Simulated MBE Flashcards
MBE question topics with the takeaway rule.
Criminal Law/ Procedure - search and seizure
To be able to assert a Fourth Amendment right, a person must have a legitimate expectation of privacy with respect to the place searched or the item seized. There is no such expectation of privacy in objects or places held out to the public or that may be viewed from a public vantage point. The police may not use technological enhancements that are not available to the public.
Constitutional Law- spending power
Article I, Section 8, provides that Congress may spend to “provide for the common defense and the general welfare.” This spending may be for any public purpose- not merely the accomplishment of the other enumerated powers. Under this power, Congress may “regulate states by imposing explicit conditions on the grant of money to state or local governments.” Such conditional will not violate the Tenth Amendment merely because Congress lacked the power to directly regulate the activity that is the subject of the spending program.
Contracts- promissory estoppel/ third-party beneficiary
Under the majority view, consideration is not necessary to make an agreement at least partially enforceable where the facts indicate that the promisor should be estopped from not performing. Under the Second Restatement, a promise is enforceable to the extent necessary to prevent injustice if the promisor should reasonably expected the promise to induce action or forbearance and such action or forbearance is in fact induced.
Real Property- recording acts/priorities
Pure notice statute- allows subsequent purchasers for value and without notice of a prior conveyance to prevail over the prior transferee, regardless of whether the subsequent purchaser records. In addition, the “shelter rule” allows a person who takes from a bona fide purchaser to prevail against any interest that the transferor-bona fide purchaser would have prevailed against, even if the transferee had actual knowledge of the prior unrecorded interest.
Evidence
Party opponent admission- a statement by a party to the action offered by the opponent of the party is not hearsay and thus not excluded by the hearsay rule. This includes statements by a party’s employees if made during and int he scope of the employment relationship.
Criminal Law/ Procedure- fifth amendment
At any time prior to or during interrogation, a suspect may invoke a Miranda (Fifth Amendment) right to counsel. However, the request must be unambiguous and specific. If the defendant agrees to answer questions orally, but requests the presence of counsel before making any written statements, the defendant’s oral statement are admissible. If the accused invokes his right to counsel under Miranda, all questioning must cease, even about a totally unrelated crime, because the Fifth Amendment right to counsel under Miranda, unlike the Sixth Amendment right to counsel, is not offense specific.
Torts- defense of property
As a general rule, one may use reasonable force to prevent the commission of a tort against one’s property. However, force that is likely to cause death or serious bodily harm is not permitted when the invasion is threatening property alone.
Constitutional Law- first amendment
The freedom of the press is guaranteed by the First Amendment. As with other areas within the First Amendment, the freedom does not prohibit all government regulation of the press, but it does place limits on regulation. The press and broadcasting companies can be subject to general business regulations and taxes, but generally may not be single out for a special tax. A tax impacting on the press or a subpart of the press cannot be based on the content of the publication absent a compelling justification.
Torts- conversion
If a plaintiff is successful in a conversion action, the measure of damages is the fair market value of the chattel converted. This value is generally computed as of the time and place of the conversion. The defendant is given title upon satisfaction of the judgment so that, in effect there is a forced sale of the chattel. (Not even if the defendant wishes to return the item, the plaintiff is not obligated to take it back once it has been converted.)
Constitutional Law- equal protection
Under the Equal Protection Clause of the Fourteenth Amendment, a governmental action involving classification of persons will be subject to strict scrutiny if a suspect classification is involved. The law will be struck down unless the government proves that it is necessary to achieve a compelling interest. State and local laws that classify persons based on alienage are subject to strict scrutiny unless the law is discriminating against alien participation in the functioning of the state government. In that case, the law will be upheld as long as it is rationally related to a legitimate government interest.
Torts- negligence
A prima facie case for negligence consists of: (i) a duty on the part of the defendant to conform to the standard of care of a reasonable person for the protection fo the plaintiff against an unreasonable risk of injury; (ii) breach of that duty; (iii) the breach was the actual and proximate cause of the plaintiff’s injury; and (iv) damage to the plaintiff’s person or property. If the decision created an unreasonable risk of injury to persons such as the driver (taken off seizure medication and crashed, physician not liable), and such risk was reasonably foreseeable, then the physician will not be insulated from liability for the resulting injury by the medical reasonableness of the decision for the patient.
Torts- negligence/ violation of statute
If there was no reason to believe that something might happen (drive lapse into unconsciousness), her operation of the care breached no duty and she would be found not
Real Property- marketable title/adverse possession
a
Contracts- consideration
a
Contracts- consideration
a
Contracts/ Sales- damages
a
Torts- comparative negligence
aa
Real Property- life estate/ doctrine of waste
a
Criminal Law- self-defense/ battery
a
Constitutional Law- voting rights/ equal protection
aa
Constitutional Law- equal protections
a
Contracts/ Sales- lost profits damages
a
Criminal Law- homicide
a
Contracts- statute of frauds
a
