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MBE subject outline
Source: National Conference of Bar Examiners
MBE Subjects
Constitutional Law
NOTE: The terms
"Constitution," "constitutional," and
"unconstitutional" refer to the federal Constitution unless indicated
otherwise. Approximately half of the Constitutional Law questions for the MBE will be based on category IV, and approximately half will be based on the remaining categories, I, II, and III.
I.
The nature of judicial review
A.
Organization and relationship of state and federal courts in a federal system
B.
Jurisdiction
1.
Constitutional basis
2.
Congressional power to define and limit
3.
The Eleventh Amendment and state sovereign immunity
C.
Judicial review in operation
1.
The "case or controversy" requirement, including the prohibition on advisory
opinions, standing, ripeness, and mootness
2.
The "adequate and independent state ground"
3.
Political questions and justiciability
II.
The separation of powers
A.
The powers of Congress
1.
Commerce, taxing, and spending powers
2.
War, defense, and foreign affairs powers
3.
Power to enforce the 13th, 14th, and 15th Amendments
4.
Other powers
B.
The powers of the President
1.
As chief executive, including the "take care" clause
2.
As commander-in-chief
3.
Treaty and foreign affairs powers
4.
Appointment and removal of officials
C.
Federal interbranch relationships
1.
Congressional limits on the executive
2.
The Presentment requirement and the president's power to veto or to withhold action
3.
Non-delegation doctrine
4.
Executive, legislative, and judicial immunities
III.
The relations of nation and states in a federal system
A.
Intergovernmental immunities
1.
Federal immunity from state law
2.
State immunity from federal law, including the 10th Amendment
B.
Federalism-based limits on state authority
1.
Negative implications of the commerce clause
2.
Supremacy clause and preemption
3.
Full faith and credit
4.
Authorization of otherwise invalid state action
IV.
Individual rights
A.
State action
B.
Due Process
1.
Substantive due process
a.
Fundamental rights
b.
Other rights and interests
2.
Procedural due process, including personal jurisdiction
C.
Equal protection
1.
Fundamental rights
2.
Classifications subject to heightened scrutiny
3.
Rational basis review
D.
Takings
E.
Other protections, including the privileges
and immunities clauses, the contracts clause, unconstitutional conditions, bills of attainder, and ex post facto laws
F.
First Amendment freedoms
1.
Freedom of religion and separation of church and state
a.
Free exercise
b.
Establishment
2.
Freedom of expression
a.
Content-based regulation of protected expression
b.
Content-neutral regulation of
protected expression
c.
Regulation of
unprotected expression
d.
Regulation of
commercial speech
e.
Regulation of, or impositions upon, public school students, public
employment, licenses, or benefits based upon exercise of expressive or associational rights
f.
Regulation of
expressive conduct
g.
Prior restraint, vagueness, and
overbreadth
3.
Freedom of
the press
4.
Freedom of
association
^Top
Contracts
Examinees are to assume that Articles 1 and 2 of the Uniform Commercial Code have been adopted and are applicable when appropriate. Examinees should assume that the 2001 proposed amendments to Article 1 have been adopted, but that the 2001 and 2003 proposed amendments to Article 2 have not been adopted. Approximately half of the Contracts questions for each MBE will be based on categories I and IV, and approximately half will be based on the remaining categories, II, III, V, and VI. Approximately one-fourth of the Contracts questions for each MBE will be based on provisions of the Uniform Commercial Code, Articles 1 and 2.
I.
Formation of
contracts
A.
Mutual assent
1.
Offer and
acceptance
2.
Indefiniteness
or absence of terms
3.
Implied-in-fact contract
2.
"Pre-contract" obligations based on
reliance
B.
Consideration
1.
Bargain and exchange and substitutes for bargain: "moral obligation," reliance, and statutory substitutes
2.
Modification of contracts: preexisting duties
3.
Compromise and settlement of claims
II.
Defenses to enforceability
A.
Incapacity to contract
B.
Duress
C.
Undue influence
D.
Mistake, misunderstanding
E.
Fraud, misrepresentation, and nondisclosure
F.
Illegality, unconscionability, and public policy
G.
Statute of frauds
III.
Parol evidence and interpretation
IV.
Performance, breach, and discharge
A.
Conditions
1.
Express
2.
Constructive
3.
Obligations of good faith and fair dealing in performance and enforcement of
contracts
4.
Suspension or excuse of conditions by waiver, election, or estoppel
5.
Prospective inability to perform: effect on other party
B.
Impracticability and frustration of purpose
C.
Discharge of contractual duties
D.
Express and implied warranties in sale-of-goods contracts
E.
Substantial and partial breach and anticipatory repudiation
V.
Remedies
A.
Measure of damages for breach; protecting the expectation interest
B.
Consequential damages: causation, certainty, and foreseeability
C.
Liquidated damages and penalties
D.
Avoidable consequences and mitigation of damages
E.
Rescission and reformation
F.
Specific performance; injunction against breach; declaratory judgment
G.
Restitutionary and reliance recoveries
H.
Remedial rights of breaching parties
VI.
Third-party rights
A.
Third-party beneficiaries
1.
Intended beneficiaries
2.
Incidental beneficiaries
3.
Impairment or extinguishment of
third-party rights
4.
Enforcement by the promisee
B.
Assignment of rights and delegation of duties
^Top
Criminal Law and Procedure
Approximately half of the Criminal Law and Procedure
questions for each MBE will be based on category V, and approximately half will be based on the remaining categories, I through IV.
I.
Homicide
A.
Intended
killings
1.
Premeditation, deliberation
2.
Provocation
B.
Unintended
killings
1.
Intent to
injure
2.
Reckless and
negligent killings
3.
Felony-murder
4.
Misdemeanor manslaughter
II.
Other crimes
A.
Theft
1.
Larceny
2.
Embezzlement
3.
False
pretenses
B.
Receiving
stolen goods
C.
Robbery
D.
Burglary
E.
Assault and
battery
F.
Rape;
statutory rape
G.
Kidnapping
H.
Arson
I.
Possession offenses
III.
Inchoate
crimes; parties
A.
Inchoate
offenses
1.
Attempts
2.
Conspiracy
3.
Solicitation
B.
Parties to
crime
IV.
General
principles
A.
Acts and
omissions
B.
State of mind
1.
Required
mental state
2.
Strict
liability
3.
Mistake of
fact or law
C.
Responsibility
1.
Mental disorder
2.
Intoxication
D.
Causation
E.
Justification
and excuse
F.
Jurisdiction
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
G.
Cruel and unusual punishment
H.
Burdens of proof and persuasion
^Top
Evidence
All Evidence questions should be answered according to the Federal Rules of Evidence. 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.
I.
Presentation
of evidence
A.
Introduction
of evidence
1.
Requirement of
personal knowledge
2.
Refreshing
recollection
3.
Objections and
offers of proof
4.
Lay opinions
5.
Competency of
witnesses
6.
Judicial
notice
7.
Roles of judge
and jury
8.
Limited
admissibility
B.
Presumptions
C.
Mode and order
1.
Control by
court
2.
Scope of
examination
3.
Form of
questions
4.
Exclusion of witnesses
D.
Impeachment,
contradiction, and rehabilitation
1.
Inconsistent
statements and conduct
2.
Bias and
interest
3.
Conviction of
crime
4.
Specific
instances of conduct
5.
Character for
truthfulness
6.
Ability to
observe, remember, or relate accurately
7.
Impeachment of
hearsay declarants
8.
Rehabilitation
of impeached witnesses
9.
Contradiction
E.
Proceedings to
which evidence rules apply
II.
Relevancy and
reasons for excluding relevant evidence
A.
Probative
value
1.
Relevancy
2.
Exclusion for
unfair prejudice, confusion, or waste of time
B.
Authentication
and identification
C.
Character and
related concepts
1.
Admissibility
of character
2.
Methods of
proving character
3.
Habit and
routine practice
4.
Other crimes,
acts, transactions, and events
5.
Prior sexual misconduct of a defendant
D.
Expert
testimony
1.
Qualifications
of witnesses
2.
Bases of testimony
3.
Ultimate issue
rule
4.
Reliability and relevancy
5.
Proper subject matter for expert
testimony
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 of a victim
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
1.
What is
hearsay
2.
Prior
statements by witness
3.
Statements
attributable to party-opponent
4.
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
L.
Right to confront witnesses
^Top
Real Property
Approximately one-fifth of the Real Property questions on the MBE will be based on each of the categories I–V.
I.
Ownership
A.
Present
estates
1.
Fees simple
2.
Defeasible
fees simple
3.
Life estates
B.
Future
interests
1.
Reversions
2.
Remainders,
vested and contingent
3.
Executory
interests
4.
Possibilities
of reverter, powers of termination
5.
Rules affecting these interests
C.
Cotenancy
1.
Types
a.
Tenancy in common
b.
Joint tenancy
2.
Severance
3.
Partition
4.
Relations among cotenants
5.
Alienability, descendability, devisability
D.
The law of
landlord and tenant
1.
Types of
holdings: creation and termination
a.
Terms for
years
b.
Tenancies at
will
c.
Holdovers and
other tenancies at sufferance
d.
Periodic
tenancies
2.
Possession and rent
3.
Assignment and
subletting
4.
Termination (surrender,
mitigation of damages, and anticipatory breach)
5.
Habitability and suitability
E.
Special
problems
1.
Rule Against
Perpetuities: common law and as modified
2.
Alienability,
descendability, and devisability
3.
Fair housing/discrimination
II.
Rights in land
A.
Covenants at
law and in equity
1.
Nature and type
2.
Creation
3.
Scope
4.
Termination
B.
Easements,
profits, and licenses
1.
Nature and type
2.
Methods of creation
a.
Express
b.
Implied
i.
Quasi-use
ii.
Necessity
iii.
Plat
c.
Prescription
3.
Scope
4.
Termination
C.
Fixtures
(including relevant application of Article 9, UCC)
D.
Zoning (fundamentals other than regulatory taking)
III.
Contracts
A.
Real estate brokerage
B.
Creation and construction
1.
Statute of frauds and exceptions
2.
Essential terms
3.
Time for performance
4.
Remedies for breach
C.
Marketability of title
D.
Equitable conversion (including risk of loss)
E.
Options and rights of first refusal
F.
Fitness and suitability
G.
Merger
IV.
Mortgages/security devices
A.
Types of
security devices
1.
Mortgages
(including deeds of trust)
a.
In general
b.
Purchase-money mortgages
c.
Future-advance mortgages
2.
Land contracts
3.
Absolute deeds
as security
B.
Some security
relationships
1.
Necessity and
nature of obligation
2.
Theories:
title, lien, and intermediate
3.
Rights and
duties prior to foreclosure
4.
Right to
redeem and clogging equity of redemption
C.
Transfers by
mortgagor
1.
Distinguishing
"subject to" and "assuming"
2.
Rights and
obligations of transferor
3.
Application of
subrogation and suretyship principles
4.
Due-on-sale clauses
D.
Transfers by
mortgagee
E.
Payment, discharges and
defenses
F.
Foreclosure
1.
Types
2.
Rights of
omitted parties
3.
Deficiency and
surplus
4.
Redemption
after foreclosure
5.
Deed in lieu
of foreclosure
V.
Titles
A.
Adverse
possession
B.
Transfer
by deed
1.
Warranty and non-warranty deeds (including covenants for title)
2.
Necessity for
a grantee and other deed requirements
3.
Delivery
(including escrows)
C.
Transfer by operation of law and by will
1.
In general
2.
Ademption
3.
Exoneration
4.
Lapse
5.
Abatement
D.
Title assurance systems
1.
Recording acts (race, notice, and race-notice)
a.
Indexes
b.
Chain of title
c.
Protected parties
d.
Priorities
e.
Notice
2.
Title insurance
E.
Special problems
1.
After-acquired title (including estoppel by deed)
2.
Forged instruments and undelivered deeds
3.
Purchase-money mortgages
4.
Judgment and tax liens
^Top
Torts
The Torts questions should be answered according to principles of general applicability. Examinees are to assume that there is no applicable statute unless otherwise specified; however, survival actions and claims for wrongful death should be assumed to be available where applicable. Examinees should assume that joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated. Approximately half of the Torts questions for the MBE will be based on category II, and approximately half will be based on the remaining categories, I, III, IV, and V.
I.
Intentional
torts
A.
Harms to the person, such as assault, battery, false imprisonment, and infliction of mental
distress; and harms to property interests, such as trespass to land and chattels, and conversion
B.
Defenses to claims for physical harms
1.
Consent
2.
Privileges and immunities: protection
of self and others; protection of property interests; parental discipline; protection
of public interests; necessity; incomplete privilege
II.
Negligence
A.
The duty
question: including failure to act, unforeseeable plaintiffs, and obligations
to control the conduct of third parties.
B.
The standard
of care
1.
The reasonably
prudent person: including children, physically and mentally impaired
individuals, professional people, and other special classes
2.
Rules of
conduct derived from statutes and custom
C.
Problems
relating to proof of fault, including res ipsa loquitur
D.
Problems
relating to causation
1.
But for and
substantial causes
2.
Harms
traceable to multiple causes
3.
Questions of
apportionment of responsibility among multiple tortfeasors, including joint and
several liability
E.
Limitations on
liability and special rules of liability
1.
Problems
relating to "remote" or "unforeseeable" causes,
"legal" or "proximate" cause, and "superseding" causes
2.
Claims against
owners and occupiers of land
3.
Claims for
mental distress not arising from physical harm; other intangible injuries
4.
Claims for
pure economic loss
F.
Liability for acts of others
1.
Employees and other agents
2.
Independent contractors and nondelegable duties
G.
Defenses
1.
Contributory fault, including common law contributory negligence and last
clear chance, and the various forms of comparative negligence
2.
Assumption of risk
III.
Strict
liability: claims arising from abnormally dangerous activities; the rule of
Rylands v. Fletcher and other common law strict liability claims; defenses
IV.
Products
liability: claims against manufacturers and others based on defects in
manufacture, design, and warning; and defenses
V.
Other torts
A.
Claims based
on nuisance, and defenses
B.
Claims based
on defamation and invasion of privacy, defenses, and constitutional limitations
C.
Claims based
on misrepresentations, and defenses
D.
Claims based
on intentional interference with business relations, and defenses
^Top
