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SmartBarPrep Frequency Analysis 2

The SmartBarPrep Essay Frequency Analysis (hereinafter “Study Guide”) is designed to assist you in studying for the Uniform Bar Exam/Multistate Essay Exam (UBE/MEE) essays. It was NOT designed to be a prediction of what will be asked on the upcoming UBE/MEE or any future examinations. Although many of the same rules have been repeated on past UBE/MEE essay questions, there is NO GUARANTEE that any future UBE/MEE exam will test the same or similar rules that have appeared on past exams. Bates Bar Review Inc. d/b/a SmartBarPrep makes NO WARRANTIES or GUARANTEES as to what legal rules the National Conference of Bar Examiner’s will test on the upcoming UBE/MEE or any future examinations.

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The SmartBarPrep Essay Prep Outline contains model rule statements to ALL 561 RULES previously tested on the UBE/MEE essays in the last 46 examinations…AND reveals how often each rule has appeared in the past so you can target your studying to focus on the highest frequency rules. That is an extraordinary 23 YEARS of exams and 340 ESSAY QUESTIONS analyzed for your advantage.

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past so you can prioritize and study the most frequently tested rules first). That

frequency is shown next to each rule.

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Description Page

Frequency Analysis – Subjects Appearing on Past UBE/MEE Essays ...........................1

Frequency Analysis – Rules Appearing on Past UBE/MEE Essays .................................3

SmartBarPrep Essay Prep Outline Sample .................................................................................26

Table of Contents



FREQUENCY ANALYSISSubjects Appearing on Past

UBE/MEE Essays

Number of Times Subject Appeared on Past Exams

Subject Number of Times Subject Appeared on Past Exams

Percentage (%) Subject Appeared on

Past Exams

Agency 41 out of 46 exams 89%

Partnerships 31 out of 46 exams 67%

Corporations & LLC's 32 out of 46 exams 70%

Civil Procedure 45 out of 46 exams 98%

Conflict of Laws 21 out of 46 exams 46%

Constitutional Law* 9 out of 21 exams 43%

Contracts* 17 out of 21 exams 81%

Criminal Law & Procedure* 11 out of 21 exams 52%

Evidence* 11 out of 21 exams 52%

Family Law 40 out of 46 exams 87%

Real Property* 12 out of 21 exams 57%

Secured Transactions 35 out of 46 exams 76%

Torts* 11 out of 21 exams 52%

Trusts & Future Interests 33 out of 46 exams 72%

Wills & Estates 38 out of 46 exams 83%

* These six subjects were not tested on the Multistate Essay Exam (MEE) until July 2007.



Subject Number of Times Subject Appeared on Past Exams

Percentage (%) Subject Appeared on

Past Exams

Agency 41 out of 340 essays 12%

Partnerships 31 out of 340 essays 9%

Corporations & LLC's 32 out of 340 essays 9%

Civil Procedure 45 out of 340 essays 13%

Conflict of Laws 21 out of 340 essays 6%

Constitutional Law* 9 out of 165 essays 5%

Contracts* 17 out of 165 essays 10%

Criminal Law & Procedure* 11 out of 165 essays 7%

Evidence* 11 out of 165 essays 7%

Family Law 40 out of 340 essays 12%

Real Property* 12 out of 165 essays 7%

Secured Transactions 35 out of 340 essays 10%

Torts* 11 out of 165 essays 7%

Trusts & Future Interests 33 out of 340 essays 10%

Wills & Estates 36 out of 340 essays 11%

FREQUENCY ANALYSISSubjects Appearing on Past

UBE/MEE Essays

Number of Times Subject Appeared out of Total Number of Essay Questions

* These six subjects were not tested on the Multistate Essay Exam (MEE) until July 2007.



Subject Rule# of Times Rule

Appeared on Past Exams

% out of Total Exams

Agency Creation of Agency Relationship 4 8.7%

Agency Types of Agency Relationships 1 2.2%

Agency Termination of Agency Relationship 3 6.5%

Agency Actual Authority 10 21.7%

Agency Apparent Authority 10 21.7%

Agency Inherent Agency Power 3 6.5%

Agency Ratification of Agent’s Contracts 2 4.3%

Agency Agent’s Contractual Liability 5 10.9%

Agency Employee vs. Independent Contractor 5 10.9%

AgencyVicarious Liability of Employer: Doctrine of

Respondeat Superior5 10.9%

AgencyVicarious Liability of Employer: Liability Where

Respondeat Superior Doctrine Inapplicable2 4.3%

AgencyVicarious Liability for Acts of Independent

Contractors2 4.3%

AgencyFiduciary Duties Owed by the Agent to the

Principal4 8.7%

Partnerships Creation of a General Partnership 6 13.0%

FREQUENCY ANALYSISRules Appearing on Past

UBE/MEE Essays

Number of times Rules Appeared on Past Exams

Total Bar Examinations Analyzed 46

Total # of Essays 340

Total # of Rules Previously Tested 561



Partnerships Formation of a Limited Partnership (LP) 2 4.3%

Partnerships Formation of a Limited Liability Partnership (LLP) 2 4.3%

Partnerships Authority to Bind the Partnership 7 15.2%

Partnerships Authority to Bind a Partnership After Dissolution 3 6.5%

PartnershipsPersonal Liability of General Partners &

Judgment Enforcement8 17.4%

Partnerships Personal Liability of Limited Partners 3 6.5%

Partnerships Personal Liability of Limited Liability Partners 3 6.5%

Partnerships Sharing of Profits and Losses 1 2.2%

Partnerships Right to Management & Control 1 2.2%

Partnerships Transfer of Ownership Interest in a Partnership 3 6.5%

Partnerships Right to Partnership Property 3 6.5%

Partnerships Remuneration (Payment for Partner’s Services) 1 2.2%

Partnerships Partnership Ownership of Inventions 1 2.2%

PartnershipsAdvance of Funds to the Partnership &

Reimbursement1 2.2%

Partnerships Management & Control in a Limited Partnership 2 4.3%

Partnerships Limited Partner’s Right to Inspect Records 2 4.3%

Partnerships Duty of Care 4 8.7%

Partnerships Duty of Loyalty 5 10.9%

Partnerships Duty to Provide Full Information 2 4.3%

Partnerships Action Against a Partner for Misconduct 1 2.2%

Partnerships Dissociation (Withdrawal of a Partner) 2 4.3%

Partnerships Dissolution of a General Partnership 6 13.0%

Partnerships Dissolution of a Limited Partnership 1 2.2%

Partnerships Winding Up & Termination of the Partnership 2 4.3%

Corporations & LLC’s

Formation of a Corporation (Articles of Incorporation)

1 2.2%


Bylaws 2 4.3%


Amending the Bylaws 1 2.2%


Powers of a Corporation 1 2.2%


Formation & Management of an LLC 1 2.2%


Liability of Promoter for Pre-Incorporation Contracts

3 6.5%




Liability of Corporation for Pre-Incorporation Contracts

2 4.3%


Personal Liability & Piercing the Veil 5 10.9%


Common & Preferred Shares 1 2.2%


Authorized, Outstanding, & Reacquired Shares 2 4.3%


Consideration in Exchange for Shares 1 2.2%


Dividends & Distributions to Shareholders 2 4.3%


Shareholder Meetings: Right to Vote & Record Date

2 4.3%


Shareholder Meetings: Proxy Voting & Revocation of a Proxy

4 8.7%


Shareholder Meetings: Annual Meetings, Special Meetings, & Notice

1 2.2%


Shareholder Meetings: Quorum & Voting 2 4.3%


Shareholder Meetings: Election of Directors 1 2.2%


Shareholder’s Right to Inspect Books and Records

2 4.3%


Shareholder Voting Agreements 1 2.2%


Board of Directors Meeting: Quorum 1 2.2%


Board of Directors Meeting: Voting & Objection to Actions

0 0.0%


Board of Directors Meeting: Notice & Waiver 1 2.2%


Board Action by Written Consent 1 2.2%


Removal of Directors 1 2.2%


Authority of Officers 3 6.5%


Removal of Officers 1 2.2%


Authority of Members and Managers of an LLC 1 2.2%




Preemptive Rights 1 2.2%


Restrictions on Share Transfers 1 2.2%


Fiduciary Duties of Directors: Duty of Care 8 17.4%


Fiduciary Duties of Directors: Duty of Loyalty 5 10.9%


Fiduciary Duties of Shareholders 1 2.2%


Restricting/Eliminating Fiduciary Duties in a Corporation

1 2.2%


Fiduciary Duties Owed by Members/Managers of an LLC

3 6.5%


Restricting/Eliminating Fiduciary Duties in an LLC

1 2.2%


Direct & Derivative Actions 6 13.0%


Derivative Actions: Dismissal by the Board of Directors

1 2.2%


Federal Securities Law – Rule 10b-5 1 2.2%


Amending the Articles of Incorporation 2 4.3%


Mergers and Share Exchanges 1 2.2%


Sale of All or Substantially All of Corporate Assets

3 6.5%


Dissenter’s Appraisal Rights for Fundamental Changes

3 6.5%


Judicial Dissolution of a Corporation 1 2.2%


Voluntary Dissolution of a Corporation 2 4.3%


Dissociation of a Member from an LLC 1 2.2%


Dissolution & Winding Up of an LLC 2 4.3%

Civil Procedure Subject Matter Jurisdiction: Federal Question 10 21.7%

Civil ProcedureSubject Matter Jurisdiction: Diversity of

Citizenship18 39.1%



Civil ProcedureSubject Matter Jurisdiction: Supplemental

Jurisdiction8 17.4%

Civil ProcedureSubject Matter Jurisdiction: Domestic Relations

Exception1 2.2%

Civil Procedure Removal 4 8.7%

Civil Procedure Abstention Doctrines 2 4.3%

Civil Procedure Personal Jurisdiction 8 17.4%

Civil Procedure Service of Process and Notice 4 8.7%

Civil Procedure Venue (Proper Venue & Transfer of Venue) 10 21.7%

Civil ProcedureLaw Applied by Federal Courts: Erie Doctrine,

Substance vs. Procedure, & Supremacy Clause6 13.0%

Civil Procedure Preliminary Injunction 2 4.3%

Civil Procedure Temporary Restraining Order (TRO) 3 6.5%

Civil ProcedureAmendments to Pleadings & Relation Back

Doctrine3 6.5%

Civil Procedure Counterclaims 2 4.3%

Civil Procedure Cross-Claims 1 2.2%

Civil ProcedureRule 11 – Representations to the Court &

Sanctions1 2.2%

Civil Procedure Permissive Joinder of Parties 3 6.5%

Civil Procedure Required Joinder of Parties 2 4.3%

Civil ProcedureIntervention as of Right & Permissive

Intervention1 2.2%

Civil Procedure Impleader (Third-Party Actions) 1 2.2%

Civil Procedure Class Action Requirements & Certification 1 2.2%

Civil ProcedureDiscoverable Information (Relevant &

Proportional Standard)1 2.2%

Civil Procedure Depositions 1 2.2%

Civil ProcedureElectronically Stored Information & Spoliation

Sanctions1 2.2%

Civil ProcedureRule 26(g) – Signing Disclosures & Sanctions for

Improper Certification1 2.2%

Civil Procedure Rule 26(a) Initial Disclosures 1 2.2%

Civil Procedure Attorney Work Product Doctrine 3 6.5%

Civil Procedure Pretrial Conference and Order 3 6.5%

Civil ProcedureMotion to Dismiss & Motion for Judgment on the

Pleadings4 8.7%

Civil Procedure Motion for Summary Judgment 5 10.9%



Civil Procedure Motion for Judgment as a Matter of Law 3 6.5%

Civil Procedure Motion for a New Trial 1 2.2%

Civil Procedure Preclusive Effect of a Default Judgment 1 2.2%

Civil Procedure Claim Preclusion (Res Judicata) 2 4.3%

Civil Procedure Issue Preclusion (Collateral Estoppel) 3 6.5%

Civil Procedure Appeals: Final Judgment Rule & Exceptions 4 8.7%

Conflict of LawsChoice of Law Theories: Traditional Vested

Rights Approach2 4.3%

Conflict of LawsChoice of Law Theories: Most Significant

Relationship Approach 3 6.5%

Conflict of LawsChoice of Law Theories: Interest Analysis

Approach3 6.5%

Conflict of Laws Choice of Law Rules: Torts 1 2.2%

Conflict of Laws Choice of Law Rules: Contracts 3 6.5%

Conflict of LawsChoice of Law Rules: Contractual Forum-

Selection Clause2 4.3%

Conflict of Laws Choice of Law Rules: Premarital Agreements 1 2.2%

Conflict of Laws Choice of Law Rules: Real Property Cases 1 2.2%

Conflict of LawsChoice of Law Rules: Inheritance of Real &

Personal Property2 4.3%

Conflict of LawsLaw Applied by Federal Courts: Erie Doctrine,

Substance vs. Procedure, & Supremacy Clause6 13.0%

Conflict of LawsLaw Applied by State Courts: Substance

vs. Procedure1 2.2%

Conflict of LawsFull Faith and Credit: State, Federal, and Foreign

Court Judgments1 2.2%

Conflict of LawsFull Faith and Credit: Ceremonial & Common

Law Marriage4 8.7%

Conflict of Laws Full Faith and Credit: Family Law Judgments 6 13.0%

Constitutional Law State Sovereign Immunity (11th Amendment) 2 9.5%

Constitutional Law Standing 0 0.0%

Constitutional Law Advisory Opinions, Ripeness, & Mootness 0 0.0%

Constitutional Law Commerce Clause 1 4.8%

Constitutional LawPower to Enforce the 13th, 14th, and 15th

Amendments1 4.8%

Constitutional Law Taxing and Spending Powers 0 0.0%

Constitutional Law Executive Powers: Domestic Powers 0 0.0%



Constitutional LawExecutive Powers: Treaty and Foreign Affairs

Powers0 0.0%

Constitutional LawDelegation of Congressional Powers & Non-

Delegation Doctrine0 0.0%

Constitutional LawState Immunity from Federal Law (10th

Amendment)1 4.8%

Constitutional Law Negative Commerce Clause 2 9.5%

Constitutional Law Supremacy Clause & Preemption 0 0.0%

Constitutional Law Governmental Action (“State Action”) 2 9.5%

Constitutional Law Substantive Due Process 0 0.0%

Constitutional Law Procedural Due Process 0 0.0%

Constitutional Law Equal Protection Analysis 2 9.5%

Constitutional Law Takings (5th Amendment) 1 4.8%

Constitutional Law Privileges and Immunities Clause 0 0.0%

Constitutional Law Freedom of Religion: Establishment Clause 0 0.0%

Constitutional Law Freedom of Religion: Free Exercise Clause 0 0.0%

Constitutional LawFreedom of Speech: Content-Based vs. Content-

Neutral Restrictions0 0.0%

Constitutional LawFreedom of Speech: Public Forum, Limited

Public Forum, & Non-Public Forum2 9.5%

Constitutional Law Unprotected Speech: Fighting Words 1 4.8%

Constitutional LawUnprotected Speech: Incitement of Imminent

Lawless Action1 4.8%

Constitutional Law Unprotected Speech: Obscenity 0 0.0%

Constitutional LawFreedom of Speech: Regulation of Commercial

Speech0 0.0%

Constitutional Law Freedom of Speech: Public School Students 1 4.8%

Constitutional Law Freedom of Speech: Government Employees 0 0.0%

Constitutional LawFreedom of Speech: Regulation of Expressive

Conduct0 0.0%

Constitutional Law Freedom of Speech: Prior Restraint 0 0.0%

Constitutional Law Freedom of Speech: Vague & Overbroad Laws 1 4.8%

Constitutional LawFreedom of the Press: Defamation & Actual

Malice Standard1 4.8%

Constitutional LawFreedom of the Press: Disclosure of Private

Facts & Generally Applicable Laws1 4.8%

Constitutional Law Freedom of Association 0 0.0%

ContractsUCC Article 2 Governs Contracts for the Sale of

Goods6 28.6%



Contracts Mutual Assent: Offer & Acceptance 3 14.3%

ContractsMutual Assent: Timing of Acceptance/

Revocation & the Mailbox Rule2 9.5%

ContractsMutual Assent: Battle of the Forms (Mirror

Image Rule and UCC Exception)1 4.8%

ContractsMutual Assent: Indefiniteness or Absence of

Terms0 0.0%

Contracts Mutual Assent: Implied-in-Fact Contracts 0 0.0%

ContractsConsideration: Bargained for Exchange &

Substitutes3 14.3%

ContractsConsideration: Settlement/Release of Legal

Claims0 0.0%

ContractsModification of Contracts: Pre-Existing Duty Rule

& Exceptions3 14.3%

Contracts Incapacity 0 0.0%

Contracts Duress 1 4.8%

Contracts Undue Influence 0 0.0%

Contracts Mutual Mistake & Unilateral Mistake 0 0.0%

Contracts Misrepresentation 1 4.8%

Contracts Illegality & Public Policy 0 0.0%

Contracts Unconscionability 0 0.0%

ContractsStatute of Frauds: Contracts Requiring a Signed

Writing3 14.3%

Contracts Parol Evidence Rule 0 0.0%

Contracts Condition Precedent 1 4.8%

Contracts Implied Obligation of Good Faith and Fair Dealing 0 0.0%

ContractsImpossibility, Impracticability, & Frustration of

Purpose0 0.0%

ContractsMinor Breach (Substantial Performance

Doctrine) vs. Material Breach1 4.8%

ContractsDivisible Performance (Part Performances as

Agreed Equivalents)1 4.8%

Contracts UCC Perfect Tender Rule & Exceptions 0 0.0%

ContractsUCC Acceptance of Goods & Revocation of

Acceptance2 9.5%

Contracts Anticipatory Repudiation & Adequate Assurances 2 9.5%

Contracts Accord and Satisfaction 0 0.0%

Contracts Express Warranty 1 4.8%

Contracts Implied Warranty of Merchantability 0 0.0%



ContractsImplied Warranty of Fitness for a Particular

Purpose0 0.0%

Contracts Warranty of Title 2 9.5%

Contracts Limiting Damages for Breach of Warranty 0 0.0%

ContractsThird-Party Beneficiaries & Enforcement of

Rights1 4.8%

Contracts Assignment of Rights 1 4.8%

Contracts Delegation of Duties 1 4.8%

Contracts Common Law Expectation Damages 2 9.5%

Contracts Consequential Damages 1 4.8%

Contracts Punitive Damages 1 4.8%

Contracts Specific Performance 0 0.0%

Contracts UCC Seller’s Remedies & Damages 2 9.5%

Contracts UCC Buyer’s Remedies & Damages 2 9.5%

Contracts Waste Doctrine & Diminution in Value Damages 1 4.8%

Contracts Restitution (Unjust Enrichment) 2 9.5%

Contracts Rescission 0 0.0%

Contracts Mitigation of Damages 1 4.8%

Criminal Law & Procedure

Elements of a Crime: Acts and Omissions 0 0.0%


Elements of a Crime: Causation 2 9.5%


Elements of a Crime: Mental States 2 9.5%


Murder 2 9.5%


Manslaughter 2 9.5%


Theft Crimes & Receiving Stolen Goods 2 9.5%


Robbery 0 0.0%


Burglary 1 4.8%


Rape & Statutory Rape 0 0.0%


Assault and Battery 0 0.0%




Kidnapping & False Imprisonment 0 0.0%


Arson 0 0.0%


Criminal Possession Offenses 0 0.0%


Attempt 1 4.8%


Conspiracy 0 0.0%


Solicitation 0 0.0%


Accomplice Liability 1 4.8%


Duress 1 4.8%


Insanity 1 4.8%


Justification: Self-Defense & Defense of Others 0 0.0%


Intoxication 0 0.0%


Mistake of Fact or Law 0 0.0%


Fourth Amendment Right – Government Action & Standing

1 4.8%


Arrests 1 4.8%


Request for Information, Stop and Inquire, & Stop and Frisk

1 4.8%


Warrant Requirement for All Searches, Unless an Exception Applies

2 9.5%


Exception to Warrant Requirement: Plain View Doctrine

1 4.8%


Exception to Warrant Requirement: Exigent Circumstances

0 0.0%


Exception to Warrant Requirement: Automobile Exception

1 4.8%


Exception to Warrant Requirement: Search Incident to Arrest

0 0.0%


Exception to Warrant Requirement: Consent 0 0.0%




Exception to Warrant Requirement: Inventory Search

0 0.0%


Confessions: 14th Amendment Due Process Clause

1 4.8%


Confessions: 5th Amendment Privilege Against Self-Incrimination & Miranda Rights

5 23.8%


Confessions: 6th Amendment Right to Counsel 1 4.8%


Right to Counsel & Effective Assistance of Counsel at Trial

0 0.0%


Line-Ups & Police-Arranged Identification Procedures

0 0.0%


Exclusionary Rule & the Fruit of the Poisonous Tree Doctrine

2 9.5%


Right to a Jury Trial 1 4.8%


Double Jeopardy 1 4.8%


Burden of Proof, Presumptions, & Sufficiency of Evidence

2 9.5%


Harmless Error Rule 0 0.0%

EvidenceProbative Value: Relevancy & Rule 403

Exclusions6 28.6%

Evidence Subsequent Remedial Measures 1 4.8%

Evidence Compromise/Settlement Offers & Negotiations 1 4.8%

Evidence Pleas & Plea Negotiations 0 0.0%

Evidence Offers to Pay Medical Expenses 1 4.8%

Evidence Liability Insurance 0 0.0%

Evidence Authentication of Evidence 0 0.0%

Evidence Best Evidence Rule 0 0.0%

Evidence Character Evidence 4 19.0%

Evidence Prior Bad Acts 1 4.8%

Evidence Habit or Routine Practice 1 4.8%

Evidence Impeachment: Prior Inconsistent Statements 1 4.8%

Evidence Impeachment: Prior Convictions 1 4.8%

Evidence Impeachment: Specific Instances of Conduct 2 9.5%

Evidence Impeachment: Character for Truthfulness 0 0.0%



EvidenceImpeachment: Ability to Observe, Remember, or

Relate Accurately1 4.8%

Evidence Impeachment: Hearsay Declarants 1 4.8%

Evidence Refreshing Recollection 2 9.5%

Evidence Judicial Notice 0 0.0%

Evidence Lay Witness Testimony & Opinions 2 9.5%

Evidence Expert Witness Testimony 0 0.0%

Evidence Hearsay, Multiple Hearsay, & Non-Hearsay 7 33.3%

EvidenceHearsay Exclusion: Statements by a Party

Opponent3 14.3%

EvidenceHearsay Exclusion: Prior Statements by a

Witness2 9.5%

Evidence Hearsay Exception: Present Sense Impression 4 19.0%

Evidence Hearsay Exception: Excited Utterance 3 14.3%

Evidence Hearsay Exception: Business Records 2 9.5%

EvidenceHearsay Exception: Statements Made for

Medical Diagnosis/Treatment 2 9.5%

EvidenceHearsay Exception: Statements of Mental,

Emotional, or Physical Condition0 0.0%

Evidence Hearsay Exception: Dying Declaration 0 0.0%

Evidence Hearsay Exception: Statement Against Interest 0 0.0%

Evidence Hearsay Exception: Public Records 0 0.0%

Evidence Hearsay Exception: Past Recollection Recorded 1 4.8%

Evidence Sixth Amendment Right to Confront Witnesses 2 9.5%

EvidenceSpousal Privileges: Spousal Immunity &

Confidential Marital Communications1 4.8%

Evidence Attorney-Client Privilege 0 0.0%

Evidence Attorney Work Product Doctrine 0 0.0%

Family LawMarriage Requirements (State of Mind &

Procedural)1 2.2%

Family Law Common Law Marriage 5 10.9%

Family Law Bigamous Marriage 3 6.5%

Family Law Premarital Agreements: Enforceability 5 10.9%

Family LawPremarital Agreements: Child Custody &

Support5 10.9%

Family Law Premarital Agreements: Spousal Support 2 4.3%



Family LawPremarital Agreements: Eliminating

Fundamental Marital Duties & Allocating Financial Responsibilities

1 2.2%

Family LawRights & Responsibilities of Spouses: Married

Women’s Property Acts1 2.2%

Family LawRights & Responsibilities of Spouses: Payment

for Necessities 2 4.3%

Family Law Jurisdiction: Marital/Divorce & Support Actions 8 17.4%

Family Law Jurisdiction: Child Custody & Adoption Matters 5 10.9%

Family Law Annulment 1 2.2%

Family Law Divorce Grounds 2 4.3%

Family LawSetting Aside Separation & Divorce Settlement

Agreements3 6.5%

Family LawDivision of Property: Marital vs. Separate

Property8 17.4%

Family LawDivision of Property: Professional License or

Degree2 4.3%

Family Law Division of Property: Marital & Economic Fault 2 4.3%

Family Law Division of Property: No Termination Upon Death 1 2.2%

Family Law Modification of a Property Division Award 2 4.3%

Family LawSpousal Support: When Support May be

Awarded, Amount, & Termination4 8.7%

Family Law Spousal Support: Reinstatement of Prior Award 1 2.2%

Family Law Child Support 5 10.9%

Family LawModification & Enforcement of Child/Spousal

Support Orders7 15.2%

Family LawChild Custody: Best Interests of the Child

Standard7 15.2%

Family Law Child Custody: Parent vs. Third-Party Custody 3 6.5%

Family Law Child Custody: Joint Custody 1 2.2%

Family Law Child Custody: Presumption of Parental Fitness 1 2.2%

Family Law Visitation: Parental Visitation Rights 1 2.2%

Family Law Visitation: Third-Party Visitation Rights 3 6.5%

Family LawChild Custody: Relocation of the Custodial

Parent & Child1 2.2%

Family Law Modification of a Child Custody Order 3 6.5%

Family Law Division of Property of Unmarried Cohabitants 2 4.3%

Family Law Agreements Between Unmarried Cohabitants 4 8.7%



Family Law Putative Spouse Doctrine 1 2.2%

Family LawEstablishing Paternity, Presumption of

Legitimacy, & Paternity by Estoppel4 8.7%

Family Law Unmarried Biological Father’s Rights 3 6.5%

Family Law Right to Control the Child’s Upbringing 2 4.3%

Family Law Intra-Family Lawsuits & Immunities 1 2.2%

Family Law Loss of Consortium Claims 1 2.2%

Family Law Adoption & Parental Consent 6 13.0%

Family Law Adoption: Visitation for Biological Parents 1 2.2%

Family Law Artificial Insemination & In Vitro Fertilization 2 4.3%

Family Law Surrogacy Arrangements 1 2.2%

Real Property Present Estates: Fee Simple Absolute & Fee Tail 0 0.0%

Real Property Present Estates: Defeasible Fees 1 4.8%

Real Property Present Estates: Life Estate 0 0.0%

Real Property Present Estates: Statute of Limitations 1 4.8%

Real Property Future Estates: Reverter & the Right of Re-Entry 1 4.8%

Real PropertyFuture Estates: Vested and Contingent

Remainders1 4.8%

Real Property Tenancy in Common 1 4.8%

Real Property Joint Tenancy: Formation 1 4.8%

Real Property Joint Tenancy: Severance 1 4.8%

Real PropertyCo-Tenant’s Entitlement to Rent or

Reimbursement for Repairs/Improvements0 0.0%

Real Property Types of Leasehold Interests 2 9.5%

Real Property Tenant Duties: Duty to Pay Rent 0 0.0%

Real PropertyLandlord’s Rights and Liabilities Concerning a

Hold-Over Tenant0 0.0%

Real PropertyLandlord Duties: Implied Warranty of

Habitability 1 4.8%

Real Property Landlord Duties: Constructive Eviction 1 4.8%

Real Property Landlord Duties: Duty to Mitigate Damages 2 9.5%

Real Property Assignment of a Lease 2 9.5%

Real Property Subleases 0 0.0%

Real Property Termination of Leases: Surrender 2 9.5%

Real Property Real Covenants 0 0.0%

Real Property Equitable Servitudes 0 0.0%



Real PropertyCommon Scheme or Plan Doctrine (Reciprocal

Negative Servitude)0 0.0%

Real PropertyRestrictive Covenants: Common Interest

Ownership Communities & Property Owner Associations

0 0.0%

Real PropertyEasements by Grant, Prescription, Implication, &

Necessity1 4.8%

Real Property Scope of an Easement 0 0.0%

Real Property Termination of an Easement 2 9.5%

Real Property Licenses 0 0.0%

Real Property Fixtures 1 4.8%

Real Property Adverse Possession 2 9.5%

Real Property Requirements for a Valid Land Sale Contract 0 0.0%

Real Property Warranty of Marketable Title 0 0.0%

Real Property Doctrine of Equitable Conversion & Risk of Loss 1 4.8%

Real Property Time of Performance for Real Estate Contracts 0 0.0%

Real Property Action for Specific Performance of Real Property 0 0.0%

Real Property Home Builder’s Implied Warranty 1 4.8%

Real Property Deed Requirements 1 4.8%

Real PropertyGeneral Warranty Deed, Special Warranty Deed,

& Quitclaim Deed3 14.3%

Real Property Estoppel by Deed 0 0.0%

Real Property Chain of Title and Wild Land Records 3 14.3%

Real Property Recording Statutes & Notice 1 4.8%

Real Property Bona Fide Purchasers & The Shelter Rule 4 19.0%

Real PropertyOwner by Adverse Possession vs. Subsequent

Bona Fide Purchasers 1 4.8%

Real PropertyDeeds: Drafting, Review, and Negotiation of

Closing Documents0 0.0%

Real PropertyDeeds: Persons Authorized to Execute Real

Estate Documents0 0.0%

Real Property Mortgages & Requirements for a Valid Mortgage 0 0.0%

Real Property Purchase Money Mortgage 0 0.0%

Real Property Future-Advance Mortgage 1 4.8%

Real Property Deed of Trust 0 0.0%

Real Property Assumption & Transfer Subject to a Mortgage 1 4.8%

Real PropertyMortgages: Foreclosure, Order of Preference,

and Deficiency Judgments1 4.8%



Real Property Transfer of a Mortgage Note 0 0.0%

Real Property Zoning Ordinances 0 0.0%

Real Property Zoning Ordinances: Variances 0 0.0%

Real PropertyZoning Ordinances: Previous Non-Conforming

Use0 0.0%

Real Property Choice of Law Rules: Real Property Cases 1 4.8%

Secured Transactions

Article 9 of the UCC Governs Secured Transactions

34 73.9%


Scope of Article 9 of the UCC: Substance Over Form Controls

5 10.9%


Types of Collateral: Accounts 4 8.7%


Types of Collateral: Deposit Accounts 1 2.2%


Types of Collateral: Inventory 7 15.2%


Types of Collateral: Equipment 8 17.4%


Types of Collateral: Consumer Goods 5 10.9%


Types of Collateral: Proceeds 4 8.7%


Types of Collateral: Chattel Paper 2 4.3%


Attachment and Perfection 22 47.8%


Financing Statements 3 6.5%


No Interest Retained in a Payment Right Sold & Rights/Title with Respect to Creditors and

Purchasers1 2.2%


Purchase Money Security Interests (PMSI’s) 10 21.7%


Automatic Perfection for Certain Assignment of Accounts

1 2.2%


Security Interest in the Sale of Collateral & Identifiable Proceeds

8 17.4%


Consignment 1 2.2%


Control of a Deposit Account 1 2.2%




Future Advances 2 4.3%


Transfers of Collateral & The Shelter Principle 3 6.5%


Buyers in the Ordinary Course of Business 9 19.6%


Consumer-to-Consumer Rule 3 6.5%


Priority for Perfected Interests & Unperfected Interests

18 39.1%


Priority of Liens Arising by Law 1 2.2%


Priority of Judgment Lien Creditors 4 8.7%


Fixtures 3 6.5%


Accessions & Commingling 1 2.2%


Secured Party’s Right to Take Possession of Collateral

6 13.0%


Secured Party’s Right to Dispose of Collateral 5 10.9%


Right to Collect Directly from an Account Debtor 3 6.5%


Damages Available to a Debtor for a Secured Party’s Failure to Comply with Applicable Rules

4 8.7%


Debtor’s Right of Redemption 2 4.3%


Deficiency Judgments 4 8.7%

Torts Battery 2 9.5%

Torts Assault 0 0.0%

Torts False Imprisonment 1 4.8%

Torts Intentional Infliction of Emotional Distress 0 0.0%

Torts Trespass to Land 0 0.0%

Torts Trespass to Chattels & Conversion 0 0.0%

Torts Doctrine of Transferred Intent 0 0.0%

Torts Intentional Tort Defenses: Consent 2 9.5%

Torts Intentional Tort Defenses: Privileges 2 9.5%



Torts Prima Facie Case of Negligence 5 23.8%

Torts Affirmative Duty to Act & Rendering Aid 2 9.5%

Torts Standard of Care: Reasonable Person Standard 4 19.0%

Torts Standard of Care: Children 2 9.5%

Torts Standard of Care: Professionals 2 9.5%

TortsStandard of Care: Land Owner/Possessor’s Duty

to Entrants2 9.5%

Torts Standard of Care: Landlord’s Duty to Tenants 1 4.8%

Torts Negligence Per Se 2 9.5%

Torts Res Ipsa Loquitur 1 4.8%

Torts Causation: Actual and Proximate Cause 5 23.8%

Torts Proximate Cause: Intervening Causes 4 19.0%

TortsCausation: Eggshell Plaintiff Rule & Emotional

Distress Stemming from Physical Injury3 14.3%

TortsComparative Negligence & Contributory

Negligence2 9.5%

Torts Assumption of Risk 0 0.0%

Torts Negligent Infliction of Emotional Distress 2 9.5%

TortsVicarious Liability of Employer: Doctrine of

Respondeat Superior5 10.9%

TortsVicarious Liability of Employer: Liability Where Respondeat Superior Doctrine is Inapplicable

2 4.3%

Torts Employee vs. Independent Contractor 5 10.9%

TortsVicarious Liability for Acts of Independent

Contractors2 4.3%

Torts Joint and Several Liability 0 0.0%

Torts Indemnification 1 4.8%

Torts Contribution 0 0.0%

TortsDoctrines of Alternative Liability, Joint

Enterprise, & Market Share Liability2 9.5%

Torts Defamation 0 0.0%

Torts Invasion of Privacy Torts 0 0.0%

Torts Intentional Interference with Business Relations 0 0.0%

Torts Intentional & Negligence Misrepresentation 0 0.0%

Torts Public and Private Nuisance 0 0.0%

Torts Strict Liability: Wild & Domestic Animals 0 0.0%

Torts Strict Liability: Abnormally Dangerous Activity 1 4.8%



TortsStrict Products Liability: Liability for

Manufacturing Defect, Design Defect, & Failure to Warn

3 14.3%

Torts Products Liability: Liability for Negligence 1 4.8%

TortsProducts Liability: Liability for Breach of

Warranty1 4.8%

Trusts & Future Interests

Trust Formation Elements 7 15.2%


Precatory Language & Promises to Create a Trust

3 6.5%


Revocable & Irrevocable Trusts 4 8.7%


Testamentary Trusts 1 2.2%


Pour-over Provision in a Will 5 10.9%


Charitable Trusts 1 2.2%


Illusory Trusts 1 2.2%


Resulting Trusts 1 2.2%


Discretionary Trusts 4 8.7%


Support Trusts 2 4.3%


How Trust Assets Pass 1 2.2%


Cy Pres Doctrine 6 13.0%


Spendthrift Trusts 4 8.7%


Rights of Creditors 5 10.9%


Powers of Invasion 1 2.2%


Modification of a Trust 2 4.3%


Equitable Deviation Doctrine & Modification of Administrative and Dispositive Trust Provisions

1 2.2%


Additions Clause in a Trust 1 2.2%




Termination of a Trust 4 8.7%


Distribution Upon Termination 1 2.2%


Conditions that Prohibit Marriage or Require Divorce

2 4.3%


Trustee Duty to Administer the Trust 5 10.9%


Trustee Duty of Loyalty: Self-Dealing 4 8.7%


Trustee Duty of Loyalty: Conflicts of Interest 1 2.2%


Trustee Duty of Loyalty: Duty to Act Impartially 1 2.2%


Trustee Duty of Care: Failure to Test the Market 1 2.2%


Trustee Duty of Care: Investments & Prudent Investor Rule

6 13.0%


Delegation of Trustee Duties 1 2.2%


Trustee Acting in Accordance with the Settlor’s Wishes

2 4.3%


Principal and Income Allocations 3 6.5%


Damages for Wrongful Invasion of Trust Assets 1 2.2%


Remainder Beneficiary of a Trust 3 6.5%


Future Interests: Representation of Remaindermen

1 2.2%


Future Interests: Substituted Takers 2 4.3%


Remainder Person Predeceases Life Tenant 2 4.3%


Vested Interests: Condition on Survivorship 3 6.5%


Acceleration of Future Interests 3 6.5%


Powers of Appointment 4 8.7%


Powers of Appointment: Special Power of Appointment

2 4.3%




Powers of Appointment: Ineffective Appointments

3 6.5%


Common Law Rule Against Perpetuities & Modern Modifications

5 10.9%


Class Gifts 9 19.6%

Wills & Estates Intestate Succession 9 19.6%

Wills & Estates Will Execution Formalities 7 15.2%

Wills & EstatesWill Execution Formalities: Strict Compliance &

Substantial Compliance Doctrine2 4.3%

Wills & Estates Doctrine of Integration 1 2.2%

Wills & Estates Interested Witnesses 4 8.7%

Wills & Estates Codicils 4 8.7%

Wills & Estates Holographic Wills & Codicils 5 10.9%

Wills & Estates Incorporation by Reference 9 19.6%

Wills & Estates Acts of Independent Significance 1 2.2%

Wills & Estates Revocation by Physical Act 7 15.2%

Wills & Estates Revocation by Subsequent Will or Codicil 3 6.5%

Wills & Estates Dependent Relative Revocation Doctrine 4 8.7%

Wills & Estates Revival of a Will 2 4.3%

Wills & Estates Contractual Wills 3 6.5%

Wills & Estates Will Takes Effect at the Time of Death 2 4.3%

Wills & Estates Per Capita at Each Generation Distribution 1 2.2%

Wills & EstatesModern Per Stirpes (Per Capita by

Representation) Distribution1 2.2%

Wills & Estates Per Stirpes Distribution 2 4.3%

Wills & Estates Generically Described Property 1 2.2%

Wills & Estates Advancements/Satisfaction 5 10.9%

Wills & Estates Simultaneous Death 2 4.3%

Wills & Estates Residue of a Residue Approach 2 4.3%

Wills & EstatesConditions that Prohibit Marriage or Require

Divorce2 4.3%

Wills & EstatesWills Provisions Governing when the Testator

Dies With or Without Issue1 2.2%

Wills & Estates Lapsed Legacies & Anti-Lapse Statutes 5 10.9%

Wills & Estates Ademption 6 13.0%

Wills & Estates Stock Splits and Dividends 3 6.5%



Wills & Estates Exoneration 1 2.2%

Wills & Estates Abatement 4 8.7%

Wills & Estates Slayer Statutes 4 8.7%

Wills & Estates Disclaimers 6 13.0%

Wills & EstatesDivorce Revokes Testamentary Provisions to a

Former Spouse4 8.7%

Wills & EstatesPrenuptial Agreement Does Not Apply to

Voluntary Gifts or Bequests 1 2.2%

Wills & Estates Specific, General, and Demonstrative Gifts 1 2.2%

Wills & Estates Class Gifts 9 19.6%

Wills & Estates Inheritance Rights of Children & Disinheritance 2 4.3%

Wills & Estates Legal Definition of Children 5 10.9%

Wills & Estates Inheritance by Equitable Adoption 2 4.3%

Wills & Estates Spouse’s Elective Share 2 4.3%

Wills & Estates Pretermitted Children 3 6.5%

Wills & Estates Testamentary Capacity 3 6.5%

Wills & Estates Undue Influence 4 8.7%

Wills & Estates Fraud 1 2.2%

Wills & Estates Standing to Challenge a Will 2 4.3%

Wills & Estates No-Contest Clauses 1 2.2%

Wills & Estates Modification of a Will Due to Mistake 1 2.2%

Wills & EstatesJoint Bank Accounts & Convenience Account

Exception2 4.3%

Wills & Estates Totten Trusts 1 2.2%

Wills & Estates Life Insurance Beneficiary 2 4.3%

Wills & Estates Inter Vivos Gifts 1 2.2%

Wills & Estates Invasion of Non-Probate Assets to Pay Creditors 1 2.2%

Wills & Estates Powers & Duties of Personal Representatives 1 2.2%

Wills & EstatesDurable Health-Care Power of Attorney &

Advanced Directives2 4.3%



Wills & EstatesDurable Health Care Power of Attorney & Living

Wills: Insulation of Agent’s Liability2 4.3%

Wills & Estates Family Consent Laws 2 4.3%

NOTES:

Parol Evidence Rule: The July 2010 MEE (Essay 2, Point One) mentioned the UCC rule regarding partial integrations in the “Note” section, but the issue was not a tested issue.

Implied Warranty of Merchantability: The Implied Warranty of Merchantability was tested in a Torts essay on the July 2016 MEE (Essay 3, Point Two[a]) in the products liability context, and said rule is included in the Torts portion of the outline.

Robbery: The crime of armed robbery was mentioned in the July 2009 MEE (Essay 7, Point Two), but was not the issued tested. The rule for Attempt was the actual issue tested.

Hearsay Exception: Public Records: The Public Records Exception was mentioned in the “Note” section of the July 2016 MEE (Essay 2, Point Three), but was not the issue tested because it was inapplicable to the fact pattern.

Contribution: Although this rule has not been tested to date, the concept of Contribution was discussed in the “Note” section of the Feb 2015 MEE (Essay 1, Point Four).

Defamation: A Constitutional Law question concerning defamation was tested on the July 2008 MEE (Essay 2, Point One), but Torts was not tested. Even though the question involved the tort of defamation, the rules tested were solely the free speech limits on defamation. Additionally, the bar examiners noted the subject area for the essay as “Constitutional Law”.

© 2017 SmartBarPrep.com 1

AGENCY01

A. Agency Relationships

■ Creation of Agency Relationship

• An agent is a person or entity that acts on behalf of another – the principal. Agency is a fiduciary relationship, and exists if there is: (1) assent (a formal or informal agreement between the principal and the agent); (2) benefit (the agent’s conduct on behalf of the principal primarily benefits the principal); AND (3) control (the principal has the right to control the agent by being able to supervise the agent’s performance – the degree of control does not need to be significant). Whether an agency relationship exists depends upon the existence of the required elements above (the characterization of the relationship by the parties is irrelevant).

■ Types of Agency Relationships

• There are three types of agency relationships. A universal agent has broad authority to act on behalf of the principal, and is authorized to perform ALL acts the principal is allowed to perform. A general agent normally has authority to conduct a series of transactions over a period of time for a particular purpose, business, or operation (i.e. a manager of a restaurant). A special agent has limited authority to conduct: (a) a specific act/transaction; OR (b) certain actions over a specified period of time.

■ Termination of Agency Relationship

• An agency relationship terminates and the agent no longer has authority to act if: (a) the principal or the agent manifests to the other that the relationship is terminated; (b) a specified term of the agent’s authority expired; (c) upon operation of law by the death of the principal or agent; OR (d) upon operation of law by the incapacity of the principal or agent (except where a durable power of attorney exists).

o Under the common law, an agent’s authority is revoked upon death, regardless of whether the third party has notice of the death. In some states, the authority is not revoked until the third party is notified of the principal’s death.

• Apparent authority continues until the principal communicates the termination to third parties (even if the agency relationship was actually terminated). A principal may communicate termination by notifying third parties directly, making a public announcement, or by recovering from the agent any items indicating authority.

4 of 46 Exams

HIGH

1 of 46 Exams

LOW

3 of 46 Exams

MED

Feb 2009, Essay 1Feb 2006, Essay 2July 2004, Essay 5Feb 1996, Essay 5

Feb 2005, Essay 7

MEE TIP The subjects of Agency and Partnerships are normally tested together on essay questions.

MEE TIP The rule for Creation of an Agency Relationship is normally tested along with such topics as authority, undisclosed principal, or employee vs. independent contractor.

July 2002, Essay 6July 2001, Essay 6July 1996, Essay 2


PARTNERSHIPS02

July 2010, Essay 1July 2009, Essay 8July 2007, Essay 4July 2006, Essay 2July 1999, Essay 2July 1997, Essay 1

July 2009, Essay 8July 1999, Essay 2

MEE TIP The subjects of Partnerships and Agency are normally tested together on Essay questions.A. Creation of Partnerships

■ Creation of a General Partnership

• A General Partnership is created when (1) two or more persons, (2) as co-owners, (3) carry on a business for profit. No written agreement or formalities are required. A person’s intent to form a partnership or be partners is NOT required.

• Part ownership or common ownership of property alone is NOT enough to create a partnership. Likewise, a joint venture DOES NOT automatically create a partnership.

• A person who receives a share of the profits of the partnership business is presumed to be a partner of the business UNLESS the profits were received in payment: (a) of a debt; (b) for wages as an employee or independent contractor; (c) of rent; (d) of an annuity or other retirement benefit; (e) of interest/loan charges; OR (f) for the sale of the goodwill of a business.

• Individuals may inadvertently create a general partnership despite their expressed subjective intent not to do so (i.e. when the required formalities to form a Limited Partnership or Limited Liability Partnership are not followed).

■ Formation of a Limited Partnership (LP)

• A Limited Partnership is a partnership composed of general and limited partners, and MUST have at least one general partner. It is formed upon the filing of a Certificate of Limited Partnership with the Secretary of State that includes: (1) the name of the partnership; (2) the address of the partnership; (3) name and address of each partner; (4) whether the partnership is a Limited Liability Partnership; AND (5) it must be signed by a general partner.

• If the Certificate of Limited Partnership fails to meet the above requirements, then a General Partnership is created.

6 of 46 Exams

HIGH

2 of 46 Exams

MED

UPA = Uniform Partnership ActRUPA = Revised Uniform Partnership ActRULPA = Revised Uniform Limited Partnership Act


PARTNERSHIPS02

■ Formation of a Limited Liability Partnership (LLP)

• A Limited Liability Partnership (LLP) is one in which all partners have limited personal liability. Any partnership may become an LLP upon: (1) approval by the same vote that is necessary to amend the partnership agreement; AND (2) by filing a Statement of Qualification with the Secretary of State. Unless otherwise agreed, a unanimous vote is required to amend a partnership agreement.

o A Statement of Qualification must include: (i) the name and address of the partnership; (ii) a statement that the partnership elects to become an LLP; AND (iii) a deferred effective date, if any. The name of a LLP must end with “Registered Limited Liability Partnership”, “Limited Liability Partnership”, “R.L.L.P.”, “L.L.P.”, “RLLP,” or “LLP”.

• The filing of a Statement of Qualification DOES NOT create a new partnership. Instead, the LLP continues to be the same partnership entity that existed prior to the filing. Thus, the LLP remains liable for any unfulfilled obligations of the partnership entity before it became an LLP.

B. Power and Liability of Partners

■ Authority to Bind the Partnership

• Each partner is an agent of the partnership, and generally has authority to bind the partnership for the purpose of its business (including entering into contracts).

• A partner has express actual authority to bind the partnership upon receiving said authority from the partners. Acts within the ordinary course of the partnership business need only be approved by a majority of the partners. Acts outside the ordinary course of business must be approved unanimously. Hiring an employee is normally within the ordinary course of partnership business, unless the partnership agreement states otherwise.

• A partner has implied actual authority (also known as incidental authority) to take actions that are reasonably incidental or necessary to achieve the partner’s authorized duties.

2 of 46 Exams

MED

7 of 46 Exams

HIGH

Feb 2014, Essay 6Feb 2012, Essay 6

MEE TIP Formation of an LP or LLP is usually tested in conjunction with a partner’s personal liability, especially when the LP or LLP formation requirements are not followed.

Feb 2016, Essay 3Feb 2014, Essay 6July 2007, Essay 4July 2006, Essay 2July 2003 Essay 5

Feb 2001, Essay 2July 1997, Essay 1


CORPORATIONS & LLC’S03

Feb 2011, Essay 7

July 2014, Essay 6July 2010, Essay 9

July 2014, Essay 6

MEE TIP If an essay question says to apply the Model Business Corporation Act (MCBA), then apply the RMBCA as it’s the most recent version of the MBCA. On the exam, MBCA and RMBCA have been used interchangeably.

A. Formation of a Corporation

■ Formation of a Corporation (Articles of Incorporation)

• Under the RMBCA, a corporation’s existence begins on the date the Articles of Incorporation are filed with the Secretary of State, UNLESS a delayed effective date is specified. The RMBCA DOES NOT allow for an earlier effective date to be specified because a corporation CANNOT exist until the Articles of Incorporation are filed.

• The Articles of Incorporation MUST contain: (1) the corporate name; (2) the number of shares the corporation is authorized to issue; (3) the address of the corporation’s initial registered office and the name of its initial registered agent at that office; AND (4) the name and address of each incorporator.

■ Bylaws

• The Bylaws are the rules and regulations adopted by the Board of Directors that govern the internal operations and management of a corporation, including the roles and duties of directors and officers. Under the RMBCA, the Bylaws may contain any provision that is NOT inconsistent with: (a) the Articles of Incorporation; OR (b) the law of the jurisdiction.

• When there is a conflict between the Articles of Incorporation and the Bylaws, the Articles of Incorporation control. In addition, the Articles of Incorporation may give certain powers only to the shareholders (and limit certain powers of the directors). The inclusion of director-nomination procedures in the Bylaws is allowed under the RMBCA and Delaware law.

■ Amending the Bylaws

• The Bylaws may be amended or repealed by shareholders. In addition, the Board of Directors may also amend or repeal the bylaws UNLESS: (a) the Articles of Incorporation exclusively reserves the power to the shareholders; OR (b) the shareholders, in amending/adopting/repealing a bylaw, expressly provide that the Board of Directors cannot amend/repeal/reinstate that bylaw. If the bylaw deals with director-nomination procedures, the Board of Directors retain power to safeguard the voting process, but it CANNOT repeal a shareholder approved bylaw.

1 of 46 Exams

LOW

2 of 46 Exams

MED

1 of 46 Exams

LOW

RMBCA = Revised Model Business Corporation ActRULLCA = Revised Uniform Limited Liability Company Act


CORPORATIONS & LLC’S03

■ Powers of a Corporation

• Under the RMBCA (and most states), a corporation has the power to do all things necessary or convenient to carry out its business and affairs, including: (1) to sue and be sued; (2) to own, lease, or convey real or personal property; (3) to make contracts, borrow money, issue notes or bonds; (4) to lend money and make investments; (5) to own or be involved with another business entity; (6) to fix the compensation of directors, officers, and employees; (7) to lend directors, officers, employees money; (8) to make charitable donations; (9) to make payments or donations that furthers the business and affairs of the corporation; and (10) to pay or engage in lobbying to aid governmental policy.

B. Formation of a Limited Liability Company (LLC)

■ Formation & Management of an LLC

• Generally, a Limited Liability Company (LLC) is formed when: (1) the Articles of Organization (a.k.a. Certificate of Formation) is filed with the Secretary of State; AND (2) the company has at least one member.

• Unless stated otherwise, the Operating Agreement governs: (1) the relations between the members and the LLC; (2) the rights and duties of managers; (3) the activities and affairs of the company; AND (4) any means and conditions for amending the Operating Agreement.

• Under RULLCA, an LLC is presumed to be member-managed UNLESS the Operating Agreement provides otherwise. A manager-managed LLC is run by an elected group of managers, who manage the business similarly to a board of directors. To constitute a manager-managed LLC, the Operating Agreement must state that the LLC will be manager-managed (i.e. that the LLC is “manager-managed”, “managed by managers”, or management is “vested in managers”).

1 of 46 Exams

LOW

1 of 46 Exams

LOW

July 1999, Essay 7

July 2016, Essay 1


EVIDENCE09

July 2017, Essay 5Feb 2016, Essay 2July 2014, Essay 5Feb 2013, Essay 7Feb 2012, Essay 1Feb 2010, Essay 7

Feb 2012, Essay 1

MEE TIP All evidence essay questions must be answered according to the Federal Rules of Evidence.

A. Probative Value

■ Probative Value: Relevancy & Rule 403 Exclusions

• Relevancy: To be admissible, evidence must be relevant. Evidence is relevant if: (1) it has any tendency to make a fact more or less probable than it would be without the evidence; AND (2) the fact is of consequence in determining the action. Relevant evidence is admissible unless another rule or exclusion provides otherwise.

• Rule 403 Exclusions: Under FRE 403, the court may exclude relevant evidence if its probative value is substantially outweighed by a danger of: (a) unfair prejudice; (b) confusing the issues; (c) misleading the jury; (d) undue delay; (e) wasting time; OR (f) being needlessly cumulative. Evidence is unfairly prejudicial when the evidence is (1) unnecessary, AND (2) might cause the jury to improperly sympathize or dislike a party. As an alternative to excluding evidence completely under Rule 403, the court could limit the unfair prejudice to a party by limiting the scope of evidence or examination to specific topics.

B. Policy Exclusions

■ Subsequent Remedial Measures

• Subsequent remedial measures are measures taken that would have made an earlier injury or harm less likely to occur. Under the FRE, evidence of subsequent remedial measures is NOT admissible to prove: (a) negligence; (b) culpable conduct; (c) a defect in a product or design; OR (d) a need for a warning or instruction.

• However, the court may admit such evidence for other purposes, such as: (i) impeachment; or (ii) to prove a disputed issue as to ownership, control, or feasibility of precautionary measures.

■ Compromise/Settlement Offers & Negotiations

• Under the FRE, offers to settle claims, offers to compromise, and statements made during settlement negotiations are NOT admissible to: (a) prove the validity or amount of a disputed claim (the claim must be filed or threatened); OR (b) to impeach by a prior inconsistent statement or contradiction.

6 of 21 Exams

HIGH

1 of 21 Exams

MED

1 of 21 Exams

MED

FRE = Federal Rules of Evidence

Feb 2012, Essay 1

© 2017 SmartBarPrep www.smartbarprep.com

How to Use This Study Guide Each rule in the SmartBarPrep Essay Prep Outline is presented as shown in the sample below.

SAMPLE

The title of the rule will be in bold (ex: Bylaws). The Rule Statement (ex: The Bylaws are the rules and regulations adopted by …) will be in one or more bullet points under the Rule Title.

The right sidebar lists the exams that the rule was tested. The right sidebar is also ideal

for note taking when reviewing the outline.

Guide to the Frequency and Priority Ratings Frequency Ratings

To the left of the Rule Statement is the frequency with which the rule was tested on past

Multistate Essay Exams (ex: 1 of 46 exams). Priority Ratings In addition, a priority rating (HIGH, MED, or LOW) will be listed in the color-coded

circle next to each rule. HIGH = High Priority (these are the most important and frequently tested rules) MED = Medium Priority (these rules are tested slightly less frequently, but are still

important) LOW = Low Priority (these rules have been tested the least)

The purpose of providing the HIGH/MED/LOW priority rating and the frequency is so you can see how often each rule has been tested compared to the other rules at a glance, and prioritize your studying to focus on the most important and frequently tested rules first and foremost before moving onto the less important ones.


The priority ratings are based upon how often that rule has been tested in the past for the

particular subject. Generally, the ratings are based on the following methodology:

Subject Frequency & Priority 1 - Agency 2 - Partnerships 3 - Corporations & LLC’s 4 - Civil Procedure 10 - Family Law 12 - Secured Transactions 14 - Trusts & Future Interests 15 - Wills & Estates

HIGH = 4+ exams MED = 2 or 3 exams LOW = 0 or 1 exams These subjects have been tested on 46 exams

5 - Conflict of Laws

HIGH = 3+ exams MED = 2 exams LOW = 0 or 1 exams Conflict of Laws has been tested on 46 exams

6 - Constitutional Law 7 - Contracts 8 - Criminal Law & Procedure 9 - Evidence 11 - Real Property 13 - Torts

HIGH = 2+ exams MED = 0 or 1 exams There are no LOW priority ratings because these subjects have only been tested on the MEE since July 2007 (21 total exams). Since these subjects were only tested on 21 exams, the pool of exams to pull data from was more limited. As such, we felt many important rules would receive an unwarranted LOW designation (which would be misleading). Additionally, for the same reasons, the outline includes rules that we felt were important, but have been not been tested on the essays to date for the six traditional MBE subjects.1

1 The six traditional Multistate Bar Exam (MBE) subjects are: Constitutional Law, Contracts, Criminal Law & Procedure, Evidence, Real Property, and Torts. Prior to the February 2015 exam, the subject of Civil Procedure was not tested on the MBE, which is why it was tested prior to 2007 on the Multistate Essay Exam (MEE) and is not considered one of the traditional MBE subjects. Additionally, the subject of Sales (UCC Article 2) was tested on a few exams prior to July 2007; these rules have been included in the Contracts subject.


Although a rule with the rating of LOW or MED has shown up either zero or only a few

times in the past, that rule may still show up on future bar examinations. Therefore, such rules should NOT be ignored, and if you have enough time it should be memorized.

The HIGH, MED, or LOW designation is NOT A PREDICTION OF WHAT RULES

WILL APPEAR ON ANY GIVEN EXAM. Instead, we have given each rule a designation depending on how often that particular rule has shown up on past Multistate Essay Exams.

For example, whenever a Civil Procedure question appeared we found that approximately forty (40%) percent of the time a component of the question dealt with the “Subject Matter Jurisdiction: Diversity of Citizenship” rule. Since this rule is tested frequently, it makes sense to spend more time memorizing it than, say, the rule of Depositions, which appeared only once in the last 23 years.

Again, the purpose of providing the HIGH/MED/LOW priority rating and the frequency with which rules have appeared is so you can see how often each rule has been tested as compared to the other rules at a glance, and prioritize your studying to focus on the most important and frequently tested rules first before moving onto the less important ones. Ultimately, this method promotes efficiency in studying for the Uniform Bar Exam/Multistate Essay Exam. Best of luck on the exam! – SmartBarPrep

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A. Agency Relationships

1. Creation of Agency Relationship Definition: Agency is a fiduciary relationship, where a person or entity (the agent) acts on behalf of another (the principal) AND both parties agree to the relationship. Elements: An agency relationship exists if:

1) Assent – formal or informal agreement; 2) Benefit – the conduct primarily benefits the

principal; AND 3) Control – the principal has the right to control the

agent (control doesn’t need to be significant). Characterization by Parties: The characterization of the relationship by the parties is irrelevant. 2. Types of Agency Relationships ▪ Universal Agent – has broad authority, authorized for

ALL acts the principal can perform. ▪ General Agent – has authority to conduct a series of

transactions over a period of time. ▪ Special Agent - has limited authority either for a

specific act/transaction OR a specified period of time. 3. Termination of Agency Relationship An agency relationship terminates when:

a) Manifestation that the relationship is terminated by either party;

b) Specified term of authority expires; c) Death of principal or agent (by operation of law);

OR d) Incapacity of principal or agent (by operation of

law) – except if a durable power of attorney exists. Death of Principal: Common Law revoked regardless of whether 3rd party has notice of principal’s death. Some States NOT revoked until 3rd party has notice of the death. Agency Contracts: Principal can terminate the agent at any time. BUT, principal may be liable for damages if agent is terminated prior to the expiration of a contract (unless agent materially breached contract).

B. Authority & Principal’s Contractual Liability 1. Actual Authority: A principal is bound to a contract entered into by its agent if the agent had actual authority. Two Types – occurs when:

Express Authority – by principal’s explicit directions to the agent (either orally or in writing) Implied Authority – either:

(a) action is necessary to carry out agent’s expressly authorized duties; (b) agent acted similarly in prior dealings between principal/agent; OR (c) customary for agent in that position (silence/acquiescence can give rise to a reasonable belief of authority in the future).

Agent has actual authority when acting within their reasonable understanding of authority, even if principal later shows the agent was mistaken. 2. Apparent Authority: A principal is bound to a contract entered into by its agent if the agent had apparent

authority. Apparent Authority occurs when:

1) 3rd party reasonably believes the agent has authority to act on behalf of the principal; AND

2) That belief is traceable from principal’s manifestations.

A principal holds the agent out as having authority when he: (a) gives a position or title indicating authority; (b) previously held out and did not published a revocation; OR (c) cloaked the agent with the appearance of authority. – Not applicable if 3rd party had knowledge that the agent did not have actual authority. – Continues until principal communicates termination to 3rd parties. Unidentified/Partially Disclosed Principal Apparent Authority CAN exist. Undisclosed Principal Apparent Authority CANNOT exist. 3. Inherent Agency Power – Protects 3rd parties when dealing with agents even if there is no actual or apparent authority.

AGENCY


Two groups of Inherent Agency Power: First Group: Subjects an employer to liability when an agent acts in furtherance of employer’s business and his conduct harms a 3rd-party. Second Group: If an agent violates Principal’s orders and there is no actual/apparent authority, inherent agency applies when:

1) An agency relationship exits; AND 2) Agent engaged in acts that are generally of a

kind that would fall within his actual authority, but for the violation of Principal’s instructions.

4. Ratification – Makes the principal liable for agent’s contracts entered into without authority. Ratification occurs when the Principal:

1) Has knowledge of all material facts or contract terms; AND

2) Assents to the same through words or conduct. (Agent also remains liable if principal was not disclosed)

Rest. 2nd – Undisclosed principal CANNOT ratify. Rest. 3rd – Undisclosed principal CAN ratify.

C. Agent’s Contractual Liability - Generally, an agent has NO liability if they:

(1) Fully disclose the principal to a 3rd party; AND (2) Act within the scope of authority.

- Agent will be liable if:

(a) Conduct was unauthorized; OR (b) Principal was undisclosed or partially disclosed

(no name given) to the 3rd party. - Agent may seek Indemnification from a principal if: (1) agent is liable; AND (2) his conduct was authorized.

D. Vicarious Liability for Agent’s Torts 1. Liability for Agent’s Torts: Under the doctrine of respondeat superior, an employer is liable for an employee’s negligent acts if the employee was acting

within the scope of the employment. Agent acts within Scope of Employment when:

a) Performing work assigned by the employer; OR b) Engaging in course of conduct subject to

employer’s control. Scope Factors – Courts analyze these to determine scope of employment:

i) Conduct is of the kind employee is employed to perform.

ii) Occurs substantially within authorized time and space limits;

iii) It is motivated (in whole or part) to serve the employer.

Time, place, and purpose test. Not Within Scope of Employment: Conduct is NOT within scope if unrelated and not intended to serve any purpose of the employer.

BUT see exception below. Employer Liability Even If Outside Scope of Employment: An employer will be liable for acts outside the scope of employment if:

a) Employer intended the conduct; b) Employer was negligent or reckless in selecting,

training, supervising, or controlling the employee; c) It is a non-delegable duty; OR d) Agent had apparent authority and 3rd party

reasonably relied. Intentional Torts: Generally outside the scope. Exceptions:

a) Act was expressly authorized; b) Act was a natural product of agent’s duties; OR c) Motivated by a desire to serve the principal.

2. Liability for Independent Contractors: Generally, an employer/principal has NO liability for an Independent Contractor’s torts.

Exceptions: 1) Inherently Dangerous Activities. 2) Non-delegable duty owed by principal. 3) Estoppel (principal holds out contractor as his

agent, 3rd party reasonably relied on contractor’s skill, and 3rd party suffered harm).

3. Independent Contractor vs. Employee: Primary focus is whether the principal had the right to control the manner and method in which the job was performed. Courts analyze the following to determine if an employee or contractor:

1) type of work; 2) pay rate; 3) who supplied the equipment/tools; 4) degree of supervision; 5) degree of skill required; 6) was work for the benefit of the employer’s

business; 7) extent of control principal has over work details;

and 8) whether agent/contractor is engaged in a distinct

business.


E. Fiduciary Duties Between Principal and Agent Duties Owed by Agent to the Principal:

1) Duty of Care – duty to use reasonable care when performing agent’s duties.

2) Duty of Loyalty – duty to act solely and loyally for principal’s benefit.

3) Duty of Obedience – duty to obey all reasonable directions.

February 2017, Essay 5 AGENCY QUESTION

An inventor retained a woman to act as his agent to purchase 25 computer chips, 25 blue lenses, and 25 lawn mower shutoff switches. The inventor told her to purchase only:

• Series A computer chips, • blue lenses that cost no more than $300 each, and • shutoff switches that could shut down a lawn mower in less than one second after the

mower hits a foreign object.

The woman contacted a chip manufacturer to purchase the Series A computer chips. She told the manufacturer that she was the inventor’s agent and that she wanted to purchase 25 Series A computer chips on his behalf. The manufacturer told her that the Series A chips cost $800 each but that she could buy Series B chips, with functionality similar to that of the Series A chips, for only $90 each. Without discussing this with the inventor, the woman agreed to purchase 25 Series B chips, signing the contract with the chip manufacturer “as agent” of the inventor. The Series B chips were shipped to her, but when she then took them to the inventor and explained what a great deal she had gotten, the inventor refused to accept them. He has also refused to pay the manufacturer for them.

The woman also contacted a lens manufacturer for the purchase of the blue lenses. She signed a contract in her name alone for the purchase of 25 blue lenses at $295 per lens. She did not tell the lens manufacturer that she was acting as anyone’s agent. The lenses were shipped to her, but when she took them to the inventor, he refused to accept them because he had decided that it would be better to use red lenses. The inventor has refused to pay for the blue lenses.

The woman also contacted a switch manufacturer to purchase shutoff switches. She signed a contract in her name alone for switches that would shut down a lawn mower in less than five seconds, a substantially slower reaction time than the inventor had specified to her. When she signed the contract, she told the manufacturer that she was acting as someone’s agent but did not disclose the identity of her principal. The switches were shipped to her. Although the inventor recognized that the switches were not what the woman had been told to buy, he nonetheless used them to build lawn mowers, but now refuses to pay the manufacturer for them.

All elements of contract formation and enforceability are satisfied with respect to each contract.

1. Who is liable to the chip manufacturer: the inventor, the woman, or both? Explain.

2. Who is liable to the blue-lens manufacturer: the inventor, the woman, or both? Explain.

3. Who is liable to the shutoff-switch manufacturer: the inventor, the woman, or both? Explain.

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SMART ANALYSIS Legal Problems

Point One (30%) When an agent enters into a contract with a third party on behalf of a disclosed principal on terms that were not authorized by the principal, who is liable to the third party: the agent, the principal, or both? With respect to the chips, the woman (agent) is liable on the contract, but the inventor (principal) is not because the woman, notwithstanding her disclosure that she was acting as his agent, lacked actual or apparent authority to enter into the contract on behalf of the inventor with the chip manufacturer.

Point Two (30%) When an agent enters into a contract with a third party on behalf of an undisclosed principal on terms authorized by the principal, who is liable to the third party if the principal later repudiates the contract: the agent, the principal, or both? Both the inventor and the woman are liable to the blue-lens manufacturer on the contract for blue lenses. The inventor is liable because the woman acted with actual authority; the woman is liable as a party to the contract because the principal was undisclosed.

Point Three (40%) When an agent enters into a contract with a third party on behalf of a partially disclosed principal for goods different from those authorized by the principal, who is liable to the third party if the principal accepts the different goods: the agent, the principal, or both? Both the inventor and the woman are liable on the contract for the shutoff switches. The inventor is liable by ratifying the contract; the woman is liable because she acted on behalf of a partially disclosed principal, and there is no indication that the third party agreed to look solely to the partially disclosed principal for payment.


Summary

As a general matter, an agent binds a principal to a contract, whether or not the principal is disclosed to the third party, if the agent had either actual or apparent authority to enter into the contract. Without that authority, the agent alone is liable on the contract unless the principal becomes liable by subsequently ratifying the contract. An agent acting with authority is not liable on the contract if the principal’s identity is disclosed to the third party, but is liable if the principal’s identity is not disclosed or only partially disclosed, unless the contract provides otherwise.

Applying these principles here, because the woman disclosed that she was acting for the inventor on the chip contract, but purchased different chips from those specified by the inventor, the inventor is not liable because the woman did not have authority to enter into the contract; the woman is also liable on the chip contract because she impliedly warranted that she had authority.

Both the woman and the inventor are liable on the blue-lens contract. Although the woman did not disclose that she was acting for the inventor on the blue-lens contract, the inventor is liable on this contract because he had given the woman actual authority to buy the blue lenses on his behalf; the woman is also liable because she signed the contract in her own name.

Finally, both the inventor and the woman are liable on the shutoff-switch contract that the woman entered into on behalf of the partially disclosed inventor, even though the switches were different from those authorized. The inventor became liable by ratifying the contract when he accepted the different switches, and the woman became liable by signing a contract on behalf of a partially disclosed principal.


July 2017 MEE Questions

Torts

Constitutional Law


Decedents’ Estates/Trusts & Future Interests

Evidence/Criminal Law & Procedure

Civil Procedure/Conflict of Laws

4

CONSTITUTIONAL LAW QUESTION

Businesses in the United States make billions of dollars in payments each day by electronic funds transfers (also known as “wire transfers”). Banks allow their business customers to initiate payment orders for wire transfers by electronic means. To ensure that these electronic payment orders actually originate from their customers, and not from thieves, banks use a variety of security devices including passwords and data encryption. Despite these efforts, thieves sometimes circumvent banks’ security methods and cause banks to make unauthorized transfers from business customers’ bank accounts to the thieves’ accounts.

To combat this type of fraud, State A recently passed a law requiring all banks that offer funds transfer services to State A businesses to use biometric identification (e.g., fingerprints or retinal scans) to verify payment orders above $10,000. Although experts dispute whether biometric identification is significantly better than other security techniques, the State A legislature decided to require it after heavy lobbying from a State A–based manufacturer of biometric identification equipment.

A large bank, incorporated and headquartered in State B, provides banking services to businesses in every U.S. state, including State A. Implementation of biometric identification for this bank’s business customers in State A would require the bank to reprogram its entire U.S. electronic banking system at a cost of $50 million. The bank’s own security experts do not believe that biometric identification is a particularly reliable security system. Thus, instead of complying with State A’s new law, the bank informed its business customers in State A that it would no longer allow them to make electronically initiated funds transfers. Many of the bank’s business customers responded by shifting their business to other banks. The bank estimates that, as a result, it has lost profits in State A of $2 million.

There is no federal statute that governs the terms on which a bank may offer funds transfer services to its business customers or the security measures that banks must implement in connection with such services. The matter is governed entirely by state law.

The bank’s lawyers have drafted a complaint against State A and against State A’s Superintendent of Banking in her official capacity. The complaint alleges all the facts stated above and asserts that the State A statute requiring biometric identification as applied to the bank violates the U.S. Constitution. The complaint seeks $2 million in damages from State A as compensation for the bank’s lost profits. The complaint also seeks an injunction against the Superintendent of Banking to prevent her from taking any action to enforce the allegedly unconstitutional State A statute.

1. Can the bank maintain a suit in federal court against State A for damages? Explain.

2. Can the bank maintain a suit in federal court against the state Superintendent of Banking to enjoin her from enforcing the State A statute? Explain.

3. Is the State A statute unconstitutional? Explain.

July 2017 MEE Analyses

Torts

Constitutional Law


Decedents’ Estates/Trusts & Future Interests

Evidence/Criminal Law & Procedure

Civil Procedure/Conflict of Laws

19

CONSTITUTIONAL LAW ANALYSIS CNL I.B.2.; III.B.1.

Legal Problems: ANALYSIS

(1) Can a private company maintain a suit against a state in federal court seeking damages based upon a claim that the state injured its business by enforcing an unconstitutional law?

(2) Can a private company maintain a suit against a state official in federal court to enjoin that official from enforcing an allegedly unconstitutional law?

(3) Does a state law that requires a multistate business to adopt expensive security measures as a condition of providing certain services in the state impose an unconstitutional burden on interstate commerce?

Summary DISCUSSION

The bank cannot maintain a suit against State A for damages in federal court. The Eleventh Amendment precludes the federal court from exercising jurisdiction over a suit by a private party seeking to recover damages from a state.

The court can hear the bank’s claim against the Superintendent of Banking because the bank has sued the superintendent in her official capacity and is seeking injunctive relief only.

Although the statute does not discriminate against interstate commerce, it does impose a significant burden on interstate commerce. A court could conclude that the law unconstitutionally burdens interstate commerce if the court finds that the burden imposed is clearly excessive in relation to the purported benefits. A balancing of benefits and burdens would require the court to evaluate the extent of the actual burden the statute imposes on the bank and whether the statute has substantial fraud-protection benefits.

Point One (30%)

Because states are immune under the Eleventh Amendment from suits for damages in federal court, a federal court would dismiss the bank’s damages claim against State A if State A made a claim of sovereign immunity.

The Eleventh Amendment provides that “the Judicial power of the United States” does not extend to “any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State . . . .” U.S. Const. amend. XI. As “one of the United States,” State A is immune from suit unless it agrees to be sued. While this immunity of States from suits has been described as an “anachronistic survival of monarchical privilege,” it is nonetheless firmly established. Kennecott Copper Corp. v. State Tax Comm., 327 U.S. 573, 580 (1946)

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Past MEE Questions & Analyses

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