MBE Multistate Bar Examination — All Questions

In federal court, diversity jurisdiction generally requires complete diversity of citizenship and that the amount in controversy exceed:

• a.$10,000
• b.$75,000✓
• c.$100,000
• d.There is no amount requirement

Under the general federal diversity statute, the parties must be completely diverse (no plaintiff shares citizenship with any defendant) and the amount in controversy must exceed $75,000. This is the standard federal rule; always confirm the current statute and any special provisions.

Under the general due-process framework, a court may exercise personal jurisdiction over an out-of-state defendant when the defendant has:

• a.Any presence anywhere in the United States
• b.A driver's license from any state
• c.Sufficient minimum contacts with the forum state so that jurisdiction does not offend fair play and substantial justice✓
• d.Filed taxes in the previous year

The minimum-contacts test asks whether the defendant has purposeful contacts with the forum such that exercising jurisdiction comports with fair play and substantial justice. This framework governs personal jurisdiction analysis in most cases, subject to more specific doctrines.

A motion to dismiss for failure to state a claim upon which relief can be granted primarily tests:

• a.The legal sufficiency of the complaint, generally accepting the well-pleaded factual allegations as true✓
• b.Whether the plaintiff will win at trial
• c.The credibility of the witnesses
• d.Whether the jury is properly selected

This motion challenges the legal sufficiency of the complaint, and the court generally accepts the well-pleaded factual allegations as true and asks whether they state a plausible claim. It does not resolve disputed facts or weigh evidence.

The principle that federal courts may declare a statute unconstitutional was famously established in:

• a.Gideon v. Wainwright
• b.Marbury v. Madison✓
• c.Miranda v. Arizona
• d.Roe v. Wade

Marbury v. Madison established the principle of judicial review, under which courts may declare legislative or executive acts unconstitutional. It is a foundational case in United States constitutional law.

Congress's authority to regulate commerce among the states derives primarily from:

• a.The First Amendment
• b.The Supremacy Clause
• c.The Necessary and Proper Clause alone
• d.The Commerce Clause✓

The Commerce Clause of Article I grants Congress power to regulate commerce with foreign nations, among the several states, and with Indian tribes. It is one of the broadest sources of federal legislative power.

Under the general equal-protection framework, government classifications based on race are reviewed under:

• a.Strict scrutiny✓
• b.Rational-basis review
• c.No review at all
• d.Intermediate scrutiny

Racial classifications are suspect and generally trigger strict scrutiny, requiring the government to show the classification is narrowly tailored to serve a compelling interest. Intermediate scrutiny typically applies to gender, and rational basis to most other classifications.

Under general contract principles, the three basic elements needed to form an enforceable contract are:

• a.Writing, signature, and a notary
• b.Offer, acceptance, and a lawsuit
• c.Offer, acceptance, and consideration✓
• d.Payment, delivery, and a receipt

A basic contract generally requires an offer, an acceptance, and consideration (a bargained-for exchange of value). Additional requirements such as capacity and legality also apply, and some contracts must be in writing.

Under the Statute of Frauds as generally applied, which contract typically must be evidenced by a writing to be enforceable?

• a.A contract to buy a cup of coffee
• b.A contract for the sale of land✓
• c.A promise to meet a friend for lunch
• d.An agreement to lend a book overnight

The Statute of Frauds generally requires a writing for certain contracts, including those for the sale of an interest in land. The specific categories and exceptions vary by jurisdiction, so the applicable state statute should be consulted.

Under the common-law mirror-image rule, an acceptance must:

• a.Match the terms of the offer without adding or changing terms✓
• b.Always add new favorable terms
• c.Be made only in writing
• d.Include a payment of money

At common law, the mirror-image rule requires that the acceptance mirror the terms of the offer; a response that changes or adds terms is generally a counteroffer, not an acceptance. Note that the UCC modifies this rule for the sale of goods.

Under the general pre-existing duty rule, a promise to do something a party is already legally obligated to do is:

• a.Always sufficient consideration
• b.Consideration only if put in writing
• c.Consideration only in federal court
• d.Generally not sufficient consideration for a new promise✓

Under the traditional pre-existing duty rule, performing or promising to perform an existing legal obligation is generally not valid consideration for a new promise. Some jurisdictions and the UCC recognize exceptions, such as good-faith modifications.

At common law, murder is generally defined as the unlawful killing of another human being with:

• a.Ordinary negligence
• b.Malice aforethought✓
• c.No mental state required
• d.A written confession

Common-law murder is the unlawful killing of another with malice aforethought, which includes intent to kill, intent to cause serious bodily harm, reckless indifference to human life, or intent to commit a dangerous felony. Modern statutes often divide homicide into degrees and vary by jurisdiction.

Under Miranda, warnings are generally required before:

• a.Any conversation with a police officer
• b.A routine traffic stop with no questioning
• c.A custodial interrogation of a suspect✓
• d.Filing any criminal charge

Miranda warnings are generally required before a custodial interrogation, meaning questioning after a suspect is in custody or otherwise deprived of freedom in a significant way. Voluntary statements not prompted by interrogation are typically not barred.

The Fourth Amendment generally protects against:

• a.Unreasonable searches and seizures, typically requiring a warrant based on probable cause subject to exceptions✓
• b.All questioning by police
• c.Being tried twice for the same offense
• d.Cruel and unusual punishment

The Fourth Amendment protects against unreasonable searches and seizures; searches generally require a warrant supported by probable cause, though numerous recognized exceptions exist. Double jeopardy and cruel-and-unusual-punishment protections come from other amendments.

Under the general rules of evidence, hearsay is best described as:

• a.Any statement made by a witness
• b.An out-of-court statement offered to prove the truth of the matter asserted✓
• c.Only written statements
• d.Testimony given under oath at trial

Hearsay is an out-of-court statement offered to prove the truth of the matter it asserts, and it is generally inadmissible unless an exception or exclusion applies. The precise definition and exceptions can vary somewhat by jurisdiction.

Under the general standard, evidence is relevant if it:

• a.Is favorable only to the prosecution
• b.Was gathered by the police
• c.Has any tendency to make a fact of consequence more or less probable✓
• d.Is always dramatic testimony

Relevant evidence has any tendency to make a fact of consequence more or less probable than it would be without the evidence. Relevant evidence is generally admissible, though it may be excluded if its probative value is substantially outweighed by unfair prejudice or other concerns.

Under the general rule, evidence of a person's character is:

• a.Ordinarily not admissible to prove that the person acted in conformity with that character on a particular occasion, subject to exceptions✓
• b.Always admissible for any purpose
• c.Admissible only in civil cases
• d.Never admissible for any reason

The general rule bars using character evidence to show that a person acted in conformity with a character trait (propensity) on a specific occasion, though there are recognized exceptions, such as certain uses in criminal cases. Jurisdictions vary in the details.

Which estate represents the greatest ownership interest in land, of potentially infinite duration?

• a.A life estate
• b.A fee simple absolute✓
• c.A leasehold for one year
• d.An easement

A fee simple absolute is the most complete ownership interest, of potentially infinite duration and freely transferable. A life estate lasts only for a measuring life, and a leasehold or easement grants more limited rights.

A distinctive feature of a joint tenancy, as generally recognized, is:

• a.The interest always passes by will
• b.It can never be severed
• c.The right of survivorship✓
• d.It requires a written lease

A joint tenancy generally carries a right of survivorship, so on the death of one joint tenant the interest passes to the surviving joint tenant(s) rather than through the decedent's will. Creating it traditionally requires the four unities, and it can be severed; specifics vary by jurisdiction.

Under the general common-law doctrine, adverse possession typically requires possession that is:

• a.Secret and occasional
• b.Permission-based and shared
• c.Brief and hidden
• d.Open and notorious, continuous, exclusive, and hostile for the statutory period✓

Adverse possession generally requires possession that is open and notorious, continuous, exclusive, and hostile (without the owner's permission) for a statutory period. The length of that period and other specifics vary significantly by jurisdiction.

The four traditional elements of a negligence claim are:

• a.Duty, breach, causation, and damages✓
• b.Offer, acceptance, consideration, and writing
• c.Intent, motive, opportunity, and harm
• d.Malice, custody, arrest, and trial

A negligence claim generally requires a duty owed to the plaintiff, a breach of that duty, causation (both actual and proximate), and damages. Each element must be established for the claim to succeed.

Under general tort principles, the intentional tort of battery involves:

• a.A careless statement that harms reputation
• b.Intentional harmful or offensive contact with another person✓
• c.Failure to complete a contract
• d.Entering land with permission

Battery is an intentional act causing harmful or offensive contact with another person (or something closely connected to them) without consent. It is an intentional tort, distinct from negligence, which involves unintended harm from unreasonable conduct.

In evaluating breach of duty in negligence, the standard of care is generally measured by:

• a.What the particular defendant personally believed was safe
• b.The defendant's best possible effort
• c.The conduct of a reasonably prudent person under the circumstances✓
• d.Whatever custom the defendant's industry follows, without exception

Negligence generally uses an objective standard: how a reasonably prudent person would act under the same or similar circumstances. This objective 'reasonable person' measure does not turn on the individual defendant's personal beliefs, though special standards can apply to certain actors.