Bar Exam - MBE Rule Statements with
Complete Solutions
Civ Pro: Supplemental Jurisdiction - ANSWER-1) Federal court must have original SMJ
over 1 claim
2) Court has DISCRETION to hear other claim IF the other claim
3) arose out of the common nucleus of operative facts such that they would normally be
brought together
Civ Pro: Erie Outcome Determinative Test - ANSWER-1) will the decision whether to
use the state rule be outcome determinative on the matter OR
2) will the refusal to apply state law promote forum shopping
Civ Pro: Impleading a 3rd Party Defendant - ANSWER-A Defendant may implead a
non-party
1) ONLY IF they allege that the nonparty is or may be liable for all or part of DF's liability
to Plaintiff
Civ Pro: Third Party Defendant Claims against PF - ANSWER-3rd Party DF may assert
any defenses and COAs against the original PF because they do not have to rely on the
original DF to raise them. They may also bring claims in a separate action.
Civ Pro: Entry of Default - ANSWER-A clerk of the court will enter an entry of default if
the Defendant does not respond to the complaint. The entry cuts off the DF's right to
contest liability unless the default is set aside
Civ Pro: Entry of Default Judgment
- with notice
- without further notice - ANSWER-- PF may obtain a default judgment after entry of
default by clerk and MUST be entered by the judge after notice and a hearing
- Allowed without notice when
1) amount in dispute is certain on the face of the complaint
2) the DF has not appeared (any appearance or action by DF indicating that they intend
to contest on the merits)
Con Law: 11th Amendment - ANSWER-A state cannot be sued unless the state gives
consent to be sued
Con Law: Dormant Commerce Clause for Nondiscriminatory State Laws - ANSWER-
The state may indirectly regulate interstate commerce if
1) the regulation is non-discriminatory and
,2) regulation does not unduly burden interstate commerce (the incidental burden does
not outweigh the local benefits)
Con Law: 14th Amendment Passing Strict Scrutiny
- Compelling Gov Interest for Alienage - ANSWER-Government has a compelling
interest to discriminate against aliens for participation in government, such as jury duty
Con Law: 5th Amendment Discrimination against aliens in federal statutes is subject to -
ANSWER-Rational Basis
Contracts: Article 2 Counteroffer Accommodation Exception - ANSWER-Shipment of
nonconforming goods as an accommodation occurs when
1) acceptance by prompt shipment and
2) notice of the accommodation. Perfect Tender Rule will not apply, buyer may accept
all or reject all.
Criminal: Actus Reas - ANSWER-DF must commit the criminal act voluntarily
Crim Pro: Terry Stop
- Applying Terry Stop instead of Search Incident to lawful arrest - ANSWER-Apply terry
stop answer instead of search incident to lawful arrest if the stop and frisk occurred
before the arrest
Crim Pro: 5th Amendment Right to Counsel - ANSWER-All questioning about ANY
crimes without aid of counsel are invalid
Crim Pro: 6th Amendment Right to Counsel - ANSWER-Applies after charges are
brought. Invoking the right prevents the police from questioning about the specific crime,
but may ask about other crimes
Evidence: Hearsay prior consistent statement (when to apply) - ANSWER-Apply ONLY
IF the witness has already been impeached
Evidence: Hearsay Exemption Adoptive Admission by silence - ANSWER-Occurs when
1) party hears and understands the accusation
2) is capable of denying
3) a reasonable person would have denied it if it was untrue
- Does NOT apply in criminal cases against DF due to 5A right to remain silent
Evidence: Impeachment by Criminal Conviction
- Arrests vs convictions - ANSWER-An arrest is not admissible for impeachment. There
must be a conviction or judgment of guilt
Property: Landlord/ Tenant Assignee Liability to Landlord for rent - ANSWER-An
assignee has privity with the landlord and is primarily responsible for rent. The original
tenant is secondarily liable through privity of contract
,Property: Easement by necessity Extinguished by Merger - ANSWER-Easement by
necessity will be terminated by merger if both pieces of property come under common
ownership of one party
Property: Land Sale Contract Equitable Conversion and Title Transfer
- Effect on Distribution of assets in a will - ANSWER-Buyer becomes the equitable
owner when the land sale contract is formed. This applies even if one party dies or the
property is destroyed.
- Seller's proceeds from the sale are considered personal property
Property: Foreclosure of a Junior mortgage effect on a senior mortgage - ANSWER-
Senior mortgage will remain of the property after a junior mortgage is foreclosed and the
buyer at the foreclosure sale will take the property subject to the mortgage
Tort: Negligence How to pick duty vs proximate cause answer - ANSWER-Defective
conditions of a product do not have anything to do with negligence of the end user. Pick
the answer regarding the DF not the harm, unless it is a vicarious liability question.
Tort: Negligence Directed Verdict Tip - ANSWER-If there is any disputed issue, deny
both motions. The answer is deny both motions about 75% of the time
Tort: Distinguishing res ipsa and negligence per se - ANSWER-Both establish duty and
breach.
Res Ipsa: Inference of negligence
Negligence per se: presumption of negligence. DO NOT pick either unless the call is
asking about directed verdicts
Civ Pro: Permissive Counterclaims by a third-party Defendant - ANSWER-3rd party
defendant may assert a permissive counter claim IF there is independent subject matter
jurisdiction for the claim
Contracts: UCC preclusion of implied warranties in the battle of the forms - ANSWER-
Materially altering the terms includes disclaimers of warranty, shifting the risk of loss, or
limitations on remedies
Contracts: UCC battle of the forms - ANSWER-Between merchants, additional terms
become part of the contract unless
1) materially alter original terms
2) offer expressly limits acceptance to the terms of the offer, or
3) offeror objects to the additional terms in a reasonable time
Property: Priority and deficiency judgments for foreclosure of a mortgage - ANSWER-
Foreclosure terminates all interests junior to the mortgage being foreclosed. Senior
interests will remain on the property.
, - Priority: Foreclosed mortgage is paid off first, then junior mortgages are paid off. Any
junior mortgages that have a remaining balance will still be personally owed and the
mortgagee can bring a personal action for a deficiency judgment. Senior mortgages are
not paid off
Con Law: standing - ANSWER-1) concrete and particularized injury
2) caused by the statute
3) a positive outcome will redress the issue
Civ Pro: Service of Process: State Rules for service - ANSWER-Service may be
provided by
1) state where the federal court sits OR
2) the state in which service is to be effected
Evidence: Hearsay exemption identification is applicable whne - ANSWER-Declarant
testifies at trial and is subject to cross examination on prior identifications
Tort: Respondeat Superior employer liability
- intentional tort exception - ANSWER-Generally, an employer is not liable for an
employee's intentional tort
- Employer will be liable for negligence and intentional torts where
1) force is inherent in the nature of the employment and
2) tort occurs during the course and scope of the employee's employment
Evidence: Declarant Unavailable: Dying declaration is applied in these types of cases -
ANSWER-ONLY in civil cases and homicide. NOT attempted homicide
Evidence: Dying Declaration Rule (CUBA) - ANSWER-the statement is
1) concerning the cause or circumstances of death
2) declarant is unavailable
3) declarant believed they were dying (do not have to actually die)
4) case is civil or homicide
Evidence: Five ways a declarant is unavailable (PRISM) - ANSWER-1) Privilege
2) Refusal to testify
3) Incapacity
4) Subpoena (failure to comply with)
5) memory (lack of)
Property: Who is liable to a senior mortgage after the foreclosure of a junior interest -
ANSWER-The original borrower is primarily liable and the purchaser at the foreclosure
sale is secondarily liable
Con Law: Legislative power to alter SCOTUS appellate jurisdiction - ANSWER-
Congress may establish the manner in which the Supreme Court's appellate jurisdiction
Complete Solutions
Civ Pro: Supplemental Jurisdiction - ANSWER-1) Federal court must have original SMJ
over 1 claim
2) Court has DISCRETION to hear other claim IF the other claim
3) arose out of the common nucleus of operative facts such that they would normally be
brought together
Civ Pro: Erie Outcome Determinative Test - ANSWER-1) will the decision whether to
use the state rule be outcome determinative on the matter OR
2) will the refusal to apply state law promote forum shopping
Civ Pro: Impleading a 3rd Party Defendant - ANSWER-A Defendant may implead a
non-party
1) ONLY IF they allege that the nonparty is or may be liable for all or part of DF's liability
to Plaintiff
Civ Pro: Third Party Defendant Claims against PF - ANSWER-3rd Party DF may assert
any defenses and COAs against the original PF because they do not have to rely on the
original DF to raise them. They may also bring claims in a separate action.
Civ Pro: Entry of Default - ANSWER-A clerk of the court will enter an entry of default if
the Defendant does not respond to the complaint. The entry cuts off the DF's right to
contest liability unless the default is set aside
Civ Pro: Entry of Default Judgment
- with notice
- without further notice - ANSWER-- PF may obtain a default judgment after entry of
default by clerk and MUST be entered by the judge after notice and a hearing
- Allowed without notice when
1) amount in dispute is certain on the face of the complaint
2) the DF has not appeared (any appearance or action by DF indicating that they intend
to contest on the merits)
Con Law: 11th Amendment - ANSWER-A state cannot be sued unless the state gives
consent to be sued
Con Law: Dormant Commerce Clause for Nondiscriminatory State Laws - ANSWER-
The state may indirectly regulate interstate commerce if
1) the regulation is non-discriminatory and
,2) regulation does not unduly burden interstate commerce (the incidental burden does
not outweigh the local benefits)
Con Law: 14th Amendment Passing Strict Scrutiny
- Compelling Gov Interest for Alienage - ANSWER-Government has a compelling
interest to discriminate against aliens for participation in government, such as jury duty
Con Law: 5th Amendment Discrimination against aliens in federal statutes is subject to -
ANSWER-Rational Basis
Contracts: Article 2 Counteroffer Accommodation Exception - ANSWER-Shipment of
nonconforming goods as an accommodation occurs when
1) acceptance by prompt shipment and
2) notice of the accommodation. Perfect Tender Rule will not apply, buyer may accept
all or reject all.
Criminal: Actus Reas - ANSWER-DF must commit the criminal act voluntarily
Crim Pro: Terry Stop
- Applying Terry Stop instead of Search Incident to lawful arrest - ANSWER-Apply terry
stop answer instead of search incident to lawful arrest if the stop and frisk occurred
before the arrest
Crim Pro: 5th Amendment Right to Counsel - ANSWER-All questioning about ANY
crimes without aid of counsel are invalid
Crim Pro: 6th Amendment Right to Counsel - ANSWER-Applies after charges are
brought. Invoking the right prevents the police from questioning about the specific crime,
but may ask about other crimes
Evidence: Hearsay prior consistent statement (when to apply) - ANSWER-Apply ONLY
IF the witness has already been impeached
Evidence: Hearsay Exemption Adoptive Admission by silence - ANSWER-Occurs when
1) party hears and understands the accusation
2) is capable of denying
3) a reasonable person would have denied it if it was untrue
- Does NOT apply in criminal cases against DF due to 5A right to remain silent
Evidence: Impeachment by Criminal Conviction
- Arrests vs convictions - ANSWER-An arrest is not admissible for impeachment. There
must be a conviction or judgment of guilt
Property: Landlord/ Tenant Assignee Liability to Landlord for rent - ANSWER-An
assignee has privity with the landlord and is primarily responsible for rent. The original
tenant is secondarily liable through privity of contract
,Property: Easement by necessity Extinguished by Merger - ANSWER-Easement by
necessity will be terminated by merger if both pieces of property come under common
ownership of one party
Property: Land Sale Contract Equitable Conversion and Title Transfer
- Effect on Distribution of assets in a will - ANSWER-Buyer becomes the equitable
owner when the land sale contract is formed. This applies even if one party dies or the
property is destroyed.
- Seller's proceeds from the sale are considered personal property
Property: Foreclosure of a Junior mortgage effect on a senior mortgage - ANSWER-
Senior mortgage will remain of the property after a junior mortgage is foreclosed and the
buyer at the foreclosure sale will take the property subject to the mortgage
Tort: Negligence How to pick duty vs proximate cause answer - ANSWER-Defective
conditions of a product do not have anything to do with negligence of the end user. Pick
the answer regarding the DF not the harm, unless it is a vicarious liability question.
Tort: Negligence Directed Verdict Tip - ANSWER-If there is any disputed issue, deny
both motions. The answer is deny both motions about 75% of the time
Tort: Distinguishing res ipsa and negligence per se - ANSWER-Both establish duty and
breach.
Res Ipsa: Inference of negligence
Negligence per se: presumption of negligence. DO NOT pick either unless the call is
asking about directed verdicts
Civ Pro: Permissive Counterclaims by a third-party Defendant - ANSWER-3rd party
defendant may assert a permissive counter claim IF there is independent subject matter
jurisdiction for the claim
Contracts: UCC preclusion of implied warranties in the battle of the forms - ANSWER-
Materially altering the terms includes disclaimers of warranty, shifting the risk of loss, or
limitations on remedies
Contracts: UCC battle of the forms - ANSWER-Between merchants, additional terms
become part of the contract unless
1) materially alter original terms
2) offer expressly limits acceptance to the terms of the offer, or
3) offeror objects to the additional terms in a reasonable time
Property: Priority and deficiency judgments for foreclosure of a mortgage - ANSWER-
Foreclosure terminates all interests junior to the mortgage being foreclosed. Senior
interests will remain on the property.
, - Priority: Foreclosed mortgage is paid off first, then junior mortgages are paid off. Any
junior mortgages that have a remaining balance will still be personally owed and the
mortgagee can bring a personal action for a deficiency judgment. Senior mortgages are
not paid off
Con Law: standing - ANSWER-1) concrete and particularized injury
2) caused by the statute
3) a positive outcome will redress the issue
Civ Pro: Service of Process: State Rules for service - ANSWER-Service may be
provided by
1) state where the federal court sits OR
2) the state in which service is to be effected
Evidence: Hearsay exemption identification is applicable whne - ANSWER-Declarant
testifies at trial and is subject to cross examination on prior identifications
Tort: Respondeat Superior employer liability
- intentional tort exception - ANSWER-Generally, an employer is not liable for an
employee's intentional tort
- Employer will be liable for negligence and intentional torts where
1) force is inherent in the nature of the employment and
2) tort occurs during the course and scope of the employee's employment
Evidence: Declarant Unavailable: Dying declaration is applied in these types of cases -
ANSWER-ONLY in civil cases and homicide. NOT attempted homicide
Evidence: Dying Declaration Rule (CUBA) - ANSWER-the statement is
1) concerning the cause or circumstances of death
2) declarant is unavailable
3) declarant believed they were dying (do not have to actually die)
4) case is civil or homicide
Evidence: Five ways a declarant is unavailable (PRISM) - ANSWER-1) Privilege
2) Refusal to testify
3) Incapacity
4) Subpoena (failure to comply with)
5) memory (lack of)
Property: Who is liable to a senior mortgage after the foreclosure of a junior interest -
ANSWER-The original borrower is primarily liable and the purchaser at the foreclosure
sale is secondarily liable
Con Law: Legislative power to alter SCOTUS appellate jurisdiction - ANSWER-
Congress may establish the manner in which the Supreme Court's appellate jurisdiction
