Bar Exam – MBE Rule Statements – 2026 – Study Guide
and Review Material
n Civ Pro: Supplemental Jurisdiction - correct answer ✔✔ 1) Federal court must have original
SMJ over 1 claim
2) Court has DISCRETION to hear other claim IF the other claim
3) arose out of the common nucleus of operative facts such that they would normally be
brought together
Civ Pro: Erie Outcome Determinative Test - correct answer ✔✔ 1) will the decision whether to
use the state rule be outcome determinative on the matter OR
2) will the refusal to apply state law promote forum shopping
Civ Pro: Impleading a 3rd Party Defendant - correct answer ✔✔ A Defendant may implead a
non-party
1) ONLY IF they allege that the nonparty is or may be liable for all or part of DF's liability to
Plaintiff
Civ Pro: Third Party Defendant Claims against PF - correct answer ✔✔ 3rd Party DF may assert
any defenses and COAs against the original PF because they do not have to rely on the original
DF to raise them. They may also bring claims in a separate action.
Civ Pro: Entry of Default - correct answer ✔✔ A clerk of the court will enter an entry of default if
the Defendant does not respond to the complaint. The entry cuts off the DF's right to contest
liability unless the default is set aside
Civ Pro: Entry of Default Judgment
- with notice
,- without further notice - correct answer ✔✔ - PF may obtain a default judgment after entry of
default by clerk and MUST be entered by the judge after notice and a hearing
- Allowed without notice when
1) amount in dispute is certain on the face of the complaint
2) the DF has not appeared (any appearance or action by DF indicating that they intend to
contest on the merits)
Con Law: 11th Amendment - correct answer ✔✔ A state cannot be sued unless the state gives
consent to be sued
Con Law: Dormant Commerce Clause for Nondiscriminatory State Laws - correct answer ✔✔
The state may indirectly regulate interstate commerce if
1) the regulation is non-discriminatory and
2) regulation does not unduly burden interstate commerce (the incidental burden does not
outweigh the local benefits)
Con Law: 14th Amendment Passing Strict Scrutiny
- Compelling Gov Interest for Alienage - correct answer ✔✔ Government has a compelling
interest to discriminate against aliens for participation in government, such as jury duty
Con Law: 5th Amendment Discrimination against aliens in federal statutes is subject to - correct
answer ✔✔ Rational Basis
Contracts: Article 2 Counteroffer Accommodation Exception - correct answer ✔✔ Shipment of
nonconforming goods as an accommodation occurs when
1) acceptance by prompt shipment and
2) notice of the accommodation. Perfect Tender Rule will not apply, buyer may accept all or
reject all.
,Criminal: Actus Reas - correct answer ✔✔ DF must commit the criminal act voluntarily
Crim Pro: Terry Stop
- Applying Terry Stop instead of Search Incident to lawful arrest - correct answer ✔✔ Apply terry
stop answer instead of search incident to lawful arrest if the stop and frisk occurred before the
arrest
Crim Pro: 5th Amendment Right to Counsel - correct answer ✔✔ All questioning about ANY
crimes without aid of counsel are invalid
Crim Pro: 6th Amendment Right to Counsel - correct answer ✔✔ Applies after charges are
brought. Invoking the right prevents the police from questioning about the specific crime, but
may ask about other crimes
Evidence: Hearsay prior consistent statement (when to apply) - correct answer ✔✔ Apply ONLY
IF the witness has already been impeached
Evidence: Hearsay Exemption Adoptive Admission by silence - correct answer ✔✔ Occurs when
1) party hears and understands the accusation
2) is capable of denying
3) a reasonable person would have denied it if it was untrue
- Does NOT apply in criminal cases against DF due to 5A right to remain silent
Evidence: Impeachment by Criminal Conviction
- Arrests vs convictions - correct answer ✔✔ An arrest is not admissible for impeachment. There
must be a conviction or judgment of guilt
, Property: Landlord/ Tenant Assignee Liability to Landlord for rent - correct answer ✔✔ An
assignee has privity with the landlord and is primarily responsible for rent. The original tenant is
secondarily liable through privity of contract
Property: Easement by necessity Extinguished by Merger - correct answer ✔✔ Easement by
necessity will be terminated by merger if both pieces of property come under common
ownership of one party
Property: Land Sale Contract Equitable Conversion and Title Transfer
- Effect on Distribution of assets in a will - correct answer ✔✔ Buyer becomes the equitable
owner when the land sale contract is formed. This applies even if one party dies or the property
is destroyed.
- Seller's proceeds from the sale are considered personal property
Property: Foreclosure of a Junior mortgage effect on a senior mortgage - correct answer ✔✔
Senior mortgage will remain of the property after a junior mortgage is foreclosed and the buyer
at the foreclosure sale will take the property subject to the mortgage
Tort: Negligence How to pick duty vs proximate cause answer - correct answer ✔✔ Defective
conditions of a product do not have anything to do with negligence of the end user. Pick the
answer regarding the DF not the harm, unless it is a vicarious liability question.
Tort: Negligence Directed Verdict Tip - correct answer ✔✔ If there is any disputed issue, deny
both motions. The answer is deny both motions about 75% of the time
Tort: Distinguishing res ipsa and negligence per se - correct answer ✔✔ Both establish duty and
breach.
Res Ipsa: Inference of negligence
Negligence per se: presumption of negligence. DO NOT pick either unless the call is asking about
directed verdicts
and Review Material
n Civ Pro: Supplemental Jurisdiction - correct answer ✔✔ 1) Federal court must have original
SMJ over 1 claim
2) Court has DISCRETION to hear other claim IF the other claim
3) arose out of the common nucleus of operative facts such that they would normally be
brought together
Civ Pro: Erie Outcome Determinative Test - correct answer ✔✔ 1) will the decision whether to
use the state rule be outcome determinative on the matter OR
2) will the refusal to apply state law promote forum shopping
Civ Pro: Impleading a 3rd Party Defendant - correct answer ✔✔ A Defendant may implead a
non-party
1) ONLY IF they allege that the nonparty is or may be liable for all or part of DF's liability to
Plaintiff
Civ Pro: Third Party Defendant Claims against PF - correct answer ✔✔ 3rd Party DF may assert
any defenses and COAs against the original PF because they do not have to rely on the original
DF to raise them. They may also bring claims in a separate action.
Civ Pro: Entry of Default - correct answer ✔✔ A clerk of the court will enter an entry of default if
the Defendant does not respond to the complaint. The entry cuts off the DF's right to contest
liability unless the default is set aside
Civ Pro: Entry of Default Judgment
- with notice
,- without further notice - correct answer ✔✔ - PF may obtain a default judgment after entry of
default by clerk and MUST be entered by the judge after notice and a hearing
- Allowed without notice when
1) amount in dispute is certain on the face of the complaint
2) the DF has not appeared (any appearance or action by DF indicating that they intend to
contest on the merits)
Con Law: 11th Amendment - correct answer ✔✔ A state cannot be sued unless the state gives
consent to be sued
Con Law: Dormant Commerce Clause for Nondiscriminatory State Laws - correct answer ✔✔
The state may indirectly regulate interstate commerce if
1) the regulation is non-discriminatory and
2) regulation does not unduly burden interstate commerce (the incidental burden does not
outweigh the local benefits)
Con Law: 14th Amendment Passing Strict Scrutiny
- Compelling Gov Interest for Alienage - correct answer ✔✔ Government has a compelling
interest to discriminate against aliens for participation in government, such as jury duty
Con Law: 5th Amendment Discrimination against aliens in federal statutes is subject to - correct
answer ✔✔ Rational Basis
Contracts: Article 2 Counteroffer Accommodation Exception - correct answer ✔✔ Shipment of
nonconforming goods as an accommodation occurs when
1) acceptance by prompt shipment and
2) notice of the accommodation. Perfect Tender Rule will not apply, buyer may accept all or
reject all.
,Criminal: Actus Reas - correct answer ✔✔ DF must commit the criminal act voluntarily
Crim Pro: Terry Stop
- Applying Terry Stop instead of Search Incident to lawful arrest - correct answer ✔✔ Apply terry
stop answer instead of search incident to lawful arrest if the stop and frisk occurred before the
arrest
Crim Pro: 5th Amendment Right to Counsel - correct answer ✔✔ All questioning about ANY
crimes without aid of counsel are invalid
Crim Pro: 6th Amendment Right to Counsel - correct answer ✔✔ Applies after charges are
brought. Invoking the right prevents the police from questioning about the specific crime, but
may ask about other crimes
Evidence: Hearsay prior consistent statement (when to apply) - correct answer ✔✔ Apply ONLY
IF the witness has already been impeached
Evidence: Hearsay Exemption Adoptive Admission by silence - correct answer ✔✔ Occurs when
1) party hears and understands the accusation
2) is capable of denying
3) a reasonable person would have denied it if it was untrue
- Does NOT apply in criminal cases against DF due to 5A right to remain silent
Evidence: Impeachment by Criminal Conviction
- Arrests vs convictions - correct answer ✔✔ An arrest is not admissible for impeachment. There
must be a conviction or judgment of guilt
, Property: Landlord/ Tenant Assignee Liability to Landlord for rent - correct answer ✔✔ An
assignee has privity with the landlord and is primarily responsible for rent. The original tenant is
secondarily liable through privity of contract
Property: Easement by necessity Extinguished by Merger - correct answer ✔✔ Easement by
necessity will be terminated by merger if both pieces of property come under common
ownership of one party
Property: Land Sale Contract Equitable Conversion and Title Transfer
- Effect on Distribution of assets in a will - correct answer ✔✔ Buyer becomes the equitable
owner when the land sale contract is formed. This applies even if one party dies or the property
is destroyed.
- Seller's proceeds from the sale are considered personal property
Property: Foreclosure of a Junior mortgage effect on a senior mortgage - correct answer ✔✔
Senior mortgage will remain of the property after a junior mortgage is foreclosed and the buyer
at the foreclosure sale will take the property subject to the mortgage
Tort: Negligence How to pick duty vs proximate cause answer - correct answer ✔✔ Defective
conditions of a product do not have anything to do with negligence of the end user. Pick the
answer regarding the DF not the harm, unless it is a vicarious liability question.
Tort: Negligence Directed Verdict Tip - correct answer ✔✔ If there is any disputed issue, deny
both motions. The answer is deny both motions about 75% of the time
Tort: Distinguishing res ipsa and negligence per se - correct answer ✔✔ Both establish duty and
breach.
Res Ipsa: Inference of negligence
Negligence per se: presumption of negligence. DO NOT pick either unless the call is asking about
directed verdicts
