Bar Exam Sample Questions
Practice Exam-Level MBE® Questions

Explanation:

A federal court must possess subject-matter jurisdiction to hear the merits of a case before it. Subject-matter jurisdiction can be established through either:

• federal-question jurisdiction – when a claim arises under the U.S. Constitution, a treaty, or federal law (not seen here) or
• diversity jurisdiction – when the amount in controversy exceeds $75,000 and the opposing parties are citizens of different states.

Here, diversity jurisdiction is established since the wife claims that she is entitled to $300,000 and the parties are citizens of different states (States A and B). However, federal courts cannot exercise diversity jurisdiction over cases involving probate matters or domestic relations. Instead, state courts have exclusive jurisdiction over these types of actions (Choice A).* Therefore, the husband's motion to dismiss should be granted.

(Choice B) A challenge to subject-matter jurisdiction is never waived. However, a challenge to personal jurisdiction is waived if the defendant has voluntarily appeared in the case, unless it was a special appearance for the express purpose of objecting to personal jurisdiction.

(Choice D) An individual is a citizen of the state where he/she is domiciled—ie, physically present with the intent to remain indefinitely. Since the wife permanently moved to State B, she has established her domicile there.

Educational objective:
Federal courts cannot exercise diversity jurisdiction over cases involving probate matters or domestic relations. Instead, state courts have exclusive jurisdiction over these types of cases.

Explanation:

The commerce clause gives Congress broad power to regulate interstate and foreign commerce. This includes:

• the channels of interstate and foreign commerce (eg, roadways)
• the instrumentalities of interstate and foreign commerce (eg, vehicles)
• persons and things moving in interstate or foreign commerce (eg, goods and services) and
• in-state activities that, singly or in the aggregate, substantially impact interstate or foreign commerce.

Since Congress's commerce power is broad, federal statutes are constitutional if there is any rational basis for concluding that the regulated activity substantially affects interstate or foreign commerce. This can be shown through express congressional findings.

Here, the federal statute regulates the retail prices of prescription drugs in the United States. Congress has the authority to regulate such products' interstate transportation, but this statute also regulates in-state purchases and sales (Choice C). Since the congressional committee found that the high cost of prescription drugs negatively impacted the nation's economy, it is rational to conclude that their aggregated in-state purchases and sales substantially impact interstate commerce. Therefore, this is the strongest argument to support this statute.

(Choice A) The taxing and spending clause empowers Congress to tax and spend for the general welfare. But regulating prices is not equivalent to taxing or spending.

(Choice B) Congress cannot regulate the prices of every domestic purchase and sale of goods since it cannot regulate purely in-state sales that do not substantially affect interstate commerce.

Educational objective:
The commerce clause empowers Congress to regulate (1) channels and instrumentalities of, (2) persons and things moving in, and (3) in-state activities that—singly or in the aggregate—substantially affect interstate or foreign commerce.

Explanation:

Contracts for the sale of goods are governed by Article 2 of the Uniform Commercial Code (UCC), while contracts for services are governed by common law. However, some contracts involve the sale of goods and the rendering of services. To determine which law applies to a "mixed" or "hybrid" contract, courts ask whether its predominant purpose was the sale of goods or the rendering of services. The following factors are relevant to this determination:

• The contract's language
• The nature of the supplier's business (ie, whether it typically provides goods or services)
• The relative value of the goods and services
• The nature of the final product (ie, whether it can be described as a good or service)

Here, the building owner contracted to buy goods (eg, trees, shrubs, sod) and services (ie, designing and installing the landscaping). The owner likely hired the well-known landscaper due to his skill in performing landscaping services, and the $5,000 budget for goods was just one-sixth of the $30,000 contract price. Therefore, the contract primarily calls for services and is subject to the jurisdiction's two-year statute of limitations. And since the owner sued three years after the breach, the owner cannot recover damages from the landscaper.

(Choice A) The predominant-purpose test is unnecessary when a contract is divisible—ie, when the payment for goods can easily be separated from the payment for services. But here, the contract is likely indivisible since it combined the sale of the trees, shrubs, and sod with their installation.

(Choices C & D) The predominant-purpose test focuses on the parties' reason for entering the contract—not for breaching it. Therefore, it is irrelevant that the landscaper's breach was (1) a result of an increase in the price of goods or (2) willful.

Educational objective:
Sale-of-goods contracts are governed by the UCC, while services contracts are governed by common law. When a contract calls for the sale of goods AND the rendering of services, the contract's primary purpose determines whether the UCC or common law applies.

Explanation:

In most modern jurisdictions, rape is defined as sexual intercourse with another without that person's consent.* This means that rape did not occur if the victim consented to sexual intercourse. However, a victim's consent may be ineffective if it was obtained by fraud. There are two types of fraud:

• Fraud in factum – when consent is obtained by fraud regarding the nature of the act itself, leaving the victim unaware that he/she consented to sexual intercourse and negating the victim's consent
• Fraud in the inducement – when consent is obtained by fraud regarding what the victim knows is an act of sexual intercourse, which does not negate the victim's consent

As a result, consent obtained by fraud in factum is not a valid defense to rape, but consent obtained by fraud in the inducement is a valid defense.

Here, the man falsely promised the woman that they would elope if she agreed to have sex with him. Since the woman knew that the act to which she consented was sexual intercourse, her consent was obtained by fraud in the inducement (Choices A & C). This type of fraud did not negate the woman's consent, so the man is not guilty of rape (Choice D).

Educational objective:
Fraud in factum occurs when the fraud pertains to the nature of the act itself and negates a rape victim's consent. In contrast, fraud in the inducement occurs when fraud is used to gain consent to what the victim knows is an act of sexual intercourse and does not negate the victim's consent.

Explanation:

Federal Rule of Evidence 611 gives trial courts the authority to exercise reasonable control over the mode and order of examining witnesses at trial. This includes the discretion to determine whether—and to what extent—redirect examination of witnesses should be permitted. But when a party raises a significant new matter while cross-examining a witness, the court must allow the opposing party to address that matter through redirect examination.

Therefore, the strongest argument for allowing redirect examination of the plaintiff's wife is that the plaintiff's attorney seeks to reply to significant new matters that were raised on cross-examination.

(Choice A) A party is expected to elicit all significant information during direct examination of a witness. Therefore, a court need not permit redirect examination to allow the party to provide information inadvertently omitted on direct examination.

(Choices B & C) Redirect examination is generally limited to significant new matters raised on cross-examination. Therefore, a party is not entitled to redirect examination to (1) reiterate information like the necessary elements of the claim or (2) reply to all matters addressed in cross-examination.

Educational objective:
When a party raises a significant new matter on cross-examination of a witness, the court must allow redirect examination by the opposing party to address that matter.

Explanation:

An adverse possessor can acquire title to land owned by another if his/her possession of the land is:

• Open and notorious – apparent or visible to a reasonable owner
• Continuous – uninterrupted for the statutory period
• Exclusive – not shared with the owner
• Actual – physical presence on the land and
• Nonpermissive – hostile and adverse to the owner.

If the surface and mineral estates are owned by the same party, then the adverse possessor will acquire title to both estates—even if only one estate is actually possessed. But if the mineral estate has been severed from the surface estate (ie, the surface and mineral estates are owned by different parties), then the adverse possessor will only acquire title to the estate that is actually possessed. The mineral estate is actually possessed when the adverse possessor mines or drills wells on the land.

Here, the neighbor purchased the mineral estate from the man, thereby severing the mineral estate from the surface estate. And since the woman merely lived on the property for the 10-year statutory period—she did not attempt to mine or drill a well on the mineral estate—she actually possessed only the surface estate during that time (Choice D). This means that the woman did not adversely possess the mineral estate, and the court is not likely to award her title to that estate.

(Choice B) Adverse possession of a mineral estate requires the commencement of drilling or mining operations. Merely signing a lease of the mineral rights is not enough.

(Choice C) A deed need not be recorded to be valid, so the neighbor's failure to record has no impact on whether the woman adversely possessed the mineral estate.

Educational objective:
If a mineral estate has previously been severed from the surface estate (ie, surface and minerals owned by different persons), then an adverse possessor can only acquire title to the mineral estate by actually possessing the minerals (eg, by mining or drilling wells).

Explanation:

Assault occurs when a defendant's intentional act causes a plaintiff reasonable apprehension of imminent harmful or offensive bodily contact. The intent requirement is met when the defendant acts with either:

• purpose – the desire to cause apprehension of contact or
• knowledge – the substantial certainty that such apprehension will result.

Here, the teenager rode her bicycle directly at her classmate, causing him to think that she would hit him (reasonable apprehension of imminent contact). The teenager did not purposefully try to harm or touch the classmate (Choice B). But the teenager knew with substantial certainty that the classmate would think she would run into him, so she acted with the requisite intent. As a result, the classmate is likely to succeed in a suit against the teenager for assault.

(Choice A) Assault merely requires that the plaintiff be placed in apprehension of imminent contact. Actual bodily contact is not required. Therefore, the fact that the teenager did not make contact with the classmate is irrelevant.

(Choice D) Extreme and outrageous conduct (ie, conduct that is unacceptable in civilized society) is an element of intentional infliction of emotional distress—not assault, which only requires intentional conduct.

Educational objective:
For assault, intent exists when a defendant acts with the purpose (desire) or knowledge (substantial certainty) that his/her conduct will cause apprehension of imminent harmful or offensive contact.

Correct answer: B