MBE rules

Question 1

Exclusionary rule

Answer 1

Only applies to acts of government actors/acts ratified by government actors, does not apply to private actor even if private actor is violating a federal statute

Question 2

13th amendment

Answer 2

No slavery/involuntary servitude by government/private actors

Question 3

Defemation extra rule for private citizen making statement about issue of public concern

Answer 3

AND IF PRIVATE CITIZEN AND MATTER OF PUBLIC CONCERN, - D was at least negligent as to falsity of statement

Question 4

Removal

Answer 4

only DEFENDANT can remove (this DOES NOT include 3rd parties joined by counterclaim of D)

Question 5

Privileges recognized at common law

Answer 5

(a) attorney-client
(b) work product
(c) spousal
(d) psychotherapist-patient
(e) religious
- NOTE: no physician-patient exists

Question 6

Mortgages: Equitable right of redemption/statutory right of redemption

Answer 6

Equitable: Always exists (right to pay debt PRIOR to foreclosure)

Statutory: State must pass statute (right to purchase back property for certain time after foreclosure sale)

Question 7

Tort doctrine of alternative liability

Answer 7

(1) multiple TORTFEASORS, (2) at least one caused the harm, (3) impossible to tell which

• NOTE:
  – Requires P to actually show each was a tortfeasor, CAN’T be random people one of which is a the tortfeasor

Question 8

Doctrine of independent and adequate state grounds

Answer 8

SCOTUS can only review state court decisions based on federal law, not adequate and independent state grounds
- adequate = state law fully resolves
- independent = federal law not involved

Question 9

Trespass

Answer 9

(1) intentional, (2) unlawful, (3) physical entry land of another
- BUT EXCEPTION:
– PRIVATE NECESSITY: (1) reasonably believe, (2) serious, (3) private harm

Question 10

Robbery/larceny/false pretenses

Answer 10

Robbery = taking from physical person

Larceny = Taking property not from physical person

Larceny by misrepresentation + only obtaining possession = larceny by trick

Larceny by misrepresentation + obtaining actual title = false pretenses

Embezzlement = taking property of another + while in lawful possession

Question 11

FRE 803(3): Then existing state of mind/emotional/mental/physical condition

Answer 11

Motive, intent, plan, mental state, pain, bodily health, BUT NOT memory

Question 12

Rule 12(b) motions to dismiss

Answer 12

PJ/Venue/Service/Process (PPVS) = (a) must be in original motion, AND (b) defense permanently waived

Fail state claim/legal defense/joinder (FLJ) = (a) must be in original motion, BUT defenses not permanently waived, can be raised at trial

SMJ = (a) doesn’t need to be in original motion, AND defense not permanently waived, can be raised whenever

Question 13

Conditions on government funding

Answer 13

Government CAN put conditions on how funds are spent, but government CAN’T put conditions on recipient’s conduct that is unrelated to the funding’s purpose

Question 14

Tort: non-delegable duties

Answer 14

land possessor’s duty to safely conduct activities on the land that pose foreseeable risk of harm to others
- Even IF tort is committed by an independent contractor that is hired by homeowner

Question 15

Specific v general intent crimes

Answer 15

Potential pneumonics:
- Students Can Always Fake a Laugh Even For Ridiculous Bar Facts.
- FIAT = First degree murder, Inchoate crimes, Assault, Theft crimes

Specific intent = Solicitatation, Conspiracy, Attempt, First degree murder, Assault, Larceny, Embezzlement, False pretenses, Robbery, Burglary, Forgery.

Question 16

Nuisance as a matter of law

Answer 16

Toxic wastes and fumes are typically considerd nuisance as a matter of law, EVEN IF the tortfeasor complies with state law/outputs same amount as other similar tortfeasors

Question 17

Common law murder / arson

Answer 17

Common law murder: (1) unlawful, (2) killing of another person, (3) with malice aforethought (a) intent to kill, (b) intent to cause serious bodily injury, (c) reckless indifference to human life)

Arson: (1) malicious (2) burning (3) of dwelling/building of another
- malicious = intent or reckless

Question 18

Protective sweep incident to arrest

Answer 18

Protective sweep incident to arrest is reasonable if (1) reasonable suspicion (specific articulable facts) that armed threat present, (2) limited to cursory locations where person could hide

Question 19

Dormant commerce clause: State taxes on things in interstate commerce

Answer 19

(1) substantial nexus (2) fairly apportioned (3) not discriminatory, (4) fairly related to services

NADR

Question 20

Abandoned property with mortgage on it

Answer 20

Mortgagee (person who granted the mortgage (ie bank)), owns/possesses the property if the mortgagor abandons the property, therfore the mortgagee incurs tort liability as if they were the owner

Question 21

Mortgage pre-payments

Answer 21

Majority: pre-payment ALLOWED unless K says otherwise

Common law: pre-payment NOT-ALLOWED unless K says otherwise

Pre-payment clauses that set minimum time until pre-payment is allowed AND clauses that set early payment fees are valid and enforceable

Question 22

Warrant exceptions = SADSPACES

Answer 22

Search incident to arrest
ADministrative searches of highly regulated industries
Stop and frisk
Plain view
Automobile
Consent
Exigent emergency circumstance
Special government purpose

Consent = Actual (has legal right to occupy), apparent (reasonable belief person has actual)

Question 23

Negligent infliction of emotional distress

Answer 23

(a) zone of danger (D’s negligence put P in immediate risk of harm, and P suffered severe emotional distress)

(b) bystander (D negligently injured close relative, P was present and saw it, severe emotional distress)

(c) special circumstances (mishandle body/remains, mistaken announcement of death/illness, contaminated food with repulsive object, THUS causing severe emotional distress)

Question 24

“Substantive law” when determining whether state/fed law applies is:

Answer 24

Substantive = (1) elements of claim/defense, (2) burdens of proof, (3) statutes of limitations

Procedural = (1) filing deadlines, (2) court rules/procedures, (3) discovery rules, (4) evidence rules

Question 25

Landowner right to light

Answer 25

generally no right to light, UNLESS (a) statute, (b) express agreement creating negative easement/covenant regarding light with other landlowner

Question 26

Larceny

Answer 26

Larceny = unlawful taking of the property of another with intent to permanently deprive
- larceny complete upon the initial taking, so even if change mind about permanently depriving later, larceny was still committed)

Larceny by trick = larceny accomplished by knowing misrepresentation relied upon by the VICTIM (not the D’s agent they trick to go steal)

Question 27

Deadlines for amending complaint/answers/filing jury demand

Answer 27

Amend once as matter of right within 21 days of (a) serving their pleading, or (b) being served with responsive pleading

Demand jury (1) within 14 days of last pleading to the issue (usually the answer), and (2) filed with the court

Question 28

Common law burglary

Answer 28

Unlawful breaking and entering of another’s dwelling at night with intent to commit felony within
- NO BREAKING AND ENTERING IF VOLUNTARILY INVITED, THEN BROKE SOMETHING LATER TO ESCAPE WITH STOLEN GOODS
- aka common law burglary is complete upon entry, not upon exit

Question 29

If gov policy discriminates (favors in-state vs out of state interest) against out of state commerce

Answer 29

Then strict scrutiny (1) legitimate gov interest (2) no alternative means

Question 30

K damages: consequential (special damages)

Answer 30

D only liable if (a) knew, or (b) should of known, of special damages P would suffer from breach

Question 31

K damages: delayed use of property

Answer 31

Entitled to: (a) fair market rental value during time period they are denied use of the property, (b) interest on the value of the property that has been made unproductive by the breach

Question 32

Insanity defenses: M’Naghten

Answer 32

Can’t understand nature of criminal act or know actions are wrong
- BASICALLY: UNDERSTAND

Question 33

Insanity defenses: Irresistible impulse

Answer 33

Can’t control acts/conform conduct to law
- BASICALLY: CONTROL

Question 34

Insanity defenses: MPC

Answer 34

Can’t appreciate criminality OR conform conduct to law
- NOTE: ESSENTIALLY COMBINES M’NAGHTEN AND IRRESSISTABLE IMPULSE (aka understand or control)

Question 35

Mailbox rule

Answer 35

ACCEPTANCE is effective on dispatch
- BUT:
– OFFER/REVOCATION/REJECTION all effective only upon RECEIPT

Question 36

Deadly force self-defesne

Answer 36

(1) REASONABLY believe, (2) unlawful, (3) imminent, (4) deadly force

Question 37

Criminal law: Doctrine of merger

Answer 37

Lesser included offenses (crimes , all the elements of which, are encompassed in another crime), are merged into the greater crime if the greater crime is found committed, such that you cannot be convicted of both a lesser included offense and the greater offense

Question 38

Takings

Answer 38

(1) taking in first place?, (2) public purpose and just compensation?

Physical: Possession/Physical invasion of property

Regulatory: 3 part test: (1) economic impact on P, (2) interference with P’s intended use, (3) character of government action

Conditional regulatory taking (benefit in exchange for gov taking), constitutional if: (1) nexus between benefit and taking, (2) proportional