NOTE: We are happy to answer questions related specifically to this webinar and its
content. However, we reserve the right to not answer questions that we determine
are outside the scope of the webinar's content.
MBE Favorites
In this webinar, we will cover MBE questions that illustrate how the Examiners like to test
some of their favorite issues. Getting familiar with the MBE favorites is an excellent way to
maximize your chances of success on the MBE.
Remember that the MBE subjects are tested equally. Each subject is apportioned 25
questions. Those seven subjects are:
1. Civil Procedure
2. Constitutional Law
3. Contracts & Sales
4. Criminal Law & Procedure
5. Evidence
6. Real Property
7. Torts
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However, the topics within those subjects are not treated equally!
MBE Frequency Chart—Part 1
JD Advising
Subject
Percent
No. of
Tested
Questions
Jurisdiction and venue
22.2%
5–6
Pretrial procedures
22.2%
5–6
Motions
22.2%
5–6
8.3%
2–3
Jury trials
8.3%
2–3
Verdicts and judgments
8.3%
2–3
Appealability and review
8.3%
2–3
Subtopic
CIVIL PROCEDURE
Law applied by federal
courts
Total scored questions for Civil Procedure
Individual rights
The nature of judicial
CONSTITUTIONAL
LAW
review
The separation of powers
25
50%
12–13
16.7%
4–5
16.7%
4–5
16.7%
4–5
The relation of nation and
states in a federal system
(federalism)
Total scored questions for Constitutional Law
25
Formation of contracts
25%
6–7
25%
6–7
12.5%
3–4
12.5%
3–4
Remedies
12.5%
3–4
Third-party rights
12.5%
3–4
Performance, breach, and
discharge
CONTRACTS
Defenses to enforceability
Contract content and
meaning
Total scored questions for Contracts
Note: about ¼ of the questions cover UCC Articles 1 and 2
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25
MBE Frequency Chart—Part 2
JD Advising
Subject
Percent
No. of
Tested
Questions
50%
12–13
Homicide
12.5%
3–4
Other crimes
12.5%
3–4
Inchoate crimes, parties
12.5%
3–4
12.5%
3–4
Subtopic
Constitutional protection of
accused Persons
CRIMINAL LAW AND
PROCEDURE
General principles of
Criminal Law
Total scored questions for Criminal Law and Procedure
Relevancy and reasons for
excluding relevant evidence
Hearsay and circumstances of
its admissibility
EVIDENCE
Presentation of evidence
Privileges and other policy
exclusions
Writings, recordings, and
photographs
33.3%
8–9
25%
6–7
25%
6–7
8.3%
2
8.3%
2
Total scored questions for Evidence
REAL PROPERTY
20%
5–6
Rights in real property
20%
5–6
Real estate contracts
20%
5–6
Mortgages/security devices
20%
5–6
Titles
20%
5–6
50%
12–13
Intentional torts
16.7%
4–5
16.7%
4–5
16.7%
4–5
Strict liability and products
Other torts
Total scored questions for Torts
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25
Negligence
liability
3
25
Ownership of real property
Total scored questions for Real Property
TORTS
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25
Civil Procedure
MBE favorite: final judgment rule
A restaurant owner sued a city official who condemned her building, arguing that the official
wanted the land for his own personal profit. The restaurant owner filed a request for a preliminary
injunction to prevent the destruction of her building until the case could be resolved at trial. The
court granted this request. The city official asserted a claim of immunity, arguing that he did not
have to stand trial. He also filed a motion to dismiss for failure to state a claim upon which relief
could be granted. The court denied both of the city official’s requests. The official wanted to
immediately appeal all three decisions before trial and sought the advice of his attorney.
Which of the following is the best and most accurate piece of advice the attorney could give?
(A) None of these decisions are appealable until the case is completed to the end.
(B) All three of these decisions are immediately appealable as they are all either of grave
importance or could resolve the case then and there.
(C) Only the granting of the preliminary injunction is immediately appealable as an interlocutory
order.
(D) Both the granting of the preliminary injunction and the denial of immunity are immediately
appealable.
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Civil Procedure Answer
(D) is the correct answer. While generally only final judgments are appealable, there are
exceptions. The granting or denial of a preliminary injunction is appealable before trial, as
these usually involve the risk of irreparable harm. The denial of a request for immunity is
considered a collateral order that is immediately appealable, as forcing the defendant to
stand trial before appealing would defeat the purpose of being granted immunity.
(A) is incorrect because it is incorrect that none of the decisions are immediately
appealable, as explained above.
(B) is incorrect because the denial of a motion to dismiss for failure to state a claim is not
immediately appealable. It is not a final order and does not fall into any exception.
(C) is incorrect because it does not recognize that the denial of immunity is also
immediately appealable.
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Constitutional Law
MBE favorite: standards of review
A state passed a statute that conditioned holding a classroom teacher position in all K-12 public
schools in the state on being a citizen of the United States. A group of teachers that were denied
employment on the basis of their citizenship challenged the constitutionality of this statute in state
court.
Assuming there are no issues in terms of standing, what is the most likely outcome of their
challenge?
(A) The statute will be deemed constitutional as it is rationally related to a legitimate government
interest.
(B) The statute will be deemed constitutional as it is substantially related to an important
government interest.
(C) The statute will be deemed unconstitutional as it is not narrowly tailored to achieve a
compelling government interest.
(D) The statute will be deemed unconstitutional as it infringes on a legislative area that is
exclusively reserved for the United States Congress.
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Constitutional Law Answer
(A) is the correct answer. An equal protection issue is present when the government treats
two classes of people differently. The Equal Protection Clause applies to the federal
government through the Fifth Amendment and to state governments through the
Fourteenth Amendment. The level of scrutiny used to analyze the action depends on the
type of class discriminated against plus the type of right the law is related to.
Strict scrutiny will apply to fundamental rights and classifications based on alienage (by the
state), race, or ethnicity. If the federal government is the one discriminating on the basis of
alienage, rational basis review will apply. Further, if the state is discriminating on the basis
of alienage when restricting who can perform government functions, rational basis review
will apply (the political function exception). These laws will only be deemed
unconstitutional if the plaintiff can show that the law bears no rational relation to a
legitimate government interest.
In this case, the state is the one passing a law that discriminates on the basis of
alienage. Thus, an equal protection challenge is present, and strict scrutiny will apply unless
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the law relates to the performance of a political function. Here, this law is restricting those
who are not United States citizens from holding positions as public school teachers. The
United States Supreme Court has already deemed public school teachers to be performing
political functions. Ambach v. Norwick, 441 U.S. 68 (1979). Thus, a state government does
not need to meet strict scrutiny in order to pass a law restricting noncitizens from
becoming public school teachers. Rational basis review will apply. Since the Supreme Court
has already decided this issue, it’s highly likely that the law in question will be deemed
constitutional.
Bar Exam Tip: If you want to see your Constitutional Law MBE score improve,
it’s helpful to practice a large quantity of Constitutional Law questions. Many
of the Constitutional Law MBE questions, including this one, are based on
Supreme Court holdings. Thus, the questions are slightly more predictable
than questions in other subject areas.
(B) is incorrect, as it implies that the standard used is intermediate scrutiny, and this is not
the proper standard.
(C) is incorrect because not only does it reach the incorrect conclusion regarding
constitutionality, but it applies a strict scrutiny standard which is not appropriate since the
political function exception applies.
(D) is incorrect because while the issue of immigration itself is considered reserved for the
federal government, the states are still free to make statutes that create classifications
based on alienage as long as the statute can withstand the requisite level of scrutiny.
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Contracts & Sales
MBE favorite: contract formation
On January 1, a man offered to sell his neighbor his lawn mower for $400. The neighbor was
considering whether to purchase the lawn mower. The neighbor said to the man, “I cannot decide
whether I want to buy your lawn mower. If I pay you $10.00 will you leave the offer open until
January 5?” The man agreed to leave the offer open until January 5, and the neighbor paid the man
$10.00.
On January 2, the neighbor told the man, “I reject your offer.” The man did not take any steps in
reliance on the neighbor’s rejection. On January 3, the neighbor told the man, “I accept your offer.”
Is there a contract between the neighbor and the man?
(A) No, because the January 3 statement constituted a counteroffer.
(B) No, because $10.00 is not considered adequate consideration to hold open an offer.
(C) Yes, because the man did not take any steps in reliance on the neighbor’s January 2 rejection
and the neighbor accepted the offer prior to the January 5 deadline.
(D) Yes, because an option contract can always be accepted during the time period that the offer is
held open.
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Contracts & Sales Answer
(C) is the correct answer. The general rule is that once an offer is rejected, it cannot be
accepted. However, there is an exception for option contracts. An option contract is
created when there is a promise to hold an offer open and consideration to support that
promise. The rule for option contracts is that the offer can be accepted during the time the
offer is held open even if there is a rejection first. The only exception to this is if the offeror
takes steps in reliance on the offeree’s rejection prior to the acceptance.
In this case, there was a valid option contract for $10.00 to hold open the offer. Ten dollars
is not considered too “nominal” to hold open an offer. So, the option contract is valid. Next,
the neighbor rejected the offer on January 2. (Normally this would prevent the neighbor
from accepting the offer later; however, option contracts have special rules and state the
offer can still be accepted so long as there is not reliance on the rejection.) The facts state
that the “man did not take any steps in reliance” on the rejection. Thus, the January 3
acceptance was effective as it took place within the option deadline.
(A) is incorrect because while it would be true if an option contract were not at issue, in this
case the man paid to have the offer “open” and he can (generally) accept it within that time
frame.
(B) is incorrect as $10.00 is sufficient consideration to hold open an offer.
(D) is incorrect simply because it is too broad. It uses the word “always” (which you should
look out for!). It is not true that an option contract can always be accepted during the time
that the offer is held open. In fact, if the man had relied on the neighbor’s rejection, the
neighbor would not have been able to accept the offer.
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Criminal Law & Procedure
MBE favorite: Miranda
A man was arrested as the main suspect in a murder investigation. He was brought into an
interrogation room but was not read his Miranda rights. A police officer asked the man, “Where
were you on the night of May 2?” The man proceeded to confess to the murder. He also told the
officer where to find the murder weapon. The officer immediately left the room, and he then
realized that he accidentally forgot to read the man his Miranda rights. He reported his mistake to
the chief, who decided to place the man in a holding cell while they searched for the weapon. The
weapon was recovered. Two days later, the man was brought back into the interrogation room
where he was questioned by a different officer. Prior to questioning, this officer properly read the
man his Miranda rights. The man stated that he understood his rights and repeated his confession,
although he left out any discussion of the murder weapon.
At his trial, the man admitted that both of his statements were voluntarily made, but argued that
they should each be suppressed, along with the weapon, because it all was fruit of a Miranda
violation.
Which, if any, piece(s) of evidence should be suppressed?
(A) Both confessions and the weapon should be suppressed.
(B) The first confession and the weapon should be suppressed, but the second confession should
be admitted.
(C) The first confession should be suppressed, but the weapon and the second confession should
be admitted.
(D) Both confessions should be suppressed, but the weapon should be admitted.
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Criminal Law & Procedure Answer
(C) is the correct answer. The Supreme Court has held that officers are required to read a
suspect his Miranda rights before the suspect is subject to a custodial interrogation. If the
Miranda rights are not given, any incriminating statements made during the interrogation
will not be admissible. However, physical evidence obtained as a result of an inadmissible
confession will be admissible, so long as the confession is voluntary. Thus, the weapon will
be admitted into evidence.
Further, as long as the police did not engage in any nefarious conduct, a subsequent
administration of Miranda warnings to a suspect who has given a voluntary but unwarned
statement ordinarily should suffice to remove the conditions that precluded admission of
the earlier statement. A suspect is not precluded from waiving his Miranda rights knowingly
and intelligently if he has previously given an unwarned confession. If Miranda rights are
read to the suspect after an unwarned confession and a subsequent confession is
completely knowing, intelligent, and voluntary, it will be admitted. The “taint” of an earlier
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unwarned confession is not transferred to a subsequent voluntary confession made after
properly waiving Miranda rights. The totality of the circumstances should be examined.
In this case, it is clear that the man’s first confession was obtained in violation of Miranda
as he was not read his rights prior to being subject to a custodial interrogation. This
confession will thus be suppressed. The man admitted that he made this confession
voluntarily, and there is no evidence of improper conduct by the police. The officer
accidentally made a mistake (as opposed to designing a scheme to elicit a confession
without warnings, then administering warnings and forcing the man to confess again). As a
result of this voluntary confession, the weapon will not be considered fruit of a
constitutional violation, as the man’s constitutional rights were not violated.
The second confession will also be admitted, as it was made voluntarily after a knowing
and intelligent waiver of the man’s Miranda rights. As stated, there was no scheme crafted
by the police to elicit a double confession out of the man. The man admitted his confession
was voluntary, and there are no indications of any coercion or that his waiver was anything
but knowing and intelligent. Therefore, the man’s second confession should be admitted.
(A) is incorrect because it does not recognize that the weapon is not fruit of the poisonous
tree and that the taint of the first confession does not apply to the second.
(B) is incorrect because it does not recognize that the weapon is not fruit of the poisonous
tree.
(D) is incorrect because it does not recognize that the taint of the first confession does not
apply to the second.
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Evidence
MBE favorite: character evidence
One snowy day, a woman drives her car into her neighbor’s mailbox. The neighbor sues the woman
for negligence. The woman wants to offer evidence into the record that she is an extremely careful
person. The neighbor objects.
How will the court rule on the neighbor’s objection?
(A) It will be overruled because the defendant may open the door to character evidence.
(B) It will be overruled because habit evidence may be offered in a civil case.
(C) It will be sustained because it is impermissible character evidence.
(D) It will be sustained because it is prejudicial to the neighbor’s case.
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Evidence Answer
(C) is the correct answer. Character evidence may permissibly be admitted into evidence in
three ways:
First, it may be admitted to prove a witness’s bad character for truthfulness only to
impeach the witness. (This is an impeachment category. This is not applicable because the
woman is not trying to impeach herself.)
Second, in a civil case, character can only be used when it is an essential element of the
case. This comes up in three scenarios: (i) negligent entrustment or hiring, (ii) defamation,
and (iii) child custody. That is it. There are many reasons for this. Some scholars think
allowing character evidence in a civil case would distract from the main issue of a case and
permit the trier of fact to reward the good man and punish the bad, despite what the
evidence says. Other scholars say it would substantially increase the amount of mental
examinations if character evidence were expanded into areas of psychiatric evaluation and
testing. It would also significantly extend the length of trial. So, remember character
evidence is only allowed in very limited circumstances in a civil case.
Third, in a criminal case, if character evidence is used it has to be offered by the defendant
using reputation or opinion. The prosecution can then rebut with reputation, opinion, or
impeach the defendant’s character witness with specific acts. So, in a criminal case, the
defendant must “open the door.” The Federal Rules of Evidence (FRE) allows the defendant
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to “open the door” in criminal cases if he or she so chooses because the defendant has so
much at stake. Indeed, he has his life and liberty at stake (unlike a civil case where only
money is at stake).
Here, the character evidence is not being used for impeachment so it does not fall into the
first category. It’s not a criminal case so it does not fall into the third category. This is a civil
case and the character evidence does not fall into one of the three scenarios above
(negligent entrustment or hiring, defamation, or child custody) so it cannot be used.
(A) is incorrect because this is not a criminal case.
(B) is incorrect because this is not habit evidence. (Habit evidence is a regular response to a
particular set of circumstances—e.g., “Mary takes the stairs two at a time.”) Here, she is
trying to describe her driving habits generally.
(D) is incorrect because it would otherwise be considered relevant evidence that is not
overly prejudicial. However, character evidence is excluded from civil cases.
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Real Property
MBE favorite: recording acts
A local bartender owns Blackacre, which is an undeveloped piece of property next to his bar. On
March 1, the bartender conveyed Blackacre to an investor who paid value and wanted to build an
apartment complex on the property. The investor did not immediately record his interest. On April
1, the bartender sold the still undeveloped Blackacre to his son. The son did not know about the
conveyance to the investor. The son immediately recorded the deed. On May 1, the investor
recorded the deed and had a construction company start digging on the site. On June 1, the son
sold Blackacre to his friend. On July 1, the bartender died. His will left Blackacre to his brother,
who immediately recorded the deed. On August 1, the friend recorded his deed. The jurisdiction
has a race-notice recording statute.
In an action to quiet title, who will have priority rights to Blackacre?
(A) The investor.
(B) The son.
(C) The friend.
(D) The brother.
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Real Property Answer
(C) is the correct answer. When faced with a priority battle for ownership of land, the
common law rule is first-in-time first-in-right. State-enacted recording statutes have the
power to change that result. A race-notice recording statute protects subsequent bona fide
purchasers for value who take without notice and are the first to record. There are three
types of notice: actual (the grantee has actual knowledge of a prior interest, resulting from,
for example, someone telling him about it), inquiry (circumstances are such that the
grantee should have investigated whether there was another interest in the land), and
record (a prior interest is recorded in the chain of title). The shelter rule protects grantees
that take from those protected by the recording statute, even if they themselves would not
be protected.
If you get to a question with complicated facts like this, it is helpful to jot them down:
•
3/1 B → I (BFP. No rec.)
•
4/1 B → S (BFP. Rec.)
•
5/1 I rec.
•
6/1 S → F (BFP. No rec.)
•
7/1 B → Brother (Not BFP. Rec.)
•
8/1 F rec.
In this case, the investor was the first to receive a conveyance. However, he did not record
immediately. The son was next to receive the property. The son took for value, there are no
indications in the facts that he had any notice of the prior conveyance, and he recorded
before the investor. Therefore, the son holds priority over the investor. The son then
conveyed his interest to his friend. The friend did at least have inquiry notice of the
investor’s interest, as the property was undergoing construction. Although the friend had
notice, he is still protected under the shelter rule, as he took from someone who was
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protected by the recording statute. Therefore, the friend holds priority over the
investor. Note: the investor recorded outside of the chain of title so the friend would not
have record notice of the investor's deed.
Bar Exam Tip: If you see someone’s act of recording (“rec.”) out of place (e.g.,
it is not by the conveyance to him—it is after the B → S transaction) then it is
outside the chain of title!
If you struggle with the shelter rule, remember the purpose of it. The purpose is not to
protect the friend in this case. The purpose is to protect the son, who did everything right
under the statute and so should be allowed to do whatever he wants with the land,
including selling it to his friend who may have notice of the investor’s interest.
The brother was last to receive a conveyance but is not protected by the recording statute
for many reasons. The brother did not pay value for the property and had notice of a prior
interest. He is not protected by the recording statute. Accordingly, the friend has priority
over the brother.
(A) is incorrect because the investor did not record before the son. The son is protected
under the recording statute, and his conveyance to his friend then makes the friend
protected under the shelter rule.
(B) is incorrect because the son conveyed his interest away.
(D) is incorrect because the brother was not a bona fide purchaser for value who took
without notice and is therefore not protected under the recording statute.
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Torts
MBE favorite: negligence/duty
A man owned a house in a suburban neighborhood. One day he discovered that the second step of
his front porch was very wobbly. Without the time to fix the step this month, he created a sign to
hang on the handrail that leads up the stairs. The sign read, “USE CAUTION – WOBBLY STEP
– COULD CAUSE INJURIES.” The sign was properly placed and easily visible. A few days later,
the man invited one of his new neighbors, an elderly woman, over for lunch. The neighbor
approached the stairs, saw the sign, but decided to use the staircase regardless. When she stepped
on the wobbly stair, it caused her to slip. The neighbor was still healing from a recently broken
hip, and the resulting fall from this slip caused her hip to re-break.
If the neighbor were to sue the man for negligence, who is most likely to win?
(A) The neighbor, because the man breached his duty to the neighbor to make the step safe as soon
as he learned of its dangers.
(B) The neighbor, because the step was the actual and proximate cause of the neighbor’s injury.
(C) The man, because he did not breach a duty that he owed to the neighbor.
(D) The man, because the neighbor assumed the risk that she may fall.
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Torts Answer
(C) is the correct answer. To succeed on a claim for negligence, the plaintiff must prove (i)
duty, (ii) breach, (iii) causation, and (iv) harm. In a premises liability situation, the duty that
is owed to a plaintiff depends on the plaintiff’s status on the land. A licensee is a social
guest who has permission to enter the land but does not confer an economic benefit on
the possessor of the land. A land possessor has a duty to a licensee to warn or make safe
all concealed dangers that the possessor knows of. The duty and breach of duty aspects of
negligence are all about acting as a reasonable person would under the
circumstances. Thus, any possessor must act as a reasonable person would in warning of
or making safe all known dangerous conditions on the land.
In this case, the neighbor is a licensee, as she had permission to enter the land but was not
there to confer an economic benefit on the man. The man, therefore, had a duty to the
neighbor to warn or make safe all concealed dangers that he knew of. The man knew the
stair was wobbly and so he created and hung a warning sign, indicating to anyone walking
up the stairs that the wobbly stair posed a danger. The text of the sign was in all capital
letters and posted in a conspicuous place. This was certainly a reasonably sufficient
warning, and the man acted as any reasonable person would when warning of this danger,
thus satisfying his duty owed to licensees.
(A) is incorrect because the man did not have to make the dangerous condition safe as long
as he maintained an adequate warning of it. The duty owed to a licensee is to warn or
make safe all concealed dangers that the possessor knows of, and thus the fact that the
man did not immediately fix the step does not mean he automatically breached his duty.
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(B) is incorrect. Just because the step caused the neighbor’s injuries does not mean that the
man is automatically liable. The neighbor still has to show that the man breached a duty of
care owed to her.
(D) is incorrect for two reasons. First, it does not recognize that the man did not breach a
duty of care. Second, even if the jury did find that the neighbor assumed the risk, under the
pure comparative fault scheme applied on the MBE, the man would still be liable if he
breached a duty; the neighbor’s damages would merely be reduced by the fault percentage
attributed to her.
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selling products. (25% off with the sale!)
•
Flashcards: NEW! JD Advising’s MBE flashcards
are your solution if you are looking for a
concise and manageable overview of the law
tested on the MBE. The more than 1,400
flashcards also contain helpful tips for each
MBE subject and colorful images! These are a
great tool for visual learners. Check out a
sample here! ($20 off with the sale!)
•
Free advice: We have tons of free tips and tricks
for the bar exam on our website,
jdadvising.com. We also frequently blog about
the bar exam and offer free resources and insight! Check out jdadvising.com/blog!
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© JD Advising
www.jdadvising.com
info@jdadvising.com
E-mail: info@jdadvising.com
Phone: 248-228-5547
Website: www.jdadvising.com
*Sale prices are only effective as of the date of this webinar (7/5/23). Please check
www.jdadvising.com for the most up-to-date prices.
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© JD Advising
www.jdadvising.com
info@jdadvising.com