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Constitutional Law 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 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 powers to veto or to withhold action 3. Non-delegation doctrine 4. Executive, legislative, and judicial immunities The relation 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
Freedom of association Contracts Examinees are to assume that Articles 1 and 2 of the Uniform Commercial Code have been adopted and are applicable when appropriate. Regulation of unprotected expression d. Fundamental rights 2. IV. Offer and acceptance . Establishment 2. VI. II. and VIII. Individual rights A. I. Approximately 25 percent of the Contracts questions for each MBE will based on provisions of the Uniform Commercial Code. unconstitutional conditions. Examinees should assume that the 2001 revision to Article 1 has been adopted. Procedural due process. V. VII. IX and X. Classifications subject to heightened scrutiny 3. Prior restraint. Regulation of. or benefits based upon exercise of expressive or associational rights f. Formation of contracts A. Substantive due process a. Free exercise b. III. Approximately 60 percent of the Contracts questions for each MBE will be based on categories I. and ex post facto laws F.2009 MBE Specifications Outline IV. public employment. Content-neutral regulation of protected expression c. Regulation of expressive conduct g. Mutual assent 1. Content-based regulation of protected expression b. Regulation of commercial speech e. Fundamental rights b. Freedom of expression a. Other protections. State action B. and overbreadth 3. Due process 1. Takings E. and approximately 40 percent will be based on the remaining categories. Articles 1 and 2. Rational basis review D. vagueness. public school students. Equal protection 1. or impositions upon. licenses. First Amendment freedoms 1. the contracts clause. bills of attainder. but that the 2003 proposed amendments to Article 2 have not been adopted. including the privileges and immunities clauses. Freedom of religion and separation of church and state a. including personal jurisdiction C. Other rights and interests 2. Freedom of the press 4.
Compromise and settlement of claims Third-party beneficiary contracts A. Independent covenants 4.2009 MBE Specifications Outline 2.” detrimental reliance. V. E. Bargain and exchange B. Prospective inability to perform: effect on other party Remedies III. and affirmative cooperation C. Intended beneficiaries B. Immaterial breach and substantial performance 3. nondisclosure. Impairment or extinguishment of third-party rights by contract modification or mutual rescission D. fraud. Enforcement by the promise Assignment of rights and delegation of duties Statutes of frauds Parol evidence and interpretation Conditions A. or estoppel E. misrepresentation. and disproportionate exchanges C. Constructive 1. Consideration A. Obligations of good faith and fair dealing in performance and enforcement of contracts D. VI. C. D. confidential relationship. unconscionability. implied promises. and duress 3. Express B. misunderstanding. Mistake. undue influence. Incidental beneficiaries C. . Suspension or excuse of conditions by waiver. II. “Adequacy” of consideration: mutuality of obligation. Constructive conditions of non-prevention. election. VIII. Problems of communication and “battle of the forms” 4. F. Conditions of exchange: excuse or suspension by material breach 2. IV. non-hindrance. and statutory substitutes D. and public policy Implied-in-fact contract and quasi-contract “Pre-contract” obligations based on detrimental reliance Express and implied warranties in sale-of-goods contracts B. Indefiniteness or absence of terms Capacity to contract Illegality. Modification of contracts: preexisting duties E. VII. Modern substitutes for bargain: “moral obligation.
B. Intent to injure 2. J. Assault and battery F. certainty.2009 MBE Specifications Outline A. declaratory judgment Rescission and reformation Measure of damages in major types of contract and breach Consequential damages: causation. and foreseeability Liquidated damages and penalties Restitutionary and reliance recoveries Remedial rights of defaulting parties Avoidable consequences and mitigation of damages Impossibility of performance and frustration of purpose Discharge of contractual duties Criminal Law and Procedure Approximately half of the Criminal Law and Procedure questions for each MBE will be based on category V. Rape. Robbery D. IX. False pretenses B. G. Homicide A. Felony murder 4. K. parties II. C. Possession offenses Inchoate crimes. H. D. Misdemeanor manslaughter Other crimes A. F. injunction against breach. E. Intended killings 1. Premeditation. Arson I. Kidnapping H. Larceny 2. deliberation 2. III. I. Unintended killings 1. Burglary E. Theft 1. Receiving stolen goods C. and approximately half will be based on the remaining categories. Reckless and negligent killings 3. I. Total and partial breach of contract Anticipatory repudiation Election of substantive rights and remedies Specific performance. Provocation B. statutory rape G. X. . Embezzlement 3. I through IV.
Confession and privilege against self-incrimination C. search and seizure B. Responsibility 1. Justification and excuse F. Evidence All Evidence questions should be answered according to the Federal Rules of Evidence. Objections and offers of proof 4. and IV. Strict liability 3. Jurisdiction Constitutional protection of accused persons A. Inchoate offenses 1. one-third on category V. Required mental state 2. Causation E. State of mind 1. Competency of witnesses 6. Solicitation B. and one-third on the remaining categories. Approximately one-third of the Evidence questions for each MBE will be based on category I. I. Cruel and unusual punishment H. Double jeopardy G. Conspiracy 3. Requirement of personal knowledge 2. Mistake of fact or law C. Limited admissibility B. Parties to crime IV. Roles of judge and jury 8. Attempts 2. Mental disorder 2. III. Presentation of evidence A. Refreshing recollection 3. Burdens of proof and persuasion V. Arrest. Acts and omissions B. Lineups and other forms of identification D. Intoxication D. Presumptions .2009 MBE Specifications Outline A. Right to counsel E. II. General principles A. Judicial notice 7. Lay opinions 5. Fair trial and guilty pleas F. Introduction of evidence 1.
Summaries C. Insurance coverage G. Other crimes. Real. Definition of hearsay 1. Scope of examination 3. Admissibility of character 2. demonstrative. payment of medical expenses. Qualifications of witnesses 2. Relevancy 2. Habit and routine practice 4. Physician/psychotherapist-patient D. acts. transactions. Spousal immunity and marital communications B. Mode and order 1. Remedial measures H. Other privileges F. .2009 MBE Specifications Outline C. Methods of proving character 3. Proper subject matter for expert testimony E. Completeness rule Hearsay and circumstances of its admissibility A. Attorney-client and work product C. Bases of testimony 3. Authentication and identification C. confusion. Control by court 2. and events 5. Expert testimony 1. What is hearsay III. Requirement of original B. Relevancy and reasons for excluding relevant evidence A. Compromise. recordings. Exclusion for unfair prejudice. and photographs A. Prior sexual misconduct of a defendant D. and experimental evidence Privileges and other policy exclusions A. Probative value 1. Past sexual conduct of a victim Writings. Reliability and relevancy 5. Impeachment. Exclusion of witnesses D. IV. V. Form of questions 4. and plea negotiations I. Proceedings to which evidence rules apply II. or waste of time B. Ultimate issue rule 4. contradiction. Character and related concepts 1. Self-incrimination E. and rehabilitation E.
Relations among cotenants 5. Possession and rent . Reversions 2. D. F.2009 MBE Specifications Outline 2. Multiple hearsay Present sense impressions and excited utterances Statements of mental. I. J. devisability D. Prior statements by witness 3. C. Cotenancy 1. Tenancies at will c. Statements attributable to party-opponent 4. Future interests 1. Terms of years b. or physical condition Statements for purposes of medical diagnosis and treatment Past recollection recorded Business records Public records and reports Learned treatises Former testimony. Partition 4. Fees simple 2. vested and contingent 3. Real Property Approximately one-fifth of the Real Property questions on the MBE will be based on each of the categories I-V. H. I. Present estates 1. Holdovers and other tenancies at sufferance d. Ownership A. Rules of affecting these interests C. Tenancy in common b. powers of termination 5. E. The law of landlord and tenant 1. Periodic tenancies 2. Joint tenancy 2. Types of holdings: creation and termination a. descendability. Defeasible fees simple 3. Types a. Severance 3. depositions Statements against interest Other exceptions to the hearsay rule Right to confront witnesses B. Executory interests 4. Life estates B. Possibilities of reverter. L. K. emotional. Remainders. G. Alienability.
Scope 4. Implied i. Assignment and subletting 4. profits. Express b. Nature and type 2. Rights in land A. Time for performance 4. Methods of creation a. Creation and construction 1. Alienability. Types of security devices 1. Remedies for breach C. and anticipatory breach) 5. Easements. Rule Against Perpetuities: common law and as modified 2. Plat c. . Creation 3. mitigation of damages. Scope 4. Fair housing/discrimination II. Special problems 1. Termination B. Mortgages (including deeds of trust) a. Statute of frauds and exceptions 2. descendability. Quasi-use ii.2009 MBE Specifications Outline 3. Covenants at law and in equity 1. Real estate brokerage B. Habitability and suitability E. Prescription 3. Nature and type 2. Necessity iii. and licenses 1. Termination C. and devisability 3. IV. Marketability of title D. In general III. Merger Mortgages/security devices A. Essential terms 3. Zoning (fundamentals other than regulatory taking) Contracts A. Equitable conversion (including risk of loss) E. Options and rights of first refusal F. Termination (surrender. Fixtures (including relevant application of Article 9. Fitness and suitability G. UCC) D.
Rights and duties prior to foreclosure 4. Redemption after foreclosure 5. Application of subrogation and suretyship principles 4. Transfer by operation of law and by will 1. lien. In general 2. Rights of omitted parties 3. Right to redeem and clogging equity of redemption Transfers by mortgagor 1. Due-on-sale clauses Transfers by mortgagee Payment. Title assurance systems 1. Lapse 5. Necessity and nature of obligation 2. Theories: title. discharges. Future advance mortgages 2. Chain of title c. Exoneration 4. Recording acts (race. Rights and obligations of transferor 3. Land contracts 3. Indexes b. Deed in lieu of foreclosure B. Purchase-money mortgages c. C. Warranty and non-warranty deeds (including covenants for title) 2. Absolute deeds as security Some security relationships 1. Distinguishing “subject to” and “assuming” 2. Title insurance E. Protected parties d. V. Forged instruments and undelivered deeds . and defenses Foreclosure 1. Abatement D. Ademption 3.2009 MBE Specifications Outline b. Necessity for a grantee and other deed requirements 3. Deficiency and surplus 4. E. Titles A. Delivery (including escrows) C. D. Special problems 1. Types 2. Transfer by deed 1. and race-notice) a. F. Adverse possession B. and intermediate 3. Notice 2. notice. After-acquired title (including estoppel by deed) 2. Priorities e.
Harms to property interests: trespass to land and chattels. “legal” or “proximate” cause. Claims for mental distress not arising from physical harm. Intentional torts A. I. Questions of apportionment of responsibility among multiple tortfeasors. necessity. including res ipsa loquitur D. and obligations to control the conduct of third parties B. Limitations on liability and special rules of liability 1. unforeseeable plaintiffs. Problems relating to proof of fault. battery. Problems relating to “remote” or “unforeseeable” causes. parental discipline. Approximately half of the Torts questions for the MBE will be based on category II. Claims for pure economic loss F. however. III. protection of public interests. professional people. Problems relating to causation 1. The standard of care 1. Consent 2. infliction of mental distress B. But for and substantial causes 2. conversion C. Harms traceable to multiple causes 3. The reasonably prudent person: including children. IV. The duty question: including failure to act. including joint and several liability E. other intangible injuries 4. protection of property interests. Claims against owners and occupiers of land 3. Harms to the person: assault. Privileges and immunities: protection of self and others. physically and mentally impaired individuals. and approximately half will be based on the remaining categories. is the relevant rule unless otherwise indicated. with pure comparative negligence. I.2009 MBE Specifications Outline 3. Employees and other agents II. Examinees are to assume that there is no applicable statute unless otherwise specified. and “superseding” causes 2. Rules of conduct derived from statutes and custom C. false imprisonment. survival actions and claims for wrongful death should be assumed to be available where applicable. Purchase-money mortgages 4. Judgment and tax liens Torts The Torts questions should be answered according to principles of general applicability. . and other special classes 2. and V. Defenses to claims for physical harms 1. Liability for acts of others 1. incomplete privilege Negligence A. Examinees should assume that joint and several liability.
defenses. Independent contractors and nondelegable duties G. Assumption of risk III. Claims based on intentional interference with business relations. Claims based on defamation and invasion of privacy. and defenses IV. Contributory fault. design. Claims based on nuisance. the rule of Rylands v. and constitutional limitations C. including common law contributory negligence and last clear chance. Defenses 1.2009 MBE Specifications Outline 2. and defenses Other torts A. and defenses B. Fletcher and other common law strict liability claims. and the various forms of comparative negligence 2. . and warning. V. defenses Products liability: claims against manufacturers and others based on defects in manufacture. and defenses D. Strict liability: claims arising from abnormally dangerous activities. Claims based on misrepresentations.
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