Source: National Conference of Bar Examiners
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.
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.
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.
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.
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
iii. Assignment and subletting
iv. Rent
v. Surrender, mitigation of damages, and anticipatory breach
E. Special problems
i. Rule Against Perpetuities
ii. &nb
