In this post, we cover 5 MBE favorite issues to test. These are five MBE issues we notice come up over and over again in released MBE questions. We hope that you see some or all of these issues come up on the actual MBE this Wednesday!
5 MBE Favorite Issues to Test
MBE Favorite Issue #1: The Klaxon rule in Civil Procedure
The National Conference of Bar Examiners frequently tests the Klaxon rule on the multistate essay exam, and they have a sample Civil Procedure MBE question about it on their website. It is certainly an MBE favorite and we would not be surprised at all to see this on the exam! (You can see this released Civil Procedure question, as well as others, along with explanations here.)
The rule is that a federal district court sitting in diversity must apply the choice-of-law approach prevailing in the state in which it sits. Klaxon Co. v. Stentor Electric Manufacturing Co. This is referred to as the Klaxon rule, and it is designed to ensure that a federal court sitting in diversity and the state court sitting next door would reach the same result if presented with the same case. (If federal courts could craft their own choice of law rules, then the federal court might choose a different jurisdiction’s substantive law to govern the dispute than the state court would, and the goals of uniformity and equal administration of justice would be frustrated.)
Click below to see an example of this type of question:
Show the question
A woman from State A was injured while swimming at a hotel pool in State B. The hotel chain was incorporated in State B and had its principal place of business in State C. The woman sued the hotel chain for negligence in a federal court in state B, seeking over $200,000 in damages.
What law of negligence should the federal court apply?
(A) The law of State A.
(B) The law of State B.
(C) The law that the State B court would apply.
(D) The federal common law of negligence.
Show the answer
(C) is the correct answer. A federal district court sitting in diversity must apply the choice-of-law approach prevailing in the state in which it sits. Klaxon Co. v. Stentor Electric Manufacturing Co. This is referred to as the Klaxon rule and it is designed to ensure that a federal court sitting in diversity and the state court sitting next door would reach the same result if presented with the case. (If federal courts could craft their own choice of law rules, then the federal court might choose a different jurisdiction’s substantive law to govern the dispute than the state court would, and the goals of uniformity and equal administration of justice would be frustrated.) For that reason (A), (B), and (D) are incorrect. The federal court would not automatically apply State A’s law or State B’s law—rather it would apply the same law that a State B court would apply. (D) mistakenly states that federal common law would apply when in reality the federal court would apply the choice-of-law rules of the state that it sits in.
MBE Favorite Issue #2: The doctrine of merger in Real Property
The doctrine of merger states that the contract and the deed merge together once the deed is delivered. After the deed is delivered, the doctrine of merger prevents a plaintiff from suing on the contract.
So if a seller agrees to all of these particular things in the contract but then the seller delivers–and the buyer accepts–a quitclaim deed (or a warranty deed, for that matter), the buyer can no longer sue on the contract. The buyer is stuck suing on the deed. If it was a quitclaim deed that was delivered, the buyer would probably be out of luck. Even if it was a warranty deed that was delivered, the buyer would still not be able to sue for any contractual provisions that provide greater protection than a warranty deed.
This principle is simple but it is easy to lose sight of it when you get lost in a complicated real property fact pattern!
MBE Favorite Issue #3: Joint-and-Several Liability in Torts
Joint-and-several liability is easy to test and the National Conference of Bar Examiners is well aware that many students don’t understand this rule. It makes a good question because some students will answer a joint-and-several liability question correctly, but definitely not everyone will! In fact, many will not.
Remember that joint-and-several liability is the “default” on the MBE. That means if a plaintiff sues two defendants, the plaintiff can recover the full amount from either or both defendants (but cannot recover twice). To practice questions that test this MBE “favorite”, please check out these this tort question #1 and this tort question #2.
MBE Favorite Issue #4: Prior Bad Acts for Impeachment and Extrinsic Evidence in Evidence
Remember that if a witness is on the stand, a lawyer can impeach her by asking her about a prior bad act that evidences dishonesty. For example, a lawyer could ask: Did you cheat on the LSAT? Did you lie on your tax returns? Did you falsify XYZ document? (Note: The witness does not have to be convicted of these crimes. The question can be asked because the prior bad act tends to show that the witness is dishonest.)
If the witness says “yes” then great, the witness has been impeached. If the witness says no, however, the question is, can the attorney offer in the LSAT or tax returns or XYZ document into evidence? The answer is no. The lawyer must accept the witness’s answer.
Why is this? The rationale is: Let’s say you sue your neighbor for trespass. The neighbor’s lawyer calls the local librarian to testify as to what she saw. (She says the neighbor did not trespass.) You want to impeach her for lying about her age on a car rental application because you want the jury to find her less credible. You ask her on cross-examination: Isn’t it true you lied about your age in the car rental application? She says “No, I did not lie.” If you were permitted to offer the car rental application into evidence, not only would it substantially increase the time of trial but a jury would also wonder “Isn’t this a trespass case with [you] and the neighbor? Why are we looking at the librarian’s car rental application?” Basically…everything would get too sidetracked.
MBE Favorite Issue #5: The “Concurrence” Principle as applied to Burglary in Criminal Law
The concurrence principle states that a defendant must have the “bad” intent to commit a crime at the time he acts. Thus, the actus reus and the mens rea must “overlap.” This is frequently tested with burglary and is certainly an MBE favorite. Remember that the defendant must have the “bad” intent to commit a felony or larceny at the time he breaks and enters a dwelling. For an example of an MBE question that tests this principle, check out this post.
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