Bar Prep MBE Exam with Accurate
Solutions
What is subject matter jurisdiction? - correct Answer-Diversity and federal question
What is diversity juriosdiction - correct Answer-2 elements - complete diversity (each
plaintiff citizen different than any other defendant)(Corp citizen every state inc and the
one state where corp has PPB) and amount in controversy greater than 75000
exclusive of interest and costs, not defeated bc jury returns less than jurisdiction amount
When is diversity determined? - correct Answer-When lawsuit filed
Can multiple claims add up to be greater than 75000? - correct Answer-Yes
Plaintiff suing multiple defendants allow to aggregate for diversity? - correct Answer-
Only if jointly liable
What is federal question SMJ - correct Answer-Must appear as well pleaded complaint,
federal questions on federal law, existence of defense based on federal law will not
create federal questions jurisdiction,
3rd way to satisfy SMJ? - correct Answer-Supplemental - where plaintiff has federal and
state law claims - court can hear both issues if federal and state derive from common
nucleus of operative facts, expected to try them in same proceeding
With no diversity can you still have federal question for SMJ? Can you use
supplemental jurisdiction with SMJ over another claim? - correct Answer-Yes - federal
question arising from same CNOF allows supplemental
How to have supplemental jurisdiction for SMJ - correct Answer-Fed court must have
original jurisdiction SMJ over one claim and 2 court has discretion to exercise supp jur
only over related claims that derive from CNOF
Can unrelated claims be joined in Same action? - correct Answer-Yes bc if both federal
question, supp needs CNOF, can join or aggregate unrelated claims for diversity
What is personal jurisdiction? - correct Answer-Personal jursdiction is the power of the
court over the defendants person or property. - statutory and constitutionally allowed
Key rules for personal jurisdiction? - correct Answer-State statutes may authorize PJ
based on several factors - defendants presence in forum state along with proper service
,of process or defendants domicile in forum state where person maintains home, where
defendant consents to PJ, long arm statute provides basis for jurisdiction, due process
requires parties receive notice, must consider con standard
What is constructional standard for PJ? - correct Answer-Contacts - must be sufficient
minimum contacts between defendant and forum state so jurisdiction is fair and
reasonable, through these contacts defendant purposefully availment to benefits and
protections of foreign state, defendant knows her activities in forum state make it
reasonable defendant would expect to be in court in that state , relatedness - plaintiffs
claim must be related to defendants contacts with forum state, specific jurisdiction
where court may exercise jurisdiction for the complained of cause of action based on
defendants purposeful activities in forum state, general jurisdiction for relatedness -
when defendant is at home in jurisdiction or domicile, fairness - must not offend
tradional notions of fair play and substantial justice
PJ based on plaintiffs domicile? - correct Answer-No bc they consent when they file
What is Erie doctrine? - correct Answer-SUpreme court has control over drafting of rules
of civ pro, allows rules of federal civ pro to apply state substantive law and state
procedural law, ONLY for DIVERSITY cases, federal questions cases applies federal
substantive and procedural law.
What is the approach to Erie doctrine questions? - correct Answer-Is there are federal
rule on point which is arguably procedure? - apply federal law, if no fed statute - fed
judge may follow fed pro law if determined matter is procedure, not procedure - state
substantive law applies.
How does judge determine whether procedural or substantive? - correct Answer-3 SC
tests - outcome determinative - issue substantive if it substantially affects the outcome,
2 - balance of interests, 3 - forum shopping deterrence - failing to apply state law would
increase federal litigation, issue is substantive (any of these three met will make it
substantive.
What areas deemed substantive? 4 - correct Answer-SOL, tolling statute of limitations,
choice of law rules, elements of claim or defense
If no federal law, is it arguably procedural? - correct Answer-No
When can you impleader a third party? - correct Answer-Defendant may I plead only if
TPD is or may be liable for all or part of Ds liability to P, TPD may assert defenses to P
claims and defendant claims
Does TPD have to assert claim against original plaintiff? - correct Answer-No, they may
tho
,What is a default - correct Answer-Notation by court clerk that there has been no
answer filed by the time permitted by the rules
What is general rules for defendant response - - correct Answer-21 days after service
motion to dismiss or answer, Defendant who waives foreign service must respond 60
days, entry of default made when defendant doesn't oppose case, once default made,
ability of defendant to contest cut off unless set aside
Entry of default and default judgment same thing? - correct Answer-No, court clerk
enters default judgment only in certain situations - amount must be certain in plaintiffs
action and must be asserted and proved in plaintiffs affidavit, and defendant must not
have appeared, once defendant appeared, even with no answer, only judge may enter
DJ
What constitutes appearance for avoiding entry of default by court clerk? - correct
Answer-Any formal appearance or any action indicating def intends to contest merits
If defendant appears at all, must additional notice be given? - correct Answer-Yes
How to answer default judgment questions? - correct Answer-Can court clerk enter
default? Is defendant entitled to additional notice for hearing on default.
2 types of con law questions - correct Answer-1 - testing powers of government (power
of congress 1, executive article 2, congress power article 3) (federalism)(dormant
commerce clause)2 - individual liberties (speech, religion, procedural due process,
fundamental rights)
How to assert standing - correct Answer-Concrete direct personal stake in outcome - 3
things (Injury in fact)(causation)(rederessability)
What is injury in fact - correct Answer-Economic, environmental directly sufred
What is causation? - correct Answer-There is connection between injury and conduct
complained of
Redressability? - correct Answer-Court can do something about your injury. If injury is
past, redress is damages. if injury is future, usually injunction.
To get an injunction you have to show that the injury is likely to happen again.
Constitutional law approach? - correct Answer-Identify what level of government is
acting, precisely determine subject matter of the question (Powers of government or ind
liberties), match appropriate power/ rule or test provided by constitution
, What is congresses commerce clause? - correct Answer-Channels of interstate
commerce, instrumentalities of interstate commerce, any activity that has a substantial
economic effect on interstate commerce
Intrastate activity? Within same state - correct Answer-If economic or commercial in
nature - rational basis exists to conclude activity substantially affects interstate
commerce, non economic in nature - upheld if congressional finding that activity
substantially affects interstate commerce (Harder to establish) congressional finding of
facts
Dormant commerce clause allowed when? - correct Answer-State regulations on
interstate commcerce will be upheld only if regulation is non discriminatory, and
regulation does not unduly burden interstate commerce
What is state action? - correct Answer-Governmental conduct, prerequisite to proving
government has infringed someone's individual liberties, opposed to purely private
actions, plaintiff must prove, may apply to private if state significantly involved (running
town, public function)(Roads sidewalks, police)(14th amendment and 1st amendment
prevents infringements by company town) (state authorizing
State action MBE not - correct Answer-Grant of state license that is discriminatory, grant
of monopoly to utility company, grant of state lands or funds, all these the companies
could act in discriminatory ways
What is equal protection trigger? - correct Answer-Persons similarly situated being
treated different, assuming state action
Equal protection levels of scrutiny - correct Answer-Strict scrutiny - when government
differentiates based on people based on suspect classifications or fundamental right (3
suspect classifications - ran race alianege, national origin)(fundamental right implicated
when vote, travel, privacy)(right to privacy 7 campers - contraception, abortion,
marriage, procreation, education private, relations family, sexual relations
Burden on state to show law is necessary to achieve compelling purpose
Necessary if no other less restrictive means of meeting purpose, compelling if
necessary or crucial for society - presumptively invalidf
Intermediate - government classification based on gender or children born to unwed
parents,
Law is substantially related (close fit not necessarily least restrictive) to important
government interest (between compelling and legitimate)(Gender discrimination
requires "exceedingly persuasive justification)
Rational basis - burden on plaintiff to show law not rationally related to any legitimate
interests
Solutions
What is subject matter jurisdiction? - correct Answer-Diversity and federal question
What is diversity juriosdiction - correct Answer-2 elements - complete diversity (each
plaintiff citizen different than any other defendant)(Corp citizen every state inc and the
one state where corp has PPB) and amount in controversy greater than 75000
exclusive of interest and costs, not defeated bc jury returns less than jurisdiction amount
When is diversity determined? - correct Answer-When lawsuit filed
Can multiple claims add up to be greater than 75000? - correct Answer-Yes
Plaintiff suing multiple defendants allow to aggregate for diversity? - correct Answer-
Only if jointly liable
What is federal question SMJ - correct Answer-Must appear as well pleaded complaint,
federal questions on federal law, existence of defense based on federal law will not
create federal questions jurisdiction,
3rd way to satisfy SMJ? - correct Answer-Supplemental - where plaintiff has federal and
state law claims - court can hear both issues if federal and state derive from common
nucleus of operative facts, expected to try them in same proceeding
With no diversity can you still have federal question for SMJ? Can you use
supplemental jurisdiction with SMJ over another claim? - correct Answer-Yes - federal
question arising from same CNOF allows supplemental
How to have supplemental jurisdiction for SMJ - correct Answer-Fed court must have
original jurisdiction SMJ over one claim and 2 court has discretion to exercise supp jur
only over related claims that derive from CNOF
Can unrelated claims be joined in Same action? - correct Answer-Yes bc if both federal
question, supp needs CNOF, can join or aggregate unrelated claims for diversity
What is personal jurisdiction? - correct Answer-Personal jursdiction is the power of the
court over the defendants person or property. - statutory and constitutionally allowed
Key rules for personal jurisdiction? - correct Answer-State statutes may authorize PJ
based on several factors - defendants presence in forum state along with proper service
,of process or defendants domicile in forum state where person maintains home, where
defendant consents to PJ, long arm statute provides basis for jurisdiction, due process
requires parties receive notice, must consider con standard
What is constructional standard for PJ? - correct Answer-Contacts - must be sufficient
minimum contacts between defendant and forum state so jurisdiction is fair and
reasonable, through these contacts defendant purposefully availment to benefits and
protections of foreign state, defendant knows her activities in forum state make it
reasonable defendant would expect to be in court in that state , relatedness - plaintiffs
claim must be related to defendants contacts with forum state, specific jurisdiction
where court may exercise jurisdiction for the complained of cause of action based on
defendants purposeful activities in forum state, general jurisdiction for relatedness -
when defendant is at home in jurisdiction or domicile, fairness - must not offend
tradional notions of fair play and substantial justice
PJ based on plaintiffs domicile? - correct Answer-No bc they consent when they file
What is Erie doctrine? - correct Answer-SUpreme court has control over drafting of rules
of civ pro, allows rules of federal civ pro to apply state substantive law and state
procedural law, ONLY for DIVERSITY cases, federal questions cases applies federal
substantive and procedural law.
What is the approach to Erie doctrine questions? - correct Answer-Is there are federal
rule on point which is arguably procedure? - apply federal law, if no fed statute - fed
judge may follow fed pro law if determined matter is procedure, not procedure - state
substantive law applies.
How does judge determine whether procedural or substantive? - correct Answer-3 SC
tests - outcome determinative - issue substantive if it substantially affects the outcome,
2 - balance of interests, 3 - forum shopping deterrence - failing to apply state law would
increase federal litigation, issue is substantive (any of these three met will make it
substantive.
What areas deemed substantive? 4 - correct Answer-SOL, tolling statute of limitations,
choice of law rules, elements of claim or defense
If no federal law, is it arguably procedural? - correct Answer-No
When can you impleader a third party? - correct Answer-Defendant may I plead only if
TPD is or may be liable for all or part of Ds liability to P, TPD may assert defenses to P
claims and defendant claims
Does TPD have to assert claim against original plaintiff? - correct Answer-No, they may
tho
,What is a default - correct Answer-Notation by court clerk that there has been no
answer filed by the time permitted by the rules
What is general rules for defendant response - - correct Answer-21 days after service
motion to dismiss or answer, Defendant who waives foreign service must respond 60
days, entry of default made when defendant doesn't oppose case, once default made,
ability of defendant to contest cut off unless set aside
Entry of default and default judgment same thing? - correct Answer-No, court clerk
enters default judgment only in certain situations - amount must be certain in plaintiffs
action and must be asserted and proved in plaintiffs affidavit, and defendant must not
have appeared, once defendant appeared, even with no answer, only judge may enter
DJ
What constitutes appearance for avoiding entry of default by court clerk? - correct
Answer-Any formal appearance or any action indicating def intends to contest merits
If defendant appears at all, must additional notice be given? - correct Answer-Yes
How to answer default judgment questions? - correct Answer-Can court clerk enter
default? Is defendant entitled to additional notice for hearing on default.
2 types of con law questions - correct Answer-1 - testing powers of government (power
of congress 1, executive article 2, congress power article 3) (federalism)(dormant
commerce clause)2 - individual liberties (speech, religion, procedural due process,
fundamental rights)
How to assert standing - correct Answer-Concrete direct personal stake in outcome - 3
things (Injury in fact)(causation)(rederessability)
What is injury in fact - correct Answer-Economic, environmental directly sufred
What is causation? - correct Answer-There is connection between injury and conduct
complained of
Redressability? - correct Answer-Court can do something about your injury. If injury is
past, redress is damages. if injury is future, usually injunction.
To get an injunction you have to show that the injury is likely to happen again.
Constitutional law approach? - correct Answer-Identify what level of government is
acting, precisely determine subject matter of the question (Powers of government or ind
liberties), match appropriate power/ rule or test provided by constitution
, What is congresses commerce clause? - correct Answer-Channels of interstate
commerce, instrumentalities of interstate commerce, any activity that has a substantial
economic effect on interstate commerce
Intrastate activity? Within same state - correct Answer-If economic or commercial in
nature - rational basis exists to conclude activity substantially affects interstate
commerce, non economic in nature - upheld if congressional finding that activity
substantially affects interstate commerce (Harder to establish) congressional finding of
facts
Dormant commerce clause allowed when? - correct Answer-State regulations on
interstate commcerce will be upheld only if regulation is non discriminatory, and
regulation does not unduly burden interstate commerce
What is state action? - correct Answer-Governmental conduct, prerequisite to proving
government has infringed someone's individual liberties, opposed to purely private
actions, plaintiff must prove, may apply to private if state significantly involved (running
town, public function)(Roads sidewalks, police)(14th amendment and 1st amendment
prevents infringements by company town) (state authorizing
State action MBE not - correct Answer-Grant of state license that is discriminatory, grant
of monopoly to utility company, grant of state lands or funds, all these the companies
could act in discriminatory ways
What is equal protection trigger? - correct Answer-Persons similarly situated being
treated different, assuming state action
Equal protection levels of scrutiny - correct Answer-Strict scrutiny - when government
differentiates based on people based on suspect classifications or fundamental right (3
suspect classifications - ran race alianege, national origin)(fundamental right implicated
when vote, travel, privacy)(right to privacy 7 campers - contraception, abortion,
marriage, procreation, education private, relations family, sexual relations
Burden on state to show law is necessary to achieve compelling purpose
Necessary if no other less restrictive means of meeting purpose, compelling if
necessary or crucial for society - presumptively invalidf
Intermediate - government classification based on gender or children born to unwed
parents,
Law is substantially related (close fit not necessarily least restrictive) to important
government interest (between compelling and legitimate)(Gender discrimination
requires "exceedingly persuasive justification)
Rational basis - burden on plaintiff to show law not rationally related to any legitimate
interests
