Source:
National Conference of Bar Examiners
MBE Topics
Constitutional Law
Contracts
Criminal Law
Evidence
Real Property
Torts
Constitutional
Law
NOTE: The terms
"Constitution," "constitutional," and
"unconstitutional" refer to the federal Constitution unless indicated
otherwise.
I.
The nature of
judicial review
A.
Organization
and relationship of state and federal courts in a federal system
B.
Jurisdiction
i.
Constitutional
basis
ii.
Congressional
power to define and limit
C.
Judicial
review in operation
i.
the "case
or controversy" requirement including standing, ripeness, and mootness
ii.
Political
questions and justiciability
iii.
The
"adequate and independent state ground"
II.
The separation
of powers
A.
The powers of
Congress
i.
Commerce,
taxing, and spending
ii.
Power over
federal property
iii.
War and
defense powers
iv.
Power to
enforce the 13th, 14th, and 15th Amendments
B.
The powers of
the President
i.
As chief
executive
ii.
As
commander-in-chief
iii.
Treaty and
foreign affairs powers
iv.
Appointment
and removal of officials
C.
Federal
interbranch relationships
i.
Congressional
limits on the executive
ii.
The Presentment
requirement and the President's power to veto or to withhold action
iii.
Delegation
doctrine
iv.
Executive,
legislative, and judicial immunities
III.
The relations
of nation and states in a federal system
A.
Intergovernmental
immunities
i.
Federal
immunity from state law
ii.
State immunity
from federal law
B.
The authority
reserved to the states
i.
Negative
implications of the commerce clause
ii.
Tenth
Amendment
iii.
Other
C.
National power
to override or extend state authority
i.
Preemption
ii.
Authorization
of otherwise invalid state action
D.
Relations
among states
i.
Interstate
compacts
ii.
Full faith and
credit
IV.
Individual
rights
A.
"State
action" and the role of the courts
B.
Due Process
i.
Substantive
due process
a.
Fundamental
rights
b.
Other rights
ii.
Takings
iii.
Procedural due
process
C.
Equal
protection
i.
Fundamental
rights
ii.
Other rights
iii.
Suspect
classifications
iv.
Other
classifications
D.
Privileges and
immunities clauses
E.
Obligation of
contracts, bills of attainder, ex post facto laws
F.
First
Amendment freedoms
i.
Freedom of
religion and separation of church and state
a.
Free exercise
b.
Establishment
ii.
Freedom of
expression and association
a.
Regulation of
content of expression
b.
Regulation of
time, manner, and place of expression
c.
Regulation of
unprotected expression
a.
Obscenity
b.
Other
d.
Regulation of
commercial speech
e.
Regulation of,
or impositions upon, public employment, licenses, or benefits based upon
exercise of expressive or associational rights
f.
Regulation of
association
g.
Regulation of
defamation and invasions of privacy
Approximately half of
the Constitutional Law questions for each MBE will be based on category IV, and
approximately half will be based on the remaining categories, I, II, and III.
All of the major topics (designated by Roman numerals) will be represented in
each examination, but not necessarily all of the subtopics.
Contracts
Note: Examinees are to
assume that Articles 1 and 2 of the Uniform Commercial Code (including the 1999
amendments made as part of the revision of the Article 9 of the Commercial
Code) have been adopted and are applicable when appropriate. Applicants should
assume that the 2001 proposed amendments to Article I and the 2003 proposed
amendments to Article 2 have NOT BEEN ADOPTED.
I.
Formation of
contracts
A.
Mutual assent
i.
Offer and
acceptance
ii.
Mistake,
misunderstanding, misrepresentation, nondisclosure, confidential relationship,
fraud, undue influence, and duress
iii.
Problems of
communication and "battle of the forms"
iv.
Indefiniteness
or absence of terms
B.
Capacity to
contract
C.
Illegality,
unconscionability, and public policy
D.
Implied-in-fact
contract and quasi-contract
E.
"Pre-contract"
obligations based on detrimental reliance
F.
Express and
implied warranties in sale-of-goods contracts
II.
Consideration
A.
Bargain and
exchange
B.
"Adequacy"
of consideration: mutuality of obligation, implied promises, and
disproportionate exchanges
C.
Modern
substitutes for bargain: "moral obligation," detrimental reliance,
and statutory substitutes
D.
Modification of
contracts: preexisting duties
E.
Compromise and
settlement of claims
III.
Third-party
beneficiary contracts
A.
Intended
beneficiaries
B.
Incidental
beneficiaries
C.
Impairment or
extinguishment of third-party rights by contract modification or mutual
rescission
D.
Enforcement by
the promise
IV.
Assignment of
rights and delegation of duties
V.
Statutes of
frauds
VI.
Parol evidence
and interpretation
VII.
Conditions
A.
Express
B.
Constructive
i.
Conditions of
exchange: excuse or suspension by material breach
ii.
Immaterial breach
and substantial performance
iii.
Independent
covenants
iv.
Constructive
conditions of non-prevention, non-hindrance, and affirmative cooperation
C.
Obligations of
good faith and fair dealing in performance and enforcement of contracts
D.
Suspension or
excuse of conditions by waiver, election, or estoppel
E.
Prospective
inability to perform: effect on other party
VIII.
Remedies
A.
Total and
partial breach of contract
B.
Anticipatory
repudiation
C.
Election of substantive
rights and remedies
D.
Specific
performance; injunction against breach; declaratory judgment
E.
Rescission and
reformation
F.
Measure of
damages in major types of contract and breach
G.
Consequential
damages: causation, certainty, and foreseeability
H.
Liquidated damages
and penalties
I.
Restitutionary
and reliance recoveries
J.
Remedial
rights of defaulting parties
K.
Avoidable
consequences and mitigation of damages
IX.
Impossibility
of performance and frustration of purpose
X.
Discharge of
contractual duties
Approximately 60% of
the Contracts questions for each MBE will be based on categories I, VII, and
VIII, and approximately 40% will be based on the remaining categories, II, III,
IV, V, VI, IX, and X. All of the major topics (designated by Roman numerals)
will be represented in each examination, but not necessarily all of the
subtopics. Approximately 25% of the Contracts questions for each MBE will be
based on provisions of the Uniform Commercial Code, Articles 1 and 2.
Criminal Law
I.
Homicide
A.
Intended
killings
i.
Premeditation-deliberation
ii.
Provocation
B.
Unintended
killings
i.
Intent to
injure
ii.
Reckless and
negligent killings
iii.
Felony-murder
iv.
Misdemeanor-manslaughter
II.
Other crimes
A.
Theft
i.
Larceny
ii.
Embezzlement
iii.
False
pretenses
B.
Receiving
stolen goods
C.
Robbery
D.
Burglary
E.
Assault and
battery
F.
Rape;
statutory rape
G.
Kidnapping
H.
Arson
III.
Inchoate
crimes; parties
A.
Inchoate
offenses
i.
Attempts
ii.
Conspiracy
iii.
Solicitation
B.
Parties to
crime
IV.
General
principles
A.
Acts and
omissions
B.
State of mind
i.
Required
mental state
ii.
Strict
liability
iii.
Mistake of
fact or law
C.
Responsibility
i.
Mental disorder
ii.
Intoxication
D.
Causation
E.
Justification
and excuse
V.
Constitutional
protection of accused persons
A.
Arrest, search
and seizure
B.
Confessions
and privilege against self-incrimination
C.
Lineups and
other forms of identification
D.
Right to
counsel
E.
Fair trial and
guilty pleas
F.
Double
jeopardy
Approximately 40% of
the Criminal Law questions for each MBE will be based on category V, and
approximately 60% will be based on the remaining categories, I through IV. All
of the major topics (designated by Roman numerals) will be represented in each
examination, but not necessarily all of the subtopics.
Evidence
Note:
All Evidence questions should be answered according to the Federal Rules of
Evidence.
I.
Presentation
of evidence
A.
Introduction
of evidence
i.
Requirement of
personal knowledge
ii.
Refreshing
recollection
iii.
Objections and
offers of proof
iv.
Lay opinions
v.
Competency of
witnesses
vi.
Judicial
notice
vii.
Roles of judge
and jury
viii.
Limited
admissibility
B.
Presumptions
C.
Mode and order
i.
Control by
court
ii.
Scope of
examination
iii.
Form of
questions
iv.
Exclusion of witnesses
D.
Impeachment,
contradiction, and rehabilitation
i.
Inconsistent
statements and conduct
ii.
Bias and
interest
iii.
Conviction of
crime
iv.
Specific
instances of conduct
v.
Character for
truthfulness
vi.
Ability to
observe, remember, or relate accurately
vii.
Impeachment of
hearsay declarants
viii.
Rehabilitation
of impeached witnesses
E.
Proceedings to
which evidence rules apply
II.
Relevancy and
reasons for excluding relevant evidence
A.
Probative
value
i.
Relevancy
ii.
Exclusion for
unfair prejudice, confusion, or waste of time
B.
Authentication
and identification
C.
Character and
related concepts
i.
Admissibility
of character
ii.
Methods of
proving character
iii.
Habit and
routine practice
iv.
Other crimes,
acts, transactions, and events
D.
Expert
testimony and scientific evidence
i.
Qualifications
of witnesses
ii.
Bases of testimony
iii.
Ultimate issue
rule
iv.
Reliability of
scientific evidence
E.
Real,
demonstrative, and experimental evidence
III.
Privileges and
other policy exclusions
A.
Spousal immunity
and marital communications
B.
Attorney-client
and work product
C.
Physician/psychotherapist-patient
D.
Self-incrimination
E.
Other
privileges
F.
Insurance coverage
G.
Remedial
measures
H.
Compromise,
payment of medical expenses, and plea negotiations
I.
Past sexual
conduct
IV.
Writings,
recordings, and photographs
A.
Requirement of
original
B.
Summaries
C.
Completeness
rule
V.
Hearsay and
circumstances of its admissibility
A.
Definition of
hearsay
i.
What is
hearsay
ii.
Prior
statements by witness
iii.
Statements
attributable to party-opponent
iv.
Multiple
hearsay
B.
Present sense
impressions and excited utterances
C.
Statements of
mental, emotional, or physical condition
D.
Statements for
purposes of medical diagnosis and treatment
E.
Past
recollection recorded
F.
Business
records
G.
Public records
and reports
H.
Learned
treatises
I.
Former
testimony; depositions
J.
Statements
against interest
K.
Other
exceptions to the hearsay rule
Approximately
one-third of the Evidence questions for each MBE will be based on category I,
one-third on category V, and one-third on the remaining categories, II, III,
and IV. All of the major topics (designated by Roman numerals) will be
represented in each examination, but not necessarily all of the subtopics.
Real Property
NOTE: For all the
topics listed in the outline below, the following matters are included, to the
extent relevant: Nature
and Characteristics, Creation, Classification of Interests, Rights of
Possession and User, Legal and Equitable Remedies.
I.
Ownership
A.
Present
estates
i.
Fees simple
ii.
Defeasible
fees simple
iii.
Life estates
B.
Cotenancy
i.
Tenancy in
common
ii.
Joint tenancy
C.
Future
interests
i.
Reversions
ii.
Remainders,
vested and contingent
iii.
Executory
interests
iv.
Possibilities
of reverter, powers of termination
D.
The law of
landlord and tenant
i.
Fitness and
suitability of premises
ii.
Types of
holdings: creation and termination
a.
Terms for
years
b.
Tenancies at
will
c.
Holdovers and
other tenancies at sufferance
d.
Periodic
tenancies
