Bar Exam — MBE Practice Questions, Part 1 flashcards
6 of 75 questions free to study here · 14 topics · the whole deck is built into Willys
Multiple-choice practice questions, one best answer each, on federal jurisdiction, Erie, pleadings, joinder, preclusion, constitutional powers and rights, and contract formation, breach and damages.
Practice deck · part of Bar exam (MBE subjects) · written against: NCBE MBE subject matter outline, edition dated 11/16/20; Supreme Court decisions through the October 2024 Term. Updated 2026-10-10.
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A software company sues a former licensee in federal court for breach of a state-law license. The complaint adds that the licensee will argue federal copyright law preempts the license. Both are citizens of the same state. The licensee moves to dismiss for lack of subject-matter jurisdiction. How should the court rule?
A) Deny it, because the court will have to construe federal law.
B) Grant it, because the federal issue arises only as a defense.
C) Deny it, because supplemental jurisdiction covers the claim.
D) Deny it, because the complaint expressly mentions a federal statute.B) Grant it, because the federal issue arises only as a defense.Jurisdiction
Under the well-pleaded complaint rule, federal-question jurisdiction depends on the plaintiff's own claim, and an anticipated federal defense does not count even if the complaint mentions it. With no diversity either, there is no original jurisdiction for supplemental jurisdiction to attach to. -
A homeowner sued a roofer for breach of contract over a leaking roof and won. She now sues the roofer for negligence, alleging that the same faulty roof work caused water damage to her furniture, which she knew about during the first suit. Is the second suit barred?
A) Yes, because it arises from the same transaction as the first suit.
B) No, because the first suit ended in a judgment in her favor.
C) No, because it rests on a different legal theory than the first suit.
D) Yes, because issue preclusion bars relitigating the roofer's negligence.A) Yes, because it arises from the same transaction as the first suit.Judgments
Claim preclusion bars every claim arising from the same transaction that was or could have been raised in a suit that ended in a valid final judgment on the merits, whichever side won. Issue preclusion does not apply because negligence was never actually litigated and decided. -
Congress makes it a federal crime to vandalize any park owned by a state or city, with no requirement that the act involve interstate commerce. Supporters argue that vandalism, in the aggregate, reduces interstate tourism. Is the statute a valid exercise of the commerce power?
A) No, because Congress may regulate only goods that cross state lines.
B) No, because it reaches noneconomic activity that cannot be aggregated.
C) Yes, because the aggregate effect of vandalism on tourism is substantial.
D) Yes, because Congress may legislate for the general welfare.B) No, because it reaches noneconomic activity that cannot be aggregated.Separation of Powers
Congress may not rely solely on the aggregate effects of noneconomic, intrastate activity to reach it under the commerce power, and vandalism, like gun possession near schools, is not economic activity. There is no general federal police power, and the commerce power is broader than goods crossing state lines. -
A city bans all signs in residential yards except signs advertising the home for sale and signs announcing upcoming events. A homeowner who wants to post a sign supporting a candidate challenges the ban. What standard applies?
A) Reasonableness review, because private yards are not public forums.
B) Intermediate scrutiny, because the ban favors no viewpoint.
C) Rational basis, because sign rules regulate land use, not speech.
D) Strict scrutiny, because the exceptions turn on each sign's topic.D) Strict scrutiny, because the exceptions turn on each sign's topic.First Amendment
A law is content-based, and gets strict scrutiny, if it applies because of the topic or message expressed, even when it does not target a viewpoint. Here whether a sign is allowed depends on what it is about. -
On January 10, a firm orally hires a consultant for an 18-month engagement starting that day. Three months later, the firm ends the engagement without cause. She sues for breach of the oral agreement, and the firm raises the Statute of Frauds. Is the defense valid?
A) Yes, because every employment contract must be in writing.
B) No, because the consultant might have died within the year.
C) No, because the Statute of Frauds never applies to contracts for services.
D) Yes, because by its terms the contract cannot be performed within a year.D) Yes, because by its terms the contract cannot be performed within a year.Defenses
The one-year provision covers contracts that by their terms cannot be fully performed within a year of their making, and an 18-month engagement cannot. Death would end the contract, not perform it, which distinguishes a fixed term from a lifetime contract. -
An employer wrongfully fires an engineer with eight months left on her contract. She turns down a comparable engineering job in the same city at the same salary, starting two months after the firing, and stays unemployed. What is her likely recovery?
A) Only nominal damages, because she rejected a comparable offer.
B) Her full salary for all eight remaining months, because the firing was wrongful.
C) Her remaining salary, less what she could have earned in the other job.
D) Nothing, because she failed to mitigate her damages.C) Her remaining salary, less what she could have earned in the other job.Remedies
An injured party cannot recover losses it could have avoided by reasonable efforts, so her award is reduced by what the comparable job would have paid. Failing to mitigate reduces damages; it does not wipe them out.
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Review status: Second-reader reviewed, with corrections applied.
Checked against:
- Checked against the Federal Rules of Civil Procedure, Title 28 of the U.S. Code, the U.S. Constitution and U.S. Supreme Court holdings through the October 2024 Term (public law and public domain), and the Uniform Commercial Code Articles 1 and 2 (official text); the Restatement (Second) of Contracts was consulted for reference only, with no wording reproduced.
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