is an example of a reasonable restriction on voting?

A

a 30 day residency period

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25
Q

Congressional Action directed towards aliens is only subject to challenge under what standard?

A

When it’s arbitrary and unreasonable

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26
Q

When can a local government exact promises from a developer (such as setting aside a portion of the land being developed for a particular use or a demand for an additional expenditure, in exchange for issuing the necessary construction permits) when is that not a taking?

A
  • If there is an essential nexus between legitimate state interests and the conditions imposed on the property owner,
  • and a rough proportionality between the burden imposed by the conditions on property owner and the impact of the proposed development.
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27
Q

T/F - An ex post facto law doesn’t matter if the defendant is serving his sentences concurrently

A

FALSE - ex post facto matters as long as the law creates a new criminal offense that wasn’t criminal at the time D committed the offense

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28
Q

Where do you never have a right to picket?

A

At a particular residence

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29
Q

Can a “fighting words” statute prohibit certain viewpoints?

A

No - must be content neutral

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30
Q

When is a defendant not guilty as an accomplice?

A

When the person’s action is itself an essential element of the crime

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31
Q

What is the M’Naghten test?

A

a defendant is not guilty if he does not know the nature, quality, or wrongfulness of his act because of his mental disease.

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32
Q

What is malice aforethought? (needed for common law murder)

A
  • intent to kill
  • intent to inflict serious bodily injury
  • reckless indifference to an unjustifiably high risk to human life (depraved heart)
  • intent to commit certain felonies (felony murder)
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33
Q

What is larceny by trick?

A

taking of personal property known to be owned by another that results in conversion of the property, with the intent to permanently deprive the person of that property, by fraudulently inducing the victim to deliver possession of the property

(when someone obtains possession of - but not title to - the property of another person by lies)

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34
Q

Can you assert a defense of others for property?

A

No! Only for defense of others for the other individual’s person

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35
Q

What is defense of arrest?

A

A civilian can use reasonable force to stop someone from escaping the scene of a crime before police can come and arrest him

36
Q

Does someone have a reasonable expectation of privacy over their bank records?

A

No - so a search is not in violation of the 4th Amendment

37
Q

The 5th Amendment privilege only applies to whom?

A

individuals (not corporations)

38
Q

When can the privilege against self incrimination be applied?

A

At any proceeding (including a grand jury)

39
Q

What kind of person cannot use the privilege against self-incrimination?

A

a custodian of corporate records in his capacity as a corporation employee (can use it in an individual capacity though!)

40
Q

When does the Due Process Clause prohibit the imposition of a harsher sentence upon retrial of a defendant who successfully appeals a conviction?

A

When the harsher service constitutes a penalty imposed on the D for the exercise of her right to appeal her conviction

41
Q

When a party uses extrinsic evidence of a conviction to impeach someone, do they need to ask that person about it on the stand?

A

No - can admit it into evidence without asking the person about it

42
Q

A conviction may not be used for impeachment purposes if the witness has been pardoned, provided that what 2 things are met:

A

(i) the action was based on a finding of innocence; or

(ii) the witness has not been subsequently convicted of another felony.

43
Q

An offer of settlement made by whom is inadmissible to prove liability?

A

either party

44
Q

Is an appeal of a remand order generally proper?

A

No! (not unless it’s an order remanding a civil rights case removed pursuant to §1443 or a remand order in a class action, if the application for review is made to the court of appeals not more than 10 days after the entry of the order)

45
Q

When is PJ waived?

A
  • failure to include defense of lack of PJ in your earliest motion or answer
    (so if you make a pre answer motion and don’t mention PJ, you waived it!)
46
Q

Can a federal district court transfer an action to a court in a foreign country?

A

No - if the other forum is more appropriate it can only dismiss under forum non conveniens

47
Q

When can a D’s attorney request to poll the jury?

A
  • after the jury returns a special verdict and before the judge dismissed the jury

** the court is required by FRCP 48(c) to poll the jury if a timely request is made; court can also decide itself to poll**

48
Q

When can a mistaken party void a contract?

A

If he didn’t bear the risk of the mistake

49
Q

Frustration of purpose

A

an unexpected event occurs, even though the nonoccurrence of the event was a basic assumption of the contract, without the fault of the frustrated party and the event destroys that party’s purpose in entering into the contract

50
Q

With a unilateral mistake, when can a party void the contract?

A

When only one party is mistaken as to an essential element of the K, the mistaken party can void if grounds for mutual mistake exist and either

(1) the mistake would make enforcement of the K unconscionable or
(2) the on-mistaken party
- caused the mistake,
- had a duty to disclose or failed to disclose the mistake,
- or knew or should have known the other party was mistaken

** mistake must be about an existing fact**

51
Q

Mutual Mistake

A
  • mistake of fact existing at the time the contract was formed
  • the mistake relates to a basic assumption of the contract
  • the mistake has a material impact on the transaction and
  • the adversely affected party did not assume the risk of the mistake
52
Q

When do the rights of an intended beneficiary vest?

A
  • When the beneficiary materially relies on the rights created,
  • manifests assent to the contract at one party’s request
  • or flies a lawsuit to enforce the contract

** until the beneficiary’s rights vest, the parties can freely modify or rescind the contract**

53
Q

Can an intended donee beneficiary sue the promisor?

A

Yes, if her rights under the contract have vested

54
Q

When, on cross-examination, a witness denies a specific instance of conduct, extrinsic evidence _____ admissible to prove that instance in order to attack or support the witness’s character for truthfulness.

A

is not

55
Q

If an agent is making an investigative report as part of his statutory duty, what parts of the report are allowed in under the public records exception?

A
  • factual findings
  • opinions
  • evaluations
  • conclusions
56
Q

implied reciprocal servitude

A
  • must be intent to crate a servitude on all real property interests (common scheme)
  • servitude must be negative (promise to refrain from doing something)
  • party against whom enforcement of the servitude is sought must have actual, record, or inquiry notice
57
Q

Assault (tort)

A

plaintiff’s reasonable apprehension of an imminent harmful or offensive bodily contact caused by the D’s action or threat with the intent to cause either the apprehension of such contact or the contact itself

58
Q

Trespass to land

A

when D’s intentional act causes a physical invasion of the land of another

** D only needs intent to enter the land, not the intent to commit a wrongful trespass**

** no proof of actual damages required**

59
Q

when does the privilege of necessity apply?

A

if the interference was reasonably necessary to prevent a serious injury from nature or another force not connected with the property owner

60
Q

private nuisance

A

a thing or activity that substantially and unreasonably interferes with another individual’s use or enjoyment of his land

61
Q

What does a P need to prove to recover under a products liability theory?

A
  • product was defective
  • defect existed when it left the D’s control
  • defect caused the P’s injuries when the product was used in an intended or reasonably foreseeable way
62
Q

When can someone not change their domicile for purposes of diversity?

A

If it’s really a sham - they don’t intend to remain in their “new domicile”

63
Q

The sanction of dismissal of the case is only applied when?

A

When a party’s conduct is serious, repeated, extreme, or otherwise inexcusable

64
Q

elements of fraudulent misrepresentation in contracts

A
  1. misrepresentation is fraudulent (false assertion of fact made knowingly or recklessly without knowledge of its truth with intent to mislead other party)
  2. misrepresentation induced assent to the contract,
  3. adversely affected party justifiably relied on the misrepresentation
65
Q

Disclaimers for the implied warranty of merchantability have to be __________

A

conspicuous

66
Q

When does a seller have a right to cure defective tender?

A
  1. time for performance under the contract has not yet elapsed
  2. seller had reasonable grounds to believe that the buyer would accept despite the nonconformity
67
Q

The death of a co-felon during a felony is not felony murder if the co-felon was killed by whom?

A
  1. the victim

2. a police officer

68
Q

To be charged with possession, a defendant has to do what with the item?

A

exercise control over it (be aware that it’s in his possession)

69
Q

In determining if an individual has intellectual disabilities, a state cannot do what?

A

impose a strict cutoff on IQ (i.e. IQ of 70 means you’re definitely competent to stand trial)

** creates an unacceptable risk that someone with a mental disability will be executed **

70
Q

For double jeopardy purposes, what is equivalent to an acquittal

A

a grant of demurrer

motion to dismiss in favor of accused for prosecution’s failure to prove elements of a crime at the close of the state’s case

71
Q

If a criminal defendant presents a character witness, who can be asked about specific bad acts to rebut the character witness?

A

only that witness!

D can only be asked about specific instances rebutting his good character trait (not prior convictions or dishonesty) on cross if he testified about it on direct

72
Q

if a land sales contract isn’t in writing, what can make it enforceable?

A
  • payment of all or part of purchase price
  • possession by purchaser
  • substantial improvement of the property by the purchaser
73
Q

Who cannot remove to federal court?

A

plaintiffs

74
Q

Is common law murder the same thing as voluntary manslaughter?

A

NO - voluntary manslaughter is less severe (has malice but also has mitigating circumstances)

75
Q

Police need what to use the vehicle exception to search a car?

A

probable cause

76
Q

T/F - a criminal defendant CAN be convicted solely on circumstantial evidence

A

TRUE

77
Q

In property, what does a special use exemption require?

A

the enumeration of the special use in the zoning ordinance as a use that can be permitted in a zone if the permit is obtained

78
Q

when do you need physical harm for an emotional distress claim?

A

when you’re making the claim as a bystander

79
Q

attractive nuisance

A
  1. artificial condition exists in a place where the land possessor knows or has reason to know that children are likely to trespass
  2. land possessor knows or has reason to know that the condition poses an unreasonable risk of death or serious bodily injury to children
  3. the children, because of their youth, do not discover or cannot appreciate the danger presented by the condition
  4. the utility to the land possessor of maintaining the condition and the burden of eliminating the danger are slight compared to the risk of harm presented to the children
  5. the land possessor fails to exercise reasonable care to protect children from the harm
80
Q

An accomplice’s intent to aid the principal can be inferred when the accomplice:

A
  1. provides highly specialized goods or services
  2. receives unusually large profits from a sale
  3. has some greater interest in the crime’s success
81
Q

Who is moving to dismiss during an involuntary dismissal?

A

the defendant

82
Q

When is a child liable for an intentional tort?

A

If capable of forming requisite intent

83
Q

When is a child liable for negligence?

A

If child failed to act as a reasonable child of a similar age, intelligence, & experience would have acted under similar circumstances

84
Q

Who can raise a constitutional challenge?

A
  • US citizen

- foreign citizen located within US territories

85
Q

___________- interpleader requires complete diversity

___________ interpleader requires minimal diversity

A

rule

statutory

Bar Prep (9 decks)

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