Constitutional Law



Subject Matter Overview of the Multistate Bar Exam (MBE)This document contains the official outlines for all subjects tested on the Multistate Essay Exam (MEE). They come directly from the 2014 MBE Information Booklet. These basic outlines can serve as skeletons to create in-depth outlines with notes, rules, and comments from your preparation and studies. In addition, you can use these outlines as a checklist to make sure that you have studied all possible topics that might appear on the MBE.It may be helpful to print these outlines and place a checkmark next to topics you that already know quite well or an exclamation mark next to topics that are still giving you trouble. This will allow you to streamline your studies by identifying topics and concepts that require additional review. By the day of the examination, you should feel comfortable with a large majority of the topics listed below. Do not stress about mastering everything. Your goal should be to have at least some familiarity with most of the material even if you do not have complete expertise. Keep things in perspective and remember that your ultimate mission is to pass the exam, not to get a perfect score. You are far more likely to earn a passing grade with general knowledge on many subjects than with specific knowledge on fewer subjects.Table of Contents TOC \o "1-3" \h \z \u Constitutional Law PAGEREF _Toc375232274 \h - 2 -Contracts PAGEREF _Toc375232275 \h - 4 -Criminal Law and Procedure PAGEREF _Toc375232276 \h - 6 -Evidence PAGEREF _Toc375232277 \h - 8 -Real Property PAGEREF _Toc375232278 \h - 11 -Torts PAGEREF _Toc375232279 \h - 15 -Constitutional LawNote: The terms “Constitution,” “constitutional,” and “unconstitutional” refer to the federal Constitution unless indicated otherwise. Approximately half of the Constitutional Law questions on the MBE will be based on category IV, and approximately half will be based on the remaining categories—I, II, and III.The Nature of Judicial ReviewOrganization and relationship of state and federal courts in a federal systemJurisdictionConstitutional basisCongressional power to define and limitThe Eleventh Amendment and state sovereign immunityJudicial review in operationThe “case or controversy” requirement, including the prohibition on advisory opinions, standing, ripeness, and mootnessThe “adequate and independent state ground”Political questions and justiciabilityThe Separation of PowersThe powers of CongressCommerce, taxing, and spending powersWar, defense, and foreign affairs powersPower to enforce the 13th, 14th, and 15th AmendmentsOther powersThe powers of the presidentAs chief executive, including the “take care” clauseAs commander in chiefTreaty and foreign affairs powersAppointment and removal of officialsFederal interbranch relationshipsCongressional limits on the executiveThe presentment requirement and the president’s power to veto or to withhold actionNon-delegation doctrineExecutive, legislative, and judicial immunitiesThe Relation of Nation and States in a Federal SystemIntergovernmental immunitiesFederal immunity from state lawState immunity from federal law, including the 10th AmendmentFederalism-based limits on state authorityNegative implications of the commerce clauseSupremacy clause and preemptionFull faith and creditAuthorization of otherwise invalid state actionIndividual RightsState actionDue processSubstantive due processFundamental rightsOther rights and interestsProcedural due process, including personal jurisdictionEqual protectionFundamental rightsClassifications subject to heightened scrutinyRational basis reviewTakingsOther protections, including the privileges and immunities clauses, the contracts clause, unconstitutional conditions, bills of attainder, and ex post facto lawsFirst Amendment freedomsFreedom of religion and separation of church and stateFree exerciseEstablishmentFreedom of expressionContent-based regulation of protected expressionContent-neutral regulation of protected expressionRegulation of unprotected expressionRegulation of commercial speechRegulation of, or impositions upon, public school students, public employment, licenses, or benefits based upon exercise of expressive or associational rightsRegulation of expressive conductPrior restraint, vagueness, and overbreadthFreedom of the pressFreedom of associationContractsNote: Examinees are to assume that Article 2 and Revised Article 1 of the Uniform Commercial Code have been adopted and are applicable when appropriate. Approximately half of the Contracts questions on the MBE will be based on categories I and IV, and approximately half will be based on the remaining categories—II, III, V, and VI. Approximately one-fourth of the Contracts questions on the MBE will be based on provisions of the Uniform Commercial Code, Article 2 and Revised Article 1.Formation of ContractsMutual assentOffer and acceptanceIndefiniteness or absence of termsImplied-in-fact contract“Pre-contract” obligations based on relianceConsiderationBargain and exchange and substitutes for bargain: “moral obligation,” reliance, and statutory substitutesModification of contracts: preexisting dutiesCompromise and settlement of claimsDefenses to EnforceabilityIncapacity to contractDuressUndue influenceMistake, misunderstandingFraud, misrepresentation, and nondisclosureIllegality, unconscionability, and public policyStatute of fraudsParol Evidence and InterpretationPerformance, Breach, and DischargeConditionsExpressConstructiveObligations of good faith and fair dealing in performance and enforcement of contractsSuspension or excuse of conditions by waiver, election, or estoppelProspective inability to perform: effect on other partyImpracticability and frustration of purposeDischarge of contractual dutiesExpress and implied warranties in sale-of goods contractsSubstantial and partial breach and anticipatory repudiationRemediesMeasure of damages for breach; protecting the expectation interestConsequential damages: causation, certainty, and foreseeabilityLiquidated damages and penaltiesAvoidable consequences and mitigation of damagesRescission and reformationSpecific performance; injunction against breach; declaratory judgmentRestitutionary and reliance recoveriesRemedial rights of breaching partiesThird-Party RightsThird-party beneficiariesIntended beneficiariesIncidental beneficiariesImpairment or extinguishment of third-party rightsEnforcement by the promiseeAssignment of rights and delegation of dutiesCriminal Law and ProcedureNOTE: Approximately half of the Criminal Law and Procedure questions on the MBE will be based on category V, and approximately half will be based on the remaining categories—I, II, III, and IV.HomicideIntended killingsPremeditation, deliberationProvocationUnintended killingsIntent to injureReckless and negligent killingsFelony murderMisdemeanor manslaughterOther CrimesTheftLarcenyEmbezzlementFalse pretensesReceiving stolen goodsRobberyBurglaryAssault and batteryRape; statutory rapeKidnappingArsonPossession offensesInchoate Crimes; PartiesInchoate offensesAttemptsConspiracySolicitationParties to crimeGeneral PrinciplesActs and omissionsState of mindRequired mental stateStrict liabilityMistake of fact or lawResponsibilityMental disorderIntoxicationCausationJustification and excuseJurisdictionConstitutional Protection of Accused PersonsArrest, search and seizureConfessions and privilege against self-incriminationLineups and other forms of identificationRight to counselFair trial and guilty pleasDouble jeopardyCruel and unusual punishmentBurdens of proof and persuasionEvidenceNOTE: All Evidence questions should be answered according to the Federal Rules of Evidence, as restyled in 2011. Approximately one-third of the Evidence questions on the MBE will be based on category I, one-third on category V, and one-third on the remaining categories—II, III, and IV.Presentation of EvidenceIntroduction of evidenceRequirement of personal knowledgeRefreshing recollectionObjections and offers of proofLay opinionsCompetency of witnessesJudicial noticeRoles of judge and juryLimited admissibilityPresumptionsMode and orderControl by courtScope of examinationForm of questionsExclusion of witnessesImpeachment, contradiction, and rehabilitationInconsistent statements and conductBias and interestConviction of crimeSpecific instances of conductCharacter for truthfulnessAbility to observe, remember, or relate accuratelyImpeachment of hearsay declarantsRehabilitation of impeached witnessesContradictionProceedings to which evidence rules applyRelevancy and Reasons for Excluding Relevant EvidenceProbative valueRelevancyExclusion for unfair prejudice, confusion, or waste of timeAuthentication and identificationCharacter and related conceptsAdmissibility of characterMethods of proving characterHabit and routine practiceOther crimes, acts, transactions, and eventsPrior sexual misconduct of a defendantExpert testimonyQualifications of witnessesBases of testimonyUltimate issue ruleReliability and relevancyProper subject matter for expert testimonyReal, demonstrative, and experimental evidencePrivileges and Other Policy ExclusionsSpousal immunity and marital communicationsAttorney-client and work productPhysician/psychotherapist-patientOther privilegesInsurance coverageRemedial measuresCompromise, payment of medical expenses, and plea negotiationsPast sexual conduct of a victimWritings, Recordings, and PhotographsRequirement of originalSummariesCompleteness ruleHearsay and Circumstances of its AdmissibilityDefinition of hearsayWhat is hearsayPrior statements by witnessStatements attributable to party-opponentMultiple hearsayPresent sense impressions and excited utterancesStatements of mental, emotional, or physical conditionStatements for purposes of medical diagnosis and treatmentPast recollection recordedBusiness recordsPublic records and reportsLearned treatisesFormer testimony; depositionsStatements against interestOther exceptions to the hearsay ruleRight to confront witnessesReal PropertyNote: Approximately one-fifth of the Real Property questions on the MBE will be based on each of the categories I through V.OwnershipPresent estatesFees simpleDefeasible fees simpleLife estatesFuture interestsReversionsRemainders, vested and contingentExecutory interestsPossibilities of reverter, powers of terminationRules affecting these interestsCo-tenancyTypesTenancy in commonJoint tenancySeverancePartitionRelations among cotenantsAlienability, descendibility, devisabilityThe law of landlord and tenantTypes of holdings: creation and terminationTerms for yearsTenancies at willHoldovers and other tenancies at sufferancePeriodic tenanciesPossession and rentAssignment and sublettingTermination (surrender, mitigation of damages, and anticipatory breach)Habitability and suitabilitySpecial problemsRule Against Perpetuities: common law and as modifiedAlienability, descendibility, and devisabilityFair housing/discriminationRights in LandCovenants at law and in equityNature and typeCreationScopeTerminationEasements, profits, and licensesNature and typeMethods of creationExpressImpliedQuasi-useNecessityPlatPrescriptionScopeTerminationFixtures (including relevant application of Article 9, UCC)Zoning (fundamentals other than regulatory taking)ContractsReal estate brokerageCreation and constructionStatute of frauds and exceptionsEssential termsTime for performanceRemedies for breachMarketability of titleEquitable conversion (including risk of loss)Options and rights of first refusalFitness and suitabilityMergerMortgages/Security DevicesTypes of security devicesMortgages (including deeds of trust)In generalPurchase-money mortgagesFuture-advance mortgagesLand contractsAbsolute deeds as securitySome security relationshipsNecessity and nature of obligationTheories: title, lien, and intermediateRights and duties prior to foreclosureRight to redeem and clogging equity of redemptionTransfers by mortgagorDistinguishing “subject to” and “assuming”Rights and obligations of transferorApplication of subrogation and suretyship principlesDue-on-sale clausesTransfers by mortgageePayment, discharges, and defensesForeclosureTypesRights of omitted partiesDeficiency and surplusRedemption after foreclosureDeed in lieu of foreclosureTitlesAdverse possessionTransfer by deedWarranty and non-warranty deeds (including covenants for title)Necessity for a grantee and other deed requirementsDelivery (including escrows)Transfer by operation of law and by willIn generalAdemptionExonerationLapseAbatementTitle assurance systemsRecording acts (race, notice, and race-notice)IndexesChain of titleProtected partiesPrioritiesNoticeTitle insuranceSpecial problemsAfter-acquired title (including estoppel by deed)Forged instruments and undelivered deedsPurchase-money mortgagesJudgment and tax liensTortsNote: The Torts questions should be answered according to principles of general applicability. Examinees are to assume that there is no applicable statute unless otherwise specified; however, survival actions and claims for wrongful death should be assumed to be available where applicable. Examinees should assume that joint and several liability, with pure comparative negligence, is the relevant rule unless otherwise indicated. Approximately half of the Torts questions on the MBE will be based on category II, and approximately half will be based on the remaining categories—I, III, and IV. Intentional TortsHarms to the person, such as assault, battery, false imprisonment, and infliction of mental distress; and harms to property interests, such as trespass to land and chattels, and conversionDefenses to claims for physical harmsConsentPrivileges and immunities: protection of self and others; protection of property interests; parental discipline; protection of public interests; necessity; incomplete privilegeNegligenceThe duty question, including failure to act, unforeseeable plaintiffs, and obligations to control the conduct of third partiesThe standard of careThe reasonably prudent person: including children, physically and mentally impaired individuals, professional people, and other special classesRules of conduct derived from statutes and customProblems relating to proof of fault, including res ipsa loquiturProblems relating to causationBut for and substantial causesHarms traceable to multiple causesQuestions of apportionment of responsibility among multiple tortfeasors, including joint and several liabilityLimitations on liability and special rules of liabilityProblems relating to “remote” or “unforeseeable” causes, “legal” or “proximate” cause, and “superseding” causesClaims against owners and occupiers of landClaims for mental distress not arising from physical harm; other intangible injuriesClaims for pure economic lossLiability for acts of othersEmployees and other agentsIndependent contractors and non-delegable dutiesDefensesContributory fault, including common law contributory negligence and last clear chance, and the various forms of comparative negligenceAssumption of riskStrict Liability and Products Liability: common law strict liability, including claims arising from abnormally dangerous activities, and defenses to such claims; claims against manufacturers and other defendants arising out of the manufacture and distribution of products, and defenses to such claimsOther TortsClaims based on nuisance, and defensesClaims based on defamation and invasion of privacy, defenses, and constitutional limitationsClaims based on misrepresentations, and defensesClaims based on intentional interference with business relations, and defenses ................
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