MBE Question Thread Forum

[malleus discentium]

to enforce a real covenant, does the covenant itself count as horizontal privity?

No, there has to be some interest between the two parties other than the covenant itself, like a grantor-grantee relationship.

[liebs378]

I'm having trouble with assignments versus third party beneficiaries.

I get that in order for a third party beneficiary to bring a claim against the obligor his rights must vest. But for a gratuitous assignment, if the assignee detrimentally relies on the assignment why can he not bring a claim against the obligor?

I keep seeing that gratuitous assignments are revocable so i guess the question may really be whats the difference between a third party beneficiary and an assignment?

[TheWalrus]

Is the standard for an insanity defense clear and convincing evidence?

[ConfusedL1]

I'm having trouble with assignments versus third party beneficiaries.

I get that in order for a third party beneficiary to bring a claim against the obligor his rights must vest. But for a gratuitous assignment, if the assignee detrimentally relies on the assignment why can he not bring a claim against the obligor?

I keep seeing that gratuitous assignments are revocable so i guess the question may really be whats the difference between a third party beneficiary and an assignment?

This requires more facts to know because you're combining two contract subjects (although yeah there is a lot of overlap). It's really fact sensitive, which may be why it causes trouble because the terms don't always line up in a way that makes sense.

In your example, an assignee could certainly bring a claim against the obligor if there is reliance, but it's more of a question of rights vesting because the categories are more inclusive than just reliance (knowing of K/relying on it, express consent, filing a suit). It doesn't matter if the assignment is gratuitous or not; it's important to just look at the situations for a right to vest.

The big issue in a donee beneficiary situation is who you can sue and for what. A donee beneficiary relationship has two major effects (1) the original parties can modify the agreement as long as rights haven't vested (see above examples) (2) it means the donee beneficiary can't sue the promisor. However, the donee beneficiary could STILL maintain an equitable action outside of beneficiary rights if there's reliance. You really have to look at how the answer choices are framed because this is tricky territory. "the beneficiary could sue the promisor as a third party beneficiary" and "the beneficiary could sue promisor because of reliance/promissory estoppel" are two different things, and I've seen them play out in questions.

[ConfusedL1]

Is the standard for an insanity defense clear and convincing evidence?

I don't think there is one. States can regulate who bears the burden (and what the standard is) to prove insanity); they can even deny the use of the insanity defense altogether because there's no right to it.

[pancakes3]

Is the standard for an insanity defense clear and convincing evidence?

I don't think there is one. States can regulate who bears the burden (and what the standard is) to prove insanity); they can even deny the use of the insanity defense altogether because there's no right to it.

Affirmative defenses can either C&C or PoE (since practicably they're the same). The point is that BoP for Affirmative defenses are lower than BRD - for MBE purposes anyway. They're not going to have: (c) no, bc the BoP is clear and convincing, and also put (d) no, bc the BoP is preponderance of the evidence

[ConfusedL1]

Can some one explain how the employer exception to defamation per se interacts with former employers who make statements without knowledge of falsity or malice?

I've had two questions on this. One the former employer was OK because there is apparently a privilege for even false information. In another question the employer was liable, but I think it was because the employee was currently an employee. Is that the difference?

[ConfusedL1]

Can some one explain how the employer exception to defamation per se interacts with former employers who make statements without knowledge of falsity or malice?

I've had two questions on this. One the former employer was OK because there is apparently a privilege for even false information. In another question the employer was liable, but I think it was because the employee was currently an employee. Is that the difference?

Nvm. I seem to have resolved it. There IS a qualified privilege for defamation where there are "statements in common interest of the publisher and the recipient," so a former employer to a new employer seems to fit here.

[ConfusedL1]

NCBE jury instruction. Any help?

1.A father lived with his son, who was an alcoholic. When drunk, the son often became violent and physically abused his father. As a result, the father always lived in fear. One night, the father heard his son on the front stoop making loud obscene remarks. The father was certain that his son was drunk and was terrified that he would be physically beaten again. In his fear, he bolted the front door and took out a revolver. When the son discovered that the door was bolted, he kicked it down. As the son burst through the front door, his father shot him four times in the chest, killing him. In fact, the son was not under the influence of alcohol or any drug and did not intend to harm his father. At trial, the father presented the above facts and asked the judge to instruct the jury on self-defense. How should the judge instruct the jury with respect to self-defense?

(A) Give the self-defense instruction, because it expresses the defense’s theory of the case.
(B) Give the self-defense instruction, because the evidence is sufficient to raise the defense.
(C) Deny the self-defense instruction, because the father was not in imminent danger from his son.
(D) Deny the self-defense instruction, because the father used excessive force.

[+] Spoiler

B. I thought it would be A, thinking that the defense should at least be entitled to the defense as a matter of right, but it appears you need at least some sufficient evidence to get to use it?

[JurorEight]

Torts question:

You know those problems where a doctor performs a surgery but doesn’t inform the patient of a 25% risk of loss of ______(fill in the blank as you wish). Surgery then goes fine, no problems with the surgery itself.

Is the answer to these questions always going to be that the doc is liable for battery if a reasonable person in plaintiff’s shoes would not have consented to the operation if fully informed of the possible risk? What about the surgeon's potential liability for negligence?

[cnk1220]

Torts question:

You know those problems where a doctor performs a surgery but doesn’t inform the patient of a 25% risk of loss of ______(fill in the blank as you wish). Surgery then goes fine, no problems with the surgery itself.

Is the answer to these questions always going to be that the doc is liable for battery if a reasonable person in plaintiff’s shoes would not have consented to the operation if fully informed of the possible risk? What about the surgeon's potential liability for negligence?

The surgeon wouldn't be liable to negligence if the patient suffered no damages- remember the 4th element of negligence is damages. I have come cross questions that say "the patient suffered no harm" and then the call of the Q asks about the surgeon's liability for negligence. Can't be liable if there was no harm to the patient/no damages. However, because you don't need damages for battery (you can get nominal damages only), the patient can always bring a suit for battery.

[JurorEight]

Torts question:

You know those problems where a doctor performs a surgery but doesn’t inform the patient of a 25% risk of loss of ______(fill in the blank as you wish). Surgery then goes fine, no problems with the surgery itself.

Is the answer to these questions always going to be that the doc is liable for battery if a reasonable person in plaintiff’s shoes would not have consented to the operation if fully informed of the possible risk? What about the surgeon's potential liability for negligence?

The surgeon wouldn't be liable to negligence if the patient suffered no damages- remember the 4th element of negligence is damages. I have come cross questions that say "the patient suffered no harm" and then the call of the Q asks about the surgeon's liability for negligence. Can't be liable if there was no harm to the patient/no damages. However, because you don't need damages for battery (you can get nominal damages only), the patient can always bring a suit for battery.

It doesn't seem to me that the plaintiff could make out a prima facie case for battery?

[cnk1220]

Torts question:

You know those problems where a doctor performs a surgery but doesn’t inform the patient of a 25% risk of loss of ______(fill in the blank as you wish). Surgery then goes fine, no problems with the surgery itself.

Is the answer to these questions always going to be that the doc is liable for battery if a reasonable person in plaintiff’s shoes would not have consented to the operation if fully informed of the possible risk? What about the surgeon's potential liability for negligence?

The surgeon wouldn't be liable to negligence if the patient suffered no damages- remember the 4th element of negligence is damages. I have come cross questions that say "the patient suffered no harm" and then the call of the Q asks about the surgeon's liability for negligence. Can't be liable if there was no harm to the patient/no damages. However, because you don't need damages for battery (you can get nominal damages only), the patient can always bring a suit for battery.

It doesn't seem to me that the plaintiff could make out a prima facie case for battery?

If the patient didn't consent to the surgery it would be considered an act/contact that is harmful/offensive with intent/causation by the surgeon?

[bballbb02]

Torts question:

You know those problems where a doctor performs a surgery but doesn’t inform the patient of a 25% risk of loss of ______(fill in the blank as you wish). Surgery then goes fine, no problems with the surgery itself.

Is the answer to these questions always going to be that the doc is liable for battery if a reasonable person in plaintiff’s shoes would not have consented to the operation if fully informed of the possible risk? What about the surgeon's potential liability for negligence?

The surgeon wouldn't be liable to negligence if the patient suffered no damages- remember the 4th element of negligence is damages. I have come cross questions that say "the patient suffered no harm" and then the call of the Q asks about the surgeon's liability for negligence. Can't be liable if there was no harm to the patient/no damages. However, because you don't need damages for battery (you can get nominal damages only), the patient can always bring a suit for battery.

yeah, i had problems with these questions at first---even if the doctor failed to disclose and/or a reasonable person would not have consented had the doctor disclosed, the doctor will not be liable if there were no damages

[stickershocked]

NCBE jury instruction. Any help?

1.A father lived with his son, who was an alcoholic. When drunk, the son often became violent and physically abused his father. As a result, the father always lived in fear. One night, the father heard his son on the front stoop making loud obscene remarks. The father was certain that his son was drunk and was terrified that he would be physically beaten again. In his fear, he bolted the front door and took out a revolver. When the son discovered that the door was bolted, he kicked it down. As the son burst through the front door, his father shot him four times in the chest, killing him. In fact, the son was not under the influence of alcohol or any drug and did not intend to harm his father. At trial, the father presented the above facts and asked the judge to instruct the jury on self-defense. How should the judge instruct the jury with respect to self-defense?

(A) Give the self-defense instruction, because it expresses the defense’s theory of the case.
(B) Give the self-defense instruction, because the evidence is sufficient to raise the defense.
(C) Deny the self-defense instruction, because the father was not in imminent danger from his son.
(D) Deny the self-defense instruction, because the father used excessive force.

[+] Spoiler

B. I thought it would be A, thinking that the defense should at least be entitled to the defense as a matter of right, but it appears you need at least some sufficient evidence to get to use it?

After a little research, looks like this is straight from Matthews v. US (485 US 58): " a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor."

[SowhatsNU]

Anyone understand why Contracts Set 6 Question 11 [Barbri] is an accord and not a modification?

[bballbb02]

Are the grounds of courthouses/govt building's public or non public forums??

[ConfusedL1]

Can some one explain the default judgment and statute of limitations issues for Full Faith and Credit vs. issue preclusion vs. claim preclusion?

MY understanding is that the two count for claim preclusion and FFC, meaning your judgment CAN count in another jurisdiction AND you can't relitigate the claim.

BUT they don't count for issue preclusion?

So, person from state A with default judgment goes to state B. The judgment MUST be enforced and is entitled to claim preclusion, but the person won't also get issue preclusion? Not understanding how this issue plays out other than a random question about asking about SOL for FFC vs. issue preclusion.

[snapdragon25]

Can some one explain the default judgment and statute of limitations issues for Full Faith and Credit vs. issue preclusion vs. claim preclusion?

MY understanding is that the two count for claim preclusion and FFC, meaning your judgment CAN count in another jurisdiction AND you can't relitigate the claim.

BUT they don't count for issue preclusion?

So, person from state A with default judgment goes to state B. The judgment MUST be enforced and is entitled to claim preclusion, but the person won't also get issue preclusion? Not understanding how this issue plays out other than a random question about asking about SOL for FFC vs. issue preclusion.

I'm like 85% sure this is right:
For issue preclusion, there must be a "final judgment on the merits," and the issue must have been "actually litigated." For a default judgment/SOL, the judgment is considered on the merits, but the issue wouldn't have been actually litigated, so no issue preclusion.
For FFC/claim preclusion, you need a final judgment on the merits, but not the actually litigated prong. Since a default judgment/SOL is on the merits, you can have FFC/claim preclusion.

[AtlantaDawg]

Are the grounds of courthouses/govt building's public or non public forums??

Non-public, which means restrictions on speech in these types of locations must be reasonable AND reasonably related to a legitimate government purpose.

[Toubro]

Can some one explain the default judgment and statute of limitations issues for Full Faith and Credit vs. issue preclusion vs. claim preclusion?

MY understanding is that the two count for claim preclusion and FFC, meaning your judgment CAN count in another jurisdiction AND you can't relitigate the claim.

BUT they don't count for issue preclusion?

So, person from state A with default judgment goes to state B. The judgment MUST be enforced and is entitled to claim preclusion, but the person won't also get issue preclusion? Not understanding how this issue plays out other than a random question about asking about SOL for FFC vs. issue preclusion.

I'm like 85% sure this is right:
For issue preclusion, there must be a "final judgment on the merits," and the issue must have been "actually litigated." For a default judgment/SOL, the judgment is considered on the merits, but the issue wouldn't have been actually litigated, so no issue preclusion.
For FFC/claim preclusion, you need a final judgment on the merits, but not the actually litigated prong. Since a default judgment/SOL is on the merits, you can have FFC/claim preclusion.

Yep. You can go one step further too: it needs to be actually litigated and "essential to the judgment." That would keep stipulations out as well.

[Lawyerinwaiting89]

NCBE jury instruction. Any help?

1.A father lived with his son, who was an alcoholic. When drunk, the son often became violent and physically abused his father. As a result, the father always lived in fear. One night, the father heard his son on the front stoop making loud obscene remarks. The father was certain that his son was drunk and was terrified that he would be physically beaten again. In his fear, he bolted the front door and took out a revolver. When the son discovered that the door was bolted, he kicked it down. As the son burst through the front door, his father shot him four times in the chest, killing him. In fact, the son was not under the influence of alcohol or any drug and did not intend to harm his father. At trial, the father presented the above facts and asked the judge to instruct the jury on self-defense. How should the judge instruct the jury with respect to self-defense?

(A) Give the self-defense instruction, because it expresses the defense’s theory of the case.
(B) Give the self-defense instruction, because the evidence is sufficient to raise the defense.
(C) Deny the self-defense instruction, because the father was not in imminent danger from his son.
(D) Deny the self-defense instruction, because the father used excessive force.

[+] Spoiler

B. I thought it would be A, thinking that the defense should at least be entitled to the defense as a matter of right, but it appears you need at least some sufficient evidence to get to use it?

After a little research, looks like this is straight from Matthews v. US (485 US 58): " a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor."

I feel like I am overlooking something in the fact pattern because this question confuses me. I thought that a basic rule for self defense is you can't use more force than necessary under the circumstances, and ultimately, that you can't use deadly force unless you're faced with deadly force. I understand that the father had been physically beaten by the son in the past and that he lived in fear. However, the facts do not indicate that the father heard or saw that the son had a weapon that would allow for the father to use deadly force. The facts just say that the father heard the son yelling obscene remarks. So was the father allowed to use deadly force just because 1) the father attempted to protect himself first by bolting the door and 2) the son broke down the door and the father felt that he was going to be attacked? I guess it's just the rules surrounding deadly force that are tripping me up.

Edit: in typing this, I'm wondering if this is testing the basic premise of the castle doctrine that a person is privileged to use deadly force to protect himself in his own home (at least for MBE purposes)?

[godfavorny]

I have a question that no one can seem to answer. Everyone says to use the real MBE questions but the ones I find have warnings telling you not to use them. One book has the following warning:

The 581 questions contained in this document appeared on MBEs administered between 1972 and 1991. Because of their dated nature, many of the questions may test principles that have been altered by changes in the law and thus are no longer suitable topics to be tested. As a result, some of the answers shown in the answer key may be incorrect under currently accepted principles of law. Further, many of these questions do not reflect the current style of MBE questions, and a number of the questions appear in formats that are no longer used on the MBE.
The questions and answers in this document are provided only for the purpose of providing applicants with a sample of the range and general format of questions that appeared on previously administered MBEs, not as examples of the content currently tested or of the material to be studied for the substance of the examination. Many of these questions are currently in use, sometimes with alteration, by commercial bar review courses under a licensing arrangement with NCBE. Because these questions are available in the marketplace, NCBE is choosing to make them available online.
DO NOT USE THESE QUESTIONS TO STUDY CONTENT FOR THE MULTISTATE BAR EXAMINATION!

So is it worth doing these questions or should I ignore them? This is the book in question:
https://donbushell.com/lawaudio/pdf/MBE ... 061411.pdf

[JoeSeperac]

I have a question that no one can seem to answer. Everyone says to use the real MBE questions but the ones I find have warnings telling you not to use them. One book has the following warning:

The 581 questions contained in this document appeared on MBEs administered between 1972 and 1991. Because of their dated nature, many of the questions may test principles that have been altered by changes in the law and thus are no longer suitable topics to be tested. As a result, some of the answers shown in the answer key may be incorrect under currently accepted principles of law. Further, many of these questions do not reflect the current style of MBE questions, and a number of the questions appear in formats that are no longer used on the MBE.
The questions and answers in this document are provided only for the purpose of providing applicants with a sample of the range and general format of questions that appeared on previously administered MBEs, not as examples of the content currently tested or of the material to be studied for the substance of the examination. Many of these questions are currently in use, sometimes with alteration, by commercial bar review courses under a licensing arrangement with NCBE. Because these questions are available in the marketplace, NCBE is choosing to make them available online.
DO NOT USE THESE QUESTIONS TO STUDY CONTENT FOR THE MULTISTATE BAR EXAMINATION!

So is it worth doing these questions or should I ignore them? This is the book in question:
https://donbushell.com/lawaudio/pdf/MBE ... 061411.pdf

The NCBE warning “DO NOT USE THESE QUESTIONS TO STUDY CONTENT FOR THE MULTISTATE BAR EXAMINATION!!” actually contains two exclamation points. I mention this because I find it extremely rare for NCBE to use such emphasis. The released 1991 and 1998 NCBE MBE questions (available at http://www.ncbex.org/exams/mbe/preparing/) contain similar warnings. Basically, according to NCBE themselves, over 70% of their released NCBE questions should not be used for substantive preparation for the MBE. There was a thread here a few days ago arguing about an MBE 1992 question which pretty much illustrates the problem with these older questions (especially Con Law and Crim Pro).

Personally, I feel that knowing the law behind the released questions is still helpful. However, when doing NCBE questions, you should heavily focus on the OPE questions (these are the ones NCBE endorses for MBE practice). I wrote rules for all the 1,600+ released NCBE questions so examinees get an idea of the law that has been tested on the exam in the past without having to go through the trouble of answering all the questions. In cases where the questions are bad law, my rules generally reflect the current law (sometimes I find the bad law on my own and sometimes subscribers tell me, but I have been updating these rules for years so they are pretty on point).

Please keep in mind that it is generally not a good idea to devote all your practice time to these questions if they are your only source of substantive MBE knowledge. I find that a lot of retakers actually see their MBE score go down if they only study the NCBE questions in their MBE practice. This is partly because the question topic distribution of the old NCBE questions is not reflective of the current exam and there are also significant gaps contextually. For example, out of the 1,600+ released NCBE questions, there are only two questions on Double Jeopardy (1/10 of 1% of the questions). In contrast, Double Jeopardy is tested fairly frequently on the current MBE (I expect it to represent about 1% of your total MBE score). Thus, if you only rely on the released NCBE questions for your knowledge of Double Jeopardy, you will be blind-sided on the MBE exam. The entire area of Constitutional Protection of Accused Persons is severely under-represented in the released NCBE questions (it is just 3% of the 1,600+ NCBE questions, but expected to be 7% or more of your MBE score). If you miss 50% of the Criminal Procedure MBE questions due to this incomplete knowledge, that represents about 5 MBE points. To cite another major example, what is being tested on MBE Real Property has changed significantly and is not appropriately reflected. For example, Fair Housing Act and broker commissions are tested on almost every MBE (you better know these topics for Wednesday), yet you won't find these topics at all in the released questions (instead you will find volumes on future interests & RAP which are now infrequently tested). Thus, if your MBE study is based only on the law behind the released NCBE MBE questions, you will be under-prepared for some areas and over-prepared for others. Accordingly, always try to mix up your MBE practice – it is what high scoring MBE examinees generally do.

[JurorEight]

I have a question that no one can seem to answer. Everyone says to use the real MBE questions but the ones I find have warnings telling you not to use them. One book has the following warning:

The 581 questions contained in this document appeared on MBEs administered between 1972 and 1991. Because of their dated nature, many of the questions may test principles that have been altered by changes in the law and thus are no longer suitable topics to be tested. As a result, some of the answers shown in the answer key may be incorrect under currently accepted principles of law. Further, many of these questions do not reflect the current style of MBE questions, and a number of the questions appear in formats that are no longer used on the MBE.
The questions and answers in this document are provided only for the purpose of providing applicants with a sample of the range and general format of questions that appeared on previously administered MBEs, not as examples of the content currently tested or of the material to be studied for the substance of the examination. Many of these questions are currently in use, sometimes with alteration, by commercial bar review courses under a licensing arrangement with NCBE. Because these questions are available in the marketplace, NCBE is choosing to make them available online.
DO NOT USE THESE QUESTIONS TO STUDY CONTENT FOR THE MULTISTATE BAR EXAMINATION!

So is it worth doing these questions or should I ignore them? This is the book in question:
https://donbushell.com/lawaudio/pdf/MBE ... 061411.pdf

The NCBE warning “DO NOT USE THESE QUESTIONS TO STUDY CONTENT FOR THE MULTISTATE BAR EXAMINATION!!” actually contains two exclamation points. I mention this because I find it extremely rare for NCBE to use such emphasis. The released 1991 and 1998 NCBE MBE questions (available at http://www.ncbex.org/exams/mbe/preparing/) contain similar warnings. Basically, according to NCBE themselves, over 70% of their released NCBE questions should not be used for substantive preparation for the MBE. There was a thread here a few days ago arguing about an MBE 1992 question which pretty much illustrates the problem with these older questions (especially Con Law and Crim Pro).

Personally, I feel that knowing the law behind the released questions is still helpful. However, when doing NCBE questions, you should heavily focus on the OPE questions (these are the ones NCBE endorses for MBE practice). I wrote rules for all the 1,600+ released NCBE questions so examinees get an idea of the law that has been tested on the exam in the past without having to go through the trouble of answering all the questions. In cases where the questions are bad law, my rules generally reflect the current law (sometimes I find the bad law on my own and sometimes subscribers tell me, but I have been updating these rules for years so they are pretty on point).

Please keep in mind that it is generally not a good idea to devote all your practice time to these questions if they are your only source of substantive MBE knowledge. I find that a lot of retakers actually see their MBE score go down if they only study the NCBE questions in their MBE practice. This is partly because the question topic distribution of the old NCBE questions is not reflective of the current exam and there are also significant gaps contextually. For example, out of the 1,600+ released NCBE questions, there are only two questions on Double Jeopardy (1/10 of 1% of the questions). In contrast, Double Jeopardy is tested fairly frequently on the current MBE (I expect it to represent about 1% of your total MBE score). Thus, if you only rely on the released NCBE questions for your knowledge of Double Jeopardy, you will be blind-sided on the MBE exam. The entire area of Constitutional Protection of Accused Persons is severely under-represented in the released NCBE questions (it is just 3% of the 1,600+ NCBE questions, but expected to be 7% or more of your MBE score). If you miss 50% of the Criminal Procedure MBE questions due to this incomplete knowledge, that represents about 5 MBE points. To cite another major example, what is being tested on MBE Real Property has changed significantly and is not appropriately reflected. For example, Fair Housing Act and broker commissions are tested on almost every MBE (you better know these topics for Wednesday), yet you won't find these topics at all in the released questions (instead you will find volumes on future interests & RAP which are now infrequently tested). Thus, if your MBE study is based only on the law behind the released NCBE MBE questions, you will be under-prepared for some areas and over-prepared for others. Accordingly, always try to mix up your MBE practice – it is what high scoring MBE examinees generally do.

Wait, what? Fair Housing Act and broker commissions? I don't remember seeing anything about that in my Property BarBri questions so far this summer. What are we supposed to know about these two topics?

Also, as I understand it, there's no way for us to know if the Fair Housing Act/broker commission questions are actually counting towards our score or if they are experimental, correct? Either way, big time thank you for mentioning this as I had no idea either could pop up.