Steven L. Emanuel - Strategies and Tactics for the MBE II (Bar Review Series)

Third Edition

Steven L. Emanuel, J.D.

Founder & Editor in Chief, Emanuel Bar Review

Member, NY, CT, MD, and VA bars

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All questions, except Civil Procedure questions 1-11, 13-15, 17-18, 20-23, 25-29, 32-44, 46, 48-49, 51-59, 61, 63, 65, 69, 74, 77, 83-85, 89-91, and 93, copyright 1992, 1995, 1997, 2002, 2006, 2009, 2011, 2017, 2019 by the National Conference of Bar Examiners. All Rights Reserved.

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SUMMARY OF CONTENTS

TABLE OF CONTENTS

PREFACE

Thank you for buying this 3d edition of Strategies & Tactics for the MBE 2 (which Ill refer to as S&T II). This books sole purpose is to help you excel on the MBE.

Heres how I prepared this book, and why I think it will help you:

For this book, Ive selected over 500 MBE-format questions. A small percentage of these questions also appear in our companion volume, Strategies & Tactics for the MBE, published in 2019 in its 7th edition (which Ill refer to as S&T I). The substantial majority of the questions in the present book are actual past MBE questions released by the MBEs drafters.

Ive put the questions into a subtopic-by-subtopic hierarchy. So, for instance, within Contracts, suppose you wanted to review just questions dealing with the Parol Evidence Rule. Youd look in the Table of Contents for the Contracts portion, then the Chapter on Parol Evidence, then the part called II. SITUATIONS WHERE PAROL EVIDENCE RULE DOES NOT APPLY, then the sub-part called A. Existence of a condition on effectiveness of contract. In that sub-part, youd find multiple questions turning on this sub-issue, i.e., the effect of an oral provision that the writing wont become effective until some condition (e.g., My architects approval) has been satisfied.

Because Ive arranged the questions by subtopic, you can spot the hot topics on the MBE by seeing where the questions are clustered. So, for instance, if youre studying the Parol Evidence Rule, you could see at a glance by the number of questions devoted to it that the examiners like to focus on fact patterns where the Parol Evidence Rule does not apply.

I personally wrote and edited the answers to each question in the book.

For nearly all answer explanations, I tell you not just why the right choice is right, but also why each wrong choice is wrong. During my many years of helping students prepare for the MBE, Ive learned that the MBE examiners exploit a pool of common student misconceptions over and over. So focusing on why a given wrong choice from a past question is wrong will help you a lot in spotting the examiners use of that same trap on your actual exam.

My discussion of each answer choice is extensively researched and annotated. When I did this research, I was often surprised to learn intricacies of law that I hadnt been aware of before. And one thing I can promise you based on my review of over 1,200 past MBE questions: when the MBE drafters write a question, they look carefully at Restatements, treatises, technical statutory provisions (e.g., subtleties of UCC Article 2 that you probably never covered in class), semi-obscure court decisions, and other authorities. The MBE is a very technical exam, and to do your best on it you need choice-by-choice analysis that focuses on the same authorities as those the drafters rely on; thats what Ive given you here.

Some of the questions are ones to which the National Conference of Bar Examiners (the drafters of the MBE) has released its own annotations. But the answer discussions in this book are my own independently-researched ones, and I believe that my analysis is generally significantly more complete than the ones released by the National Conference of Bar Examiners.

All of these questions and answers have been used by hundreds of bar-prep students in major markets as part of Emanuel Bar Review materials. These students then passed their states bar exam at a rate ten percentage points higher than the state-wide average.

I would like to express my deep thanks to Barbara Lasoff, my publishing colleague, for her work on this edition.

Good luck on the MBE. I hope this book helps.

Steve Emanuel

Larchmont, NY

January 2020

Unlike the prior (2d) edition of this book, the current edition includes a major section on Civil Procedure. Because Civil Procedure was only recently (in 2015) added to the MBE, the NCBE has released relatively few Civil Procedure MBE questions. I have attempted to deal with this scarcity while simultaneously trying to give you a sense of how actual past Civil Procedure MBE questions are distributed across the various Civ Pro subtopics by repeating in this book nearly all of the Civ Pro questions that appear in