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MEE Frequency Analysis For the UBE/MEE

February 2020 Edition

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Table of Contents

Description Page

MEE Subject Frequency – Past 50 Exams ............................................................................................ 1

MEE Subject Frequency Chart – Past 25 Exams ................................................................................ 2

MEE Subject Frequency – Past 25 Exams ............................................................................................ 3

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

SmartBarPrep Frequency Analysis


1

Subjects Appearing on PastSubjects Appearing on PastSubjects Appearing on PastSubjects Appearing on Past MEE’sMEE’sMEE’sMEE’s (Feb. 1995 to (Feb. 1995 to (Feb. 1995 to (Feb. 1995 to JulyJulyJulyJuly 2019)2019)2019)2019)

MEE Subject Frequency – Past 50 Exams

Subject Number of Times Subject Appeared on Past Exams

Percentage (%) Subject Appeared on Past Exams

Agency 41 out of 50 exams 82%

Partnerships 33 out of 50 exams 66%

Corporations & LLC's 35 out of 50 exams 70%

Civil Procedure 47 out of 50 exams 94%

Conflict of Laws 22 out of 50 exams 44%

Constitutional Law* 12 out of 25 exams 48%

Contracts*† 15 out of 25 exams 60%

Criminal Law & Procedure* 14 out of 25 exams 56%

Evidence* 12 out of 25 exams 48%

Family Law 42 out of 50 exams 84%

Real Property* 14 out of 25 exams 56%

Secured Transactions 36 out of 50 exams 72%

Torts* 12 out of 25 exams 48%

Trusts & Future Interests 35 out of 50 exams 70%

Wills & Estates 39 out of 50 exams 78%

* These six subjects were not tested on the Multistate Essay Exam (MEE) until July 2007. † The subject of Sales (UCC Article 2) was tested on a few exams prior to July 2007; those exams were not included in this subject frequency chart because it would artificially inflate the testing percentage. However, the rules tested from those exams are included in the SmartBarPrep Priority Outlines.



2

Subjects Appearing on PastSubjects Appearing on PastSubjects Appearing on PastSubjects Appearing on Past MEE’sMEE’sMEE’sMEE’s (July 2007 to (July 2007 to (July 2007 to (July 2007 to JulyJulyJulyJuly 2019)2019)2019)2019)

MEE Subject Frequency Chart – Past 25 Exams

12

16

12

14

14

11

16

12

14

16

15

12

8

22

13

0 5 10 15 20

Wills & Estates

Trusts & Future Interests

Torts

Secured Transactions

Real Property

Partnerships

Family Law

Evidence

Criminal Law & Procedure

Corporations & LLC's

Contracts

Constitutional Law

Conflict of Laws

Civil Procedure

Agency

# of Times Tested



3

Subjects Appearing on PastSubjects Appearing on PastSubjects Appearing on PastSubjects Appearing on Past MEE’sMEE’sMEE’sMEE’s (July 2007 to (July 2007 to (July 2007 to (July 2007 to JulyJulyJulyJuly 2019)2019)2019)2019)

MEE Subject Frequency – Past 25 Exams

Subject Number of Times Subject Appeared on Past Exams

Percentage (%) Subject Appeared on Past Exams

Agency 13 out of 25 exams 52%

Partnerships 11 out of 25 exams 44%

Corporations & LLC's 16 out of 25 exams 64%

Civil Procedure 22 out of 25 exams 88%

Conflict of Laws 8 out of 25 exams 32%

Constitutional Law 12 out of 25 exams 48%

Contracts 15 out of 25 exams 60%

Criminal Law & Procedure 14 out of 25 exams 56%

Evidence 12 out of 25 exams 48%

Family Law 16 out of 25 exams 64%

Real Property 14 out of 25 exams 56%

Secured Transactions 14 out of 25 exams 56%

Torts 12 out of 25 exams 48%

Trusts & Future Interests 16 out of 25 exams 64%

Wills & Estates 12 out of 25 exams 48%



4

RulesRulesRulesRules Appearing on PastAppearing on PastAppearing on PastAppearing on Past UBE/MEE EssaysUBE/MEE EssaysUBE/MEE EssaysUBE/MEE Essays

MEE Rule Frequency

Subject Rule

# of Times Rule

Appeared on Past Exams

% out of Exams Tested

Agency Creation of Agency Relationship 4 8.0%

Agency Types of Agency Relationships 1 2.0%

Agency Termination of Agency Relationship 3 6.0%

Agency Actual Authority 10 20.0%

Agency Apparent Authority 10 20.0%

Agency Inherent Agency Power 3 6.0%

Agency Ratification of Agent’s Contracts 2 4.0%

Agency Agent’s Contractual Liability 5 10.0%

Agency Employee vs. Independent Contractor 5 10.0%

Agency Vicarious Liability of Employer: Doctrine of Respondeat

Superior 5 10.0%

Agency Vicarious Liability of Employer: Liability Where Respondeat

Superior Doctrine Inapplicable 2 4.0%

Agency Vicarious Liability for Acts of Independent Contractors 2 4.0%

Agency Fiduciary Duties Owed by the Agent to the Principal 4 8.0%

Total Bar Exams Analyzed 50

Total # of Essays 364

Total # of Rules Analyzed 578



5

Subject Rule

# of Times Rule



Partnerships Creation of a General Partnership 7 14.0%

Partnerships Formation of a Limited Partnership (LP) 2 4.0%

Partnerships Formation of a Limited Liability Partnership (LLP) 2 4.0%

Partnerships Authority to Bind the Partnership 8 16.0%

Partnerships Authority to Bind a Partnership After Dissolution 3 6.0%

Partnerships Personal Liability of General Partners & Judgment

Enforcement 8 16.0%

Partnerships Personal Liability of Limited Partners 3 6.0%

Partnerships Personal Liability of Limited Liability Partners 3 6.0%

Partnerships Sharing of Profits and Losses 1 2.0%

Partnerships Right to Management & Control 2 4.0%

Partnerships Transfer of Ownership Interest in a Partnership 3 6.0%

Partnerships Right to Partnership Property 3 6.0%

Partnerships Remuneration (Payment for Partner’s Services) 1 2.0%

Partnerships Partnership Ownership of Inventions 1 2.0%

Partnerships Advance of Funds to the Partnership & Reimbursement 1 2.0%

Partnerships Management & Control in a Limited Partnership 2 4.0%

Partnerships Limited Partner’s Right to Inspect Records 2 4.0%

Partnerships Duty of Care 4 8.0%

Partnerships Duty of Loyalty 6 12.0%

Partnerships Duty to Provide Full Information 3 6.0%

Partnerships Action Against a Partner for Misconduct 1 2.0%

Partnerships Dissociation (Withdrawal of a Partner) 4 8.0%

Partnerships Dissolution of a General Partnership 8 16.0%

Partnerships Dissolution of a Limited Partnership 1 2.0%

Partnerships Winding Up & Termination of the Partnership 2 4.0%

Corporations & LLC’s Formation of a Corporation (Articles of Incorporation) 2 4.0%

Corporations & LLC’s Bylaws 2 4.0%

Corporations & LLC’s Amending the Bylaws 1 2.0%

Corporations & LLC’s Powers of a Corporation 1 2.0%

Corporations & LLC’s Formation of an LLC 1 2.0%

Corporations & LLC’s Liability of Promoter for Pre-Incorporation Contracts 3 6.0%

Corporations & LLC’s Liability of Corporation for Pre-Incorporation Contracts 2 4.0%

Corporations & LLC’s Defective Incorporation & Owner Liability 1 2.0%



6

Subject Rule

# of Times Rule



Corporations & LLC’s Personal Liability & Piercing the Veil 5 10.0%

Corporations & LLC’s Common & Preferred Shares 1 2.0%

Corporations & LLC’s Authorized, Outstanding, & Reacquired Shares 2 4.0%

Corporations & LLC’s Consideration in Exchange for Shares 1 2.0%

Corporations & LLC’s Dividends & Distributions to Shareholders 3 6.0%

Corporations & LLC’s Shareholder Meetings: Right to Vote & Record Date 2 4.0%

Corporations & LLC’s Shareholder Meetings: Proxy Voting & Revocation of a

Proxy 4 8.0%

Corporations & LLC’s Shareholder Meetings: Annual Meetings, Special Meetings,

& Notice 1 2.0%

Corporations & LLC’s Shareholder Meetings: Quorum & Voting 2 4.0%

Corporations & LLC’s Shareholder Meetings: Election of Directors 1 2.0%

Corporations & LLC’s Shareholder’s Right to Inspect Books and Records 2 4.0%

Corporations & LLC’s Shareholder Voting Agreements 1 2.0%

Corporations & LLC’s Board of Directors Meeting: Quorum 1 2.0%

Corporations & LLC’s Board of Directors Meeting: Voting & Objection to Actions 0 0.0%

Corporations & LLC’s Board of Directors Meeting: Notice & Waiver 1 2.0%

Corporations & LLC’s Board Action by Written Consent 1 2.0%

Corporations & LLC’s Removal of Directors 1 2.0%

Corporations & LLC’s Authority of Officers 3 6.0%

Corporations & LLC’s Removal of Officers 1 2.0%

Corporations & LLC’s Management of an LLC 1 2.0%

Corporations & LLC’s Authority of Members and Managers of an LLC 1 2.0%

Corporations & LLC’s Preemptive Rights 1 2.0%

Corporations & LLC’s Restrictions on Share Transfers 1 2.0%

Corporations & LLC’s Fiduciary Duties of Directors: Duty of Care 9 18.0%

Corporations & LLC’s Fiduciary Duties of Directors: Duty of Loyalty – Conflicting

Interest Transaction 6 12.0%

Corporations & LLC’s Fiduciary Duties of Directors: Duty of Loyalty – Usurping a

Corporate Opportunity 1 2.0%

Corporations & LLC’s Fiduciary Duties of Shareholders 1 2.0%

Corporations & LLC’s Restricting/Eliminating Fiduciary Duties in a Corporation 1 2.0%

Corporations & LLC’s Fiduciary Duties Owed by Members/Managers of an LLC 3 6.0%

Corporations & LLC’s Restricting/Eliminating Fiduciary Duties in an LLC 1 2.0%

Corporations & LLC’s Direct & Derivative Actions 6 12.0%



7

Subject Rule

# of Times Rule



Corporations & LLC’s Derivative Actions: Dismissal by the Board of Directors 1 2.0%

Corporations & LLC’s Federal Securities Law – Rule 10b-5 1 2.0%

Corporations & LLC’s Amending the Articles of Incorporation 2 4.0%

Corporations & LLC’s Mergers and Share Exchanges 1 2.0%

Corporations & LLC’s Sale of All or Substantially All of Corporate Assets 3 6.0%

Corporations & LLC’s Dissenter’s Appraisal Rights for Fundamental Changes 3 6.0%

Corporations & LLC’s Judicial Dissolution of a Corporation 1 2.0%

Corporations & LLC’s Voluntary Dissolution of a Corporation 2 4.0%

Corporations & LLC’s Dissociation of a Member from an LLC 1 2.0%

Corporations & LLC’s Dissolution & Winding Up of an LLC 2 4.0%

Civil Procedure Subject Matter Jurisdiction: Federal Question 10 20.0%

Civil Procedure Subject Matter Jurisdiction: Diversity of Citizenship 19 38.0%

Civil Procedure Subject Matter Jurisdiction: Supplemental Jurisdiction 8 16.0%

Civil Procedure Subject Matter Jurisdiction: Domestic Relations Exception 1 2.0%

Civil Procedure Subject Matter Jurisdiction: Diversity Jurisdiction of a

Large Class Action 1 2.0%

Civil Procedure Removal 4 8.0%

Civil Procedure Abstention Doctrines 2 4.0%

Civil Procedure Personal Jurisdiction 9 18.0%

Civil Procedure Service of Process and Notice 4 8.0%

Civil Procedure Venue (Proper Venue & Transfer of Venue) 11 22.0%

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

vs. Procedure, & Supremacy Clause 7 14.0%

Civil Procedure Preliminary Injunction 2 4.0%

Civil Procedure Temporary Restraining Order (TRO) 3 6.0%

Civil Procedure Amendments to Pleadings & Relation Back Doctrine 3 6.0%

Civil Procedure Counterclaims 2 4.0%

Civil Procedure Cross-Claims 1 2.0%

Civil Procedure Rule 11 – Representations to the Court 2 4.0%

Civil Procedure Rule 11 – Sanctions Imposed 2 4.0%

Civil Procedure Rule 11 – Procedure for Filing a Sanctions Motion 1 2.0%

Civil Procedure Permissive Joinder of Parties 3 6.0%

Civil Procedure Required Joinder of Parties 2 4.0%

Civil Procedure Intervention as of Right & Permissive Intervention 1 2.0%

Civil Procedure Impleader (Third-Party Actions) 1 2.0%



8

Subject Rule

# of Times Rule



Civil Procedure Class Action Requirements & Certification 2 4.0%

Civil Procedure Discoverable Information (Relevant & Proportional

Standard) 1 2.0%

Civil Procedure Depositions 1 2.0%

Civil Procedure Electronically Stored Information & Spoliation Sanctions 1 2.0%

Civil Procedure Rule 26(g) – Signing Disclosures & Sanctions for Improper

Certification 1 2.0%

Civil Procedure Rule 26(a) Initial Disclosures 1 2.0%

Civil Procedure Attorney Work Product Doctrine 3 6.0%

Civil Procedure Pretrial Conference and Order 3 6.0%

Civil Procedure Motion to Dismiss & Motion for Judgment on the Pleadings 4 8.0%

Civil Procedure Motion for Summary Judgment 5 10.0%

Civil Procedure Motion for Judgment as a Matter of Law 3 6.0%

Civil Procedure Motion for a New Trial 1 2.0%

Civil Procedure Preclusive Effect of a Default Judgment 1 2.0%

Civil Procedure Claim Preclusion (Res Judicata) 2 4.0%

Civil Procedure Issue Preclusion (Collateral Estoppel) 3 6.0%

Civil Procedure Appeals: Final Judgment Rule & Exceptions 4 8.0%

Conflict of Laws Choice of Law Theories: Traditional Vested Rights

Approach 2 4.0%

Conflict of Laws Choice of Law Theories: Most Significant Relationship

Approach 3 6.0%

Conflict of Laws Choice of Law Theories: Interest Analysis Approach 3 6.0%

Conflict of Laws Choice of Law Rules: Torts 1 2.0%

Conflict of Laws Choice of Law Rules: Contracts 3 6.0%

Conflict of Laws Choice of Law Rules: Contractual Forum-Selection Clause 2 4.0%

Conflict of Laws Choice of Law Rules: Premarital Agreements 1 2.0%

Conflict of Laws Choice of Law Rules: Real Property Cases 1 2.0%

Conflict of Laws Choice of Law Rules: Inheritance of Real & Personal

Property 3 6.0%

Conflict of Laws Law Applied by Federal Courts: Erie Doctrine, Substance

vs. Procedure, & Supremacy Clause 7 14.0%

Conflict of Laws Law Applied by State Courts: Substance vs. Procedure 1 2.0%

Conflict of Laws Full Faith and Credit: State, Federal, and Foreign Court

Judgments 1 2.0%

Conflict of Laws Full Faith and Credit: Ceremonial & Common Law Marriage 4 8.0%

Conflict of Laws Full Faith and Credit: Family Law Judgments 6 12.0%



9

Subject Rule

# of Times Rule



Constitutional Law State Sovereign Immunity (11th Amendment) 2 8.0%

Constitutional Law Standing 1 4.0%

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

Constitutional Law Commerce Clause 1 4.0%

Constitutional Law Power to Enforce the 13th, 14th, and 15th Amendments 1 4.0%

Constitutional Law Taxing Power 0 0.0%

Constitutional Law Spending Power 1 4.0%

Constitutional Law Executive Powers: Domestic Powers 0 0.0%

Constitutional Law Executive Powers: Treaty and Foreign Affairs Powers 0 0.0%

Constitutional Law Delegation of Congressional Powers & Non-Delegation

Doctrine 0 0.0%

Constitutional Law State Immunity from Federal Law (10th Amendment) 2 8.0%

Constitutional Law Negative Commerce Clause 2 8.0%

Constitutional Law Supremacy Clause & Preemption 0 0.0%

Constitutional Law Governmental Action (“State Action”) 2 8.0%

Constitutional Law Substantive Due Process 0 0.0%

Constitutional Law Procedural Due Process 0 0.0%

Constitutional Law Equal Protection Analysis 2 8.0%

Constitutional Law Takings (5th Amendment) 1 4.0%

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

Restrictions 0 0.0%

Constitutional Law Freedom of Speech: Public Forum, Limited Public Forum, &

Non-Public Forum 2 8.0%

Constitutional Law Unprotected Speech: Fighting Words 1 4.0%

Constitutional Law Unprotected Speech: Incitement of Imminent Lawless

Action 1 4.0%

Constitutional Law Unprotected Speech: Obscenity 0 0.0%

Constitutional Law Freedom of Speech: Regulation of Commercial Speech 0 0.0%

Constitutional Law Freedom of Speech: Public School Students 1 4.0%

Constitutional Law Freedom of Speech: Government Employees 0 0.0%

Constitutional Law Freedom of Speech: Regulation of Expressive Conduct 0 0.0%

Constitutional Law Freedom of Speech: Prior Restraint 0 0.0%



10

Subject Rule

# of Times Rule



Constitutional Law Freedom of Speech: Vague & Overbroad Laws 1 4.0%

Constitutional Law Freedom of the Press: Defamation & Actual Malice

Standard 1 4.0%

Constitutional Law Freedom of the Press: Disclosure of Private Facts &

Generally Applicable Laws 1 4.0%

Constitutional Law Freedom of Association 0 0.0%

Contracts UCC Article 2 Governs Contracts for the Sale of Goods 7 28.0%

Contracts Applicable Law: UCC Article 2 vs. Common Law 1 4.0%

Contracts Mutual Assent: Offer & Acceptance 4 16.0%

Contracts Mutual Assent: Timing of Acceptance/Revocation & the

Mailbox Rule 2 8.0%

Contracts Mutual Assent: Battle of the Forms (Mirror Image Rule and

UCC Exception) 1 4.0%

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

Contracts Indefiniteness or Absence of Terms 0 0.0%

Contracts Consideration: Bargained for Exchange & Substitutes 3 12.0%

Contracts Consideration: Settlement/Release of Legal Claims 0 0.0%

Contracts Modification of Contracts: Pre-Existing Duty Rule &

Exceptions 4 16.0%

Contracts Incapacity 0 0.0%

Contracts Duress 1 4.0%

Contracts Undue Influence 0 0.0%

Contracts Mutual Mistake & Unilateral Mistake 0 0.0%

Contracts Misrepresentation 1 4.0%

Contracts Illegality & Public Policy 0 0.0%

Contracts Unconscionability 0 0.0%

Contracts Statute of Frauds: Contracts Requiring a Signed Writing 3 12.0%

Contracts Parol Evidence Rule 1 4.0%

Contracts Condition Precedent 1 4.0%

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

Contracts Impossibility, Impracticability, & Frustration of Purpose 0 0.0%

Contracts Minor Breach (Substantial Performance Doctrine) vs.

Material Breach 1 4.0%

Contracts Divisible Performance (Part Performances as Agreed

Equivalents) 1 4.0%

Contracts UCC Perfect Tender Rule & Exceptions 0 0.0%

Contracts UCC Acceptance of Goods & Revocation of Acceptance 2 8.0%



11

Subject Rule

# of Times Rule



Contracts Anticipatory Repudiation & Adequate Assurances 2 8.0%

Contracts Accord and Satisfaction 0 0.0%

Contracts Express Warranty 1 4.0%

Contracts Implied Warranty of Merchantability 0 0.0%

Contracts Implied Warranty of Fitness for a Particular Purpose 0 0.0%

Contracts Warranty of Title 2 8.0%

Contracts Limiting Damages for Breach of Warranty 0 0.0%

Contracts Third-Party Beneficiaries & Enforcement of Rights 1 4.0%

Contracts Assignment of Rights 1 4.0%

Contracts Delegation of Duties 1 4.0%

Contracts Common Law Expectation Damages 3 12.0%

Contracts Consequential Damages 2 8.0%

Contracts Punitive Damages 1 4.0%

Contracts Specific Performance 0 0.0%

Contracts UCC Seller’s Remedies & Damages 2 8.0%

Contracts UCC Buyer’s Remedies & Damages 2 8.0%

Contracts Waste Doctrine & Diminution in Value Damages 1 4.0%

Contracts Restitution (Unjust Enrichment) 2 8.0%

Contracts Rescission 0 0.0%

Contracts Mitigation of Damages 2 8.0%


Elements of a Crime: Acts and Omissions 0 0.0%


Elements of a Crime: Causation 2 8.0%


Elements of a Crime: Mental States 2 8.0%


Murder 2 8.0%


Manslaughter 2 8.0%


Theft Crimes & Receiving Stolen Property 3 12.0%


Robbery 0 0.0%


Burglary 2 8.0%



12

Subject Rule

# of Times Rule




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 4.0%


Conspiracy 0 0.0%


Solicitation 0 0.0%


Accomplice Liability 1 4.0%


Duress 1 4.0%


Insanity 2 8.0%


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 4.0%


Arrests 1 4.0%


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

1 4.0%


Warrant Requirement for All Searches, Unless an Exception Applies

2 8.0%


Exception to Warrant Requirement: Plain View Doctrine 1 4.0%


Exception to Warrant Requirement: Exigent Circumstances 0 0.0%


Exception to Warrant Requirement: Automobile Exception 1 4.0%



13

Subject Rule

# of Times Rule




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 4.0%


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

6 24.0%


Confessions: 6th Amendment Right to Counsel 1 4.0%


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 8.0%


Right to a Jury Trial 1 4.0%


Competence to Stand Trial 1 4.0%


Double Jeopardy 1 4.0%


Burden of Proof, Presumptions, & Sufficiency of Evidence 2 8.0%


Harmless Error Rule 0 0.0%

Evidence Probative Value: Relevancy & Rule 403 Exclusions 7 28.0%

Evidence Subsequent Remedial Measures 1 4.0%

Evidence Compromise/Settlement Offers & Negotiations 1 4.0%

Evidence Pleas & Plea Negotiations 0 0.0%

Evidence Offers to Pay Medical Expenses 1 4.0%

Evidence Liability Insurance 0 0.0%

Evidence Authentication of Evidence 0 0.0%

Evidence Best Evidence Rule 0 0.0%

Evidence Character Evidence 4 16.0%

Evidence Prior Bad Acts 1 4.0%

Evidence Habit or Routine Practice 2 8.0%



14

Subject Rule

# of Times Rule



Evidence Impeachment: Prior Inconsistent Statements 1 4.0%

Evidence Impeachment: Prior Convictions 1 4.0%

Evidence Impeachment: Specific Instances of Conduct 2 8.0%

Evidence Impeachment: Character for Truthfulness 0 0.0%

Evidence Impeachment: Ability to Observe, Remember, or Relate

Accurately 1 4.0%

Evidence Impeachment: Hearsay Declarants 1 4.0%

Evidence Refreshing Recollection 2 8.0%

Evidence Judicial Notice 0 0.0%

Evidence Lay Witness Testimony & Opinions 3 12.0%

Evidence Expert Witness Testimony 1 4.0%

Evidence Hearsay, Multiple Hearsay, & Non-Hearsay 8 32.0%

Evidence Hearsay Exclusion: Statements by a Party Opponent 4 16.0%

Evidence Hearsay Exclusion: Prior Statements by a Witness 2 8.0%

Evidence Hearsay Exception: Present Sense Impression 4 16.0%

Evidence Hearsay Exception: Excited Utterance 3 12.0%

Evidence Hearsay Exception: Business Records 3 12.0%

Evidence Hearsay Exception: Statements Made for Medical

Diagnosis/Treatment 3 12.0%

Evidence Hearsay Exception: Statements of Mental, Emotional, or

Physical Condition 0 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 4.0%

Evidence Sixth Amendment Right to Confront Witnesses 2 8.0%

Evidence Spousal Privileges: Spousal Immunity & Confidential

Marital Communications 1 4.0%

Evidence Attorney-Client Privilege 0 0.0%

Evidence Attorney Work Product Doctrine 0 0.0%

Evidence Physician-Patient Privilege 1 4.0%

Evidence Psychotherapist-Patient Privilege 0 0.0%

Family Law Marriage Requirements (State of Mind & Procedural) 1 2.0%

Family Law Common Law Marriage 5 10.0%

Family Law Bigamous Marriage 3 6.0%



15

Subject Rule

# of Times Rule



Family Law Premarital Agreements: Enforceability 6 12.0%

Family Law Premarital Agreements: Child Custody & Support 6 12.0%

Family Law Premarital Agreements: Spousal Support 2 4.0%

Family Law Premarital Agreements: Eliminating Fundamental Marital

Duties & Allocating Financial Responsibilities 1 2.0%

Family Law Rights & Responsibilities of Spouses: Married Women’s

Property Acts 1 2.0%

Family Law Rights & Responsibilities of Spouses: Mutual Support &

Doctrine of Nonintervention 1 2.0%

Family Law Rights & Responsibilities of Spouses: Payment for

Necessities 2 4.0%

Family Law Jurisdiction: Marital/Divorce & Support Actions 8 16.0%

Family Law Jurisdiction: Child Custody & Adoption Matters 6 12.0%

Family Law Annulment 1 2.0%

Family Law Divorce Grounds 2 4.0%

Family Law Setting Aside Separation & Divorce Settlement Agreements 3 6.0%

Family Law Division of Property: Marital vs. Separate Property 9 18.0%

Family Law Division of Property: Professional License or Degree 2 4.0%

Family Law Division of Property: Marital & Economic Fault 2 4.0%

Family Law Division of Property: No Termination Upon Death 1 2.0%

Family Law Modification of a Property Division Award 2 4.0%

Family Law Spousal Support: When Support May be Awarded, Amount,

& Termination 4 8.0%

Family Law Spousal Support: Reinstatement of Prior Award 1 2.0%

Family Law Child Support 5 10.0%

Family Law Modification & Enforcement of Child/Spousal Support

Orders 7 14.0%

Family Law Child Custody: Best Interests of the Child Standard 8 16.0%

Family Law Child Custody: Parent vs. Third-Party Custody 4 8.0%

Family Law Child Custody: Joint Custody 1 2.0%

Family Law Child Custody: Presumption of Parental Fitness 1 2.0%

Family Law Visitation: Parental Visitation Rights 1 2.0%

Family Law Visitation: Third-Party Visitation Rights 3 6.0%

Family Law Child Custody: Relocation of the Custodial Parent & Child 1 2.0%

Family Law Modification of a Child Custody Order 3 6.0%

Family Law Division of Property of Unmarried Cohabitants 2 4.0%



16

Subject Rule

# of Times Rule



Family Law Agreements Between Unmarried Cohabitants 4 8.0%

Family Law Putative Spouse Doctrine 1 2.0%

Family Law Establishing Paternity, Presumption of Legitimacy, &

Paternity by Estoppel 4 8.0%

Family Law Unmarried Biological Father’s Rights 3 6.0%

Family Law Right to Control the Child’s Upbringing 3 6.0%

Family Law Intra-Family Lawsuits & Immunities 1 2.0%

Family Law Loss of Consortium Claims 1 2.0%

Family Law Adoption & Parental Consent 6 12.0%

Family Law Adoption: Visitation for Biological Parents 1 2.0%

Family Law Artificial Insemination & In Vitro Fertilization 2 4.0%

Family Law Surrogacy Arrangements 1 2.0%

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

Real Property Present Estates: Defeasible Fees 1 4.0%

Real Property Present Estates: Life Estate 0 0.0%

Real Property Present Estates: Statute of Limitations 1 4.0%

Real Property Future Estates: Reverter & the Right of Re-Entry 1 4.0%

Real Property Future Estates: Vested and Contingent Remainders 1 4.0%

Real Property Tenancy in Common 1 4.0%

Real Property Joint Tenancy: Formation 1 4.0%

Real Property Joint Tenancy: Severance 1 4.0%

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

Repairs/Improvements 0 0.0%

Real Property Types of Leasehold Interests 2 8.0%

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

Real Property Landlord’s Rights and Liabilities Concerning a Hold-Over

Tenant 0 0.0%

Real Property Landlord Duties: Implied Warranty of Habitability 1 4.0%

Real Property Landlord Duties: Constructive Eviction 1 4.0%

Real Property Landlord Duties: Duty to Mitigate Damages 2 8.0%

Real Property Assignment of a Lease 2 8.0%

Real Property Subleases 0 0.0%

Real Property Termination of Leases: Surrender 2 8.0%

Real Property Real Covenants 0 0.0%

Real Property Equitable Servitudes 0 0.0%



17

Subject Rule

# of Times Rule



Real Property Common Scheme or Plan Doctrine (Reciprocal Negative

Servitude) 0 0.0%

Real Property Restrictive Covenants: Common Interest Ownership

Communities & Property Owner Associations 0 0.0%

Real Property Easements by Grant, Prescription, Implication, & Necessity 2 8.0%

Real Property Scope of an Easement 0 0.0%

Real Property Termination of an Easement 2 8.0%

Real Property Licenses 0 0.0%

Real Property Fixtures 1 4.0%

Real Property Adverse Possession 2 8.0%

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

Real Property Warranty of Marketable Title 1 4.0%

Real Property Warranty of Marketable Title: Damages Recoverable 1 4.0%

Real Property Doctrine of Equitable Conversion & Risk of Loss 1 4.0%

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 2 8.0%

Real Property Deed Requirements 1 4.0%

Real Property General Warranty Deed, Special Warranty Deed, &

Quitclaim Deed 4 16.0%

Real Property Estoppel by Deed 0 0.0%

Real Property Chain of Title and Wild Land Records 3 12.0%

Real Property Recording Statutes & Notice 1 4.0%

Real Property Bona Fide Purchasers & The Shelter Rule 4 16.0%

Real Property Owner by Adverse Possession vs. Subsequent Bona Fide

Purchasers 1 4.0%

Real Property Deeds: Drafting, Review, and Negotiation of Closing

Documents 0 0.0%

Real Property Deeds: Persons Authorized to Execute Real Estate

Documents 0 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 2 8.0%

Real Property Deed of Trust 0 0.0%

Real Property Assumption & Transfer Subject to a Mortgage 1 4.0%

Real Property Mortgages: Foreclosure, Order of Preference, and

Deficiency Judgments 1 4.0%



18

Subject Rule

# of Times Rule



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 Property Zoning Ordinances: Previous Non-Conforming Use 1 4.0%

Real Property Choice of Law Rules: Real Property Cases 1 4.0%

Secured Transactions Article 9 of the UCC Governs Secured Transactions 36 72.0%

Secured Transactions Scope of Article 9 of the UCC: Substance Over Form

Controls 5 10.0%

Secured Transactions Types of Collateral: Accounts 4 8.0%

Secured Transactions Types of Collateral: Deposit Accounts 1 2.0%

Secured Transactions Types of Collateral: Inventory 7 14.0%

Secured Transactions Types of Collateral: Equipment 8 16.0%

Secured Transactions Types of Collateral: Consumer Goods 5 10.0%

Secured Transactions Types of Collateral: Proceeds 4 8.0%

Secured Transactions Types of Collateral: Chattel Paper 2 4.0%

Secured Transactions Attachment and Perfection 23 46.0%

Secured Transactions Financing Statements 3 6.0%

Secured Transactions No Interest Retained in a Payment Right Sold & Rights/Title

with Respect to Creditors and Purchasers 1 2.0%

Secured Transactions Purchase Money Security Interests (PMSI’s) 10 20.0%

Secured Transactions Automatic Perfection for Certain Assignment of Accounts 1 2.0%

Secured Transactions Security Interest in the Sale of Collateral & Identifiable

Proceeds 8 16.0%

Secured Transactions Consignment 1 2.0%

Secured Transactions Control of a Deposit Account 1 2.0%

Secured Transactions Future Advances 2 4.0%

Secured Transactions Transfers of Collateral & The Shelter Principle 3 6.0%

Secured Transactions Buyers in the Ordinary Course of Business 9 18.0%

Secured Transactions Consumer-to-Consumer Rule 3 6.0%

Secured Transactions Priority for Perfected Interests & Unperfected Interests 18 36.0%

Secured Transactions Priority of Liens Arising by Law 1 2.0%

Secured Transactions Priority of Judgment Lien Creditors 5 10.0%

Secured Transactions Fixtures 3 6.0%

Secured Transactions Accessions & Commingling 1 2.0%

Secured Transactions Secured Party’s Right to Take Possession of Collateral 6 12.0%



19

Subject Rule

# of Times Rule



Secured Transactions Secured Party’s Right to Dispose of Collateral 6 12.0%

Secured Transactions Right to Collect Directly from an Account Debtor 3 6.0%

Secured Transactions Damages Available to a Debtor for a Secured Party’s Failure

to Comply with Applicable Rules 4 8.0%

Secured Transactions Debtor’s Right of Redemption 2 4.0%

Secured Transactions Deficiency Judgments 4 8.0%

Torts Battery 2 8.0%

Torts Assault 0 0.0%

Torts False Imprisonment 1 4.0%

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 8.0%

Torts Intentional Tort Defenses: Privileges 2 8.0%

Torts Prima Facie Case of Negligence 6 24.0%

Torts Affirmative Duty to Act & Rendering Aid 2 8.0%

Torts Standard of Care: Reasonable Person Standard 5 20.0%

Torts Standard of Care: Children 2 8.0%

Torts Standard of Care: Professionals 2 8.0%

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

Entrants 2 8.0%

Torts Standard of Care: Landlord’s Duty to Tenants 1 4.0%

Torts Negligence Per Se 3 12.0%

Torts Res Ipsa Loquitur 2 8.0%

Torts Causation: Actual and Proximate Cause 6 24.0%

Torts Proximate Cause: Intervening Causes 5 20.0%

Torts Causation: Eggshell Plaintiff Rule & Emotional Distress

Stemming from Physical Injury 3 12.0%

Torts Comparative Negligence & Contributory Negligence 2 8.0%

Torts Assumption of Risk 0 0.0%

Torts Negligent Infliction of Emotional Distress 2 8.0%

Torts Vicarious Liability of Employer: Doctrine of Respondeat

Superior 5 10.0%

Torts Vicarious Liability of Employer: Liability Where Respondeat

Superior Doctrine is Inapplicable 2 4.0%



20

Subject Rule

# of Times Rule



Torts Employee vs. Independent Contractor 5 10.0%

Torts Vicarious Liability for Acts of Independent Contractors 2 4.0%

Torts Joint and Several Liability 1 4.0%

Torts Indemnification 1 4.0%

Torts Contribution 0 0.0%

Torts Doctrines of Alternative Liability, Joint Enterprise, & Market

Share Liability 2 8.0%

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 4.0%

Torts Strict Products Liability: Liability for Manufacturing Defect,

Design Defect, & Failure to Warn 3 12.0%

Torts Products Liability: Liability for Negligence 1 4.0%

Torts Products Liability: Liability for Breach of Warranty 1 4.0%


Trust Formation Elements 7 14.0%


Precatory Language & Promises to Create a Trust 3 6.0%


Revocable & Irrevocable Trusts 4 8.0%


Testamentary Trusts 1 2.0%


Pour-over Provision in a Will 5 10.0%


Charitable Trusts 1 2.0%


Illusory Trusts 1 2.0%


Resulting Trusts 1 2.0%


Discretionary Trusts 5 10.0%


Support Trusts 3 6.0%



21

Subject Rule

# of Times Rule




How Trust Assets Pass 1 2.0%


Cy Pres Doctrine 6 12.0%


Spendthrift Trusts 5 10.0%


Rights of Creditors 6 12.0%


Powers of Invasion 1 2.0%


Modification of a Trust 2 4.0%


Equitable Deviation Doctrine & Modification of Administrative and Dispositive Trust Provisions

1 2.0%


Additions Clause in a Trust 1 2.0%


Termination of a Trust 4 8.0%


Distribution Upon Termination 1 2.0%


Conditions that Prohibit Marriage or Require Divorce 2 4.0%


Trustee Duty to Administer the Trust 5 10.0%


Trustee Duty of Care: Prudent Administration, Take Control, & Protect Trust Property

1 2.0%


Trustee Duty of Loyalty: Self-Dealing 5 10.0%


Trustee Duty of Loyalty: Conflicts of Interest 2 4.0%


Trustee Duty of Loyalty: Duty to Act Impartially 3 6.0%


Trustee Duty of Care: Failure to Test the Market 1 2.0%


Trustee Duty of Care: Investments & Prudent Investor Rule

6 12.0%


Delegation of Trustee Duties 1 2.0%


Trustee Acting in Accordance with the Settlor’s Wishes 2 4.0%


Principal and Income Allocations 4 8.0%



22

Subject Rule

# of Times Rule




Damages for Wrongful Invasion of Trust Assets 1 2.0%


Remainder Beneficiary of a Trust 4 8.0%


Future Interests: Representation of Remaindermen 1 2.0%


Future Interests: Substituted Takers 2 4.0%


Vested Remainder Interest 3 6.0%


Vested Interests: Condition on Survivorship 3 6.0%


Acceleration of Future Interests 3 6.0%


Powers of Appointment 4 8.0%


Powers of Appointment: Special Power of Appointment 2 4.0%


Powers of Appointment: Ineffective Appointments 3 6.0%


Common Law Rule Against Perpetuities & Modern Modifications

5 10.0%


Class Gifts 9 18.0%

Wills & Estates Intestate Succession 9 18.0%

Wills & Estates Validity of a Will 1 2.0%

Wills & Estates Will Execution Formalities 7 14.0%

Wills & Estates Will Execution Formalities: Strict Compliance & Substantial

Compliance Doctrine 2 4.0%

Wills & Estates Doctrine of Integration 1 2.0%

Wills & Estates Interested Witnesses 4 8.0%

Wills & Estates Codicils 4 8.0%

Wills & Estates Holographic Wills & Codicils 6 12.0%

Wills & Estates Incorporation by Reference 9 18.0%

Wills & Estates Acts of Independent Significance 1 2.0%

Wills & Estates Revocation by Physical Act 7 14.0%

Wills & Estates Revocation by Subsequent Will or Codicil 3 6.0%

Wills & Estates Dependent Relative Revocation Doctrine 4 8.0%

Wills & Estates Revival of a Will 2 4.0%



23

Subject Rule

# of Times Rule



Wills & Estates Contractual Wills 3 6.0%

Wills & Estates Will Takes Effect at the Time of Death 3 6.0%

Wills & Estates Per Capita at Each Generation Distribution 1 2.0%

Wills & Estates Modern Per Stirpes (Per Capita by Representation)

Distribution 1 2.0%

Wills & Estates Per Stirpes Distribution 2 4.0%

Wills & Estates Generically Described Property 1 2.0%

Wills & Estates Ambiguity in a Will 1 2.0%

Wills & Estates Advancements/Satisfaction 5 10.0%

Wills & Estates Simultaneous Death 2 4.0%

Wills & Estates Residue of a Residue Approach 2 4.0%

Wills & Estates Conditions that Prohibit Marriage or Require Divorce 2 4.0%

Wills & Estates Will Provisions Governing when the Testator Dies With or

Without Issue 1 2.0%

Wills & Estates Lapsed Gifts & Anti-Lapse Statutes 6 12.0%

Wills & Estates Ademption 6 12.0%

Wills & Estates Stock Splits and Dividends 3 6.0%

Wills & Estates Exoneration 1 2.0%

Wills & Estates Abatement 4 8.0%

Wills & Estates Slayer Statutes 4 8.0%

Wills & Estates Disclaimers 6 12.0%

Wills & Estates Divorce Revokes Testamentary Provisions to a Former

Spouse 4 8.0%

Wills & Estates Prenuptial Agreement Does Not Apply to Voluntary Gifts or

Bequests 1 2.0%

Wills & Estates Conditional Will 1 2.0%

Wills & Estates Specific, General, and Demonstrative Gifts 1 2.0%

Wills & Estates Class Gifts 9 18.0%

Wills & Estates Inheritance Rights of Children & Disinheritance 3 6.0%

Wills & Estates Legal Definition of Children 5 10.0%

Wills & Estates Inheritance by Equitable Adoption 2 4.0%

Wills & Estates Spouse’s Elective Share 2 4.0%

Wills & Estates Pretermitted Children 4 8.0%

Wills & Estates Testamentary Capacity 3 6.0%

Wills & Estates Undue Influence 4 8.0%



24

Subject Rule

# of Times Rule



Wills & Estates Fraud 1 2.0%

Wills & Estates Standing to Challenge a Will 2 4.0%

Wills & Estates No-Contest Clauses 1 2.0%

Wills & Estates Modification of a Will Due to Mistake 1 2.0%

Wills & Estates Joint Bank Accounts & Convenience Account Exception 2 4.0%

Wills & Estates Totten Trusts 1 2.0%

Wills & Estates Life Insurance Beneficiary 2 4.0%

Wills & Estates Inter Vivos Gifts 1 2.0%

Wills & Estates Invasion of Non-Probate Assets to Pay Creditors 1 2.0%

Wills & Estates Powers & Duties of Personal Representatives 1 2.0%

Wills & Estates Durable Health-Care Power of Attorney & Advanced

Directives 2 4.0%

Wills & Estates Durable Health Care Power of Attorney & Living Wills:

Insulation of Agent’s Liability 2 4.0%

Wills & Estates Family Consent Laws 2 4.0%



25

SubjectsSubjectsSubjectsSubjects

Partnerships / Partnerships / Partnerships / Partnerships / Corporations & LLC’sCorporations & LLC’sCorporations & LLC’sCorporations & LLC’s: The Feb. 2019 MEE (Essay 3) tested the subjects of Partnerships and LLC's, even though the examiners titled the essay as "Agency & Partnerships".

Agency / PartnershipsAgency / PartnershipsAgency / PartnershipsAgency / Partnerships: The Feb. 2018 MEE (Essay 6) tested the subject of Partnerships, even though the examiners titled the essay as "Agency".

ContContContContrrrractsactsactsacts: 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.

RulesRulesRulesRules

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

Implied Warranty of Merchantability:Implied Warranty of Merchantability:Implied Warranty of Merchantability: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.

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

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

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

DefamationDefamationDefamationDefamation: 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”.

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

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Essay Priority Outline For the UBE/MEE


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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 50 Exams

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

1 of 50 Exams

LOW Feb 2005, Essay 7

3 of 50 Exams

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

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.

© 2020 SmartBarPrep.com 151

MEE TIP: When & How to Discuss Relevance

EVIDENCE09

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.

If a question asks whether certain evidence is “admissible”, be sure to discuss Relevance. In recent essays, relevancy has been discussed briefly for each item even though relevance wasn’t the primary rule tested. For example, on the July 2018 MEE (Essay 5), Relevance was briefly discussed at the beginning of Point One, Two, Three(a), and Four.

For this type of brief analysis: First, state “Evidence is relevant if it has any tendency to make a fact more probable or less probable than it would be without the evidence.” Then, write one sentence on why the evidence is relevant. Remember to state the rule and analysis very briefly (unless a greater analysis of Relevance and the Rule 403 exclusions is warranted).

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.

7 of 25 Exams

HIGHJuly 2018, Essay 5 July 2017, Essay 5Feb 2016, Essay 2July 2014, Essay 5Feb 2013, Essay 7Feb 2012, Essay 1Feb 2010, Essay 7

1 of 25 Exams

MEDFeb 2012, Essay 1

FRE = Federal Rules of Evidence

Smart Sheets For the UBE (MBE+MEE)


© 2020 SmartBarPrep | www.smartbarprep.com 1

AGENCY 01

A. Agency Relationships

Creation of Agency Relationship

Definition – Agency is a fiduciary relationship, where a

person or entity (the agent) acts on behalf of another

(the principal).

Elements – An agency relationship exists if there is:

1) Assent – a 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).

*The characterization of the relationship by the parties is

irrelevant.

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.

Termination of Agency Relationship

An agency relationship terminates by:

a) A manifestation by either party that the

relationship is terminated;

b) Expiration of a specified term of authority;

c) Death of principal or agent (by operation of law);

OR

d) Incapacity of the principal or agent (by

operation of law) – except if a durable power of

attorney exists.

Death of Principal:

Common Law → agency is terminated regardless of

whether the third-party has notice of principal’s death.

Some States → NOT terminated until the third-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 the agent materially breached

contract).

B. Contractual Liability of Principal & Agent

Actual Authority – A principal is bound to a contract

entered into by its agent if the agent had actual authority.

Two Types – occurs if:

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 the agent’s

express authorized duties;

b) Agent acted similarly in prior dealings with the

principal; OR

c) It’s customary for an agent in that position

(silence/acquiescence can give rise to a

reasonable belief of authority in the future).

An agent has actual authority when acting within their

reasonable understanding of authority, even if the

principal later shows the agent was mistaken.

Apparent Authority – A principal is bound to a contract

entered into by its agent if the agent had apparent

authority.

Apparent Authority exists when:

1) A third-party reasonably believes the agent

has authority to act on behalf of the principal;

AND

2) That belief is traceable from the principal’s

manifestations (principal holds the agent out as

having authority).

A principal holds the agent out as having authority

when he:

a) gives a position or title indicating authority;

b) previously held the agent out and did not

published a revocation; OR

c) cloaked the agent with the appearance of

authority.

*Continues until the principal communicates termination

to third-parties.

Apparent Authority is NOT applicable if the third-party

had knowledge that the agent did not have actual

authority.

Unidentified/Partially Disclosed Principal → Apparent

Authority CAN exist.

Undisclosed Principal → Apparent Authority CANNOT

exist.

Inherent Agency Power – Protects third-parties when

dealing with agents even if there is no actual or apparent

authority.

H

H H

L

M

M


PARTNERSHIPS 02

Definitions

Pship = Partnership

UPA = Uniform Partnership Act

RUPA = Revised Uniform Partnership Act

ULPA = Uniform Limited Partnership Act

RULPA = Revised Uniform Limited Partnership Act

A. Creation of Partnerships

General Partnership (GP) – is created when:

1) two or more persons;

2) as co-owners;

3) carry on a business for profit.

*Intent to form a partnership is NOT required.

A joint venture or sharing in gross profits DOES NOT

automatically create a partnership.

Creditor vs. Partner – A person who receives a share of

the profits is presumed to be a partner UNLESS the

payment is received in payment:

a) of a debt;

b) for wages as an employee or independent

contractor;

c) of rent;

d) of an annuity or retirement benefit;

e) of interest/loan charges; OR

f) for the sale of goodwill of a business.

Limited Partnership (LP) – is composed of limited

partner(s) AND at least one general partner.

Formation – An LP is formed upon filing a Certificate of

Limited Partnership with the Secretary of State, which

must include:

1) name of Pship;

2) address of Pship;

3) name and address of each partner;

4) whether the Pship is an LLP; AND

5) signed by a general partner.

Limited Liability Partnership (LLP) – In an LLP, all

partners have limited personal liability.

To Become an LLP:

1) It must be approved by the same vote necessary

to amend the Pship Agreement; AND

2) A Statement of Qualification must be filed with

the Secretary of State containing:

i. name and address of Pship;

ii. statement that the Pship elects to

become an LLP; and

iii. a deferred effective date (if any).

Filing DOES NOT create a new partnership (if a GP or

LP existed prior to filing).

− The Pship remains liable for any obligations

before it became an LLP.

Amending the Pship Agreement – Unless agreed

otherwise, the Pship agreement may be amended at any

time with a unanimous vote.

B. Power & Authority of Partners

Authority to Bind the Partnership – A partner is an

agent of the Pship, and generally has authority to bind

the Pship for its business (including contracts).

− To bind the Pship, the partner MUST have

authority.

Express Actual Authority – A partner receives such

authority from the partners.

− Acts within the ordinary course of business

→ must be approved by a majority of the

partners.

− Acts outside the ordinary course of business

→ must be approved unanimously.

− If Pship Agreement is silent → a partner has

authority for usual & customary matters

UNLESS he knows: (a) other partners might

disagree, or (b) that consultation is appropriate.

Ordinary Course of Business = normal and necessary for

managing the business.

Implied Actual Authority (Incidental Authority) – A

partner may take actions reasonably incidental or

necessary to achieve the partner’s authorized duties.

Apparent Authority – A partner has apparent authority

for acts:

a) conducted within the ordinary course of the

Pship business; OR

b) of the kind carried on by the Pship.

BUT, a partner’s act will NOT bind the Pship when the:

1) Partner lacked authority; AND

2) Third-party knew (or received notice) of a lack of

authority.

Authority to Bind the Partnership After Dissolution –

A partner’s authority is limited after dissolution.

Actual Authority → limited only to acts appropriate for

winding up the business.

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CORPORATIONS & LLC’S 03

Definitions

BoD = Board of Directors

SH = Shareholder

RMBCA = Revised Model Business Corporation Act

RULLCA = Revised Uniform Limited Liability Company

Act

A. Formation of a Corporation

Formation of a Corporation

Date of Corporate Existence → begins on the date the

Articles of Incorporation are properly filed with the

Secretary of State, unless a delayed effective date is

specified.

− RMBCA → DOES NOT allow an earlier effective

date.

De Jure Corporation = a properly formed corporation.

Articles of Incorporation – are filed to form a

corporation, and MUST contain:

1) corporate name;

2) number of shares the corp. is authorized to

issue;

3) corp.’s address and name of the initial registered

agent; AND

4) name and address of each incorporator.

The Articles of Incorporation control if there is a

conflict with the Bylaws.

Bylaws = rules and regulations adopted by the BoD that

govern the internal operations of a corp.

− RMBCA → bylaws may contain any provision

not inconsistent with the: (a) Articles of

Incorporation; OR (b) law of the jurisdiction.

Amending the Bylaws:

Shareholders → may amend or repeal.

Board of Directors → may amend or repeal UNLESS:

a) Articles of Incorporation exclusively reserve the

power to SH’s; OR

b) The SH’s (in amending a bylaw) expressly

provide that the BoD cannot amend or reinstate

that specific bylaw.

*If a bylaw deals with director nomination procedures,

the BoD retains power to safeguard the voting process,

BUT cannot repeal a shareholder approved bylaw.

Powers of a Corporation – A corp. has the power to do

all things necessary or convenient to carry out its

business and affairs.

− Includes → lawsuits, own/lease real property,

contracts, borrow/loan money, make

investments, involvement with other businesses,

fix compensation/salaries, charitable donations,

pay/engage in lobbying.

B. Formation of a Limited Liability Company

Formation of an LLC

Articles of Organization – An LLC is formed when the:

1) Articles of Organization (a.k.a. Certificate of

Formation) is properly filed with the Secretary of

State; AND

2) LLC has at least one member.

Operating Agreement – Governs: (1) the relations

between the members and LLC; (2) the rights/duties of

managers; (3) activities and affairs of the LLC; and (4)

any means and conditions for amending the Operating

Agreement.

C. Pre-Formation Contract Liability

Liability of Promoter – A promoter acts on behalf of a

corp. that has not yet been formed.

A promoter is personally liable when:

1) he purports to act as or on behalf of a corp.;

AND

2) knows no corp. was formed.

A promoter remains personally liable for a pre-corp.

contract even if the corp. subsequently adopts the

contract.

− BOTH the corp. and the promotor will be liable if

adopted.

A promoter is NOT liable if:

a) there is a subsequent novation; OR

b) the contract explicitly provides that the promoter

has no personal liability.

Liability of Corporation – A corp. is NOT liable on a

contract made by a promoter UNLESS the corp.

expressly or impliedly adopts the contract post-

incorporation.

− Express Adoption = BoD action or reference in

corp.’s formation documents.

− Implied Adoption = Corp. (1) knows / has

reason to know the material terms of the

contract; AND (2) accepts some benefit of the

contract.

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