Your FREE MBE Flashcards 2026 – 100+ Cards

MBE Flashcards

Negligence — the four elements

Duty, breach, causation (actual + proximate), and damages. The plaintiff must prove all four to recover.

Battery (intentional tort)

A harmful or offensive contact with the plaintiff's person, caused by a volitional act done with intent. Contact with anything connected to the person counts.

Assault (intentional tort)

An act intended to cause, and that does cause, a reasonable apprehension of an imminent harmful or offensive contact. Words alone usually are not enough.

False imprisonment

Intentional confinement of the plaintiff to a bounded area, with no reasonable means of escape, where the plaintiff is aware of or harmed by the confinement.

Intentional infliction of emotional distress (IIED)

Extreme and outrageous conduct, done intentionally or recklessly, that causes the plaintiff severe emotional distress.

Standard of care in ordinary negligence

That of a reasonably prudent person under the same or similar circumstances — an objective standard that does not lower for the defendant's own shortcomings.

Negligence per se

A statutory violation establishes duty and breach where the plaintiff is in the class the statute protects and suffered the type of harm it was meant to prevent.

Res ipsa loquitur

It lets the jury infer breach from the accident itself when the harm ordinarily would not occur absent negligence and the instrumentality was in the defendant's exclusive control.

But-for cause vs. proximate cause

But-for (actual) cause asks whether the harm would not have happened but for the defendant's act. Proximate cause limits liability to foreseeable harms/plaintiffs.

Palsgraf duty/foreseeability rule

A defendant owes a duty only to plaintiffs within the foreseeable zone of danger (Cardozo majority). Unforeseeable plaintiffs cannot recover.

Strict products liability — elements

A commercial seller is liable for a product that is defective (manufacturing, design, or warning) and unreasonably dangerous when it left the seller's control and causes injury in foreseeable use.

Strict liability for abnormally dangerous activities

Liability without fault for activities that create a foreseeable, highly significant risk that cannot be eliminated with reasonable care and are not common in the community.

Premises liability — duty to an invitee

The land possessor must inspect for, and warn of or make safe, known and reasonably discoverable dangerous conditions. Invitees get the highest duty.

Defamation — the elements

A defamatory statement of or concerning the plaintiff, publication to a third party, fault, and damage to reputation. Public-figure plaintiffs must show actual malice (NYT v. Sullivan).

Respondeat superior

An employer is vicariously liable for torts an employee commits within the scope of employment. Generally not liable for intentional torts or for independent contractors.

Complete diversity rule

No plaintiff may be a citizen of the same state as any defendant (Strawbridge v. Curtiss), and the amount in controversy must exceed $75,000.

A corporation's citizenship for diversity

Both its state of incorporation and the state of its principal place of business (the 'nerve center' where officers direct and control activities — Hertz v. Friend).

Federal question — the well-pleaded complaint rule

A federal question must appear on the face of the plaintiff's properly pleaded complaint. Anticipated defenses or counterclaims do not create it.

Personal jurisdiction — the minimum contacts test

The defendant must have such minimum contacts with the forum that suit does not offend traditional notions of fair play and substantial justice (International Shoe).

General vs. specific personal jurisdiction

General jurisdiction (any claim) requires the defendant to be 'at home' in the forum. Specific jurisdiction requires the claim to arise from the defendant's forum contacts.

The Erie doctrine

A federal court sitting in diversity applies state substantive law and federal procedural law. Outcome-determinative state rules are treated as substantive.

Rule 56 summary judgment standard

Granted when there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law; the court views evidence in the light most favorable to the nonmovant.

Waivable Rule 12(b) defenses

Lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. Subject-matter jurisdiction may be raised any time.

Claim preclusion (res judicata)

A final judgment on the merits bars the same parties from relitigating the same claim, including matters that could have been raised in the first action.

Issue preclusion (collateral estoppel)

An issue of fact or law actually litigated and necessarily decided in a prior valid final judgment cannot be relitigated by that party in a later suit.

The final judgment rule for appeals

Generally only final judgments disposing of all claims may be appealed; interlocutory orders are reviewable only under limited exceptions.

Compulsory counterclaim (Rule 13(a))

A claim that arises from the same transaction or occurrence as the opposing party's claim must be pleaded or it is lost.

Scope of discovery (Rule 26(b)(1))

Any nonprivileged matter relevant to a claim or defense and proportional to the needs of the case; it need not be admissible to be discoverable.

Supplemental jurisdiction

A federal court may hear related state claims that form part of the same case or controversy as a claim within its original jurisdiction (28 U.S.C. 1367).

Standing — the three elements

Injury in fact (concrete and particularized, actual or imminent), causation (traceable to the defendant), and redressability (a favorable decision would likely fix it).

The three levels of constitutional scrutiny

Strict scrutiny (necessary to a compelling interest), intermediate scrutiny (substantially related to an important interest), and rational basis (rationally related to a legitimate interest).

Strict-scrutiny classifications (Equal Protection)

Suspect classes: race, national origin, and alienage (state laws). Strict scrutiny also applies to laws burdening fundamental rights.

Intermediate-scrutiny classifications (Equal Protection)

Quasi-suspect classes: gender and legitimacy (nonmarital children). Gender classifications need an exceedingly persuasive justification.

The Dormant Commerce Clause rule

States may not discriminate against or unduly burden interstate commerce. Facial discrimination is virtually per se invalid; nondiscriminatory burdens get Pike balancing.

The market-participant exception

When a state acts as a buyer or seller (not a regulator), it may favor its own residents without violating the Dormant Commerce Clause.

State action requirement

Constitutional rights generally restrain only government, not private parties — unless a private actor performs a traditional public function or is entangled with the state.

Procedural due process requirements

When the government deprives a person of life, liberty, or property, it must provide notice and an opportunity to be heard (Mathews v. Eldridge balancing sets how much).

Content-based vs. content-neutral speech regulation

Content-based restrictions get strict scrutiny; content-neutral time, place, and manner restrictions get intermediate scrutiny and must leave open alternative channels.

Unprotected (or less-protected) speech categories

Incitement, fighting words, true threats, obscenity, defamation, and child pornography receive little or no First Amendment protection.

Establishment Clause — modern approach

Government cannot establish religion; recent cases (Kennedy v. Bremerton) emphasize historical practices and coercion rather than the old Lemon test.

The Takings Clause

Government may take private property for public use only with just compensation. A permanent physical occupation or a regulation denying all economic use is a taking.

Procedural vs. substantive due process

Procedural DP governs the fairness of the process used to deprive a right; substantive DP protects certain fundamental rights from government interference altogether.

Congressional power under the Commerce Clause

Congress may regulate the channels and instrumentalities of interstate commerce and activities substantially affecting it.

UCC Article 2 — scope

Transactions in goods (things movable at the time of identification). Sales of land, services, and employment are governed by the common law.

The predominant-purpose test

For mixed goods-and-services contracts, the body of law (UCC vs. common law) is chosen by whichever purpose predominates.

Elements of contract formation

Mutual assent (a valid offer and acceptance) and consideration (a bargained-for exchange of legal value).

The mailbox rule

Acceptance is effective on dispatch (when sent), while revocations, rejections, and counteroffers are effective on receipt.

UCC 2-207 (battle of the forms)

An acceptance with additional terms still forms a contract; between merchants, additional terms become part of it unless they materially alter the deal, are objected to, or the offer limits acceptance.

The Statute of Frauds

MY LEGS: Marriage, contracts not performable within one Year, Land, Executor promises, Goods $500+, and Suretyship.

The parol evidence rule

Prior or contemporaneous statements cannot contradict a final written contract. It does not bar evidence of fraud, ambiguity, or a separate consideration.

Common-law perfect tender vs. UCC

Common law allows substantial performance; the UCC requires perfect tender — the buyer may reject goods that fail in any respect, subject to the seller's right to cure.

Implied warranty of merchantability

In a sale by a merchant who deals in goods of that kind, the goods are warranted to be fit for their ordinary purpose. It can be disclaimed (e.g., 'as is').

Implied warranty of fitness for a particular purpose

Arises when the seller knows the buyer's particular purpose and that the buyer is relying on the seller's skill to select suitable goods.

Expectation damages

The benefit of the bargain — enough to put the nonbreaching party where it would have been had the contract been performed.

Specific performance — availability

For unique goods or land (land is always unique), when money damages are inadequate. Not available for personal-service contracts.

Liquidated damages — enforceability

When damages were difficult to estimate at formation and the stipulated amount is a reasonable forecast — not a penalty.

Impossibility, impracticability, frustration of purpose

Performance is discharged by objective impossibility, extreme and unforeseen difficulty (impracticability), or destruction of the contract's underlying purpose (frustration).

Intended vs. incidental third-party beneficiary

Only an intended beneficiary (one the parties meant to benefit) can sue to enforce the contract; an incidental beneficiary cannot.

Actus reus and mens rea

Actus reus is the voluntary physical act (or qualifying omission); mens rea is the guilty mental state. Most crimes require both, concurrently.

The four MPC mental states (most to least culpable)

Purposely, knowingly, recklessly, negligently.

Specific vs. general intent crimes

Specific intent requires a special further purpose beyond the act (e.g., burglary's intent to commit a felony inside). General intent requires only intent to do the act.

Common-law murder

An unlawful killing committed with malice aforethought — intent to kill, intent to inflict serious bodily harm, depraved-heart recklessness, or felony murder.

Felony murder

A killing during the commission or attempted commission of an inherently dangerous felony. Malice is imputed from the felony. Classic predicates: Burglary, Arson, Rape, Robbery, Kidnapping (BARRK).

Voluntary vs. involuntary manslaughter

Voluntary = intentional killing in the heat of passion on adequate provocation. Involuntary = unintentional killing from criminal negligence or during an unlawful act.

Conspiracy — elements

An agreement between two or more people to commit a crime, with intent to agree and intent to achieve the unlawful objective (most jurisdictions also require an overt act).

Merger of attempt or conspiracy with the completed crime

Attempt merges into the completed offense; conspiracy does NOT merge — a defendant can be convicted of both conspiracy and the completed crime.

Larceny vs. embezzlement vs. false pretenses

Larceny = trespassory taking of another's property. Embezzlement = fraudulent conversion of property already lawfully possessed. False pretenses = obtaining title by a false representation.

Burglary (common law)

Breaking and entering the dwelling of another at night with intent to commit a felony inside.

Self-defense — the rule

A person may use reasonable, proportional force to repel an imminent unlawful threat. Deadly force requires a reasonable belief of imminent death or serious bodily harm.

The M'Naghten insanity test

A defendant is not guilty if, due to a mental disease, he did not know the nature and quality of the act or did not know it was wrong.

Miranda warnings — when required

Before custodial interrogation. Statements from un-warned custodial interrogation are generally inadmissible in the prosecution's case-in-chief.

Fourth Amendment — warrant exceptions

Search incident to lawful arrest, automobile exception, plain view, consent, stop and frisk (Terry), hot pursuit, and exigent circumstances.

The exclusionary rule (and fruit of the poisonous tree)

Evidence obtained from an unconstitutional search or seizure is generally inadmissible, as is derivative evidence — subject to good-faith and other exceptions.

Relevance under FRE 401

Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. Relevant evidence is admissible unless a rule bars it (FRE 402).

FRE 403 balancing

A court may exclude relevant evidence if its probative value is substantially outweighed by unfair prejudice, confusion, misleading the jury, delay, or needless cumulative evidence.

The propensity ban (FRE 404(a))

Character evidence is generally not admissible to prove a person acted in conformity with that character on a particular occasion.

FRE 404(b) permissible purposes (MIMIC)

Other acts may be admitted for Motive, Intent, Mistake (absence of), Identity, or Common plan — but never to show propensity.

Impeachment with prior convictions (FRE 609)

Crimes of dishonesty/false statement are automatically admissible. Other felonies are admitted subject to balancing; convictions over 10 years old face heightened scrutiny.

Definition of hearsay (FRE 801(c))

An out-of-court statement offered to prove the truth of the matter asserted. Statements offered for another purpose (notice, effect on listener) are not hearsay.

Opposing party statement (FRE 801(d)(2))

A party's own statement offered against that party is defined as NOT hearsay (an admission). It need not have been against interest when made.

Present sense impression vs. excited utterance

Present sense impression (803(1)): describes an event while or immediately after perceiving it. Excited utterance (803(2)): made under the stress of a startling event.

Business records exception (FRE 803(6))

Records of a regularly conducted activity, made at or near the time by someone with knowledge, kept in the ordinary course — admissible if not lacking trustworthiness.

Dying declaration (FRE 804(b)(2))

In a homicide prosecution or any civil case, a statement about the cause/circumstances of death made by a now-unavailable declarant who believed death was imminent.

Statement against interest (FRE 804(b)(3))

A statement so contrary to the declarant's pecuniary, proprietary, or penal interest that a reasonable person would not have made it unless true — requires unavailability.

The Confrontation Clause (Crawford)

Testimonial hearsay is barred against a criminal defendant unless the declarant is unavailable and the defendant had a prior chance to cross-examine.

Attorney-client privilege

Confidential communications between a client and attorney made to obtain legal services are protected. The crime-fraud exception applies to future crimes/frauds.

Best evidence rule (FRE 1002)

To prove the content of a writing, recording, or photograph, the original (or a duplicate) is required, unless it is unavailable through no fault of the proponent.

Lay vs. expert opinion (FRE 701/702)

Lay opinion must be rationally based on perception. Expert opinion requires specialized knowledge, sufficient facts, and reliable methods (Daubert).

Adverse possession — elements

Possession that is Actual, Open and notorious, Hostile, Exclusive, and Continuous for the statutory period. Permissive use defeats hostility.

Joint tenancy vs. tenancy in common

Joint tenancy carries a right of survivorship (deceased's share passes to survivors); tenancy in common does not — that share passes by will or intestacy.

The four unities of a joint tenancy

Time, Title, Interest, and Possession — cotenants must take at the same time, by the same instrument, in equal shares, with an equal right to possess the whole.

Severance of a joint tenancy

A conveyance by one joint tenant of their interest destroys the unities and converts it to a tenancy in common as to that share.

Fee simple absolute vs. defeasible fees

Fee simple absolute is the largest, unconditional estate. Defeasible fees (determinable, subject to condition subsequent) can be cut short on a stated event.

Vested vs. contingent remainder

A remainder is vested if given to an ascertained person with no condition precedent; contingent if subject to a condition or held by an unascertained person.

The Rule Against Perpetuities

An interest is void unless it must vest, if at all, within 21 years after a life in being at the creation of the interest.

Easement creation methods

By express grant/reservation, implication (prior use), necessity, or prescription (like adverse possession). Appurtenant easements run with the land.

Assignment vs. sublease (landlord-tenant)

An assignment transfers the entire remaining lease term (assignee in privity of estate with landlord); a sublease transfers less than the whole term.

Recording acts — race, notice, race-notice

Race: first to record wins. Notice: a later bona fide purchaser without notice wins. Race-notice: a later BFP without notice who records first wins.

Bona fide purchaser (BFP)

One who pays value for the property without notice (actual, constructive, or inquiry) of a prior conflicting interest.

Lien theory vs. title theory of mortgages

In lien-theory states the borrower keeps title and the lender holds a lien; in title-theory states the lender holds legal title until the debt is paid.

Equity of redemption

The borrower's right to redeem the property and stop foreclosure by paying the full debt before the foreclosure sale.

Tenancy by the entirety

A joint tenancy between spouses with survivorship; neither spouse can unilaterally convey or sever it, and it offers creditor protection in many states.

General vs. special warranty deed

A general warranty deed covenants against all title defects; a special warranty deed covenants only against defects arising during the grantor's ownership.