MBE SUBJECTS Frequently Confused Rules

Evidence
 Prior inconsistent statement is a past statement that is contrary to a witness’s present testimony.
These statements are inadmissible to prove the truth of the matter asserted therein, for substantive
purposes unless they are excepted or excluded from the hearsay rule.

Crim Law / Pro

 False pretenses consist of obtaining title to the property of another by an intentionally false
statement of past or existing fact, with intent to defraud the other. If a victim intends to convey only
possession of the property, the offense is larceny by trick. However, if the victim intends to convey
the title, the offense is false pretenses.

Civ Pro
 Aggregation of claims
 Single P vs Single D = total value of P’s claims against D if P has 1+ claims
 Single P vs multiple D = can’t aggregate P’s claims unless Ds are jointly liable
 Same case or controversy
 Multiple Ps = aggregate only if they are enforcing a single title or right
 Same case or controversy

 Permissive counterclaims = it should independently satisfy the amount in controversy requirement.

 Required/indispensable party = when in that person’s absence, the court cannot accord complete
relief among existing parties, or the person claims an interest relating to the subject matter of
the action, so that the person’s absence may impair or impede the person’s ability to protect the
interest or leave an existing party subject to a substantial risk of incurring multiple obligations
because of the interest of the third party (additional future lawsuit brought by that interested party).

 Limitations to using supplemental jurisdiction: P may use supplemental jurisdiction to bring a

diversity action in federal court that does not meet the amount in controversy requirement.
 However, if P seeks to add claim/party that would destroy complete diversity, and the original
claim that meets SMJ is solely based on diversity jurisdiction, court will not exercise
supplemental jurisdiction in P’s attempt to add those claim/party that would destroy complete
diversity.

 Implead vs Interplead vs Joinder

 Implead: where D sues third party who was not originally part of the lawsuit. D impleads the
third party in the suit of the grounds that if D is liable to P, the third party is liable in whole or
part to the D.
 Interplead: proceeding in which a person who holds property or money that is at issue forces all
potential adverse claimants to litigate amongst themselves to determine who has a valid claim
to the property.
 Joinder
 Permissive joinder of claims: P may join any claims he has against D in one suit even if
claims are unrelated to original suit.
 Crossclaim: Any D may have against a co-D or any P may have against co-P which arises
out of same transactions and occurrences as the original claim.
 Permissive joinder of parties: P may join either other P or another D so long as claims (1)
arise out of same transactions or occurrences and (2) involve a common question of law or fact.
  Compulsory joinder of parties: necessary parties must in the interest of justice be joined
to an action so long as the court has subject matter and personal jurisdiction over them.

 Conflict of Law rules

 State Statute vs Federal Statute: Federal court must follow FED STAT
 State Statute vs Federal Common Law: Federal court must follow STATE STAT
 State Common Law vs Federal Common Law: Federal court must follow FED CL

Constitution
 Generally, discriminatory laws are upheld through the application of the rational basis test. The law
may be reviewed under strict scrutiny only if it attempts to regulate suspect or quasi-suspect class
(intermediate).

 Substantive Due Process vs Equal Protection vs Privileges and Immunities Clause. When to apply
 Substantive Due Process – used to protect economic liberties and to safeguard property.
 Definition: asks whether the government has an adequate reason for taking away a person’s
life, liberty and property.
 Constitution only provides minimal protection if economic right is regulated.
 Strict scrutiny applies where Privacy is concerned
 Right to marry / procreate / keep family together / abortion etc.

 Equal Protection – when government draws distinction among people. Classification matters
 SS: race, national origin, alienage
 IS: gender, discrimination against nonmarital kids
 RB: all other types of discrimination (age, disability, sex orientation

 P&I – only when there is a discrimination of domestic vs out of staters

 P&I of 4th AM: ensures that an out of state citizen enjoys the same privileges as citizen of
the state in which he happens to find himself.
 Protects citizens from discrimination regarding fundamental rights.
 Does NOT apply to corporates or aliens
 P&I of 14th AM: no states shall make any law which shall abridge the privileges or
immunities of citizens of the United States. Nor shall deprive any of life, liberty, or
property, without due process of law. (Due process) Nor deny to any person within its
jurisdiction the equal protection of the laws. (Equal protection)

 Dormant Commerce Clause – Constitutional limit on state’s ability to pass laws affecting out
of staters
 Prevents states from acting in such a way as to burden interstate commerce.
Torts
 Although P is not required to prove that D was at fault, the Supreme Court decisions based on the
First Amendment imposed fault requirements:
 If P is a public official or figure, P must prove that the defendant acted with actual malice –
knowledge that the defamatory statement was false or reckless disregard for its falsity.
 If P is a private person and the defamatory statement involves a matter of public concern, the
plaintiff must prove that D was at least negligent as to the falsity of the statement.

 Under both strict liability/negligence theories of product liability, only $ damages are insufficient.
P must also allege physical injury.
Property
 When joint tenancy is at issue for a dispute, always think about the four unities that must be satisfied
to evidence joint tenancy.
o Unity of time – each joint tenancy take his or her share at the exact same time.
o Unity of title – all joint tenants acquire title by the same instrument.
o Unity of interest – each tenant must have an equal interest in the property. (each must own an
identical percentage of the interest in the property)
o Unity of possession – each joint tenant must have the right to possess the entire property.

 Easement appurtenant requires dominant and servient estate. Easement in gross only needs servient.
o Transaction of the dominant estate also transfers easement appurtenant along with it.
However, the original holder of the easement appurtenant will no longer benefit from the
easement as that right will now be held by the purchaser.
o Transaction of easement in gross will generally not be transferred because its right is not
attached to the land for transaction. However, the easement in gross in commercial sense can
be transferred (Company’s easement to put up a billboard on A’s property may sell its right to
put up a billboard to another company).

 For both easement appurtenant and easement in gross, they survive transfer of the servient estate.
o However, easement in gross could be extinguished if the land is transferred to a party
who had no notice of the existence of the easement and no reason to know of the existence
of the easement.

 Because easements are interests in real property, it must be in writing if the interest continues to
exist for more than 1 year. If for any reason that there was SOF violation, then the parties’ intent to
create easement will be creating a revocable license instead.