february 2020 edition - smartbarprep · each rule’s frequency, list of exams tested, & model...

Essay Frequency Analysis For the California Bar Exam

February 2020 Edition

© 2020 SmartBarPrep | www.smartbarprep.com

The SmartBarPrep California Essay Frequency Analysis (hereinafter “Study Guide”) is designed to assist you in studying for the California Bar Exam. It is NOT designed to be a prediction of what will be asked on the upcoming California Bar Exam or any future examinations. Although many of the same subjects and rules have been repeated on past California Bar Exam essay questions, there is NO GUARANTEE that any future California Bar Exam will test the same or similar subjects and/or rules that have appeared on past exams. SmartBarPrep makes NO WARRANTIES or GUARANTEES as to what subject areas and/or legal rules the California Committee of Bar Examiners or any other bar examiners will test on the upcoming California Bar Exam or any future examinations.

While we endeavor to provide accurate and up-to-date information in this Study Guide, the accuracy, completeness, adequacy, or currency of the content is not guaranteed. Your use of any content in this Study Guide or materials linked from our website (www.smartbarprep.com) is at your own risk.

Although SmartBarPrep does feel that using this Study Guide will help you on the California Bar Exam, WE MAKE NO GUARANTEE THAT YOU WILL PASS THE CALIFORNIA BAR EXAM OR ANY OTHER STATE’S BAR EXAM.

Under no circumstances shall we be liable for any losses or damages whatsoever, including direct, indirect, incidental, and consequential damages, resulting from the use of this Study Guide, whether based on contract, tort, or any other legal theory. This Study Guide and the materials contained herein are provided “as is,” and there are no representations or warranties, express or implied, with respect to the use of this Study Guide, or its contents. WE EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO ITS USE, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

The content of this Study Guide is not intended to and does not constitute legal advice nor is it intended to establish any attorney-client relationship.

Reading beyond this point constitutes your acceptance of the terms above.

DISCLAIMER

We would love to hear from you.

If you have any questions, comments, or suggestions please feel free to email us at any time.

[email protected]

Priority Outlines

Color-coded outlines to streamline the mountain of information you need to know for the bar exam. Includes priority ratings, each rule’s frequency, list of exams tested, & model rule statements.

Smart Flashcards

Smart flashcards that use cognitive science & adap-tive learning to accelerate the learning experience. Printable flashcards are also available.

Smart Guides

Guides that simplify and explain how to prepare for the bar exam, with tips, strategies, & step-by-step approaches to maximize your score.

Smart Sheets

Concise breakdowns of the law tested (2-9 pages per subject) – with a color coded priority rating (high/med/low) – to focus on the highly tested MBE & Essay rules.

Frequency Charts

Charts that show the fre-quency of items tested on the MBE and Essay sections – so you can see what’s highly tested and prioritize your studying.

Real questions licensed from the bar examiners along with our smart strategy to practice more effectively for the Essays, MBE, and PT’s.

Real Practice Questions

OUR STUDY TOOLSO P T I M I Z E Y O U R B A R P R E P

visit www.SmartBarPrep.com to learn more


Table of Contents

Description Page

Subject Frequency – Past 37 Exams ........................................................................................................ 1

Subject Frequency Chart – Past 37 Exams ........................................................................................... 2

Subject Frequency – Past 217 Essays ...................................................................................................... 3

Rule Frequency .............................................................................................................................................. 4

SmartBarPrep Frequency Analysis


1

Subjects Appearing on PastSubjects Appearing on PastSubjects Appearing on PastSubjects Appearing on Past California Bar Exam EssaysCalifornia Bar Exam EssaysCalifornia Bar Exam EssaysCalifornia Bar Exam Essays

Subject Frequency – Past 37 Exams

Subject Number of Times Subject Appeared on Past Exams

Percentage (%) Subject Appeared on Past Exams

Agency 5 out of 37 exams 14%

Partnerships 5 out of 37 exams 14%

Corporations 13 out of 37 exams 35%

Civil Procedure 17 out of 37 exams 46%

Community Property 22 out of 37 exams 59%

Constitutional Law 23 out of 37 exams 62%

Contracts 24 out of 37 exams 65%

Criminal Law 14 out of 37 exams 38%

Criminal Procedure 15 out of 37 exams 41%

Evidence 24 out of 37 exams 65%

Professional Responsibility 36 out of 37 exams 97%

Real Property 20 out of 37 exams 54%

Remedies 27 out of 37 exams 73%

Torts 23 out of 37 exams 62%

Trusts 13 out of 37 exams 35%

Wills & Estates 20 out of 37 exams 54%



2


Subject Frequency Chart – Past 37 Exams

20

13

23

27

20

36

24

15

14

24

23

22

17

13

5

5

0 5 10 15 20 25 30 35

Wills & Estates

Trusts

Torts

Remedies

Real Property

Professional Responsibility

Evidence

Criminal Procedure

Criminal Law

Contracts

Constitutional Law

Community Property

Civil Procedure

Corporations

Partnerships

Agency

# of Times Tested



3


Subject Frequency – Past 217 Essays

Subject Number of Times Subject Appeared on Past Essays

Percentage (%) Subject Appeared on Past Essays

Agency 5 out of 217 essays 2%

Partnerships 5 out of 217 essays 2%

Corporations 13 out of 217 essays 6%

Civil Procedure 19 out of 217 essays 9%

Community Property 23 out of 217 essays 11%

Constitutional Law 24 out of 217 essays 11%

Contracts 34 out of 217 essays 16%

Criminal Law 14 out of 217 essays 6%

Criminal Procedure 16 out of 217 essays 7%

Evidence 28 out of 217 essays 13%

Professional Responsibility 43 out of 217 essays 20%

Real Property 21 out of 217 essays 10%

Remedies 35 out of 217 essays 16%

Torts 24 out of 217 essays 11%

Trusts 13 out of 217 essays 6%

Wills & Estates 20 out of 217 essays 9%



4

RulesRulesRulesRules Appearing on PastAppearing on PastAppearing on PastAppearing on Past California Bar Exam EssaysCalifornia Bar Exam EssaysCalifornia Bar Exam EssaysCalifornia Bar Exam Essays

Rule Frequency

Subject Rule

# of Times Rule

Appeared on Past Exams

% out of Exams Tested

Agency Creation of Agency Relationship 1 2.7%

Agency Authority of Agent: Actual Authority 5 13.5%

Agency Authority of Agent: Apparent Authority 5 13.5%

Agency Ratification of Agent’s Contracts 1 2.7%

Agency Vicarious Liability: Doctrine of Respondeat Superior 4 10.8%

Agency Vicarious Liability: Employee vs. Independent Contractor 2 5.4%

Agency Employee Liability for Negligent Conduct & Indemnification 1 2.7%

Partnerships Creation of a General Partnership 4 10.8%

Partnerships Formation of a Limited Liability Partnership (LLP) 2 5.4%

Partnerships Partnership vs. Separate Businesses 1 2.7%

Partnerships Authority to Bind the Partnership 2 5.4%

Partnerships Personal Liability of General Partners 4 10.8%

Partnerships Personal Liability of Limited Liability Partners 2 5.4%

Partnerships Transfer of Ownership Interest in a Partnership 1 2.7%

Total Bar Exams Analyzed 37

Total # of Essays 217

Total # of Rules Analyzed 531



5

Subject Rule

# of Times Rule



Partnerships Fiduciary Duties Owed by Partners 1 2.7%

Partnerships Winding Up & Termination of the Partnership 1 2.7%

Corporations Formation of a Corporation & Articles of Incorporation 3 8.1%

Corporations De Jure Corporation 2 5.4%

Corporations De Facto Corporation 2 5.4%

Corporations Corporation by Estoppel 3 8.1%

Corporations Liability for Pre-Incorporation Contracts 4 10.8%

Corporations Ultra Vires Acts 1 2.7%

Corporations Shareholder Liability & Piercing the Corporate Veil 5 13.5%

Corporations Watered Stock 1 2.7%

Corporations Dividends & Distributions to Shareholders 1 2.7%

Corporations Shareholder Meetings: Proxy Voting & Revocation of a

Proxy 1 2.7%

Corporations Shareholder Voting Agreements & Trusts 2 5.4%

Corporations Board of Directors Meeting: Quorum 1 2.7%

Corporations Compensation of Directors & Officers 2 5.4%

Corporations Election of Directors 1 2.7%

Corporations Removal of Directors & Officers 2 5.4%

Corporations Authority of Officers 1 2.7%

Corporations Duty of Care & Business Judgment Rule 9 24.3%

Corporations Duty of Loyalty: Fiduciary Duty Owed 8 21.6%

Corporations Duty of Loyalty: Conflicting Interest Transaction 8 21.6%

Corporations Duty of Loyalty: Usurping a Corporate Opportunity 5 13.5%

Corporations Direct & Derivative Actions 2 5.4%

Corporations Fundamental Changes to a Corporation 2 5.4%

Corporations Federal Securities Law – Rule 10b-5 2 5.4%

Corporations Federal Securities Law – Section 16(b) 2 5.4%

Corporations Dissolution: Distribution of Corporate Assets 2 5.4%

Corporations Dissolution: Equitable Subordination & The Deep Rock

Doctrine 1 2.7%

Civil Procedure Subject Matter Jurisdiction: California State Courts 1 2.7%

Civil Procedure Federal Subject Matter Jurisdiction: Intro Statement 11 29.7%

Civil Procedure Federal Subject Matter Jurisdiction: Federal Question 11 29.7%

Civil Procedure Federal Subject Matter Jurisdiction: Diversity of Citizenship 11 29.7%



6

Subject Rule

# of Times Rule



Civil Procedure Federal Subject Matter Jurisdiction: Supplemental

Jurisdiction 3 8.1%

Civil Procedure Removal to Federal Court 5 13.5%

Civil Procedure Remand from Federal Court to State Court 3 8.1%

Civil Procedure Venue in Federal Court 2 5.4%

Civil Procedure Venue in California State Court 1 2.7%

Civil Procedure Residence of a Party for Venue Purposes 2 5.4%

Civil Procedure Personal Jurisdiction: Traditional Bases 8 21.6%

Civil Procedure Personal Jurisdiction: Long Arm Statute & Constitutional

Minimum Contacts Analysis 6 16.2%

Civil Procedure Service of Process and Notice: California State Court

Actions 1 2.7%

Civil Procedure Service of Process and Notice: Federal Court Actions 1 2.7%

Civil Procedure Law Applied by Federal Courts: Erie Doctrine, Substance

vs. Procedure, & Supremacy Clause 3 8.1%

Civil Procedure Counterclaims 1 2.7%

Civil Procedure Amending a Pleading: Relation Back Doctrine 2 5.4%

Civil Procedure Sufficiency of Pleading: Well-Pleaded Complaint Rule 1 2.7%

Civil Procedure Compulsory Joinder of Parties 1 2.7%

Civil Procedure Joinder of Claims 1 2.7%

Civil Procedure Scope of Discoverable Information 5 13.5%

Civil Procedure Compelled Physical and Mental Examinations 3 8.1%

Civil Procedure Document Subpoena to a Non-Party (Subpoena Duces

Tecum) 1 2.7%

Civil Procedure Depositions 1 2.7%

Civil Procedure Interrogatories in Federal Court 1 2.7%

Civil Procedure Disclosure of Expert Testimony 1 2.7%

Civil Procedure Asserting Privilege During Discovery 1 2.7%

Civil Procedure Motion to Compel Disclosure or Discovery 2 5.4%

Civil Procedure Motion for Judgment as a Matter of Law / Judgment of

Nonsuit 1 2.7%

Civil Procedure Motion to Dismiss in Federal Court 1 2.7%

Civil Procedure Summary Judgment 3 8.1%

Civil Procedure Right to Jury Trial in Federal Court 3 8.1%

Civil Procedure Appeals: Final Judgment Rule 3 8.1%

Civil Procedure Appeals: Interlocutory Appeals & Exceptions to Final

Judgment Rule 2 5.4%



7

Subject Rule

# of Times Rule



Civil Procedure Claim Preclusion (Res Judicata) 4 10.8%

Civil Procedure Issue Preclusion (Collateral Estoppel) 3 8.1%

Civil Procedure Choice of Law: Real Property Cases 1 2.7%

Community Property Community Property Presumption: Guiding Principle 20 54.1%

Community Property Quasi-Community Property 7 18.9%

Community Property Illusory Transfer of Quasi-Community Property 1 2.7%

Community Property Married Woman’s Special Presumption 2 5.4%

Community Property End of the Economic Community 8 21.6%

Community Property Putative Spouse 3 8.1%

Community Property Unmarried Cohabitants 2 5.4%

Community Property Equal Rights of Spouses to Manage Property & Transfers to

Third-Parties 7 18.9%

Community Property Fiduciary Duties of Spouses 4 10.8%

Community Property Property Acquired with Comingled Funds (The Moore

Principle) 1 2.7%

Community Property Jointly Titled Property & Anti-Lucas Statute 5 13.5%

Community Property Personal Injury Awards & Settlements 8 21.6%

Community Property Separate Property Business (Van Camp & Pereira Tests) 4 10.8%

Community Property Goodwill of a Business 3 8.1%

Community Property Life Insurance 1 2.7%

Community Property Stock Options 2 5.4%

Community Property Credit & Acquisitions of Property Using Credit 2 5.4%

Community Property Reimbursement for Property Acquisitions & Improvements 3 8.1%

Community Property Professional Degrees & Reimbursement for Education

Expenses 3 8.1%

Community Property Reimbursement for Child Support & Alimony Payments 3 8.1%

Community Property Reimbursement for Medical Expenses 2 5.4%

Community Property Pro-Rata Rule – Community Property Funds used to Pay

Separate Property Loan 1 2.7%

Community Property Transmutations 16 43.2%

Community Property Prenuptial Agreements 3 8.1%

Community Property Property Creditors May Reach to Satisfy Debts 9 24.3%

Community Property Distribution of Community Assets & Debts Upon Divorce 2 5.4%

Constitutional Law State Sovereign Immunity (11th Amendment) 5 13.5%

Constitutional Law Standing 10 27.0%



8

Subject Rule

# of Times Rule



Constitutional Law Third-Party & Organizational Standing 3 8.1%

Constitutional Law Advisory Opinions, Ripeness, & Mootness 3 8.1%

Constitutional Law Legislative Powers: Commerce Clause 2 5.4%

Constitutional Law Legislative Powers: Commerce Clause & Regulation of

Intrastate Activities 1 2.7%

Constitutional Law Legislative Powers: Taxing Power 0 0.0%

Constitutional Law Legislative Powers: Spending Power 1 2.7%

Constitutional Law Executive Powers: Domestic Powers 1 2.7%

Constitutional Law Executive Powers: Treaty and Foreign Affairs Powers 1 2.7%

Constitutional Law Delegation of Congressional Powers & Non-Delegation

Doctrine 1 2.7%

Constitutional Law State Immunity from Federal Law (10th Amendment) 2 5.4%

Constitutional Law Negative Commerce Clause 3 8.1%

Constitutional Law Supremacy Clause & Preemption 2 5.4%

Constitutional Law Governmental Action (“State Action”) 3 8.1%

Constitutional Law Incorporation Doctrine 2 5.4%

Constitutional Law Prohibition Against Involuntary Servitude 1 2.7%

Constitutional Law Substantive Due Process 5 13.5%

Constitutional Law Procedural Due Process 5 13.5%

Constitutional Law Equal Protection Analysis 7 18.9%

Constitutional Law Equal Protection: Inability to Pay Filing Fees 1 2.7%

Constitutional Law Takings (5th Amendment) 7 18.9%

Constitutional Law Zoning Ordinances/Spot Zoning 1 2.7%

Constitutional Law Vested Rights Doctrine 1 2.7%

Constitutional Law Privileges and Immunities Clause 2 5.4%

Constitutional Law First Amendment – Protections Provided 5 13.5%

Constitutional Law Freedom of Religion: Establishment Clause 5 13.5%

Constitutional Law Freedom of Religion: Free Exercise Clause 5 13.5%

Constitutional Law Freedom of Speech: Content-Based vs. Content-Neutral

Restrictions 4 10.8%

Constitutional Law Freedom of Speech: Prior Restraint 2 5.4%

Constitutional Law Freedom of Speech: Public Forum 3 8.1%

Constitutional Law Freedom of Speech: Designated Public Forum 2 5.4%

Constitutional Law Freedom of Speech: Non-Public Forum & Limited Public

Forum 2 5.4%



9

Subject Rule

# of Times Rule



Constitutional Law Freedom of Speech: Licensing Requirements for Speech in

Public Forums 3 8.1%

Constitutional Law Freedom of Speech: Regulation of Expressive Conduct 3 8.1%

Constitutional Law Freedom of Speech: Regulation of Commercial Speech 1 2.7%

Constitutional Law Freedom of Speech: Government Employees 1 2.7%

Constitutional Law Freedom of Speech: Vague & Overbroad Laws 3 8.1%

Constitutional Law Unprotected Speech: Obscenity 1 2.7%

Constitutional Law Freedom of Association 1 2.7%

Contracts Applicable Law: Common Law vs. UCC 19 51.4%

Contracts Requirements to Form a Valid Contract 13 35.1%

Contracts Mutual Assent: Offer & Acceptance 6 16.2%

Contracts Termination/Revocation of Offer 3 8.1%

Contracts Merchant’s Firm Offer 1 2.7%

Contracts Advertisements 3 8.1%

Contracts Timing of Acceptance/Revocation & the Mailbox Rule 2 5.4%

Contracts Battle of the Forms (Mirror Image Rule & UCC Exception) 2 5.4%

Contracts Implied-in-Fact Contracts 1 2.7%

Contracts Output and Requirement Contracts 2 5.4%

Contracts Consideration: Bargained for Exchange 6 16.2%

Contracts Consideration Substitutes: Promissory

Estoppel/Detrimental Reliance 2 5.4%

Contracts Incapacity 1 2.7%

Contracts Unconscionability 3 8.1%

Contracts Mutual Mistake & Unilateral Mistake 4 10.8%

Contracts Statute of Frauds: Contracts Requiring a Signed Writing 13 35.1%

Contracts Statute of Frauds: Exceptions when a Writing is Not

Required 4 10.8%

Contracts Modification of Contracts: Pre-Existing Duty Rule &

Exceptions 5 13.5%

Contracts Parol Evidence Rule 7 18.9%

Contracts Condition Precedent 4 10.8%

Contracts Frustration of Purpose 4 10.8%

Contracts Impossibility 6 16.2%

Contracts Impracticability 5 13.5%

Contracts Waiver 3 8.1%



10

Subject Rule

# of Times Rule



Contracts Accord and Satisfaction 1 2.7%

Contracts Minor Breach (Substantial Performance Doctrine) vs.

Material Breach 4 10.8%

Contracts Time is of the Essence Clause 2 5.4%

Contracts UCC Perfect Tender Rule and Exceptions 4 10.8%

Contracts Anticipatory Repudiation & Adequate Assurances 9 24.3%

Contracts Implied Obligation of Good Faith and Fair Dealing 1 2.7%

Contracts Implied Warranty of Merchantability 3 8.1%

Contracts Third-Party Beneficiaries & Enforcement of Rights 1 2.7%

Contracts Delegable Duties 1 2.7%

Contracts Assignment 2 5.4%

Contracts Novation 1 2.7%

Criminal Law Murder in the First and Second Degree 6 16.2%

Criminal Law Felony Murder Rule 2 5.4%

Criminal Law Voluntary Manslaughter 4 10.8%

Criminal Law Involuntary Manslaughter 1 2.7%

Criminal Law Assault & Battery 1 2.7%

Criminal Law Kidnapping 2 5.4%

Criminal Law Larceny, Larceny by Trick, & False Pretenses 2 5.4%

Criminal Law Embezzlement 1 2.7%

Criminal Law Receipt of Stolen Property 2 5.4%

Criminal Law Robbery 2 5.4%

Criminal Law Burglary 1 2.7%

Criminal Law Extortion 1 2.7%

Criminal Law Theft Crimes: Continuing Trespass Doctrine 1 2.7%

Criminal Law Attempt 5 13.5%

Criminal Law Conspiracy 3 8.1%

Criminal Law Solicitation 2 5.4%

Criminal Law Accomplice Liability 1 2.7%

Criminal Law Accessory After the Fact 1 2.7%

Criminal Law Legal & Factual Impossibility 2 5.4%

Criminal Law Mistake of Fact or Law 1 2.7%

Criminal Law Insanity Defense (4 Tests) 1 2.7%

Criminal Law Intoxication 1 2.7%



11

Subject Rule

# of Times Rule



Criminal Law Justification: Self-Defense & Defense of Others 2 5.4%

Criminal Law Imperfect Self-Defense 1 2.7%

Criminal Law Entrapment 1 2.7%

Criminal Procedure Fourth Amendment Right – Government Action & Standing 12 32.4%

Criminal Procedure Lawful Arrests 3 8.1%

Criminal Procedure Request for Information, Stop and Inquire, & Stop and

Frisk 4 10.8%

Criminal Procedure Warrant Requirement for All Searches, Unless an Exception

Applies 6 16.2%

Criminal Procedure Government Use of Sensory Enhancement Technology 2 5.4%

Criminal Procedure Exception to Warrant Requirement: Plain View Doctrine 4 10.8%

Criminal Procedure Exception to Warrant Requirement: Exigent Circumstances 2 5.4%

Criminal Procedure Exception to Warrant Requirement: Search Incident to

Arrest 3 8.1%

Criminal Procedure Exception to Warrant Requirement: Consent 3 8.1%

Criminal Procedure Exception to Warrant Requirement: Administrative &

Inventory Searches 1 2.7%

Criminal Procedure Exception to Warrant Requirement: Checkpoints 2 5.4%

Criminal Procedure Exception to Warrant Requirement: Automobile Exception 1 2.7%

Criminal Procedure 5th Amendment Privilege Against Self-Incrimination &

Miranda Rights 8 21.6%

Criminal Procedure Waiver of Miranda Rights 1 2.7%

Criminal Procedure 6th Amendment Right to Counsel & Effective Assistance of

Counsel 5 13.5%

Criminal Procedure Waiver of 6th Amendment Right to Counsel 1 2.7%

Criminal Procedure Right to Testify 1 2.7%

Criminal Procedure Right to Self-Representation 2 5.4%

Criminal Procedure Right to Speedy Trial 1 2.7%

Criminal Procedure Line-Ups & Police-Arranged Identification Procedures 1 2.7%

Criminal Procedure Due Process Clause: Catch-All 1 2.7%

Criminal Procedure Exclusionary Rule/Fruit of Poisonous Tree Doctrine 8 21.6%

Criminal Procedure Exclusionary Rule: Miranda Violations & Limitations 3 8.1%

Criminal Procedure Guilty Plea Requirements 1 2.7%

Evidence Relevance (Logical & Legal Relevance) 20 54.1%

Evidence California Proposition 8 5 13.5%

Evidence Subsequent Remedial Measures 2 5.4%



12

Subject Rule

# of Times Rule



Evidence Evidence of Liability Insurance 2 5.4%

Evidence Offers to Pay Medical Bills 3 8.1%

Evidence Offers to Settle 2 5.4%

Evidence Statements of Sympathy 1 2.7%

Evidence Authentication of Evidence: General Rule 9 24.3%

Evidence Authentication of Evidence: Physical Evidence 8 21.6%

Evidence Authentication of Evidence: Voice Recordings 2 5.4%

Evidence Best Evidence Rule 9 24.3%

Evidence Character Evidence 5 13.5%

Evidence Prior Bad Acts 4 10.8%

Evidence Habit and Routine Practice 1 2.7%

Evidence Impeachment: Prior Inconsistent Statements 2 5.4%

Evidence Impeachment: Prior Convictions 1 2.7%

Evidence Impeachment: Specific Instances of Conduct (“Bad Acts”) 2 5.4%

Evidence Impeachment: Bias 1 2.7%

Evidence Lay Witness Testimony & Opinions 11 29.7%

Evidence Expert Witness Testimony 4 10.8%

Evidence Scope of Cross-Examination 1 2.7%

Evidence Refreshing Recollection 2 5.4%

Evidence Judicial Notice 2 5.4%

Evidence Trial Objections: Assumes Facts Not in Evidence 2 5.4%

Evidence Trial Objections: Calls for Narrative 1 2.7%

Evidence Trial Objections: Leading Question 3 8.1%

Evidence Trial Objections: Non-Responsive Answer 1 2.7%

Evidence Trial Objections: Speculation 1 2.7%

Evidence Trial Objections: Vagueness 1 2.7%

Evidence Prohibition Against Jury Investigations 1 2.7%

Evidence Hearsay Definition 19 51.4%

Evidence Multiple Hearsay 5 13.5%

Evidence Non-Hearsay: Statements Offered for Other Purpose 8 21.6%

Evidence Hearsay Exclusion: Statements by a Party Opponent 17 45.9%

Evidence Hearsay Exclusion: Adoptive Admission 2 5.4%

Evidence Hearsay Exclusion: Vicarious Admissions 6 16.2%

Evidence Hearsay Exclusion: Prior Statement of Identification 1 2.7%



13

Subject Rule

# of Times Rule



Evidence Hearsay Exception: Declarant Unavailable Requirement 6 16.2%

Evidence Hearsay Exception: Dying Declaration 2 5.4%

Evidence Hearsay Exception: Statement Against Interest 7 18.9%

Evidence Hearsay Exception: Prior Statements Made Under Oath 2 5.4%

Evidence Hearsay Exception: Excited Utterance / Spontaneous

Statement 9 24.3%

Evidence Hearsay Exception: Present Sense Impression 11 29.7%

Evidence Hearsay Exception: Business Records 6 16.2%

Evidence Hearsay Exception: Government/Public Records 2 5.4%

Evidence Hearsay Exception: Past Recollection Recorded 2 5.4%

Evidence Hearsay Exception: State of Mind 9 24.3%

Evidence Hearsay Exception: Statements Made for Medical

Diagnosis/Treatment 2 5.4%

Evidence Hearsay Exception: Catch-All Exception 1 2.7%

Evidence Confrontation Clause (6th Amendment) 5 13.5%

Evidence Privilege & Eavesdroppers 2 5.4%

Evidence Attorney-Client Privilege 4 10.8%

Evidence Attorney Work Product Doctrine 4 10.8%

Evidence Physician-Patient Privilege 1 2.7%

Evidence Spousal Privileges: Confidential Marital Communications 2 5.4%

Evidence Spousal Privileges: Spousal Immunity 2 5.4%


Formation of Lawyer-Client Relationship 4 10.8%


Proper Scope of Lawyer-Client Relationship 4 10.8%


Advising or Assisting the Violation of Law 1 2.7%


Duty of Competence 21 56.8%


Duty of Communication 7 18.9%


Duty of Diligence 6 16.2%


Duty of Confidentiality 18 48.6%


Inadvertent Disclosure of Confidential Information 1 2.7%



14

Subject Rule

# of Times Rule




Duty to Safeguard Property 2 5.4%


Conflict of Interest: Duty of Loyalty 25 67.6%


Conflict of Interest: Current Clients 17 45.9%


Conflict of Interest: Former Clients 7 18.9%


Conflict of Interest: Prospective Clients 0 0.0%


Conflict of Interest: Imputed Conflicts 3 8.1%


Conflict of Interest: Former Lawyer for Government 2 5.4%


Business Ownership by a Lawyer 1 2.7%


Business Transactions with a Client & Pecuniary Interests Adverse to the Client

4 10.8%


Proprietary Interest in a Case 3 8.1%


Use of Current Client’s Information 2 5.4%


Gifts from a Client 0 0.0%


Acquisition of Client’s Literary/Media Rights 0 0.0%


Financial Assistance & Loans to Clients 3 8.1%


Payment of Legal Fees by a Third-Party 3 8.1%


Serving on the Board of a Client’s Organization 2 5.4%


Aggregate Settlements & Pleas 0 0.0%


Limiting Liability to a Client 1 2.7%


Sexual Relations with Clients 3 8.1%


Organization as Client: Lawyer Represents the Organization 2 5.4%


Organization as Client: Reporting Violations 1 2.7%



15

Subject Rule

# of Times Rule




Mandatory Withdrawal 4 10.8%


Permissive Withdrawal 3 8.1%


Duty of Candor to the Court 10 27.0%


Witness Perjury 5 13.5%


Ex Parte Communications with the Court 1 2.7%


Filing Frivolous Claims & Contentions 7 18.9%


Obstructing or Altering Discoverable Evidence 2 5.4%


Improper Influence 1 2.7%


Proper Discovery Requests & Compliance 2 5.4%


Payments to Witnesses 2 5.4%


Lawyer as Witness 1 2.7%


Communication with a Represented Person 4 10.8%


Trial Publicity – Extrajudicial Statements to the Public 3 8.1%


Special Rules for Prosecutors 2 5.4%


Threat of Criminal, Administrative, or Disciplinary Charges 2 5.4%


Amount of Lawyer’s Fees 7 18.9%


General Fee Agreements 3 8.1%


Contingency Fee Agreements 6 16.2%


Advance Payments & True Retainers 0 0.0%


Fee Divisions Among Lawyers 3 8.1%


Sharing Legal Fees with Non-Lawyers 5 13.5%



16

Subject Rule

# of Times Rule




Communications Concerning a Lawyer’s Services 0 0.0%


Advertising Legal Services 3 8.1%


Solicitation of Clients 4 10.8%


Compensation for Recommending Lawyer’s Services 3 8.1%


Professional Independence of a Lawyer 2 5.4%


Unauthorized Practice of Law 2 5.4%


Responsibilities Regarding Non-Lawyer Assistants 3 8.1%


Employment of Disbarred, Suspended, Resigned, or Involuntary Active Lawyer

2 5.4%


Professional Misconduct 2 5.4%


Responsibilities of a Subordinate Lawyer 1 2.7%


Reporting Professional Misconduct 2 5.4%

Real Property Present Estates: Defeasible Fees 2 5.4%

Real Property Future Estates: Reverter & the Right of Re-Entry 2 5.4%

Real Property Restraints on Alienation 2 5.4%

Real Property Waste 1 2.7%

Real Property Joint Tenancy: Formation 4 10.8%

Real Property Joint Tenancy: Severance 4 10.8%

Real Property Co-Tenant’s Entitlement to Rent or Reimbursement for

Repairs/Improvements 3 8.1%

Real Property Ouster of a Co-Tenant 1 2.7%

Real Property Types of Leasehold Interests 4 10.8%

Real Property Right to Terminate Tenancy for Breach of Covenant 1 2.7%

Real Property Tenant Duties: Duty to Pay Rent 3 8.1%

Real Property Landlord Duties: Duty to Deliver Possession 1 2.7%

Real Property Landlord Duties: Implied Warranty of Habitability 4 10.8%

Real Property Landlord Duties: Constructive Eviction 5 13.5%

Real Property Landlord Duties: Duty to Repair 1 2.7%



17

Subject Rule

# of Times Rule



Real Property Landlord Duties: Duty to Mitigate Damages 3 8.1%

Real Property Assignment of a Lease 5 13.5%

Real Property Subleases 3 8.1%

Real Property Termination of Leases: Surrender 1 2.7%

Real Property Real Covenants 5 13.5%

Real Property Equitable Servitudes 3 8.1%

Real Property Common Scheme or Plan Doctrine (Reciprocal Negative

Servitude) 1 2.7%

Real Property Easements by Grant, Prescription, Implication, & Necessity 5 13.5%

Real Property Termination of an Easement 3 8.1%

Real Property Licenses 1 2.7%

Real Property Fixtures 1 2.7%

Real Property Adverse Possession 1 2.7%

Real Property Requirements for a Valid Land Sale Contract 2 5.4%

Real Property Warranty of Marketable Title 2 5.4%

Real Property Revocation of a Land Sale Contract 1 2.7%

Real Property Deed Requirements 2 5.4%

Real Property Deeds: Constructive Conveyance 1 2.7%

Real Property General Warranty Deed, Special Warranty Deed, &

Quitclaim Deed 2 5.4%

Real Property Recording Statutes 4 10.8%

Real Property Bona Fide Purchasers & The Shelter Rule 3 8.1%

Real Property Purchase Money Mortgage 1 2.7%

Real Property Deed of Trust 1 2.7%

Real Property Mortgages: Foreclosure, Order of Preference, & Deficiency

Judgments 2 5.4%

Real Property Lateral Support 1 2.7%

Real Property Public and Private Nuisance 5 13.5%

Real Property Zoning Ordinances: Variances 1 2.7%

Real Property Zoning Ordinances: Previous Non-Conforming Use 1 2.7%

Remedies Contracts: Available Legal Remedies 12 32.4%

Remedies Expectation Damages 10 27.0%

Remedies Reliance Damages 6 16.2%

Remedies Consequential Damages 7 18.9%

Remedies Incidental Damages 7 18.9%



18

Subject Rule

# of Times Rule



Remedies Restitution Damages 5 13.5%

Remedies Liquidated Damages 1 2.7%

Remedies Damages in Contracts for the Sale of Land 2 5.4%

Remedies UCC Buyer’s Remedies & Damages 3 8.1%

Remedies UCC Seller’s Remedies & Damages 1 2.7%

Remedies Unjust Enrichment (Quasi-Contract) 3 8.1%

Remedies Reformation 4 10.8%

Remedies Rescission 5 13.5%

Remedies Specific Performance 12 32.4%

Remedies Torts: Available Legal Remedies 2 5.4%

Remedies Compensatory Damages 3 8.1%

Remedies Nominal Damages 2 5.4%

Remedies Punitive Damages 2 5.4%

Remedies Restitution Damages 3 8.1%

Remedies Damages for Fraud 2 5.4%

Remedies Damages for Conversion of Property 2 5.4%

Remedies Damages for Trespass to Chattels 2 5.4%

Remedies Damages for Trespass to Land 1 2.7%

Remedies Temporary Restraining Orders 4 10.8%

Remedies Preliminary Injunction 5 13.5%

Remedies Permanent Injunction 2 5.4%

Remedies Declaratory Judgment in Federal Court 1 2.7%

Remedies Equitable Lien 2 5.4%

Remedies Constructive Trust 4 10.8%

Remedies Replevin 1 2.7%

Remedies Ejectment 2 5.4%

Remedies Purchase Money Resulting Trust 1 2.7%

Remedies Pro Rata Resulting Trust 1 2.7%

Remedies Defenses: Laches 11 29.7%

Remedies Defenses: Unclean Hands 11 29.7%

Remedies Defenses: Mitigation of Damages 10 27.0%

Remedies Defenses: Intentional & Negligent Misrepresentation 6 16.2%

Torts Intentional Torts: General Elements 5 13.5%

Torts Doctrine of Transferred Intent 2 5.4%



19

Subject Rule

# of Times Rule



Torts Battery 5 13.5%

Torts Assault 3 8.1%

Torts False Imprisonment 2 5.4%

Torts Intentional Infliction of Emotional Distress 3 8.1%

Torts Trespass to Land 5 13.5%

Torts Trespass to Chattels & Conversion 5 13.5%

Torts Intentional Tort Defenses: Consent 2 5.4%

Torts Intentional Tort Defenses: Self-Defense/Defense of Others 1 2.7%

Torts Intentional Tort Defenses: Necessity 1 2.7%

Torts Intentional Tort Defenses: Privilege to Arrest 1 2.7%

Torts Intentional Tort Defenses: Shopkeeper’s Privilege to Detain

for Investigation 1 2.7%

Torts Negligence Elements 14 37.8%

Torts Duty: To Whom a Duty is Owed 7 18.9%

Torts Duty: Affirmative Duty to Act 2 5.4%

Torts Standard of Care: Reasonable Person Standard 7 18.9%

Torts Standard of Care: Children 2 5.4%

Torts Standard of Care: Medical Doctors 2 5.4%

Torts Standard of Care: Professionals & Attorneys 1 2.7%

Torts Standard of Care: Land Owner/Possessor’s Duty to

Entrants 2 5.4%

Torts Standard of Care: Attractive Nuisance Doctrine 1 2.7%

Torts Negligence Per Se 6 16.2%

Torts Res Ipsa Loquitor 1 2.7%

Torts Causation: Actual and Proximate Cause 5 13.5%

Torts Causation: Intervening Causes 4 10.8%

Torts Causation: Eggshell Plaintiff Rule 2 5.4%

Torts Comparative Negligence & Contributory Negligence 9 24.3%

Torts Assumption of Risk 10 27.0%

Torts Negligent Infliction of Emotional Distress 4 10.8%

Torts Vicarious Liability of Employer: Doctrine of Respondeat

Superior 4 10.8%

Torts Vicarious Liability: Employee vs. Independent Contractor 2 5.4%

Torts Joint and Several Liability 2 5.4%

Torts Survival Acts & Wrongful Death Claims 1 2.7%



20

Subject Rule

# of Times Rule



Torts Defamation 4 10.8%

Torts Privacy Torts: Misappropriation of Name or Picture 1 2.7%

Torts Privacy Torts: False Light 1 2.7%

Torts Privacy Torts: Intrusion of Privacy 1 2.7%

Torts Privacy Torts: Public Disclosure of Private Facts 2 5.4%

Torts Intentional Interference with Business Relations 1 2.7%

Torts Intentional & Negligent Misrepresentation 6 16.2%

Torts Abuse of Process 1 2.7%

Torts Malicious Prosecution 2 5.4%

Torts Public and Private Nuisance 4 10.8%

Torts Strict Liability: Abnormally Dangerous Activity 6 16.2%

Torts Strict Liability: Wild & Domestic Animals 1 2.7%

Torts Strict Products Liability: Liability for Manufacturing Defect,

Design Defect, & Failure to Warn 4 10.8%

Torts Products Liability: Liability for Negligence 4 10.8%

Torts Products Liability: Liability for Breach of Warranty 1 2.7%

Torts Products Liability: Indemnification 1 2.7%

Torts Products Liability: Compliance with Government

Regulations 1 2.7%

Trusts Trust Formation Elements 7 18.9%

Trusts Inter Vivos & Testamentary Trusts 1 2.7%

Trusts Revocable & Irrevocable Trusts 2 5.4%

Trusts Charitable Trusts 3 8.1%

Trusts Resulting Trusts 1 2.7%

Trusts Discretionary Trusts 1 2.7%

Trusts Cy Pres Doctrine 4 10.8%

Trusts Spendthrift Trusts 1 2.7%

Trusts Rights of Creditors 1 2.7%

Trusts Modification of a Trust 1 2.7%

Trusts Termination of an Irrevocable Trust 3 8.1%

Trusts Termination of a Revocable Trust 1 2.7%

Trusts Trustee Powers 2 5.4%

Trusts Trustee Duties Owed to Beneficiaries 6 16.2%

Trusts Duty to Distribute in Accordance with the Trust Instrument 3 8.1%

Trusts Prudent Investor Rule 2 5.4%



21

Subject Rule

# of Times Rule



Trusts Duty & Liability of Co-Trustees 1 2.7%

Trusts Remedies Against a Trustee 2 5.4%

Trusts Challenging the Validity of a Trust: Fraud & Undue

Influence 1 2.7%

Wills & Estates Validity of a Will under California Law 2 5.4%

Wills & Estates Will Execution Requirements 9 24.3%

Wills & Estates Holographic Will or Codicil 9 24.3%

Wills & Estates Modification of a Will by Codicil 4 10.8%

Wills & Estates Ambiguities in a Will 2 5.4%

Wills & Estates Acts of Independent Significance 4 10.8%

Wills & Estates Integration 1 2.7%

Wills & Estates Incorporation by Reference 3 8.1%

Wills & Estates Testator Gift of Community & Separate Property 3 8.1%

Wills & Estates Revocation by Physical Act 2 5.4%

Wills & Estates Revocation by Subsequent Will or Codicil 6 16.2%

Wills & Estates Revocation by Divorce 2 5.4%

Wills & Estates Partial Revocation of a Will 1 2.7%

Wills & Estates Dependent Relevant Revocation 2 5.4%

Wills & Estates Revival of Revoked Wills & Republication by Codicil 3 8.1%

Wills & Estates Testamentary Capacity 5 13.5%

Wills & Estates Interested Witness 3 8.1%

Wills & Estates Insane Delusion 1 2.7%

Wills & Estates Fraud 1 2.7%

Wills & Estates Undue Influence 4 10.8%

Wills & Estates Individuals Who May Make a Will 1 2.7%

Wills & Estates Terms of a Will Given Effect When Probated 2 5.4%

Wills & Estates Lapse of Gifts & Anti-Lapse Statute 3 8.1%

Wills & Estates Per Capita by Representation Distribution 2 5.4%

Wills & Estates Per Stirpes Distribution 1 2.7%

Wills & Estates General Gifts 2 5.4%

Wills & Estates Specific Gifts 2 5.4%

Wills & Estates Demonstrative Gifts 1 2.7%

Wills & Estates Residual Gifts 2 5.4%

Wills & Estates Ademption 3 8.1%



22

Subject Rule

# of Times Rule



Wills & Estates Abatement 2 5.4%

Wills & Estates Adopted Children 2 5.4%

Wills & Estates Joint Property: Right of Survivorship 1 2.7%

Wills & Estates Intestate Distribution 6 16.2%

Wills & Estates Omitted Spouse 4 10.8%

Wills & Estates Omitted Child 12 32.4%

© 2020 SmartBarPrep | www.smartbarprep.com 1

01 AGENCY

Agency

A. Formation

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/consent (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).

B. Contractual Liability of Principal and Agent

Authority of Agent: Actual Authority

• A principal is bound to contracts entered into by its agent if

the agent has actual authority. Actual authority may be

express or implied. Express authority occurs when the

principal has explicitly told the agent (either orally or in

writing) that he is entitled to act. Implied authority occurs

when either: (a) the agent believes he is entitled to act

because the action is incidental or necessary to carry out his

express authorized duties; (b) the agent has acted similarly in

prior dealings between the principal and agent (prior

acquiescence of principal); OR (c) it is customary for agents

in that position to act in that way.

Authority of Agent: Apparent Authority

• A principal is bound to contracts entered into by its agent if

the agent has apparent authority. Apparent authority arises

where: (1) the principal holds out another as having

authority; AND (2) the third-party reasonably relies on that

authority.

• A principal holds an agent out as having authority when he:

(a) gives the agent a position or title indicating certain

authority; (b) has previously held the agent out as having

authority and has not published a revocation of said

Feb 2015, Essay 5

Feb 2012, Essay 4

July 2010, Essay 4

Feb 2008, Essay 6

July 2005, Essay 3

Feb 2015, Essay 5

Feb 2012, Essay 4

July 2010, Essay 4

Feb 2008, Essay 6

July 2005, Essay 3

Feb 2012, Essay 4

1 of 37 exams

5 of 37 exams

5 of 37 exams


01 AGENCY

authority; OR (c) has cloaked the agent with the appearance

of such authority.

Ratification of Agent’s Contracts

• A principal’s ratification of an agent’s conduct will make the

principal liable for those contracts entered into by an agent

without actual or apparent authority. Ratification occurs

when the principal: (1) has knowledge of all material facts

or contract terms; AND (2) thereafter manifests assent

(approves) of the same through words or conduct. Approval

can be shown through words or inferred from conduct.

C. Vicarious Tort Liability

Vicarious Liability: Doctrine of Respondeat Superior

• Under the Doctrine of Respondeat Superior, an employer is

vicariously liable for an employee’s negligent acts if the

employee was acting within the scope of employment. A

party is generally NOT vicariously liable for the torts of an

independent contractor.

• An employee acts within the scope of employment when:

(a) performing work assigned by the employer; (b) engaging

in a course of conduct subject to the employer’s control; OR

(c) the conduct is of the same general nature as that

authorized or incidental to the conduct authorized.

Conduct is NOT outside the scope of employment merely

because an employee disregards the employer’s

instructions.

• An employee’s act is NOT within the scope of

employment when: (1) it occurs within an independent

course of conduct; AND (2) is not intended by the

employee to serve any purpose of the employer.

• An employee’s intentional torts are NOT generally within

the scope of employment UNLESS the act: (a) was

specifically authorized by the employer; (b) was driven by a

desire to serve the employer; OR (c) was the result of

naturally occurring friction from the type of employment.

Feb 2015, Essay 5

1 of 37 exams

Feb 2015, Essay 5

Feb 2013, Essay 6

Feb 2011, Essay 4

July 2006, Essay 1

4 of 37 exams

NOTE

The Vicarious Liability rules

crossover with Torts, and have

been listed in both the Torts and

Agency subjects in the outline

because they have appeared on

both Agency and Torts essays.


01 AGENCY

Vicarious Liability: Employee vs. Independent Contractor

• A party is generally NOT vicariously liable for the torts of

an independent contractor. An independent contractor is a

person who contracts with another to do something for him,

but who is not controlled nor subject to the other’s right to

control with respect to his performance. The contractor may

or may not be an agent.

• Generally, if the principal has the right to control the

manner and method in which the job is performed, then the

person is deemed to be an employee of the principal. In

contrast, a person subject to less extensive control is

considered an independent contractor. Other important

factors include: (1) the degree of the employer’s control; (2)

whether the pay was hourly or by the job; (3) whether the

employer furnished the tools or other items needed for the

job; (4) whether the job was for the benefit of the employer's

business; AND (5) the length of the working relationship.

Employee Liability for Negligent Conduct & Indemnification

• Generally, a person is liable for his own negligent conduct.

However, if an employee acts within the scope of his

employment in order to further the goals of the employer,

the employee may seek indemnification from the employer

for damages resulting from his negligent conduct.

Feb 2013, Essay 6

1 of 37 exams

Feb 2011, Essay 4

July 2006, Essay 1

2 of 37 exams


How to Use This Study Guide

Each rule in the SmartBarPrep Essay Priority Outline is presented as shown in the sample

below.

SAMPLE

The title of the rule will be in bold (ex: Negligence Elements). The Rule Statement (ex:

A prima facie case for negligence…) will be in one or more bullet points under the Rule Title.

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

California Bar Exam essays (ex: 1 of 37 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, and are

based on the following methodology:

Priority Frequency of Occurrence

HIGH

4+ exams

MEDIUM

2 or 3 exams

LOW

0 or 1 exams

Although a rule with the rating of LOW or MED has shown up only once or 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 California Bar Exam essays.

For example, whenever an Evidence question appeared, we found that approximately

80% of the time a component of the question dealt with the General Hearsay Rule. Since this

rule is tested frequently, it makes sense to spend more time memorizing it than, say, the rule of

Prohibition Against Jury Investigations, which appeared only once in the last 19 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 California Bar Exam.

Best of luck on the exam!

– The SmartBarPrep Team

Smart Sheets For the Multistate Bar Exam (MBE)

February 2020 Edition


CONSTITUTIONAL LAW 02

A. Constitutional Limits on Federal Court Jurisdiction

State Sovereign Immunity (11th Amendment)

11th Amend. prohibits a party from suing a state (or

state agency) in Federal Court UNLESS:

a) State explicitly consents to waive protection;

b) Lawsuit pertains to federal laws adopted under

Section 5 of the 14th Amendment;

c) Lawsuit seeks only injunctive relief against a

state official; OR

d) Lawsuit seeks money damages from a state

official.

11th Amend. DOES NOT apply to:

a) Local governments;

b) A federal lawsuit by a state against another

state; OR

c) A lawsuit by the federal govt. against a state.

B. Justiciability

Art. III of the U.S. Constitution limits federal courts to hearing actual cases and controversies. Standing – P must have standing to sue in court. Exists when:

1) P personally suffered an injury in fact (concrete and particularized injury);

2) There is causation; AND 3) The injury is redressable by court order.

Injunctive/Declaratory Relief – P must show a concrete, imminent threat of future injury. Third-Party Standing – Generally not permitted UNLESS:

a) A close relationship exists; b) It’s difficult or unlikely for the third-party to assert

their rights on their own; OR c) The third-party is an organization.

Organization Standing – Allowed to sue on behalf of the members if:

1) The suit is related to an issue germane to the organization’s purpose;

2) Members would have standing to sue; AND 3) Members’ participation is not necessary.

Taxpayer Standing – P may bring a lawsuit regarding specific amounts owed under their tax bill.

− But, a party DOES NOT have standing solely for being a taxpayer (i.e. challenging govt. expenditures).

Advisory Opinions, Ripeness, & Mootness – Courts CANNOT give advisory opinions or address hypothetical disputes.

Ripeness – whether the case is ready to be litigated. A case is ripe → when actual harm or an immediate threat of harm exists.

− Court may grant pre-enforcement review of a statute/law after considering: (1) hardship of the parties if no review; AND (2) fitness of the record.

Mootness – when a dispute has ended or was resolved before review.

− Exceptions → (a) case is capable of being repeated but escapes review; (b) voluntary cessation, but it can resume any time; OR (c) class actions, where at least one member has an ongoing injury.

C. Powers of Congress

Commerce Clause – Under the commerce clause,

Congress can regulate:

1) Channels of interstate commerce (highways,

phone lines)

2) People and instrumentalities of interstate

commerce (cars, airplanes, pilots);

3) Economic/commercial activity that has a

substantial effect on interstate commerce.

Federal regulations regarding intrastate commerce will

be upheld when (1) there is a rational basis, (2) to

conclude that the cumulative impact (aggregation), (3)

has a substantial effect on interstate commerce.

− Aggregation CANNOT be used when the activity

is not commercial/economic in nature.

Power to Enforce the 13th, 14th, & 15th Amendments

Congress has the power to enforce:

▪ 13th Amend. – abolition of slavery.

▪ 14th Amend. – privileges and immunities, due

process, equal protection, apportionment of

representatives.

▪ 15th Amend. – right to vote cannot be denied

because of race.

Congress MAY ONLY prohibit behavior that is likely to

involve a constitutional violation. There must be

congruence and proportionality between the injury to be

prevented and the legislative means adopted.

− Congress CANNOT define Constitutional rights

or change substantive law.

Taxing Power – Congress has the power to lay and

collect taxes, duties, imposts, and excises.

− Duties, imposts, and excises MUST be

geographically uniform throughout the U.S.

− Under 16th Amend., Congress has the power to

collect taxes on income from any source.

H

M

M

M

M

M



Spending Power – Congress has the power to spend

for the common defense and general welfare.

Congress MAY attach restrictions or conditions on

States receiving federal funds, BUT must satisfy the

following:

1) Spending must be for the general welfare;

2) Condition must be imposed unambiguously;

3) Condition must be related to the federal interest

in national projects or programs;

4) Condition cannot induce unconstitutional activity;

AND

5) Condition cannot be so coercive as to turn

pressure into compulsion.

D. Powers of the President

Domestic Powers – President has the power to:

1) Execute the law;

2) Appoint ambassadors, consuls, federal judges,

and officers (with senate advice and consent);

3) Appoint inferior officers (when such power is

given by Congress);

4) Remove cabinet level appointees (without

cause);

5) Remove independent regulatory agency

appointees (without cause unless Congress

passes a law requiring good cause);

6) Pardon federal crimes; and

7) Act as Commander-in-Chief of the military

(control troops).

Treaty & Foreign Affairs Powers – President shares

treaty powers with Congress. Treaties may be

negotiated by the President, but must be ratified by the

Senate.

− But, the President has the power to enter into

Executive Agreements (agreements between

the President and a head of a foreign country)

without Senate approval.

President has the power to control and deploy U.S.

troops in foreign countries.

E. Federal Interbranch Relationships

Delegation of Congressional Powers – Congress may

delegate legislative powers, so long as:

1) The powers are delegable under the

Constitution; AND

2) Congress provides reasonably intelligible

standards to guide the delegation.

Non-Delegation Doctrine – Congress CANNOT

delegate powers it does not have.

F. Intergovernmental Immunities

State Immunity from Federal Law (10th Amendment)

All powers not granted to the Fed Govt. are reserved to

the States (unless prohibited by the Constitution).

Congress CANNOT compel a State Govt. to implement

legislation.

− BUT, Congress MAY induce state govt. action

by attaching restrictions and conditions on

federal funding pursuant to its spending power.

G. Federalism-Based Limits on State Authority

Negative Commerce Clause – A state MAY regulate

commerce so long as Congress has NOT enacted laws

on the subject matter.

− If such laws are enacted, then any state/local

law would be pre-empted by federal law.

Notwithstanding the above, States CANNOT pass laws

that:

a) Discriminate against out-of-state commerce; OR

b) Place an undue burden on interstate commerce.

Discriminatory Regulations – Laws that are facially

discriminatory or have a discriminatory impact are

unconstitutional UNLESS:

a) The burden is narrowly tailored to achieve a

legitimate, non-protectionist state objective

(no less-discriminatory alternatives are

available); OR

b) The state is a market participant rather than a

regulator of economic activity.

Unduly Burdensome Regulations – Laws that are not

discriminatory, but place an undue burden on interstate

commerce are UNCONSTITUTIONAL when:

1) the burden on interstate commerce,

2) is clearly excessive to the putative benefits to

the state/local govt.

*Courts apply this balancing test on a case-by-case

basis.

Supremacy Clause & Preemption – Under the

Supremacy Clause, a validly enacted federal law will

always preempt conflicting state law.

− Express Preemption – occurs when the federal

law specifically states it is exclusive.

− Implied Preemption – occurs when: (a) direct

conflict with state law; (b) field preemption

(appears from the law itself or legislative

history); OR (c) state law substantially interferes

with the objective of the federal law.

H

H

M

M

M

M

M



H. Incorporation Doctrine

Incorporation Doctrine – Most Amendments are

applicable to the States by incorporation through the

14th Amend. Due Process Clause.

Exceptions:

▪ 3rd Amend. – freedom from quartering soldiers.

▪ 5th Amend. – indictment by a grand jury.

▪ 7th Amend. – jury trial in civil cases.

▪ 8th Amend. – excessive fines.

The 14th Amend. (equal protection) is incorporated into

the 5th Amend. Due Process Clause, making it

applicable to the Federal Govt.

I. Government Action (“State Action”)

Governmental Action – P must show that a violation is

attributable to govt. action, which applies to all levels

of local, state, and federal govt.

− The conduct of private actors is NOT protected

by the U.S. Constitution.

Exception – Courts will find govt. action of a private actor

when:

a) It is a traditional public function (powers

traditionally and exclusively reserved to the

govt.); OR

b) Significant govt. involvement exists to

authorize, encourage, or facilitate private

unconstitutional conduct.

J. Due Process (5th & 14th Amendments)

Due Process Clause → No person shall be denied life,

liberty, or property without due process of law.

− Applicable to the States → 14th Amendment

− Applicable to Fed. Govt. → 5th Amendment

Substantive Due Process – the govt.’s power to

regulate certain activities.

Fundamental Rights Test – When regulating

fundamental rights, it must satisfy strict scrutiny →

Govt. must show the law is necessary to serve a

compelling governmental interest.

− Fundamental Rights = right to vote, interstate

travel, and privacy (marry, procreate, use

contraceptives, raise one’s child, keep family

together, maintain custody over children).

Non-Fundamental Rights Test – When regulating

activities that do not constitute a fundamental right, it

must meet the rational basis test → Plaintiff must show

the law is not rationally related to a legitimate govt.

interest.

Procedural Due Process – Certain procedures are

required when the govt. deprives a person of life, liberty

(freedom), or property (an entitlement that is not

fulfilled).

Matthews v. Eldridge Factors → To determine the

procedure required, the court balances the:

1) Importance of the private interests;

2) Risk of error under current procedures and the

value of additional procedures; and

3) Importance of state interests and the burden that

arises from additional safeguards.

*Due process usually requires notice and an unbiased

hearing.

K. Equal Protection (5th & 14th Amendments)

Equal Protection Analysis – Prohibits the govt. from

denying citizens equal protection of the laws.

− Applicable to the States → 14th Amendment

− Applicable to Fed. Govt. → 5th Amendment

Discriminatory Classification – exists when:

a) a law is discriminatory on its face;

b) a law is facially neutral, but is applied in a

discriminatory manner; OR

c) a discriminatory motive exists.

When laws classify people into groups, apply the

appropriate test below based on the type of class:

− Strict Scrutiny → suspect class (race,

nationality, alienage classification under state

law) or infringes on a fundamental right.

• Govt. must show the classification is

necessary to serve a compelling

government interest.

− Intermediate Scrutiny → quasi-suspect class

(gender, non-marital child, undocumented alien).

• Govt. must show the classification is

substantially related to an important

governmental interest.

− Rational Basis → all other classes.

• Plaintiff must show the classification is

not rationally related to a legitimate

governmental interest (any conceivable

interest is sufficient).

H

H

M

M

M

MBE Smart Sheets


Priority RatingPriority RatingPriority RatingPriority Ratingssss GuideGuideGuideGuide

A priority rating (H or M) will be listed in the color-coded circle next to each rule.

Priority Circle Priority Explanation

High Priority – these are the most important and

frequently tested rules.

Medium Priority – these rules are tested slightly less

frequently, but are still important.

The priority ratings are based upon two primary factors:

The testing frequency for each topic in the official MBE Subject Matter Outline released by the National Conference of Bar Examiners.

How often that rule has been tested in the past on the MEE essays for that particular subject area. This testing frequency data is also useful for prioritizing the MBE rules because both the MBE and MEE sections are drafted by the same entity (the National Conference of Bar Examiners).

There are no LOW priority rules because all MBE rules are important and may be tested on any given exam. As such, we felt many important rules would receive an unwarranted LOW designation.

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

MBE Smart Sheets


The HIGHHIGHHIGHHIGH or MEDMEDMEDMEDIUMIUMIUMIUM designation is not a prediction of what rules will appear on any given exam.

Instead, it is meant to help you prioritize your studying to focus on the most important and frequently tested rules. Ultimately, this method promotes efficiency in studying for the bar exam.

Best of luck on the exam!

– The SmartBarPrep Team

Smart Flashcards

California & MBE - Screenshots

february 2020 edition - smartbarprep · each rule’s frequency, list of exams tested, & model...

Documents