MBE Practice Exam Cards

Question 1

What are the 3 factors for the collateral order doctrine

Answer 1

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

Question 2

When is diversity of parties considered?

Answer 2

at time complaint is filed

Question 3

In general, who can file cases under diversity jurisdiction

Answer 3

US citizens and lawful resident aliens

Question 4

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

Answer 4

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

Question 5

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

Answer 5

• doesn’t destroy diversity

- does not have to meet AIC since first plaintiff does

Question 6

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

Answer 6

• 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)

Question 7

___________ counterclaims don’t need to meet AIC

Answer 7

compulsory

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

Question 8

What is rule 4k2?

Answer 8

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

Question 9

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

Answer 9

no!

Question 10

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

Answer 10

14 days after amended complaint was served

Question 11

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

Answer 11

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

Question 12

What are the 4 requirements for a class action?

Answer 12

• numerosity
• common questions
• typiciality
• adequate representation

Question 13

What kind of class actions require notice?

Answer 13

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

Question 14

When do pretrial disclosures need to be made?

Answer 14

at least 30 days before trial

Question 15

When do initial disclosures need to be made?

Answer 15

at or within 14 days of the discovery conference

Question 16

When do expert witness disclosures need to be made?

Answer 16

At least 90 days before date set for trial

Question 17

What kind of judgements can be appealed?

Answer 17

final judgements only

Question 18

When does a litigaent have third party standing?

Answer 18

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)

Question 19

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

Answer 19

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

Question 20

Section 5 of the 14th Amendment does what?

Answer 20

• 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

Question 21

When Congress delegates legislative power what needs to happen?

Answer 21

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

Question 22

Reasonable restrictions on voting get what level of scrutiny?

Answer 22

Rational Basis

Question 23

Unreasonable restrictions on voting get what level of scrutiny?

Answer 23

Strict Scrutiny

Question 24

What is an example of a reasonable restriction on voting?

Answer 24

a 30 day residency period

Question 25

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

Answer 25

When it's arbitrary and unreasonable

Question 26

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?

Answer 26

- 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.

Question 27

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

Answer 27

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

Question 28

Where do you never have a right to picket?

Answer 28

At a particular residence

Question 29

Can a "fighting words" statute prohibit certain viewpoints?

Answer 29

No - must be content neutral

Question 30

When is a defendant not guilty as an accomplice?

Answer 30

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

Question 31

What is the M'Naghten test?

Answer 31

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

Question 32

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

Answer 32

- 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)

Question 33

What is larceny by trick?

Answer 33

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)

Question 34

Can you assert a defense of others for property?

Answer 34

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

Question 35

What is defense of arrest?

Answer 35

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

Question 36

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

Answer 36

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

Question 37

The 5th Amendment privilege only applies to whom?

Answer 37

individuals (not corporations)

Question 38

When can the privilege against self incrimination be applied?

Answer 38

At any proceeding (including a grand jury)

Question 39

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

Answer 39

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

Question 40

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

Answer 40

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

Question 41

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

Answer 41

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

Question 42

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

Answer 42

(i) the action was based on a finding of innocence; or | (ii) the witness has not been subsequently convicted of another felony.

Question 43

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

Answer 43

either party

Question 44

Is an appeal of a remand order generally proper?

Answer 44

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)

Question 45

When is PJ waived?

Answer 45

- 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!)

Question 46

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

Answer 46

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

Question 47

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

Answer 47

- 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**

Question 48

When can a mistaken party void a contract?

Answer 48

If he didn't bear the risk of the mistake

Question 49

Frustration of purpose

Answer 49

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

Question 50

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

Answer 50

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**

Question 51

Mutual Mistake

Answer 51

- 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

Question 52

When do the rights of an intended beneficiary vest?

Answer 52

- 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**

Question 53

Can an intended donee beneficiary sue the promisor?

Answer 53

Yes, if her rights under the contract have vested

Question 54

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.

Answer 54

is not

Question 55

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?

Answer 55

- factual findings - opinions - evaluations - conclusions

Question 56

implied reciprocal servitude

Answer 56

- 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

Question 57

Assault (tort)

Answer 57

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

Question 58

Trespass to land

Answer 58

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**

Question 59

when does the privilege of necessity apply?

Answer 59

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

Question 60

private nuisance

Answer 60

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

Question 61

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

Answer 61

- 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

Question 62

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

Answer 62

If it's really a sham - they don't intend to remain in their "new domicile"

Question 63

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

Answer 63

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

Question 64

elements of fraudulent misrepresentation in contracts

Answer 64

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

Question 65

Disclaimers for the implied warranty of merchantability have to be __________

Answer 65

conspicuous

Question 66

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

Answer 66

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

Question 67

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

Answer 67

1. the victim | 2. a police officer

Question 68

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

Answer 68

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

Question 69

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

Answer 69

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 **

Question 70

For double jeopardy purposes, what is equivalent to an acquittal

Answer 70

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

Question 71

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

Answer 71

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

Question 72

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

Answer 72

- payment of all or part of purchase price - possession by purchaser - substantial improvement of the property by the purchaser

Question 73

Who cannot remove to federal court?

Answer 73

plaintiffs

Question 74

Is common law murder the same thing as voluntary manslaughter?

Answer 74

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

Question 75

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

Answer 75

probable cause

Question 76

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

Answer 76

TRUE

Question 77

In property, what does a special use exemption require?

Answer 77

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

Question 78

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

Answer 78

when you're making the claim as a bystander

Question 79

attractive nuisance

Answer 79

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

Question 80

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

Answer 80

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

Question 81

Who is moving to dismiss during an involuntary dismissal?

Answer 81

the defendant

Question 82

When is a child liable for an intentional tort?

Answer 82

If capable of forming requisite intent

Question 83

When is a child liable for negligence?

Answer 83

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

Question 84

Who can raise a constitutional challenge?

Answer 84

- US citizen | - foreign citizen located within US territories

Question 85

___________- interpleader requires complete diversity ___________ interpleader requires minimal diversity

Answer 85

rule statutory