Rules to Memorize

Question 1

Involuntary manslaughter

Answer 1

Involuntary manslaughter is an unintentional homicide committed with criminal negligence or during an unlawful act.

Question 2

Embezzlement

Answer 2

Embezzlement is the fraudulent conversion of the property of another by a person who is in lawful possession of the property.

Question 3

False pretenses

Answer 3

Getting ownership of someone else’s property by lying about a material fact. The lie must be intentional to trick the other person.

Question 4

Larceny by trick

Answer 4

Obtaining possession (not title) of someone else’s property through fraud or deceit, with the intent to permanently deprive the owner. The property must be converted.

Question 5

Larceny

Answer 5

Larceny is the trespassory taking and carrying away of the personal property of another with the intent to permanently deprive that person of the property.

Question 7

Solicitation

Answer 7

Solicitation is the enticing, encouraging, requesting, or commanding of another person to commit a crime with the intent that the other person commit the crime.

Question 8

Assault

Answer 8

Assault is an attempt to commit a battery (the unlawful application of force to the person of another, which can be applied through a third person acting under the defendant’s direction).

Question 9

Battery

Answer 9

Battery is the unlawful application of force to another resulting in bodily injury or
offensive touching.

Question 10

In order to be found guilty of possession, the defendant must what?

Answer 10

In order to be found guilty of possession, the defendant must exhibit dominion and control over the prohibited object.

Question 11

At common law, all that is required for a conspiracy to be established is what

Answer 11

At common law, all that is required for a conspiracy to be established is an agreement between two or more persons to accomplish an unlawful purpose with the intent to accomplish that purpose. No overt act is required for the conspiracy to be complete at common law.

Question 12

7th amendment does what re right to a jury trial?

Answer 12

The Seventh Amendment right to a jury trial applies to federal civil cases when In federal civil cases, you have the right to a jury trial if you’re suing for more than $20 and want money. But if you’re asking for something other than money, like an action or behavior change, this right doesn’t apply.

Question 13

What’s the doctrine of claim preclusion?

Answer 13

The doctrine of claim preclusion (i.e., res judicata) provides that a valid final judgment on the merits precludes identical parties from relitigating identical claims.

Question 14

Two dismissal rule

Answer 14

Under the two-dismissal rule, a voluntary dismissal is with prejudice when the plaintiff

If someone drops a lawsuit twice on the same issue, the second time they do it, they can’t bring that lawsuit back again.

Question 15

How many claims can a party bring against an opposing party?

Answer 15

A party may join as many claims as it has against an opposing party in federal court—even if the claims are unrelated—provided subject-matter jurisdiction is satisfied.

Question 16

interlocutory

Answer 16

non final appeal

Question 17

Exceptions allowed after final judgment In Certain Circumstances, An Appeal Can Be Made Prematurely

Answer 17

Injunction (grant/denial)
Certification by district court
Class action certification
Appointment of receiver
Admiralty case
Collateral-order doctrine
Bankruptcy cases (certain orders)
Mandamus (petition for writ)
Patent infringement order (only accounting left)

1. Injunction (grant/denial): A court order that either stops someone from doing something or requires them to do something. Granting an injunction means the court has issued the order; denying it means the court has refused to issue the order.
2. Certification by district court: When a lower court (district court) asks a higher court to review and decide on a specific legal question before the case proceeds.
3. Class action certification: When a court allows a lawsuit to be brought by one or more people on behalf of a larger group with similar claims.
4. Appointment of receiver: A court appoints a person (receiver) to manage and protect property or assets involved in a legal dispute.
5. Admiralty case: Legal cases related to activities on navigable waters, like oceans or rivers, often involving ships or maritime commerce.
6. Collateral-order doctrine: An exception allowing some decisions by a trial court to be appealed immediately, even if the main case is not yet resolved.
7. Bankruptcy cases (certain orders): In some bankruptcy cases, specific court orders can be appealed right away, without waiting for the entire case to be finished.
8. Mandamus (petition for writ): A request asking a higher court to order a lower court or government official to do something they are legally required to do.
9. Patent infringement order (only accounting left): In a patent case, once the court decides there was infringement, the only thing left is to figure out the money owed (accounting).

These explanations aim to simplify complex legal concepts while retaining their essential meanings.

Question 18

When can a party request jury instructions?

Answer 18

A party may request jury instructions before or at the close of evidence unless the court sets an earlier, reasonable deadline. Even after the close of evidence, a party can request instructions (1) on issues that could not reasonably have been anticipated by the deadline or (2) with the court’s permission.

Question 19

de novo (no deference)

Answer 19

where a judge’s conclusions of law (e.g., elements of a claim) will be reversed if the appellate court reasonably believes that the judge misinterpreted the applicable law

Question 20

clear error (high deference)

Answer 20

where a judge’s findings of fact (e.g., witness credibility) will be reversed only if they were clearly erroneous such that no reasonable judge would have made them

Question 21

Define hearsay.

Answer 21

Hearsay is “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.”

Question 22

State why it is important to determine if a statement is hearsay.

Answer 22

Hearsay is not admissible unless it
comes within an exception.

Question 23

Relevancy: evidence is relevant if it what?

Answer 23

Relevancy: evidence is relevant if it has any tendency to make a fact more or less probable than it would
be without the evidence, and the fact is of consequence in determining the action.

Question 24

What does the Due Process Clause do in a criminal case?

Answer 24

The Due Process Clause makes sure that in a criminal case, the prosecution must prove every part of the crime beyond a reasonable doubt. A mandatory assumption about any part of the crime violates this rule. This can happen in two ways:
A conclusive assumption that can’t be challenged, meaning the prosecution doesn’t have to prove that part.
A rebuttable mandatory assumption, which means the court assumes something is true, but the defendant has a chance to prove it’s not true. This shifts the responsibility of proving that part of the crime from the prosecution to the defendant.

Question 25

When someone confesses to a crime but doesn’t testify in court, can their confession be used against the other person? 6th amendment right.

Answer 25

When someone confesses to a crime but doesn’t testify in court, their confession can’t be used against another person on trial with them. This protects the right of the accused to confront their accusers, as guaranteed by the Sixth Amendment. However, if the person who confessed does testify in court, the accused can cross-examine them, so there’s no violation of their Sixth Amendment rights.

Question 26

This protects the right of the accused to confront their accusers, as guaranteed by the Sixth Amendment.

Answer 26

This protects the right of the accused to confront their accusers, as guaranteed by the Sixth Amendment.

Question 27

Bright line rule for when evidence is relevant and generally admissible:

Answer 27

Evidence is relevant and generally admissible if (i) it has any tendency to make a fact more or less probable than it would be without the evidence (i.e., it is probative), and (ii) the fact is of consequence in determining the action (i.e., it is material).

In other words, the evidence must help prove or disprove something that matters to the outcome of the case.

Question 28

What is MIMIC evidence and what does it stand for?

Answer 28

evidence of prior bad acts by a defendant can be admissible to prove motive, intent, lack of mistake, common scheme or plane.

Question 29

When does attachment occur?

Answer 29

A security interest that is enforceable against the debtor with respect to the collateral is said to have attached to the collateral. To be enforceable against the debtor, three conditions must coexist: (i) value has been given by the secured party; (ii) the debtor has rights in the collateral; and (iii) the debtor has authenticated a security agreement that describes the collateral, or the secured party has possession or control of the collateral pursuant to a security agreement.

Here, all three criteria have been met. The loan from Bank to Acme satisfies the value requirement; Acme has rights in its inventory and accounts; and Acme has signed (authenticated) a security agreement that describes the collateral as inventory and accounts. Accordingly, Bank has an enforceable security interest in Acme’s inventory and accounts.

Question 30

When does perfection occur?

Answer 30

Be familiar with the methods of perfection, especially filing a financing statement and
automatic perfection (as these are the two most commonly tested methods).
* Perfection can occur by filing a financing statement. It can be automatic in some cases (e.g., a PMSI
in consumer goods). Or, an interest can be perfected by possession or control.

Question 31

What are the first amendment fundamental rights?

Answer 31

First Amendment freedoms
Voting
Interstate travel
Privacy
Marriage / family
Parental rights
Sexual acts
Contraceptives

Question 32

STRICT SCRUTINY AND FREEDOM OF THE PRESS

Answer 32

When the government wants to limit the freedom of the press, it has to pass a very tough test called “strict scrutiny.” For the government to pass this test, it must prove two things:

Compelling Interest: The government must have a very important reason for the restriction, something that is crucial for public safety or another significant concern.

Narrowly Tailored: The government must show that they are using the least restrictive way to achieve their important goal. This means they should try other less restrictive methods first.

If the government can’t prove both of these things, then the restriction is considered unconstitutional.

In the example of the gag order, the government (the court) must show that:

Stopping the press from reporting on court proceedings is crucial for a very important reason (like protecting an undercover investigation).
There was no less restrictive way to protect this interest (like postponing the trial).
Since the court could have used a less restrictive way, the gag order doesn’t pass the strict scrutiny test and should be overturned.

Question 33

What’s an ordinary right and therefore subject to rational basis?

Answer 33

Economic, employment, social welfare, education.

Question 34

What does the privileges and immunities clause of Article IV prohibit?

Answer 34

The privileges and immunities clause of Article IV, section 2 prohibits states from improperly discriminating against citizens of other states.

Question 35

Substantive due process

Answer 35

substantive due process prevents the government from enacting laws that are overly broad or that unnecessarily restrict fundamental rights, even if the procedural steps to pass the law were properly followed.

Question 36

What does “the law is not necessary to achieve a compelling state interest” mean?

Answer 36

This means that the law in question does not meet the strict scrutiny standard, which is the highest level of judicial review. For a law to pass strict scrutiny, it must be necessary to achieve a compelling government interest. In this case, the law is being criticized because it is not essential or crucial to achieve an extremely important government goal.

Question 37

What does the 11 Amendment restrict?

Answer 37

The Eleventh Amendment prohibits foreign governments and private parties from suing a state in federal court without the state’s consent. This immunity extends to suits against state officials for a violation of state law—even if the remedy that is sought is injunctive relief instead of monetary damages. The 11th Amendment restricts suing the state itself in federal court, but it does not prevent you from suing state employees personally for their actions, especially if they violated your rights.

Question 38

Enumerated congressional powers. What are they?

Answer 38

Enumerated congressional powers

(Article I, Section 8)

Taxing & spending
Interstate & foreign commerce
War, armed forces, militia
Coin & borrow money
Immigration & naturalization
Mail
Copyright & patent laws
Federal courts
District of Columbia
Bankruptcy
Rules concerning captures

Question 39

quasi suspect classes

Answer 39

gender/sex and nonmarital birth (intermediate scrutiny)

Intermediate scrutiny is a standard of judicial review used by courts to evaluate the constitutionality of laws that involve certain protected classes or important but not fundamental rights. Under intermediate scrutiny, a law must meet two criteria to be upheld:

Serve an Important Government Interest: The law must further an important government objective.
Substantially Related: The law must be substantially related to achieving that objective.
This standard is stricter than rational basis review, which only requires that a law be rationally related to a legitimate government interest, but it is less strict than strict scrutiny, which requires that the law be narrowly tailored to achieve a compelling government interest. Intermediate scrutiny is often applied in cases involving gender discrimination and certain other classifications.

Question 40

Possibility of reverter

Answer 40

associated with fee simple determinable

Question 41

Right of entry

Answer 41

Associated with fee simple subject to condition subsequent

Question 42

Reversion

Answer 42

Associated with Life Estate

Question 43

What’s an executory interest? and what are the two types?

Answer 43

two types are springing and shifting. an executory interest is held by the grantee that will divest a prior vested interest (cuts short the prior interest) O to A for life then to B, if B gives A a proper funeral.

Question 44

A __________ is a future interest held by the __________ following a life estate.

Answer 44

reversion, grantor

Question 45

What is standing?

Answer 45

Standing: An individual needs an injury in fact, causation, and redressability in order to file a lawsuit. The case must be ripe and cannot be moot.

Question 46

How does organization have standing?

Answer 46

Organization: For an organization to have standing,
it must show: a member has standing, the member’s
injury is related to the purpose of the organization, and
individual members are not required to participate in the
lawsuit.

Question 47

Power of the judiciary: adequate and independent grounds?

Answer 47

The Supreme Court can review federal cases from state courts if:

•	The case involves federal law.
•	It is a final judgment from the highest state court.
•	There are no adequate and independent state law grounds for the decision.

Tip: If a state decision is based on both state and federal grounds, and the state ground alone is enough to support the decision, the Supreme Court cannot review the case.

Question 48

Will federal courts give political question?

Answer 48

Political question: Federal courts will not hear political questions (those given to another branch of
government by the Constitution).

Tip: Examples
include: “republican form of government” clause
challenges, military or foreign affairs decisions, or
impeachment.

Question 49

Should federal courts enjoin court proceedings?

Answer 49

Pending state court proceedings: federal courts should not enjoin pending state court proceedings unless the case is brought in bad faith or for harassment purposes.

Question 50

what powers does congress get from the constitution?

Answer 50

1. Necessary and proper power
2. Taxing and spending power
3. Commerce power
4. War and defense power
5. Enforcement power
6. Other powers

Question 51

What are the powers of the president?

Answer 51

1. Veto power
2. Appointment and removal power
3. Pardons
4. War power
5. Foreign affairs
6. Treaties and executive agreements
7. Immunity

Question 52

Congress does not have police powers except over what?

Answer 52

MILD
Military Bases
Indian Territories
Federal Lands
D.C.

Question 53

Supremacy Clause:

Answer 53

Pursuant to the Supremacy Clause, federal law is supreme and prevails over state law. States may not pass laws
(1) that conflict with federal law, (2) that interfere with a federal objective, or (3) in areas where Congress has intended to “occupy the
field.”

Question 54

Federal immunity from state law:

Answer 54

A state cannot regulate or tax the federal government. However, a state may tax federal
employees the same that they tax everyone else.

Tip: This is a bar exam favorite. E.g., the federal government does not have to abide by state environmental regulation because of federal immunity.

Question 55

Tenth Amendment:

Answer 55

Tenth Amendment: Any powers not given to the federal government are given to the states.

Tip: This means the federal
government cannot compel states to enforce federal statutes. (However, the federal government is permitted to “incentivize”
states to enforce such statutes by offering money to the states.)

Question 56

The Article IV Privileges and Immunities Clause:

Answer 56

States may not discriminate against out-of-state citizens with respect to
fundamental rights unless there is a substantial justification and no less restrictive means.

Tip: This is usually the issue when a
state gives a hiring preference to its own citizens and discriminates against out-of-state citizens. Employment is only a
fundamental right for purposes of Article IV.

Question 57

The Fourteenth Amendment Privileges or Immunities Clause:

Answer 57

States are not allowed to pass laws that would restrict access to
vital governmental services (e.g., welfare benefits) to newcomers because such laws would interfere with a citizen’s fundamental right to
travel from state to state.

Tip: this is usually the wrong answer on the MBE.

Question 58

Eleventh Amendment:

Answer 58

A private individual cannot sue a state for money damages in federal court.

Question 59

Rule for time, place, manner (content-neutral) PUBLIC FORUM

Answer 59

The regulation must (1) be content neutral, (2) be narrowly tailored, and (3) leave open alternative channels of communication.

Question 60

Rule for time, place, manner PRIVATE FORUM (MILITARY BASES, AIRPORTS, AND PRISONS)

Answer 60

Test: the regulation must (1) be viewpoint neutral, and (2) have a reasonable relation to a legitimate government interest.

Question 61

Consequential damages

Answer 61

Damages for lossess stemming from nonbreaching party’s special circumstances if breach party: knew of those special circumstances OR could have reasonably foreseen harm caused by breach

Question 62

Compensation damages include which two types of damages:

Answer 62

Expectation and consequential damages

Question 63

Expectation damages

Answer 63

The lost value of the breaching party’s performance (eg, the $5k fee promised by the orchestra)

Question 64

Consequential damages

Answer 64

Losses arising from the nonbreaching party’s special circumstances that were reasonably foreseeable to the breaching party when the contract was entered.