2008Information

Booklet

February 27, 2008July 30, 2008

NATIONAL CONFERENCE OF BAR EXAMINERS

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2General Description of the Examination . . . . . . . . . . . . . 2Jurisdiction Information . . . . . . . . . . . . . . . . . . . . . . . . . . 2About the National Conference of Bar Examiners . . . . . 2Copyright Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Accommodations for Persons with Disabilities . . . . . . . 3

Instructions to Examinees . . . . . . . . . . . . . . . . . . . 4Test Preparation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

The MBE-Annotated Preview 2006 . . . . . . . . . . . . . . 4Other Study Aids. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Test Day. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5What to Bring and What Not to Bring. . . . . . . . . . . . . 5Prohibited Behaviors . . . . . . . . . . . . . . . . . . . . . . . . . . 5Taking the Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

MBE Content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6In General . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6Subject Matter Outlines . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Constitutional Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9Criminal Law and Procedure . . . . . . . . . . . . . . . . . . . 10Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14Torts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

MBE Scores . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Explanation of the Scoring Process . . . . . . . . . . . . . . . . 19Score Transfers, Score Releases, and Score Advisories . . . . . . . . . . . . . . . . . . . . . . . . . . . 19Concurrent Score Transfers . . . . . . . . . . . . . . . . . . . . . . 20Special Instructions for District of Columbia Motion Applicants. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20Authorization by Jurisdiction . . . . . . . . . . . . . . . . . . . . . 21MBE Score Transfer, Score Release, and Score Advisory Request Form . . . . . . . . . . . . . . . . 23

MBE Sample Questions . . . . . . . . . . . . . . . . . . . . 25Sample Question Instructions. . . . . . . . . . . . . . . . . . . . . 25Sample Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Answer Key. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

NCBE Officers for 2007–2008 . . . . . . . . . . back cover

1

©2007, National Conference of Bar Examiners. All rightsreserved. No part of this publication may be reproduced ortransmitted in any form or by any means, electronic ormechanical, including photocopy, recording, or any informa-tion storage and retrieval system, without permission in writingfrom the publisher.

Printed in U.S.A.

Note: The information in this booklet is believedto be correct at the time of publication. Since rulesand policies of jurisdictions change, examinees areadvised to consult the jurisdictions directly for themost current information.

INTRODUCTION

General Description of the ExaminationThe Multistate Bar Examination (MBE) is devel-

oped by the National Conference of Bar Examiners(NCBE). The purpose of the MBE is to assess the extentto which an examinee can apply fundamental legal prin-ciples and legal reasoning to analyze a given fact pattern. The MBE contains 200 multiple-choice ques-tions and is administered by participating jurisdictionson the last Wednesday in February and the lastWednesday in July of each year. The exam is dividedinto morning and afternoon periods of three hours each,with 100 questions in each period. The exam consists ofquestions in the following areas: Constitutional Law,Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. Subject matter outlines foreach area are provided in this booklet and online atwww.ncbex.org/multistate-tests/mbe/.

Jurisdiction InformationExaminees should contact the jurisdiction where

admission is being sought to ascertain whether the MBE is part of the jurisdiction’s battery of bar examcomponents. Each jurisdiction determines its own poli-cy with regard to the relative weight given to the MBEand other scores. To obtain information about baradmission requirements or to apply for admission to the bar, contact the appropriate jurisdiction online atwww.ncbex.org/bar-admissions/offices/.

About the National Conference of Bar Examiners

NCBE was formed in 1931 as a not-for-profit corporation. The mission of NCBE is to work with otherinstitutions to develop, maintain, and apply reasonableand uniform standards of knowledge and character foreligibility for admission to the practice of law. NCBEalso aims to assist bar admission authorities by develop-ing standardized, high-quality exams for attorney licen-sure testing, disseminating relevant information con-cerning admission standards and practice, conductingeducational programs for the members and staff of suchauthorities, and providing other services such as charac-ter investigations and psychometric/statistical research.

Contact information for NCBE is as follows:

National Conference of Bar Examiners402 West Wilson StreetMadison, WI 53703-3614

Phone: 608-280-8550Fax: 608-280-8552TDD: 608-661-1275

E-mail: contact@ncbex.org

Normal Business Hours: 8:00 a.m.–4:30 p.m. central time, Monday through Friday

Copyright NoticeThe Multistate Bar Examination (MBE) is owned

by the National Conference of Bar Examiners (NCBE)and is a secure exam protected by U.S. copyright laws.NCBE strictly prohibits copying or reproducing anyMBE questions or answers, whether orally, in writing,electronically, or otherwise, to any party or to any publicforum during or after the exam. NCBE will use everylegal means available to protect its copyrighted materi-als. Any unauthorized disclosure of the MBE’s contentscould result in civil liabilities, criminal penalties, cancel-lation of test scores, denial of bar applications on char-acter and fitness grounds, and/or disciplinary action bybar authorities.

Accommodations for Persons with Disabilities

An examinee with a documented disability maybe eligible for auxiliary aids or services in order tocomplete the MBE. The standard version of the MBEis printed in 12-point Times New Roman font. TheMBE is also available in Braille, audiocassette, andlarge-print (18- and 24-point Helvetica font) versions.All decisions and arrangements for accommodationsare made by the jurisdictions, and each jurisdictionhas its own formal application and approval process.Examinees seeking accommodations must apply separately to each jurisdiction in which they plan to sit for the MBE. Contact information for each jurisdiction’s bar admissions office can be foundonline at www.ncbex.org/bar-admissions/offices/.

2 3

INSTRUCTIONS TO EXAMINEES

Test PreparationNCBE occasionally releases MBE questions that

have been retired from use. These questions are avail-able in several publications that can be purchased direct-ly online at www.ncbex2.org/catalog/. The releasedquestions can also be purchased through a publicationsorder form at www.ncbex.org, and are availablethrough licensees who have obtained NCBE’s permis-sion to reproduce copyrighted materials. Actual MBEquestions always appear with NCBE’s copyrightacknowledgement.

The MBE-Annotated Preview 2006The MBE-Annotated Preview 2006 (MBE-AP) is a

100-question, annotated online practice exam usingquestions drawn from MBEs administered from 1999 to2006. Purchasing the MBE-AP gives an examinee asubscription for online access to the practice exam, forunlimited trials, expiring at 6:00 a.m. central time on theday of the next MBE administration. Examinees cantake the practice exam in either timed or untimed set-tings, and receive feedback on their answers, includingannotations and a customized score report designed tohelp identify strengths and weaknesses in the six MBEsubject areas. This product is only available online.

Other Study AidsRetired questions drawn from MBEs administered

prior to 1999 are available in hard copy as the Sample MBE, Sample MBE II, and Sample MBE III, the last of which is also available for download atwww.ncbex.org. These publications include answerkeys, but do not offer annotations and may contain out-dated question formats. Examinees are advised not touse these study aids as substantive preparation for theMBE. Due to changes in the law since the time thequestions appeared on an exam, the questions and theirkeys may no longer be current.

Test Day

What to Bring and What Not to BringMBE examinees should bring several No. 2 black

lead pencils or mechanical pencils with HB lead to theirassigned test center. Each jurisdiction will provide spe-cific information regarding other materials, includingappropriate identification, that examinees should bringwith them to the test center.

In all events, examinees are not permitted to bringthe following items into MBE test centers:

• personal digital assistants, handheld computers, orwireless e-mail devices

• cell phones• cameras or other picture-taking devices• books or notes• scratch paper• backpacks, purses, or briefcases• calculators• alarms• digital wristwatches• radios or tape recorders• pens or highlighters

Each jurisdiction will provide specific informationregarding other materials that are prohibited in MBE testcenters.

Prohibited BehaviorsTest security procedures are designed to ensure that

examinees have an equal opportunity to demonstratetheir academic achievement and skills, that examineeswho do their own work are not unfairly disadvantagedby examinees who do not, and that scores reported foreach examinee are valid. The following behaviors areprohibited at MBE test centers:

• attempting to remove test materials or informa-tion, including test questions or answers, from thetesting room by any means

• using any unauthorized aids• looking at another examinee’s test booklet or

answer sheet• giving or receiving assistance• filling in circles after time has been called• using any device to share or exchange information

during the test• creating a disturbance or allowing an alarm,

pager, or phone to sound in the testing room

4 5

7

Examinees may not retain any test materials. Pagesor covers of test booklets are not to be torn out or sepa-rated from the test booklets in any way. Examinees are not permitted to duplicate or record, by copying, photographing, or any other means, any part of theMBE. All test materials, including test booklets andanswer sheets, must be returned to the test supervisorafter testing.

Each jurisdiction will provide specific informationregarding other behaviors that may be prohibited. Eachjurisdiction will also provide specific instructionsregarding restroom procedures, test booklet and answersheet collection procedures, and dismissal procedures.

Taking the TestEach of the questions on the MBE is followed by

four possible answers. Examinees should choose thebest answer from the four stated alternatives. Each ques-tion on the MBE is designed to be answered accordingto the generally accepted view, unless noted otherwisein the question. Examinees should mark only oneanswer for each question; multiple answers will bescored as incorrect. Since scores are based on the num-ber of questions answered correctly, examinees areadvised to answer every question. If a question seemstoo difficult, the examinee is advised to go on to the nextone and come back to the skipped question later. Eachjurisdiction will provide specific instructions regardingthe appropriate marking of answer sheets.

MBE CONTENT

In GeneralThe MBE consists of 200 multiple-choice ques-

tions, 190 of which are scored. The 10 unscored ques-tions are being evaluated for future use; because thesequestions are indistinguishable from scored questions,examinees should answer all 200 questions. The 190 scored questions on the MBE are distributed as fol-lows: Constitutional Law (31), Contracts (33), CriminalLaw and Procedure (31), Evidence (31), Real Property(31), and Torts (33). In the subject matter outlines thatfollow, all major topics designated by Roman numeralsare tested on each exam, but not all of the subtopicsappear on each exam.

6

Subject Matter Outlines

Constitutional LawThe terms “Constitution,” “constitutional,” and

“unconstitutional” refer to the federal Constitutionunless indicated otherwise. Approximately half of theConstitutional Law questions for the MBE will be basedon category IV, and approximately half will be based onthe remaining categories, I, II, and III.

I. The nature of judicial review A. Organization and relationship of state and

federal courts in a federal systemB. Jurisdiction

1. Constitutional basis2. Congressional power to define and limit3. The Eleventh Amendment and state

sovereign immunityC. Judicial review in operation

1. The “case or controversy” requirement,including the prohibition on advisory opinions, standing, ripeness, and mootness

2. The “adequate and independent stateground”

3. Political questions and justiciability

II. The separation of powers A. The powers of Congress

1. Commerce, taxing, and spending2. War, defense, and foreign affairs3. Power to enforce the 13th, 14th, and

15th Amendments4. Other powers

B. The powers of the president1. As chief executive, including the take

care clause 2. As commander in chief3. Treaty and foreign affairs powers4. Appointment and removal of officials

C. Federal interbranch relationships1. Congressional limits on the executive2. The presentment requirement and the

president’s power to veto or to withholdaction

3. Non-delegation doctrine4. Executive, legislative, and judicial

immunities

III. The relation of nation and states in a federal system A. Intergovernmental immunities

1. Federal immunity from state law

ContractsApplicants should assume that Article 1 of the

Uniform Commercial Code as amended in 2001 andArticle 2 as amended in 1999 are in effect. Applicantsshould assume that the 2003 proposed amendments toArticle 2 have not been adopted. Approximately 60 per-cent of the Contracts questions for each MBE will bebased on categories I, VII, and VIII, and approximately40 percent will be based on the remaining categories, II,III, IV, V, VI, IX, and X. Approximately 25 percent ofthe Contracts questions for each MBE will be based onprovisions of the Uniform Commercial Code, Articles 1and 2.

I. Formation of contracts A. Mutual assent

1. Offer and acceptance 2. Mistake, misunderstanding, misrepresen-

tation, nondisclosure, confidential relation-ship, fraud, undue influence, and duress

3. Problems of communication and “battleof the forms”

4. Indefiniteness or absence of terms B. Capacity to contractC. Illegality, unconscionability, and public policyD. Implied-in-fact contract and quasi-contractE. “Pre-contract” obligations based on detrimen-

tal relianceF. Express and implied warranties in sale-of-

goods contracts

II. Consideration A. Bargain and exchangeB. “Adequacy” of consideration: mutuality of

obligation, implied promises, and dispropor-tionate exchanges

C. Modern substitutes for bargain: “moral obligation,” detrimental reliance, and statutory substitutes

D. Modification of contracts: preexisting duties E. Compromise and settlement of claims

III. Third-party beneficiary contracts A. Intended beneficiariesB. Incidental beneficiariesC. Impairment or extinguishment of third-party

rights by contract modification or mutualrescission

D. Enforcement by the promisee

IV. Assignment of rights and delegation of duties

V. Statutes of frauds

8 9

2. State immunity from federal law, including the 10th Amendment

B. Federalism-based limits on state authority1. Negative implications of the commerce

clause2. Supremacy clause and preemption3. Full faith and credit4. Authorization of otherwise invalid state

action

IV. Individual rights A. State actionB. Due process

1. Substantive due process a. Fundamental rightsb. Other rights and interests

2. Procedural due process, including personal jurisdiction

C. Equal protection1. Fundamental rights2. Classifications subject to heightened

scrutiny3. Rational basis review

D. TakingsE. Other protections, including the privileges

and immunities clauses, the contracts clause,unconstitutional conditions, bills of attainder,and ex post facto laws

F. First Amendment freedoms 1. Freedom of religion and separation of

church and statea. Free exerciseb. Establishment

2. Freedom of expressiona. Content-based regulation of content of

protected expressionb. Content-neutral regulation of

protected expressionc. Regulation of unprotected expressiond. Regulation of commercial speeche. Regulation of, or impositions upon,

public school students, public employment, licenses, or benefitsbased upon exercise of expressiveor associational rights

f. Regulation of expressive conductg. Prior restraint, vagueness, and over-

breadth3. Freedom of the press4. Freedom of association

1110

B. Unintended killings1. Intent to injure2. Reckless and negligent killings3. Felony-murder4. Misdemeanor-manslaughter

II. Other crimes A. Theft

1. Larceny2. Embezzlement3. False pretenses

B. Receiving stolen goodsC. RobberyD. BurglaryE. Assault and batteryF. Rape; statutory rapeG. KidnappingH. ArsonI. Possession offenses

III. Inchoate crimes; parties A. Inchoate offenses

1. Attempts2. Conspiracy3. Solicitation

B. Parties to crime

IV. General principles A. Acts and omissionsB. State of mind

1. Required mental state 2. Strict liability3. Mistake of fact or law

C. Responsibility1. Mental disorder2. Intoxication

D. CausationE. Justification and excuseF. Jurisdiction

V. Constitutional protection of accused persons A. Arrest, search and seizure B. Confessions and privilege against self-

incriminationC. Lineups and other forms of identificationD. Right to counselE. Fair trial and guilty pleasF. Double jeopardyG. Cruel and unusual punishmentH. Burdens of proof and persuasion

VI. Parol evidence and interpretation

VII. Conditions A. Express B. Constructive

1. Conditions of exchange: excuse or suspension by material breach

2. Immaterial breach and substantial performance

3. Independent covenants 4. Constructive conditions of non-

prevention, non-hindrance, and affirmative cooperation

C. Obligations of good faith and fair dealing inperformance and enforcement of contracts

D. Suspension or excuse of conditions by waiver, election, or estoppel

E. Prospective inability to perform: effect onother party

VIII. Remedies A. Total and partial breach of contract B. Anticipatory repudiation C. Election of substantive rights and remediesD. Specific performance; injunction against

breach; declaratory judgment E. Rescission and reformationF. Measure of damages in major types of con-

tract and breach G. Consequential damages: causation, certainty,

and foreseeability H. Liquidated damages and penalties I. Restitutionary and reliance recoveries J. Remedial rights of defaulting partiesK. Avoidable consequences and mitigation of

damages

IX. Impossibility of performance and frustration of purpose

X. Discharge of contractual duties

Criminal Law and ProcedureApproximately 40 percent of the Criminal Law

questions for each MBE will be based on category V,and approximately 60 percent will be based on theremaining categories, I through IV.

I. Homicide A. Intended killings

1. Premeditation–deliberation2. Provocation

1312

D. Expert testimony1. Qualifications of witnesses2. Bases of testimony3. Ultimate issue rule4. Reliability and relevancy5. Proper subject matter

E. Real, demonstrative, and experimental evidence

III. Privileges and other policy exclusions A. Spousal immunity and marital

communicationsB. Attorney-client and work productC. Physician/psychotherapist-patientD. Self-incriminationE. Other privilegesF. Insurance coverageG. Remedial measuresH. Compromise, payment of medical expenses,

and plea negotiationsI. Past sexual conduct of a victim

IV. Writings, recordings, and photographs A. Requirement of originalB. SummariesC. Completeness rule

V. Hearsay and circumstances of its admissibility A. Definition of hearsay

1. What is hearsay2. Prior statements by witness3. Statements attributable to party-opponent4. Multiple hearsay

B. Present sense impressions and excited utterances

C. Statements of mental, emotional, or physicalcondition

D. Statements for purposes of medical diagnosisand treatment

E. Past recollection recordedF. Business recordsG. Public records and reportsH. Learned treatisesI. Former testimony; depositionsJ. Statements against interestK. Other exceptions to the hearsay ruleL. Right to confront witnesses

EvidenceApproximately one-third of the Evidence questions

for each MBE will be based on category I, one-third oncategory V, and one-third on the remaining categories,II, III, and IV.

I. Presentation of evidence A. Introduction of evidence

1. Requirement of personal knowledge2. Refreshing recollection3. Objections and offers of proof4. Lay opinions 5. Competency of witnesses6. Judicial notice7. Roles of judge and jury8. Limited admissibility9. Contradiction

B. PresumptionsC. Mode and order

1. Control by court2. Scope of examination3. Form of questions4. Exclusion of witnesses

D. Impeachment, contradiction, and rehabilitation1. Inconsistent statements and conduct2. Bias and interest3. Conviction of crime4. Specific instances of conduct5. Character for truthfulness6. Ability to observe, remember, or relate

accurately7. Impeachment of hearsay declarants8. Rehabilitation of impeached witnesses

E. Proceedings to which evidence rules apply

II. Relevancy and reasons for excluding relevant evidence A. Probative value

1. Relevancy2. Exclusion for unfair prejudice, confusion,

or waste of timeB. Authentication and identificationC. Character and related concepts

1. Admissibility of character2. Methods of proving character3. Habit and routine practice4. Other crimes, acts, transactions, and

events5. Prior sexual misconduct of a defendant

1514

II. Rights in land A. Covenants at law and in equity

1. Nature and type2. Creation3. Scope4. Termination

B. Easements, profits, and licenses1. Nature and type2. Methods of creation

a. Expressb. Implied

i. Quasi-useii. Necessityiii. Plat

c. Prescription3. Scope4. Termination

C. Fixtures (including relevant application ofArticle 9, UCC)

D. Zoning (fundamentals other than regulatorytaking)

III. Real property contract—executory A. Real estate brokerageB. Creation and construction

1. Statute of frauds and exceptions2. Essential terms3. Time for performance4. Remedies for breach

C. Marketability of titleD. Equitable conversion (including risk of loss)E. Options and rights of first refusalF. Fitness and suitabilityG. Merger

IV. Real property mortgages/security devices A. Types of security devices

1. Mortgages (including deeds of trust)a. In generalb. Purchase money mortgagesc. Future advance mortgages

2. Land contracts3. Absolute deeds as security

B. Some security relationships1. Necessity and nature of obligation2. Theories: title, lien, and intermediate3. Rights and duties prior to foreclosure4. Right to redeem and clogging equity of

redemption

Real PropertyApproximately 20 percent of the Real Property

questions on the MBE will be based on each of the cate-gories I–V.

I. Ownership A. Present estates

1. Fees simple2. Defeasible estates3. Life estates

B. Future interests1. Reversions2. Remainders, vested and contingent3. Executory interests4. Possibilities of reverter, powers of

termination5. Rules affecting these interests

C. Cotenancy1. Types

a. Tenancy in commonb. Joint tenancy

2. Severance3. Partition4. Relations among cotenants5. Alienability, descendability, devisability

D. The law of landlord and tenant1. Types of holdings: creation and

terminationa. Terms for yearsb. Tenancies at willc. Holdovers and other tenancies at

sufferanced. Periodic tenancies

2. Possession and rent3. Assignment and subletting4. Termination (breach, surrender, mitiga-

tion of damages, and anticipatory breach)5. Habitability and suitability

E. Rules1. Rule Against Perpetuities: common law

and as modified2. Alienability, descendability,

and devisability3. Fair housing/discrimination

1716

TortsThe Torts questions should be answered according

to principles of general applicability. You are to assumethat there is no applicable statute unless otherwise speci-fied; however, survival actions and claims for wrongfuldeath should be assumed to be available where applica-ble. You should assume that joint and several liability,with comparative negligence, is the relevant rule unlessotherwise indicated. Approximately half of the Tortsquestions for each MBE will be based on category II,and approximately half will be based on the remainingcategories, I, III, IV, and V.

I. Intentional torts A. Harms to the person: assault, battery, false

imprisonment, infliction of mental distressB. Harms to property interests: trespass to land

and chattels, conversionC. Defenses to claims for physical harms

1. Consent2. Privileges and immunities: protection

of self and others; protection of propertyinterests; parental discipline; protection of public interests; necessity; incompleteprivilege

II. Negligence A. The duty question: including failure to act;

unforeseeable plaintiffs; and obligations tocontrol the conduct of third parties

B. The standard of care1. The reasonably prudent person: including

children, physically and mentallyimpaired individuals, professional people,and other special classes

2. Rules of conduct derived from statutesand custom

C. Problems relating to proof of fault, includingres ipsa loquitur

D. Problems relating to causation1. But for and substantial causes2. Harms traceable to multiple causes3. Questions of apportionment of responsi-

bility among multiple tortfeasors, includ-ing joint and several liability

E. Limitations on liability and special rules ofliability1. Problems relating to “remote” or “unfore-

seeable” causes, “legal” or “proximate”cause, and “superseding” causes

C. Transfers by mortgagor1. Distinguishing “subject to” and

“assuming”2. Rights and obligations of transferor3. Application of subrogation and suretyship

principles4. Due-on-sale clauses

D. Transfers by mortgageeE. Payment, discharges, and defensesF. Foreclosure

1. Types2. Rights of omitted parties3. Deficiency and surplus4. Redemption after foreclosure5. Deed in lieu of foreclosure

V. Titles A. Adverse possessionB. Transfer by deed

1. Warranty and non-warranty deeds(including covenants for title)

2. Necessity for a grantee and other deedrequirements

3. Delivery (including escrows)C. Transfer by operation of law and by will

1. In general2. Ademption3. Exoneration4. Lapse5. Abatement

D. Title assurance systems1. Recording acts (race, notice, and

race-notice)a. Indexesb. Chain of titlec. Protected partiesd. Prioritiese. Notice

2. Title insuranceE. Special problems

1. After-acquired title (including estoppel bydeed)

2. Forged instruments and undelivered deeds3. Purchase-money mortgages4. Judgment and tax liens

1918

MBE SCORES

Explanation of the Scoring ProcessMBE answer sheets are centrally scored. Both raw

scores and scaled scores are computed for each exami-nee. A raw score is the number of questions answeredcorrectly. Raw scores from different administrations ofthe MBE are not comparable, primarily due to differ-ences in the difficulty of the questions from one admin-istration to the next. The statistical process of equatingadjusts for variations in the difficulty of the questions,producing scaled scores that represent the same level ofperformance across all MBE administrations. Forinstance, if the questions appearing on the July MBEwere more difficult than those appearing on theFebruary MBE, then the scaled scores for the July MBEwould be adjusted upward to account for this difference.These adjustments ensure that no examinee is unfairlypenalized or rewarded for taking a more or less difficultexam.

Score Transfers, Score Releases, and Score Advisories

NCBE offers the following score reporting services:score transfers from one jurisdiction to another, scorereleases to examinees, and score advisories to exami-nees. Each jurisdiction decides which of these services,if any, NCBE is authorized to perform for that jurisdic-tion’s examinees. NCBE never transfers or releasesscores until after the jurisdiction in question has autho-rized NCBE to do so and has mailed its score reports.

NCBE performs score reporting services only forscores that are less than seven years old. An examineemust include his or her name and Social Security number on the MBE answer sheet at the time of testingin order to have score information transferred orreleased. All requests for MBE score reporting servicesmust include the following identifying information: theexact name under which the examinee tested, the juris-diction in which the testing occurred, the month andyear that the MBE was (or will be) administered, theexaminee’s Social Security number and date of birth,and the examinee applicant number or seat numberassigned to the examinee at the test center (if known). Ascore reporting services request form is provided in thisbooklet and online at www.ncbex.org/multistate-tests/mbe/services/transfers/. A $25 fee is required for eachscore transfer, score release, or score advisory.

2. Claims against owners and occupiers ofland

3. Claims for mental distress not arisingfrom physical harm; other intangibleinjuries

4. Claims for pure economic lossF. Liability for acts of others

1. Employees and other agents2. Independent contractors and nondelegable

dutiesG. Defenses

1. Contributory fault, including common lawcontributory negligence and last clearchance, and the various forms of compar-ative negligence

2. Assumption of risk

III. Strict liability: claims arising from abnormallydangerous activities; the rule of Rylands v.Fletcher and other common law strict liabilityclaims; and defenses

IV. Products liability: claims against manufacturersand others based on defects in manufacture,design, and warning; and defenses

V. Other torts A. Claims based on nuisance, and defensesB. Claims based on defamation and invasion

of privacy, defenses, and constitutional limitations

C. Claims based on misrepresentations, anddefenses

D. Claims based on intentional interference withbusiness relations, and defenses

2120

Authorization by JurisdictionJurisdictions that have authorized NCBE to performscore reporting services are listed below. Since rules andpolicies of jurisdictions are subject to change, examineesare advised to consult the jurisdictions directly for themost current information.

Concurrent Score TransfersWith proper scheduling and approval by the bar

examination boards involved, an examinee may be per-mitted to take the bar examination in two states over aperiod of three days. The examinee takes the first juris-diction’s local exam on Tuesday (in the first jurisdic-tion), the MBE on Wednesday (in either jurisdiction),and the second jurisdiction’s local exam on Thursday(in the second jurisdiction). Arrangements to use theMBE score in conjunction with two concurrent barexaminations must be made through the jurisdictionsthat allow concurrent use of scores. It is the examinee’sresponsibility to verify that his or her MBE score will beavailable by the receiving jurisdiction’s deadline.

Special Instructions for District ofColumbia Motion Applicants

To transfer an MBE score to the District ofColumbia (DC), an examinee must obtain an applicationpacket from the DC Committee on Admissions, whichcan be reached at 202-879-2710. The application packetmust be completed and returned to DC. DC thenarranges the score transfer with NCBE on behalf of the examinee. The examinee is advised to request ascore release or score advisory directly from NCBE at www.ncbex.org/multistate-tests/mbe/services/transfers/ prior to applying for a score transfer with theDC Committee on Admissions.

Alabama

Arizona

California

Colorado

Connecticut

Delaware

District ofColumbia

Florida

Hawaii

Illinois

Indiana

Kansas

Kentucky

Maryland

Minnesota

Missouri

Montana

New Hampshire*

New Jersey

New York

North Dakota

South Dakota

Utah

Wisconsin

Wyoming

Guam

Virgin Islands

Jurisdictions that have authorized NCBEto perform MBE score transfers on their behalf

Alabama

Arizona*

Arkansas

Connecticut

District ofColumbia

Idaho

Illinois

Indiana*

Iowa

Kansas

Kentucky

Maine

Maryland*

Massachusetts*

Michigan

Minnesota

Mississippi

Missouri

Montana

New Hampshire*

New Jersey*

New Mexico*

New York*

North Dakota

Oklahoma*

Rhode Island*

South Carolina*

South Dakota

Tennessee*

Utah*

Vermont

West Virginia

Wisconsin

Wyoming

Northern MarianaIslands

Republic ofPalau

Virgin Islands

Jurisdictions that accept transferred MBE scores

*concurrent only

(continued)

22 23

MBE SCORE TRANSFER, SCORERELEASE, AND SCORE ADVISORY

REQUEST FORM

Read the information on the preceding pages carefullybefore completing this form. Remit $25 for each trans-action. Requests must be made online or in writing.

NCBE will perform only those services authorized bythe jurisdictions identified in the charts found onpages 21–22. Requests for unauthorized services willbe returned to the applicant. Scores are neverreleased to applicants until after the testing juris-diction has mailed its examination results and fur-nished authorization to NCBE.

FOR ALL REQUESTS

Provide your signature

Please print or type the following:

Your nameLast First MI

Your current address

Street/Box number Apt.

City State ZIP

Daytime telephone number /

Jurisdiction in which you took the MBE

Administered Feb./Julycircle one year

Your name when tested, if different from your nameabove

SSN (mandatory)

Date of birthMM/DD/YY

Applicant or seat number (if known)

Score reporting services are performed only forscores that are less than seven years old.

Alabama

Arizona

Colorado

Connecticut

Delaware

District ofColumbia

Florida

Indiana*

Kansas

Maryland

Minnesota*

Missouri

Montana

New Jersey

New York

Utah

Wisconsin

Wyoming

Virgin Islands

Jurisdictions that have authorized NCBE to release MBE scaled scores to examinees

California

Hawaii

Illinois

Kentucky

South Dakota

Guam

Jurisdictions that have authorized NCBE to provide score advisories to examinees

(for admission to the District of Columbia and Minnesota)

*Indiana and Minnesota do not advise examinees of theirscores after test administration. All of the other jurisdictionson this list issue score reports directly to examinees follow-ing test administration; NCBE will release replacementcopies to individuals upon request.

2524

MBE SAMPLE QUESTIONS

Sample Question InstructionsWhile the sample questions in this booklet illustrate

the kinds of questions that will appear on the MBE, theydo not represent all of the types of questions or materialcovered. Each question below is followed by four sug-gested answers. The correct answer is the best of thestated alternatives. Examinees are advised to review theinformation on MBE content provided in this booklet,including the subject area outlines, before attempting toanswer the sample questions. To model the pacingrequired to complete a full MBE, these questions shouldbe answered in approximately 32 minutes. An answerkey follows.

Sample Questions1. A man went into his neighbor’s garage without

permission and borrowed a chain saw to clear bro-ken branches on the man’s property. After he fin-ished, the man noticed several broken branches onhis neighbor’s trees that were in danger of fallingon his neighbor’s roof. While the man was cuttinghis neighbor’s branches, the saw broke.

The neighbor sued the man for conversion.

Will the neighbor recover?

(A) Yes, for the actual damage to the saw.(B) Yes, for the value of the saw before the man

borrowed it.(C) No, because when the saw broke the man was

using it to benefit his neighbor.(D) No, because the man did not intend to keep

the saw.

Indicate transaction(s) requested by checking theappropriate box:

■■ Score Transfer

Transfer my score to ____________________@ $25 each. Name of jurisdiction

District of Columbia motion applicants: see Special Instructions on page 20.

■■ Scaled Score Release to Applicants

Release my score to me @ $25.

■■ Score Advisory

Tell me if my score is sufficient for admissionwithout examination in:

____ District of Columbia @ $25

____ Minnesota

One $25 fee covers both jurisdictions.

Total amount due $ ___________________________

Method of payment (If electing to pay by credit card,a valid credit card number and customer signature arerequired.)

____ Check or Money Order (payable to NCBE)

____ Charge the total amount due to my

Credit Card #

Expiration Date (mm/yy)

Signature (required)

Payment is nonrefundable.

To submit request form and fees by mail or fax:

Mail: MBE Score TransferNational Conference of Bar Examiners402 West Wilson StreetMadison, WI 53703-3614

Fax: 608-280-8552(Credit card customers ONLY)

MasterCard™VISA MasterCard

2726

Will the uncle prevail in this action?

(A) No, because the neighbor did not assume andagree to pay the mortgage debt.

(B) No, because the neighbor is not in privity ofestate with the uncle.

(C) Yes, because the deed to the neighbor violat-ed the mortgage’s due-on-sale clause.

(D) Yes, because the neighbor is in privity ofestate with the uncle.

4. A municipal water-supply district was incorporat-ed under the applicable state laws to supply waterto a new community in a recently developed areaof the state. The new community was racially, eth-nically, and socioeconomically diverse, with nohistory of discrimination against members ofminority groups.

Two members of the five-member, elected govern-ing board of the water district were of racial minor-ity groups. At its first meeting, the board adopted arule unqualifiedly setting aside 25 percent of allpositions on the water district’s staff and 25 per-cent of all contracts to be awarded by the district tomembers of racial minority groups. The purpose ofthe rule was “to help redress historical discrimina-tion against these groups in this country and tohelp them achieve economic parity with othergroups in our society.” No federal statute applies.

Are these set-asides constitutional?

(A) No, because they would deny other potentialemployees or contractors the equal protectionof the laws.

(B) No, because they would impermissiblyimpair the right to contract of other potentialemployees or contractors.

(C) Yes, because they would assure members ofracial minority groups the equal protection ofthe laws.

(D) Yes, because the function and activities of thewater district are of a proprietary nature ratherthan a governmental nature and, therefore, arenot subject to the usual requirements of theFourteenth Amendment.

2. A defendant was on trial for nighttime breakingand entering of a warehouse. The warehouseowner had set up a camera to take infrared picturesof any intruders. After an expert established thereliability of infrared photography, the prosecutoroffered the authenticated infrared picture of theintruder to show similarities to the defendant.

Is the infrared picture admissible?

(A) Yes, provided an expert witness points out tothe jury the similarities between the person inthe picture and the defendant.

(B) Yes, allowing the jury to compare the personin the picture to the defendant.

(C) No, because there was no eyewitness avail-able to authenticate the picture.

(D) No, because infrared photography deprives adefendant of the right to confront witnesses.

3. A man bought a tract of land, financing a large partof the purchase price by a loan from his uncle thatwas secured by a mortgage. The mortgage con-tained a due-on-sale clause stating, “If Mortgagortransfers his/her interest without the written con-sent of Mortgagee first obtained, then atMortgagee’s option the entire principal balance ofthe debt secured by this Mortgage shall becomeimmediately due and payable.” The man made therequired payments on the mortgage regularly forseveral years. Subsequently, without seeking hisuncle’s consent, the man persuaded a neighbor tobuy the land, subject to the mortgage. Theyexpressly agreed that the neighbor would notassume and agree to pay the debt to the uncle. Thedeed from the man to his neighbor stated that theconveyance was “subject to” the uncle’s mortgage.

The neighbor took possession of the land andmade several mortgage payments that the uncleaccepted. When the neighbor subsequently stoppedmaking the payments for three consecutivemonths, the uncle sued her for the amount of thedelinquent payments.

5. A landowner was severely pressed for cash, so headvertised a proposed sale of standing timber on a2,000-acre tract of his land. The only response wasan offer by a contractor who owned a large, inte-grated construction enterprise.

The contractor offered to buy, sever, and removethe standing timber from the advertised tract at acash price 70 percent lower than the regionally pre-vailing price for comparable timber rights. Thelandowner, in desperate financial straits and know-ing little about timber values, signed and deliveredto the contractor a letter accepting the offer.

Before the contractor began performance, thelandowner’s investments suddenly improved andhe wished to get out of the timber deal.

Which of the following legal concepts affords the landowner his best prospect of effective cancellation?

(A) Bad faith.(B) Duress.(C) Equitable estoppel.(D) Unconscionability.

6. While on a bus, a man who was intoxicated saw abriefcase he mistakenly thought was his own, andbegan struggling with the passenger carrying thebriefcase. The man knocked the passenger to thefloor, took the briefcase, and fled. He was arrestedand charged with robbery.

Should the man be convicted?

(A) No, because he used no threats.(B) No, because his mistake negated the required

specific intent.(C) Yes, because his intoxication was voluntary.(D) Yes, because mistake is no defense to

robbery.

28 29

7. Two students in an advanced high-school Russianclass got into an argument one day in the highschool cafeteria. In the presence of other students,the first student, in Russian, accused the secondstudent of taking money from the first student’slocker.

The second student sued the first student based ondefamation.

Will the second student prevail?

(A) Yes, because the first student’s accusationconstituted slander per se.

(B) Yes, because the defamatory statement wasmade in the presence of third persons.

(C) No, unless the first student made the accusa-tion with knowledge of falsity or reckless dis-regard of the truth.

(D) No, unless one or more of the other studentsunderstood Russian.

8. A pedestrian died from injuries caused when a driv-er’s car struck him. The pedestrian’s executor suedthe driver for wrongful death. At trial, the executorcalled a nurse to testify that two days after the acci-dent, the pedestrian said to the nurse, “The car thathit me ran the red light.” Fifteen minutes later, thepedestrian died.

As a foundation for introducing evidence of thepedestrian’s statement, the executor offered to thecourt a doctor’s affidavit that the doctor was theintern on duty the day of the pedestrian’s death andthat several times that day the pedestrian said thathe knew he was about to die.

Should the affidavit be properly considered by thecourt in ruling on the admissibility of the pedestri-an’s statement?

(A) No, because it is hearsay not within anyexception.

(B) No, because it is irrelevant since dying decla-rations cannot be used except in prosecutionsfor homicide.

(C) Yes, because, though hearsay, it is a state-ment of then-existing mental condition.

(D) Yes, because the judge may consider hearsayin ruling on preliminary questions.

3130

10. A woman asked a man who was reputed to haveaccess to illegal drugs to supply her with cocaine soshe could resell it. The man agreed and sold her abag of white powder. The woman then repackagedthe white powder into smaller containers and soldone to an undercover police officer, who promptlyarrested her. The woman immediately confessedand revealed the identity of her supplier. Uponexamination, the white powder was found not to becocaine or any other type of illegal substance.

If the man knew the white powder was not cocainebut the woman believed it was, which of the fol-lowing statements is correct?

(A) Both the man and the woman are guilty ofattempting to sell cocaine.

(B) Neither the man nor the woman is guilty ofattempting to sell cocaine.

(C) The man is guilty of attempting to sellcocaine, but the woman is not.

(D) The man is not guilty of attempting to sellcocaine, but the woman is.

11. A boat retailer entered into a written contract witha buyer, signed by both parties, to sell the buyer apower boat for $12,000. The manufacturer’s priceof the boat delivered to the retailer was $9,500. Asthe contract provided, the buyer paid the retailer$4,000 in advance and promised to pay the fullbalance upon delivery of the boat. The contractcontained no provision for liquidated damages.Prior to the agreed delivery date, the buyer notified the retailer that he would be financiallyunable to conclude the purchase. The retailer there-upon resold the same boat to a third person for $12,000 cash.

If the buyer sues the retailer for restitution of theadvance payment, what amount, if any, is thebuyer likely to recover?

(A) Nothing, because the buyer lost any right torestitution when he defaulted.

(B) Nothing, because, but for the buyer’s repudia-tion, the retailer would have made a profit ontwo boat sales instead of one.

(C) $4,000 minus the amount of the retailer’s lostprofit under its contract with the buyer.

(D) $1,600 ($4,000 minus 20 percent of the pur-chase price as statutory damages under theUCC).

9. A city enacted an ordinance banning from its pub-lic sidewalks all machines dispensing publicationsconsisting wholly of commercial advertisements.The ordinance was enacted because of a concernabout the adverse aesthetic effects of litter frompublications distributed on the public sidewalksand streets. However, the city continued to allowmachines dispensing other types of publications onthe public sidewalks. As a result of the city’s ordi-nance, 30 of the 300 sidewalk machines that weredispensing publications in the city were removed.

Is the city’s ordinance constitutional?

(A) Yes, because regulations of commercialspeech are subject only to the requirementthat they be rationally related to a legitimatestate goal, and that requirement is satisfiedhere.

(B) Yes, because the city has a compelling inter-est in protecting the aesthetics of its sidewalksand streets, and such a ban is necessary tovindicate this interest.

(C) No, because it does not constitute the leastrestrictive means with which to protect theaesthetics of the city’s sidewalks and streets.

(D) No, because there is not a reasonable fitbetween the legitimate interest of the city inpreserving the aesthetics of its sidewalks andstreets and the means it chose to advance thatinterest.

3332

13. A federal statute prohibited the sale or resale, inany place in the country, of any product intendedfor human consumption or ingestion into thehuman body that contained designated chemicalsknown to cause cancer, unless the product wasclearly labeled as dangerous.

The constitutionality of this federal statute maymost easily be justified on the basis of the power ofCongress to do which of the following?

(A) Enforce the Fourteenth Amendment.(B) Promote science and the useful arts.(C) Provide for the general welfare.(D) Regulate commerce among the states.

14. A man was tried for the homicide of a girl whosestrangled body was found beside a remote roadwith her hands taped together. After the manoffered evidence of an alibi, the state called awoman to testify that the same man had taped herhands together and tried unsuccessfully to strangleher in the same location two days before the homicide.

Is the evidence admissible?

(A) Yes, as tending to show the man is the killer.(B) Yes, as tending to show the man’s violent

nature.(C) No, because it is improper character evidence.(D) No, because it is unfairly prejudicial.

12. A woman’s neighbor executed and delivered adeed granting to the woman an easement over a15-foot strip of the neighbor’s land. The easementgave the woman convenient access to a publicstreet, even though she had access to another pub-lic street over her own land. The woman did notthen record the neighbor’s deed. After the womanconstructed and started using a driveway within thedescribed 15-foot strip in a clearly visible manner,the neighbor borrowed $10,000 from a bank andgave the bank a mortgage on his land. The mort-gage was promptly and properly recorded. Thewoman then recorded the neighbor’s deed grantingthe easement. The neighbor subsequently defaultedon his loan payments to the bank.

The recording act of the jurisdiction provides: “Noconveyance or mortgage of real property shall begood against subsequent purchasers for value andwithout notice unless the same be recorded accord-ing to law.”

In an appropriate foreclosure action as to theneighbor’s land, brought against the woman and the neighbor, the bank seeks, among otherthings, to have the woman’s easement declaredsubordinate to the bank’s mortgage, so that theeasement will be terminated by completion of theforeclosure.

If the woman prevails in maintaining the easement,what is the most likely explanation?

(A) The recording of the deed granting the ease-ment prior to the foreclosure action protectsthe woman’s rights.

(B) The easement provides access from thewoman’s property to a public street.

(C) The easement is appurtenant to the woman’sland and thus cannot be separated from her land.

(D) The woman’s visible use of the easement putthe bank on notice of the easement.

3534

17. A fruit company ordered 500 bushels of peachesfrom an orchard at a specified price, “for promptshipment.” The orchard promptly shipped 500 bushels, but accidentally shipped the wrong variety of peaches. The error in shipment was caused by the negligence of the orchard’sshipping clerk.

Which of the following best states the fruit company’s rights and duties upon delivery of the peaches?

(A) The orchard’s shipment of the peaches was acounteroffer and the fruit company can refuseto accept them.

(B) The orchard’s shipment of the peaches was acounteroffer but, since peaches are perish-able, the fruit company, if it does not want toaccept them, must reship the peaches to theorchard in order to mitigate the orchard’slosses.

(C) The fruit company must accept the peachesbecause a contract was formed when theorchard shipped them.

(D) Although a contract was formed when theorchard shipped the peaches, the fruit compa-ny does not have to accept them.

18. A two-year-old child became ill with meningitis.Her parents were members of a group that believedfervently that prayer alone would heal their child.Accordingly, they did not seek medical aid fortheir child and refused all offers of such aid. Theyprayed continuously, but the child died within a week.

The child’s parents were charged with murder in acommon-law jurisdiction.

What is their best defense to the charge?

(A) They did not intend to kill or to harm theirchild.

(B) They were pursuing a constitutionally pro-tected religious belief.

(C) The child’s death was not proximately causedby their conduct.

(D) They neither premeditated nor deliberated.

15. As a result of an accident at a nuclear power plant,radioactive vapor escaped from the facility and twomembers of the public were exposed to excessivedoses of radiation. According to qualified medicalopinion, this exposure would double the victims’chance of ultimately developing cancer. However,any cancer that might be caused by the exposurewould not be detectable for at least ten years. If thevictims did develop cancer, it would not be possi-ble to determine whether it was caused by thisexposure or would have developed in any event.

If the victims assert a claim for damages againstthe nuclear power plant shortly after the escape ofthe radiation, which of the following questions willNOT present a substantial issue?

(A) Will the court recognize that the plaintiffshave suffered a present legal injury?

(B) Can the plaintiffs prove the amount of theirdamages?

(C) Can the plaintiffs prove that any harm theymay suffer was caused by this exposure?

(D) Can the plaintiffs prevail without presentingevidence of specific negligence on the part ofthe nuclear power plant?

16. Five years ago, a residential parcel of land wasconveyed by warranty deed to a man and a woman“as joint tenants with right of survivorship.” Thelanguage of the deed was sufficient to create acommon-law joint tenancy with right of survivor-ship, which is unmodified by statute. The deed waspromptly and properly recorded.

Three years ago, the man and the woman marriedeach other. Last year, they divorced. The finaldivorce decree did not contain a specific provisionconcerning the legal title to the land. Subsequently,the man died intestate, leaving his nephew as hissole heir.

Who owns the land?

(A) The woman alone, because of the divorce.(B) The woman alone, because she survived the

man.(C) The woman and the nephew, because of the

doctrine of estoppel by deed.(D) The woman and the nephew, because unmar-

ried individuals cannot hold title as joint ten-ants with right of survivorship.

36

ANSWER KEY

1. B 7. D 13. D

2. B 8. D 14. A

3. A 9. D 15. D

4. A 10. D 16. B

5. D 11. C 17. D

6. B 12. D 18. A

National Conference of Bar Examiners

Officers for 2007–2008

ChairDonald H. Funk, IL

PresidentErica Moeser, WI

Immediate Past ChairDiane F. Bosse, NY

Chair-ElectFrederick Y. Yu, CO

SecretaryHon. Sam Hanson, MN

Board of Trustees

Mark S. Carlin, DC

Margaret Fuller Corneille, MN

Franklin R. Harrison, FL

Philip M. Madden, CA

Marcia J. Mengel, OH

Jorge C. Rangel, TX

Rebecca S. Thiem, ND

Bryan R. Williams, NY

National Conference of Bar Examiners402 West Wilson Street

Madison, WI 53703-3614608-280-8550

Fax: 608-280-8552TDD: 608-661-1275

www.ncbex.org

10254IC 045067080