Applicable Law on the MBE

What You’ll Learn:

  • What Law to Apply when Answering MBE Questions
  • The Default Statutes & Rules to Apply for certain MBE Subject Areas
All MBE questions are to be “answered according to generally accepted fundamental legal principles, unless noted otherwise in the question.” ²

In addition to the scope, the MBE Subject Matter Outline also gives “instructions” as to what rules/statutes to apply for specific subject areas. For example, it specifies to assume that joint and several liability with pure comparative negligence applies for Torts questions (unless noted otherwise).

Below is a summary of the MBE “instructions” found in that outline.

Summary of MBE Instructions

Answer ALL questions according to generally accepted fundamental legal principles.

Unless otherwise indicated in the question, assume that:

  • Civil Procedure: The Federal Rules of Civil Procedure are applicable;
  • Civil Procedure: Title 28 of the U.S. Code is applicable for trial and appellate jurisdiction, venue, and transfer;
  • Constitutional Law: The terms “Constitution,” “constitutional,” and “unconstitutional” refer to the federal U.S. Constitution;
  • Contracts: The Official Text of Articles 1 and 2 of the Uniform Commercial Code are applicable;
  • Evidence: The Federal Rules of Evidence are applicable;
  • Torts: Survival actions and claims for wrongful death are available; and
  • Torts: Joint and several liability, with pure comparative negligence, is the relevant rule.

Other than the above, assume that there is NO applicable statute unless otherwise noted in the question.

You MUST KNOW these default MBE instructions going into the exam, as they could dictate the applicable rules of law, and thus could affect which answer you choose. This is especially true for Torts questions, where the examiners have stated the default rules to apply (e.g. comparative negligence, joint and several liability).