Thursday, February 21, 2013

Privileges

Federal Rules of Civil Procedure is not yet tested on the MBE, but the examiners always get a few questions in on this subject. One area that shows up is from Constitutional Law concerning the subject-matter jurisdiction of federal courts. It's highly likely there will be a few questions on the MBE concerning that topic.

A similar question-type that might appear as an Evidence question is one that tests whether federal courts should apply the common law, or instead state law, in regards to privileges. The Federal Rules of Evidence provides that, in regards to privileges, federal courts shall apply the common law, except in diversity cases, in which state law controls.

And so it's important to look at the facts provided and determine whether the subject-matter jurisdiction of the federal court is based on federal question jurisdiction (if the cause of action arises under the federal Constitution, statutes, laws or treaties), or if subject-matter jurisdiction is instead based upon diversity of citizenship (every plaintiff is of diverse citizenship from every defendant).

If jurisdiction is based on a federal question, apply the common law (spousal privilege, attorney/client privilege, etc), but if jurisdiction is based on diversity of citizenship, then look for a statute concerning privileges within the question, because the statute will control.


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