Your FREE MBE Flashcards 2026 – 100+ Cards

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.

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).

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

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 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.

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

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.

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

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.

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.

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

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

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.

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).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

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

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

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.

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').

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.

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

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

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

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

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

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

Purposely, knowingly, recklessly, negligently.

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.

An unlawful killing committed with malice aforethought — intent to kill, intent to inflict serious bodily harm, depraved-heart recklessness, or 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 = intentional killing in the heat of passion on adequate provocation. Involuntary = unintentional killing from criminal negligence or during an unlawful act.

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).

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

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

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

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.

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.

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

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

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

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).

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.

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

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

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

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.

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

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.

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.

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.

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

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

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

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

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.

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.

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

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.

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.

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

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

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.

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

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.

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

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

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

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

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.

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.

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.

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

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.

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.

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

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

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.

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.

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

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).

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.