Mixed MBE/MEE

Question 1

MEE Character Evidence

Answer 1

(1) If it is a types of case in which trait is essential to claim- everything allowed
(2) If for propensity: depends if criminal or civil

Criminal cases:

If it is sexual of D- specific acts allowed
If it is to show propensity/conformity of D-
-can be about D if in reputation or opinion form,
if initiated by D, pertinent and personal (bring character
witness or cross examine P’s witness with Did You
Know questions)
-Bad acts only allowed for non-character purpose (MIMIC),
relevant, notice
If it is about V-
-only after D opens the door of self-defense
(peacefulness trait)
- in sex assault case, past sexual history only allowed if
for physical evidence, or consensual behavior between
D and V

Civil cases:

propensity- generally never allowed
sex acts of D allowed for propensity (specific acts)
non-character purpose allowed
victim’s sexual history allowed if satisfies reverse 403

(3) If it is to impeach on character for truthfulness:
-opinions or reputation allowed for untruthfulness, and
for truthfulness if it’s attacked
-prior convictions- dishonest crimes allowed, non-
dishonest crimes may be excluded in criminal case if
unfair to D (reverse 403), all crimes of over 10 years ago
not allowed unless extraordinary circumstances,
juvenile/constitutionally defective/pardoned generally
inadmissible
-bad acts- about a witness, no extrinsic evidence, judge
may preclude if unfair

Question 2

MEE Hearsay

Answer 2

(1) Does it satisfy hearsay definition and relevant?

(2) Is it excluded?
- Is the declarant testifying as a witness? If it’s about
identification, inconsistent formal statement, or
rebutting a accusation of fabrication- allowed
- Is it the declarant a party opponent? (Or if it’s an
adoptive/vicarious admission)- allowed

(3) Is it excepted?
- Is the declarant unavailable? (Frank Sinatra Doesn’t
Pick Popcorn)- allowed
-Is it a type of spontaneous statement (EU, PS, medical)
or business/document/record? (all the other
exceptions)- allowed

(4) Can it fit into the catch- all? (strictly necessary, notice,
sufficiently trustworthy) - allowed

(5) is it barred by CC? (declarant unavailable and testimonial)

Question 3

MEE Privileges

Answer 3

If it’s a diversity case- apply state law (usually includes MASCOT and JAP)

If federal q case- this is federal law:

6 privileges (MASCOT)
5th amendment- self-incrimination

Question 4

MEE Standing in Federal Ct

Answer 4

1. It’s a case or controversy about interpreting federal law or a dispute between diverse citizens (not a judicial opinion, ripe, and not moot)
2. There is an injury (concrete and particularized), causation, and redressability

Question 5

MEE 11th Amendment

Answer 5

Lawsuits against states are basically barred unless fall into exception (waived, civil rights, bankruptcy, local govt)

Always barred in federal ct.

Lawsuits against state officials are allowed if personal or for injunction. Damages not allowed if it will be reimbursed by state.

Question 6

MEE Federal taxing and Spending Power

Answer 6

Congress has no general police power

Through Necessary and Proper Clause, Congress can spend on general welfare for public purposes.

There can be strings/penalties attached, as long as: clearly states, related, constitutional, and not unduly coercive

A tax might be an impermissible penalty if it’s not related enough to revenue production.

Question 7

MEE Interstate Commerce Power (federal analysis)

Answer 7

Congress can regulate interstate and foreign commerce as long as: channels, instrumentalities, or local activities with substantial aggregate effect.

Must be economic. Must be regulating and not compelling activity. Must not be related to civil rights.

Federal govt can regulate and tax state govt if applies to both public and private sector.

Federal govt can use Spending power non-coercively to incentivize states to enact federal legislation but cannot compel.

Question 8

MEE Delegation and Bicameralism

Answer 8

Congress can delegate as long as intelligible principle and not a matter confined to Congress.

The president cannot do line item veto. Congress cannot veto a law that was already passed.

Lawmakers cannot be prosecuted for regular lawmaking conduct.

Question 9

MEE State police power

Answer 9

States have general police power under 10th. Can make any laws that:

if burden fundamental right- passes strict scrutiny
if discriminates against suspect class- passes strict scrutiny
if no fundamental right/discrimination: has rational basis to legitimate public purpose

State can tax and regulate federal govt employees if: indirect, non-discriminatory, not overly burdensome, not related to their work

Question 10

MEE preemption

Answer 10

Under Supremacy Clause, Federal law trumps state law if:

express- only Congress may regulate
implied- there’s a conflict, state law impedes, or Congress effectively has field regulation

State law may always go beyond federal floor.
State law will not be preempted unless clear and manifest purpose of Congress.
Police power regulations are presumptively in state control.

Question 11

MEE P and I (Art 4)

Answer 11

States cannot discriminate against out of state citizens (not aliens or corps) if the law:

1. relates to fundamental rights or important commercial activities
2. and it’s an intentionally protectionist law

BUT this can be overrode if:

1. it’s necessary for impt govt purpose
2. and no less restrictive means available

and it’s ok under DCC, ICC, EP, DP, etc.

Question 12

MEE 14th Amendment P or I

Answer 12

A state may not discriminate against its own citizens with regard to:

interstate travel
getting state citizenship
any other rights of national citizenship

Question 13

MEE Interstate Commerce (state analysis)

Answer 13

States may regulate interstate commerce if:

No federal law (Supremacy)
Doesn’t unduly burden interstate commerce (ICC)
Doesn’t discriminate against out of state commerce (DCC)

If it’s burdensome –> prove it’s not irrational, the burden does not outweigh the benefit

If it discriminates–> prove it’s necessary to achieve impt non-economic interest and no alternative

Unless fits into Exceptions to DCC (cong approval, market participant, state of incorp, traditional govt function)

State can tax interstate commerce as long as Congress has not spoken on it, it’s not discriminatory, activity has substantial nexus to state, tax is fairly apportioned and related

Question 14

MEE 5th and 14th Amendments

Answer 14

BOR applies to states under 14th Amendment. Federal govt may not restrict individual rights under 5th. States may not restrict through the 14th. Private action may be prohibited and considered govt action if sufficient entwinement (or if slavery).

Rational basis review- applies to when there is govt action about no fundamental right or discrimination. Govt may make laws that restrict individual rights if rationally related to legitimate govt purpose. P has burden of proof.

Intermediate scrutiny- applies when there is govt action that discriminates based on gender/marital children. Govt may make laws that restrict indiv rights if law is substantially related to impt or significant govt purpose. Exceedingly persuasive justification for gender. Burden unclear but prob govt.

Strict scrutiny- applies when there is govt action that burdens fundamental right or discriminates against suspect class. Govt may make laws that restrict indiv rights if law is necessary/narrowly tailored/least restrictive to achieve compelling govt purpose. Govt has burden.
There are 3 ways to be discriminatory- facially, intentionally in application, and intentionally in impact.

Laws that restrict equal rights usually challenged under DP or EP.
(Speech has its own standards for each type of speech- 1st and 14th A)
Fundamental rights are anything enumerated, plus voting, interstate travel, privacy, …
suspect classes are race, alienage (state and local), national origin, religion (has its own rules under 1st and 14th)

Question 15

MEE Due Process

Answer 15

Procedural:

There must be DP before deprivation of life, liberty, or property.
This constitutes reasonable notice, opportunity to be heard, before neutral decision-maker.

Substantive:

Usually a DP claim if law restricts rights of people. Also analyze under EP.

Apply the correct standard for which right is being affected and analyze.

Question 16

MEE Equal Protection

Answer 16

If a federal or state law restricts rights of a group of ppl, analyze under EP. Also analyze under DP.

Apply correct standard.

Special analysis already done for racial classifications in schools, abortion, marriage

Question 17

MEE personal jurisdiction

Answer 17

1. Is it allowed by state long arm?
2. Is it allowed by const?

Due process requires minimum contacts between defendant and forum state such that it’s consistent with traditional notions of fair play and substantial justice to sue the defendant here.

a. general (domiciled- residency with intent to remain)
b. specific (minimum contacts- foreseeable purposeful availment and injury rose out of, or substantial contacts relating to claim, and fair- burdens and interest)
c. tag/transient (served with process voluntarily and individually)

Waiving PJ:
Lack of personal jurisdiction CAN be waived, but only if raised at the first opportunity or it is waived. If defendant chooses to file a pre-enter motion to dismiss, must make the objection then or waive it, or if the defendant does not file a pre-answer motion, must be raised in the answer.

Tag PJ:
Federal Interpleader Act: allows nationwide service of process. Bulge Provision: Allows service anywhere within 100 miles of the federal courthouse even if in another state, and two situations:
1- For impleading third-party defendants under rule 14 (3rd party claimants);
2- and for joining necessary parties under rule 19 (Joinder of required parties)

Property types of PJ:

In Rem Jurisdiction: suit against any kind of property, real or personal (the res) so long as the property is located in the state where you are suing, and it can settle everyone in the world’s claim against that property (i.e., the state has physical power over the property).

Quasi in Rem: suit to adjudicate the claim to property of a particular defendant or defendant; the subject matter of the suit may or may not be related to the property. Subject to the same minimum contacts as in personal jurisdiction.

Question 18

MEE subject matter jurisdiction

Answer 18

1. federal q (well pleaded complaint arising under federal law, law creates a right that is being asserted)
2. diversity (over 75k and diff citizenship/alienage)
3. supplemental (common nucleus of operative fact and P is not bringing it if it’s a diversity case)

Not waivable.

Removal to federal court is proper only if the case could have been brought originally in federal court and only a defendant may remove, but ALL defendants must consent to removal within 30 days.

Question 19

MEE venue

Answer 19

1. Any district where any of Ds reside if all from same state
2. Any district in state where substantial part of events occurred.
   3, fall back only if there is no other proper venue- any state where there is PJ

For the convenience of the parties and in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

Generally, if the venue of an action is transferred where the original venue is proper, the court where the action is transferred must apply state law of the transferor court, this includes the state’s rules regarding conflict of law.

However, when venue is transferred based on a valid forum selection clause, transferee court must apply the law, including the choice-of-law rules, of the state in which it is located. The transferee court should not apply the law of the transferor court because the parties have contractually waived their right to the application of that law by agreeing to be subject to the laws of the transferee venue.

Question 20

MEE Claim preclusion

Answer 20

A claim is precluded if it’s:

1. Same P v same D
2. Valid final judgment on the merits
   AND 3. Same claim- either same T/O or primary rights, how many personal or property ones were invaded (minority view)

Ct applies the law of the court that decided the previous case. Under federal law, a federal ct applies the law of the state in which it sits.

Question 21

MEE issue preclusion

Answer 21

An issue is precluded if:

1. Case ended in valid final judgment on merits
2. Issue was litigated and determined
3. It was essential to the judgment
4. Against a previous party or someone on privity- DP under const

Issue preclusion may asserted by:

By someone who was a party
By someone who was not a party- only if allowed under preclusion laws of the old ct AND:
If using defensively- as long as had a chance to litigate in case 1
OR If using offensively-as long as it’s fair

Question 22

MEE Erie Doctrine

Answer 22

If a federal court is deciding a diversity case, it applies state law under these rules:

If there is a federal law on point that directly conflicts with state law, whether procedural or substantive, a valid federal law always applies under Supremacy Clause.

Otherwise:

If it is a procedural issue, federal law also applies (FRE, FRCP).

If it is a substantive issue, state law applies. 
These areas are considered substantive laws:		
i) Choice of law
ii) Elements of claim or defense
iii) SOL
iv) Tolling of SOL
v) Granting a new trial 
vi) Preclusion in diversity cases

If it is unclear if it is substantive or procedural, a balancing test is applied:

1. Is it outcome determinative? (affects outcome of case)
2. Does either federal or state have strong interest in applying law?
3. Will it cause forum shopping?

If it is an area within federal (not general) common law, federal court can make up law:
◊ International relations, admiralty, disputes between states, suing a federal officer for violation of federal rights, Preclusion (if it’s not a diversity case)

Question 23

MEE Pleadings

Answer 23

Steps:

1. Pleading.

Must contain: Grounds of SMJ, Short and plain statement of P’s entitlement to relief, Demands for relief, Details supporting the plausibility of claim
(Some special cases require particularity or specificity- fraud)
Can be amended within 21 days as matter of right.
Can be amended to add claim after SOL if relates back.
Can be amended to add D if had knowledge of mistake.
Rule 11 signature applies.

2. Motion (optional) (21 days/60 days for mail).

D responds with Rule 12 motions (some compulsory)

3. Answer (21 days after service, or 14 days after motion denial).

Admit, deny, state lack of info, and raise affirmative defenses.
Amend within 21 days as matter of right
Rule 11 signature applies.

4. request for jury (14 days)

only available for legal claims, not equitable claims

Question 24

MEE Joinder

Answer 24

SMJ always applies.

P may join additional unrelated claims against D.

D may advance counterclaim against P. If it arises from same T/O, it is compulsory in first answer. If unrelated, it’s permissive.

Multiple Ps and Ds may be added if arise from same T/O and raise common issue of fact or law. D can only implead another D if looking to get liability covered. A 3rd party may intervene permissively if ct allows. Co-parties may advance cross claims permissively if arise out of same T/O.

Ct may add necessary parties if needed for complete relief, harms interests, or causes inconsistent liability. Does not include joint tortfeasors. If not feasible, can proceed anyway as long as there is alternative forum, and harm will be avoided for all parties, otherwise truly indispensable and must dismiss.