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What Law Should I Apply on the MBE?

By July 2, 2019 August 15th, 2019 No Comments

When you were in law school you probably learned about common law, state statutes, codes, federal rules, and majority and minority approaches to certain topics sometimes all in the same lecture. You may have had to know all of these rules for your law school exam. Now that it’s time for the bar exam, it can be hard to recall all of these rules and know which ones you should be applying on the MBE. This can often get confusing and overwhelming. Don’t worry, we’ve got your back! We’ve compiled a list of the most common distinctions broken down by subject. Get ready to crush the MBE!

Civil Procedure

The MBE only tests the Federal Rules of Civil Procedure, so be sure to apply only the FRCP and not state rules you may have learned in law school or at your jobs and internships. Review important Supreme Court cases on procedural issues, like Eerie and cases relating to personal and subject-matter jurisdiction. You won’t be asked about case names, but you will have to apply the rules that come from the holdings. Civil Procedure questions have a heavy focus on the rules directly from the FRCP, and the answer choices are often based on technical “rule language.”

Constitutional Law

Constitutional Law on the MBE is, naturally, comprised of case law from the Supreme Court and the Constitution itself. Therefore, it ends up being one of the most theoretical subjects tested. However, the format of the MBE does not lend itself to open-ended hypotheticals, like the ones you were asked in law school. Therefore, Constitutional Law questions on the MBE will be based on cases and rules that have already been decided by the Court. Also keep in mind, that although this was a busy term for the Supreme Court, any new recent holdings will not affect your exam. It takes several years before new rulings are incorporated into the exam.


The default rule for Contracts is to apply the common law. However, for Contracts that cover the sale of goods, the UCC applies over common law. The examiners will expect you to be able to recognize a sales contract and apply the UCC without being told to do so directly. Below are the major distinctions between the UCC and common law.

Topic Common Law UCC
Acceptance Under the “Mirror Image Rule,” acceptance must mirror the offer and may not omit or add new terms.   Acceptance that proposes additional or different terms is valid, unless the acceptance expressly requires assent to the different or additional terms.   If both parties are merchants, additional terms become part of the contract unless they materially change the offer or the offeror objects within a reasonable time.  
Option contracts Options require consideration or reliance to keep the option open.   No consideration is required for a merchant’s firm offer, which is irrevocable for the time stated, or up to three months if no time is stated.  
Modification Modification is ineffective unless consideration is provided.   No consideration required, but the modification must be in writing and made in good faith.  
Performance If there is substantial performance by one party to a contract, the other party must perform or pay.   The buyer is not required to pay unless the seller makes a perfect tender of goods.

You should also know by heart the common law rules for the Statute of Frauds and the exceptions. You should apply the general common law, unless the question gives you a statute that varies from the common law. Then, you should apply the statute.

Criminal Law and Procedure

Criminal Law questions are either tested by common law, the Modal Penal Code, or statute. You should prepare by memorizing all the common law elements of the crimes tested on the exam. Under the common law, there are no “degrees” of murder. If a question wants to test you on degrees of murder, the question must provide you with a statute or inform you the jurisdiction follows the MPC. If the question gives you a statute or a jurisdiction specific rule, you should apply it over the common law. You should then pick the answer choice that agrees with the statute, not the common law.

Criminal Procedure questions, which are tested as a subtopic area within Criminal Law, will often mirror past Supreme Court cases, like Constitutional Law questions. To study, you should be familiar with the most influential cases dealing with the 4th, 5th, and 6th Amendments and their holdings.

Topic Common Law Statute
Murder Malice aforethought: intent to kill; intent to commit serious bodily injury; reckless/extreme indifference to human life (depraved heart); or intent to commit a dangerous felony   First Degree Murder is often deliberate and premeditate murder or felony murder. It is a specific intent crime that cannot be tested without a statute.

Second Degree Murder is often depraved heart murder. It is a malice crime that must be tested by statute.  


The MBE tests only the Federal Rules of Evidence. Make sure you are not applying the common law or your state’s rules, which you may also studying for the essay sections of the exam. For example, remember that the Federal Rules of Evidence do not recognize doctor–patient privilege, however nearly every jurisdiction has some type of rule that covers this privilege. Additionally, remember that the FRE does contain a hearsay exception for present sense impressions, while the common law does not.

Real Property

The law of Property evolved from a complicated mix of common law, statutes, and even law from the English and French traditions. However, there are a couple distinctions between the common law and statutes that are helpful for you to know for the MBE. Keep an eye out for the topics below, and know that when you see them, you are likely being tested on a statute which you should apply verbatim.

Topic Common Law Statute
Adverse possession statutory time period None The adverse possessor must be in possession for a sufficient period of time, as defined by a statute which varies by state.  
Recording acts First in time, first in right The three major types of laws regulating the recording and priority of interests are: notice, race, and race-notice.  
Lapse and anti-lapse statutes Lapse occurs when the beneficiary or the devisee under the will predeceases the testator, invalidating the gift. The gift would instead revert to the residuary estate or be granted under the law of intestate succession.   Most common-law jurisdictions have enacted anti-lapse statutes which “save” the bequest if it has been made to parties specified in the statute, usually members of the testator’s immediate family, if they had offspring that survived the testator.  


Although, like all the other subjects, common law is the default rule, there are a few given rules you should always apply to Torts questions. For survival and wrongful death claims, you should assume that there is a statute in place. You should also assume that there is joint and several liability, with pure comparative negligence, unless you are told otherwise. Be sure to study and memorize the common law elements of the most commonly tested torts.

Topic Common Law Statute
Standard of care Apply a reasonable person standard. An existing statute may establish a duty of care, in which case the specific duty imposed by the statute will replace the general common law duty of care.
Negligence The common law elements are duty, breach, causation, and damages. Violation of the statute is negligence per se, which fulfills the duty and breach elements. A plaintiff must still prove causation and damages.  

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