MBE Question Thread Forum

[JurorEight]

Is there any situation where a homicide is justified? For example, if a guy hands you a gun and says you have to go kill his wife and if you don’t, he’s going to detonate a bomb at a children’s hospital, would you still be guilty for some form of homicide if you killed the wife? Assume that you know for a fact that the guy will actually detonate the bomb and that the bomb will kill hundreds of people. I'm about 99% sure you wouldn't have a duress defense, but could you have a justification defense?

[TheWalrus]

I'm having problems identifying equitable and legal issues, any advice?

[uceoledinbdnrn]

I'm having problems identifying equitable and legal issues, any advice?

Probably have to be more specific than this but the huge rule of thumb is that if the plaintiff is seeking money damages than it's legal and if it's an injunction or specific performance or anything of that nature it's equitable.

[SowhatsNU]

Sorry guys, one more- can trespassers collect on a strict liability claim?

I remember Barbri saying no, but I recently did a Emmanuel's Q where (known) trespassers would go on this guys lawn, so he got a skunk, went to a vet to remove the smelling generator part (whatever that's called), the vet did it wrong, and a trespasser passed by and was injured, and trespasser prevailed on strict liability theory

Also, in other news apparently skunks are wild animals for SL purposes lol

[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.

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.

I highly doubt these topics are experimental. For example, google "fair housing act mbe" and you will find threads on it going back to 2013. These topics are detailed in the NCBE MBE Subject matter outline: http://www.ncbex.org/pdfviewer/?file=%2 ... ment%2F201

[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.

I highly doubt these topics are experimental. For example, google "fair housing act mbe" and you will find threads on it going back to 2013. These topics are detailed in the NCBE MBE Subject matter outline: http://www.ncbex.org/pdfviewer/?file=%2 ... ment%2F201

Perfect, thank you for the heads up. Feel free to add any other topics that you think have become increasingly relevant in recent MBEs.

[Lawyerinwaiting89]

For people self-studying who don't have brand new materials, is there anywhere online with info regarding how the real property changes come up in MBE questions? I found a couple outlines and bought the Critical Pass cards for February 2017, which should have included substantive law. But there really didn't seem to be too much besides a tad bit of info on real estate closings and the role of brokers. Thanks.

[Biglawprettyplease]

Does anyone know, for statute of limitations purposes, do you have to file by the SOL period, or serve process by the SOL period?

Thanx!

[uceoledinbdnrn]

Does anyone know, for statute of limitations purposes, do you have to file by the SOL period, or serve process by the SOL period?

Thanx!

Under federal rules it's file but if it's a diversity action you apply the rule of the forum state.

[Biglawprettyplease]

Thanks!!

[Babum]

Is there any situation where a homicide is justified? For example, if a guy hands you a gun and says you have to go kill his wife and if you don’t, he’s going to detonate a bomb at a children’s hospital, would you still be guilty for some form of homicide if you killed the wife? Assume that you know for a fact that the guy will actually detonate the bomb and that the bomb will kill hundreds of people. I'm about 99% sure you wouldn't have a duress defense, but could you have a justification defense?

That sounds like duress. The MBE rule is no duress defense to homicide. states may vary.

edit: yeah no idea on justification. necessity perhaps? I'm sure if the case were to come, someone out there would come with a complicated exception, but think of it, MBE law seems to reject murder regardless of the reason unless you (or someone close) would otherwise die and such deadly force could only go towards directly stopping the threat.

[pancakes3]

Is there any situation where a homicide is justified? For example, if a guy hands you a gun and says you have to go kill his wife and if you don’t, he’s going to detonate a bomb at a children’s hospital, would you still be guilty for some form of homicide if you killed the wife? Assume that you know for a fact that the guy will actually detonate the bomb and that the bomb will kill hundreds of people. I'm about 99% sure you wouldn't have a duress defense, but could you have a justification defense?

That sounds like duress. The MBE rule is no duress defense to homicide. states may vary.

edit: yeah no idea on justification. necessity perhaps? I'm sure if the case were to come, someone out there would come with a complicated exception, but think of it, MBE law seems to reject murder regardless of the reason unless you (or someone close) would otherwise die and such deadly force could only go towards directly stopping the threat.

isn't self-defense/defense of others a justification?

[Lawyerinwaiting89]

Is there any situation where a homicide is justified? For example, if a guy hands you a gun and says you have to go kill his wife and if you don’t, he’s going to detonate a bomb at a children’s hospital, would you still be guilty for some form of homicide if you killed the wife? Assume that you know for a fact that the guy will actually detonate the bomb and that the bomb will kill hundreds of people. I'm about 99% sure you wouldn't have a duress defense, but could you have a justification defense?

That sounds like duress. The MBE rule is no duress defense to homicide. states may vary.

edit: yeah no idea on justification. necessity perhaps? I'm sure if the case were to come, someone out there would come with a complicated exception, but think of it, MBE law seems to reject murder regardless of the reason unless you (or someone close) would otherwise die and such deadly force could only go towards directly stopping the threat.

isn't self-defense/defense of others a justification?

I think the only way that the MBE would test the hypo that OP details is a case where a defendant is trying to claim duress. But duress is never a defense to homicide. As for other types of defenses in this situation, it's unclear. It's possible a defendant could claim self-defense and/or defense of others but in reading the hypo, it's really duress that pops out and it's a bright line rule on the MBE that you can't claim duress if homicide is involved. It's possible that the hypo could lend itself to an essay and you might be able to explore the pros and cons of the other types of defenses, but it seems highly unlikely it'd appear in a MBE hypo.

[Lawyerinwaiting89]

Anyone have a clever way of remembering the defamation elements? I know the difference between libel and slander, but I always mix up the tests between public and private individual and what needs to be shown (e.g. malice) etc.

[Brian_Wildcat]

Anyone have a clever way of remembering the defamation elements? I know the difference between libel and slander, but I always mix up the tests between public and private individual and what needs to be shown (e.g. malice) etc.

I always try to remember that private individuals have a lower bar. They don't have to prove falsity. Negligence is generally enough for publication. When you have matters of public concern two elements are added that the P must prove: falsity and Fault. if private individual and matter of public concern negligence is enough on fault (lower bar) and public individual requires actual malice for fault. Punitive damages require actual malice.

If you are getting mixed up between public and private just remember that private individuals always have a lower bar.

[Scaramouche]

ConLaw State Actor: Private entity getting funding?

This seems like a common fact pattern that my outlines and notes seem silent or contradictory on. What do you do, for instance, when a school is getting federal funds. (I know vouchers are insufficient...)

[Lawyerinwaiting89]

Anyone have a clever way of remembering the defamation elements? I know the difference between libel and slander, but I always mix up the tests between public and private individual and what needs to be shown (e.g. malice) etc.

I always try to remember that private individuals have a lower bar. They don't have to prove falsity. Negligence is generally enough for publication. When you have matters of public concern two elements are added that the P must prove: falsity and Fault. if private individual and matter of public concern negligence is enough on fault (lower bar) and public individual requires actual malice for fault. Punitive damages require actual malice.

If you are getting mixed up between public and private just remember that private individuals always have a lower bar.

Thanks!

[uceoledinbdnrn]

ConLaw State Actor: Private entity getting funding?

This seems like a common fact pattern that my outlines and notes seem silent or contradictory on. What do you do, for instance, when a school is getting federal funds. (I know vouchers are insufficient...)

Probably not enough to turn it into a state actor for, like, 1a or DP purposes but the funds can't go to religious stuff and they're enough to justify congressional stipulations (think title IX). Every fact pattern I've seen in MBE prep makes it clear if the school's public or private though.

[SchneefaLongoria]

.

[SchneefaLongoria]

Procedural Due Process question....

I know that sometimes PDP is satisfied if a hearing is provided afterwards within a reasonable time, but I also know that PDP requires a hearing before welfare benefits, public employment (not at-will), and driver's licenses are taken away. So is there anything else that absolutely requires a hearing before?

[Babum]

Is there any situation where a homicide is justified? For example, if a guy hands you a gun and says you have to go kill his wife and if you don’t, he’s going to detonate a bomb at a children’s hospital, would you still be guilty for some form of homicide if you killed the wife? Assume that you know for a fact that the guy will actually detonate the bomb and that the bomb will kill hundreds of people. I'm about 99% sure you wouldn't have a duress defense, but could you have a justification defense?

That sounds like duress. The MBE rule is no duress defense to homicide. states may vary.

edit: yeah no idea on justification. necessity perhaps? I'm sure if the case were to come, someone out there would come with a complicated exception, but think of it, MBE law seems to reject murder regardless of the reason unless you (or someone close) would otherwise die and such deadly force could only go towards directly stopping the threat.

isn't self-defense/defense of others a justification?

only when the force is used against the aggressor not an unrelated 3rd party.