MBE Practice Exam Missed Questions

Question 1

If a eyewitness identifies the defendant out of court to the police officer, and is present in the court room and subject to cross, can the police officer testify as to the witness’s statement?

Answer 1

Yes. A declarant’s prior statement identifying someone she perceived earlier is not hearsay if the declarant is now testifying and subject to cross-examination about the prior statement.

Question 2

Is a TRO appealable?

Answer 2

Ordinarily, the granting or denying of a temporary restraining order is not immediately appealable because, as the name implies, a temporary restraining order is not an injunction that is appealable. A TRO is valid for 14 days, unless extended for GC. If extended for GC, courts have held that a TRO is effectively converted into a preliminary injunction and thus becomes immediately appealable.

Question 3

Is contributory negligence an affirmative defense and when must it be raised?

Answer 3

Yes, must be raised in the answer

Question 4

If an plaintiff is injured by a product, the manufacturer changes the design after, and at trial alleges that the design could not have been changed, is the subsequent remedial measure admissible?

Answer 4

Yes. Generally, subsequent remedial measures are inadmissible. However, they are admissible for other purposes, such as, to rebut a claim that the repair or precaution was not feasible.

Question 5

If a contractor completes his end of the contract, and the homeowner honestly believes there were defects and departures, and offers to pay a lower amount in full settlement of the change, is that allowable?

Answer 5

Yes. Generally, a common law contract requires a modification to be supported by new consideration. The promise to refrain from suing on a claim may constitute adequate consideration. As long as the claimant reasonably believed and in GF believes his claim was valid.

Question 6

What does then existing state of mind comprise of and is it an exception or an exclusion?

Answer 6

Then existing state of mind includes things such as motive, intent, or emotion. It is an exception to the hearsay rule.

Question 7

Impracticability/Impossibility in Contracts

Answer 7

The occurrence of an unanticipated or extraordinary event that may make contractual duties impossible or impracticable. You needs to show
(i) extreme and unreasonable difficulty and/or expense and
(ii) its nonoccurrence was a basic assumption of the parties

Question 8

If parent’s parental rights are terminated, can they claim a Due Process violation?

Answer 8

Yes. The SCOTUS has held that the Constitution includes a fundamental right of privacy, and the fundamental right of privacy includes the right of parents to the companionship, care, custody, and control of their children. question

Question 9

What if a party does not have sufficient facts to oppose a MSJ?

Answer 9

The nonmovant can show by affidavit or declaration that he cannot present facts essential to justify his opposition to the motion and he can ask the court to defer action or deny the motion and allow time to obtain affidavits or declarations or take discovery.

Question 10

When is expert testimony admissible?

Answer 10

If
1. the subject is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue
2. the opinion is based on sufficient facts or data
3. the opinion is the product of reliable principles and methods and
4. the expert has reliably applied the principles and methods to the facts

Question 11

Can a expert testify about ultimate issues?

Answer 11

Generally, the expert is not prohibited from giving an opinion as to the ultimate issue in the case (although there is a limited exception for testimony as to a criminal Ds mental state).

Question 12

In a construction contract, if a property owner breaches, what is the builder entitled to?

Answer 12

The builder is entitled to any profit he would have derived from the contract plus any costs he has incurred to date. If the builder has mitigated damages, any losses that are avoided must be subtracted from this amount.

Question 13

What does the right to travel encompass?

Answer 13

The right of newly arrived citizens to enjoy the same privileges as are enjoyed by the other citizens of that state. (14th amendment).

Question 14

Is contributory negligence a defense to intentional torts?

Answer 14

NO, only self defense, defense of others, defense of property (limited), public and private necessity, and consent

Question 15

If a man gives his attorney an executed deed, conveying his property to his daughter, and instructs the atty to give it to his daughter on his death unless he states otherwise, what is wrong?

Answer 15

To make an effective delivery of an inter vivos gift, the grantor must relinquish absolute and unconditional control. This is not the case here because the man reserved the right to alter by stating “unless he states otherwise.”

Question 16

If a plaintiff files a claim and is assigned a judge, and later realizes that judge is not optimal, can they remove the case to federal court?

Answer 16

No, plaintiff’s cannot remove cases.

Question 17

When a case filed in state court contains claims that would arise under federal law and state law claims that do not invoke diversity or supplemental jdx, may the federal court still hear the state law claims with the federal?

Answer 17

No, although the entire case can be removed to federal court, the federal court then must sever the cases and remand the state law claim.

Question 18

Invasion of privacy wrongs

Answer 18

1. appropriation of the Ps likeness or name for the Ds commercial advantage
2. intrusion by the D on the Ps affairs or seclusion
3. publication by the D of facts placing the P in a false light and
4. public disclosure of private facts

Question 19

Will a purchase money mortgage for land take precedence of a prior recorded judgment lien?

Answer 19

Yes.

Question 20

Test for Commercial Speech

Answer 20

The regulation will be valid only if (1) it serves a substantial government interest, (2) it directly advances that interest, and (3) is narrowly tailored to achieve that interest

Question 21

Is assumption of risk an affirmative defense to abnormally dangerous activites?

Answer 21

Yes, a plaintiff who knowingly and voluntarily assumes the risk of injury caused by the conduct may be subject to the defense of assumption of risk

Question 22

When is character evidence admissible when the acts are independently relevant?

Answer 22

To show Motive, Intent, Mistake (absence of), Identity, and Common plan or scheme (MIMIC)

Question 23

Can a state impose a burden on a criminal defendant to prove an affirmative defense?

Answer 23

Yes. Due Process does not preclude this.

Question 24

If a plaintiff is injured, but cant show which defendant caused the injury, will her claim survive a motion for directed verdict?

Answer 24

No. Even with Res Ipsa Loquitor, the P would have to show that the object was in the Ds control. Otherwise, for multiple Ds, the P would have to show that the Ds were acting jointly in tortious conduct.

Question 25

Definition of Obscenity

Answer 25

A description or depiction of sexual conduct that, taken as a while by the average person, applying contemporary community standards (1) appeals to the prurient interest in sex (2) portrays sex in a patently offensive way and (3) using a national standard, does not have serious literary, political, or scientific value

Question 26

Which comparative negligence rule for the MBE?

Answer 26

Pure Comparative Negligence - weigh the plaintiff’s negligence against the defendant’s and reduce the damages accordingly

Question 27

Where is venue proper

Answer 27

Venue is proper in the district in which the defendants reside if they all reside in the same state, or where a substantial part of the acts or omissions took place, or where a significant portion of the property subject to the dispute is located.

Question 28

Where is venue proper

Answer 28

Venue is proper in the district in which the defendants reside if they all reside in the same state, or where a substantial part of the acts or omissions took place, or where a significant portion of the property subject to the dispute is located.

Question 29

Prima facie case of products liability in strict liability

Answer 29

1. D is a commercial supplier
2. D produced defective product that was defective when it left Ds control
3. the defective product was the actual and proximate cause of the Ps injury and
4. the P suffered damages to person or property.

Question 30

What is evidence of UOT, COD, COP used for

Answer 30

A written contract’s terms may be explained or supplemented by evidence of course of performance, course of dealing, and usage of trade, regardless of whether the writing appears to be ambiguous

Question 31

Standard of Care for Doctors

Answer 31

Required to possess and exercise the knowledge and skill of a member of the profession or occupation in good standing - for doctors, most courts use a national standard

Question 32

How can a bilateral contract be accepted?

Answer 32

By promising to perform or by beginning performance

Question 33

For an Equitable Servitude to run with the land

Answer 33

requires that the parties intended the servitude to be enforceable against successors in interest, the successor in interest must have notice of the covenant, and the covenant must touch and concern the land.

Question 34

Can the federal government compel a state legislature to enact into state law a federally mandated regulatory program?

Answer 34

No, the SCOTUS has held that the 10th amendment prohibits the fed govt from adopting a statute that compels the states to enact or enforce a federal regulatory program. Under federalism, the fed govt cannot order state govt’s to adopt particular laws.

Question 35

Damages when an employment contract is breached

Answer 35

The full contract price unless the nonbreaching party could have avoided damages with reasonable effort. If the breaching employer can prove that a comparable job in the same locale was available, then contract damages against that breaching employer for lost wages will be reduced by the wages the employee would have received in the comparable job.

Question 36

Are statements accompanying offers to pay medical expenses admissible?

Answer 36

Generally, offers to pay medical expenses will be excluded. But accompanying statements, such as admissions of fact, may be admitted. (check for hearsay)

Question 37

Is leave of court required to dismiss a claim a second time?

Answer 37

Not if the defendant has not filed an answer. But dismissing will act as an adjudication on the merits.

Question 38

Can a joint tenants interest be devised in a will?

Answer 38

No, once one of the joint tenants dies, their interest passes to the other joint tenant by right of survivorship. Therefore, the attempted transfer will be ineffective.

Question 39

Free Exercise Clause

Answer 39

Prohibits the government from punishing someone (including denying a benefit) on the basis of one’s religious belief. But, the prohibition applies only to government conduct that targets conduct specifically because it is religiously motivated.

Question 40

Is a denial or a motion to dismiss for lack of PJ appealable?

Answer 40

NO, must be a final order and a denial still leaves the case to be heard. If the court dismisses for lack of PJ, that is final and can be appealed.

Question 41

Does the former tenant remain in privity of estate with the landlord?

Answer 41

Yes, and only the sublessee and the tenant are in privity of estate with each other.

Question 42

Cumulative Zoning

Answer 42

Cumulative zoning creates a hierarchy of uses of land, and land that is zoned for a particular use may be use for the stated purpose or for any higher use. A residential use is higher than a non-residential use.

Question 43

Commercial Speech Test

Answer 43

1. Speech is not false/misleading/illegal
2. Regulation serves substantial govt interest
3. Regulation directly advances interest, and
4. Regulation is not more extensive than necessary to serve

Question 44

4th Amendment

Answer 44

Mandates that states cannot discriminate against the fundamental rights or essential activities of out of state residents
! Does not apply to corporations. If you see discrimination against out of state corporation, think Dormant Commerce Clause.

Question 45

Does the 11th amendment prohibit recovery of retroactive money damages by citizens against a state agency?

Answer 45

Yes

Question 46

What is required for an indirect tax to be valid?

Answer 46

Must be geographically uniform in every state in which it exists.
! Remember: Tax does not need to exist in every state to be uniform, but must be uniform in every state in which it does exist.

Question 47

What are 3 ways P can show a classification is discriminatory?

Answer 47

1. Classification is discriminatory on its face = text itself unconstitutional
2. Classification facially neutral but discriminatory applied = requires both discriminatory intent and effect
3. Discriminatory purpose/motive = must show proof of discriminatory purpose

Question 48

What is Congress’s investigatory power?

Answer 48

Power to investigate in a legitimate legislative sphere via the Necessary and Proper Clause

Question 49

Can Congress take away a citizens citizenship without their consent?

Answer 49

No, unless either
* Obtained through fraud
* Refused to testify before Congress
* Was a member of a subversive organization within 5 years of being citizen

Question 50

Are gag orders constitutional?

Answer 50

Very rarely constitutional, unless they are the least restrictive means necessary to ensure D has a fair trial (usually alternatives such as better voir dire, venue change, or postponement are available)

Question 51

What are 3 main powers Congress can use to limit discrimination by private citizens?

Answer 51

1. 13th amendment
2. Commerce Clause and
3. Federal Purse Power

Question 52

What is the 14th amendment?

Answer 52

Prohibits states from violating the Due Process & Equal Protection Clauses

Question 53

What is the President’s removal power?

Answer 53

Can remove high level exec appointees without cause
Exception:
1. Officer performing judicial or quasi-judicial role or
2. Officer appointed for a statutorily specified duration

Question 54

What is the only requirement for a general tax to be valid?

Answer 54

Must raise revenue

Question 55

3 Requirements for valid time, place, manner restriction in a public forum

Answer 55

Restriction is:
1. Content-neutral
2. Leaves open ample, alternative channels of communication and
3. Narrowly tailored to serve significant govt interest (not compelling govt interest)

Question 56

What types of post-viability regulations are constitutional?

Answer 56

An outright prohibition on abortion and other substantial regulations are allowed as long as there is an exception to protect the life and health of the mother

2022 Updated

Question 57

Obscenity Test

Answer 57

1. Appeals to prurient interests (community standard)
2. Depicts or describes sexual conduct in a way that is patently offensive to community standards and applicable state law; and
3. Lacks serious artistic, literary, political, or scientific value as determined by national standards

Question 58

What is Congress’s plenary power over aliens?

Answer 58

Power to admit or exclude aliens for any reason from entering the country.

• Since this is a sovereign power, federal alienate classifications will likely be upheld as long as they are not arbitrary.

Question 59

Main powers of the President

Answer 59

1. Enforcement of laws
2. Commander in chief
3. Appointment powers
4. Removal powers
5. Pardon powers
6. Veto powers

Question 60

Can congress override a presidential veto?

Answer 60

Yes, with a 2/3 majority in House and Senate

Question 61

Ex Post Facto Law

Answer 61

Unconstitutional criminal law that either:
1. Criminalizes conduct that was legal at the time it was done
2. Imposes a harsher penalty after crime is committed
3. Decreases prosecution’s burden of proof for crime or
4. Eliminates a defense available to D when crime was committed

Question 62

When may a 3rd party assert the rights of others?

Answer 62

1. There is a special relationship between P and the injured party & injured party finds it hard to bring suit themselves
2. Associational Standing - and association may have standing to bring suit if one of its members would have standing and issue is germane to the associations purpose
3. First amendment over breadth - third party may bring a facial challenge as long as Art 3 standing exists

Question 63

What is Substantive Due Process?

Answer 63

Asks whether govt has an adequate reason to deprive someone of their life, liberty, or property. If fundamental right deprivation must pass strict scrutiny. If not, only rational basis.

Question 64

What does the 1st amendment protect?

Answer 64

Freedom of expression
(Speech, press, association, & assembly)

Question 65

Freedom of Religion Rule Statement

Answer 65

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. A distinction must be made between a statute that interferes with religious beliefs and one that interferes with conduct a person wishes to engage in because of their religions. The freedom to hold religious beliefs is absolute. Conduct, on the other hand, may be regulated even if the regulation interferes with a person’s religious practices, unless the regulation is designed to regulate only because they are religious.