Essay Frequency Analysis

For the California Bar Exam

July 2022 Edition
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Table of Contents

Description Page

Subject Frequency – Past 42 Exams ........................................................................................................ 1

Subject Frequency Chart – Past 42 Exams ........................................................................................... 2

Subject Frequency – Past 242 Essays ...................................................................................................... 3

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

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 SmartBarPrep Frequency Analysis 1

Subjects Appearing on Past

California Bar Exam Essays

Subject Frequency – Past 42 Exams

Number of Times Subject Percentage (%) Subject

Subject
Appeared on Past Exams Appeared on Past Exams

Agency 6 out of 42 exams 14%

Partnerships 7 out of 42 exams 17%
Corporations 15 out of 42 exams 36%
Civil Procedure 18 out of 42 exams 43%
Community Property 25 out of 42 exams 60%
Constitutional Law 23 out of 42 exams 55%
Contracts 27 out of 42 exams 64%
Criminal Law 16 out of 42 exams 38%
Criminal Procedure 18 out of 42 exams 43%
Evidence 27 out of 42 exams 64%
Professional Responsibility 41 out of 42 exams 98%
Real Property 22 out of 42 exams 52%
Remedies 31 out of 42 exams 74%
Torts 26 out of 42 exams 62%
Trusts 13 out of 42 exams 31%
Wills & Estates 21 out of 42 exams 50%

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 SmartBarPrep Frequency Analysis 2

Subjects Appearing on Past

California Bar Exam Essays

Subject Frequency Chart – Past 42 Exams

Agency 6

Partnerships 7

Corporations 15

Civil Procedure 18

Community Property 25

Constitutional Law 23

Contracts 27

Criminal Law 16

Criminal Procedure 18

Evidence 27

Professional Responsibility 41

Real Property 22

Remedies 31

Torts 26

Trusts 13

Wills & Estates 21

0 5 10 15 20 25 30 35 40 45
# of Times Tested

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 SmartBarPrep Frequency Analysis 3

Subjects Appearing on Past

California Bar Exam Essays

Subject Frequency – Past 242 Essays

Number of Times Subject Percentage (%) Subject

Subject
Appeared on Past Essays Appeared on Past Essays

Agency 6 out of 242 essays 2%

Partnerships 7 out of 242 essays 3%
Corporations 15 out of 242 essays 6%
Civil Procedure 20 out of 242 essays 8%
Community Property 26 out of 242 essays 11%
Constitutional Law 24 out of 242 essays 10%
Contracts 37 out of 242 essays 15%
Criminal Law 16 out of 242 essays 7%
Criminal Procedure 19 out of 242 essays 8%
Evidence 31 out of 242 essays 13%
Professional Responsibility 48 out of 242 essays 20%
Real Property 23 out of 242 essays 10%
Remedies 40 out of 242 essays 17%
Torts 27 out of 242 essays 11%
Trusts 13 out of 242 essays 5%
Wills & Estates 21 out of 242 essays 9%

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 SmartBarPrep Frequency Analysis 4

Rules Appearing on Past

California Bar Exam Essays

Rule Frequency

Total Bar Exams Analyzed 42

Total # of Essays 242
Total # of Rules Analyzed 549

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Agency Creation of Agency Relationship 2 4.8%

Agency Authority of Agent: Actual Authority 6 14.3%
Agency Authority of Agent: Apparent Authority 6 14.3%
Agency Ratification of Agent’s Contracts 2 4.8%
Employee vs. Owner (Sole-Proprietor, Partner, Member,
Agency 1 2.4%
Shareholder)
Agency Vicarious Liability: Doctrine of Respondeat Superior 5 11.9%
Agency Vicarious Liability: Employee vs. Independent Contractor 3 7.1%
Agency Employee Liability for Negligent Conduct & Indemnification 1 2.4%
Partnerships Creation of a General Partnership 6 14.3%
Partnerships Formation of a Limited Partnership (LP) 1 2.4%
Partnerships Formation of a Limited Liability Partnership (LLP) 3 7.1%
Partnerships Partnership vs. Separate Businesses 1 2.4%
Partnerships Authority to Bind the Partnership 3 7.1%
Partnerships Personal Liability of General Partners 5 11.9%
Partnerships Personal Liability of Limited Liability Partners 2 4.8%

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 SmartBarPrep Frequency Analysis 5

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Partnerships Transfer of Ownership Interest in a Partnership 1 2.4%

Partnerships Fiduciary Duties Owed by Partners 2 4.8%
Partnerships Winding Up & Termination of the Partnership 1 2.4%
Corporations Formation of a Corporation & Articles of Incorporation 3 7.1%
Corporations Formation of an LLC 0 0.0%
Corporations De Jure Corporation 2 4.8%
Corporations De Facto Corporation 2 4.8%
Corporations Corporation by Estoppel 3 7.1%
Corporations Liability for Pre-Incorporation Contracts 5 11.9%
Corporations Ultra Vires Acts 2 4.8%
Corporations Powers of a Corporation 1 2.4%
Corporations Shareholder Liability & Piercing the Corporate Veil 6 14.3%
Corporations Watered Stock 1 2.4%
Corporations Dividends & Distributions to Shareholders 2 4.8%
Shareholder Meetings: Proxy Voting & Revocation of a
Corporations 1 2.4%
Proxy
Corporations Shareholder Voting Agreements & Trusts 2 4.8%
Corporations Shareholder’s Right to Inspect Books and Records 1 2.4%
Corporations Board of Directors Meeting: Quorum 1 2.4%
Corporations Board of Directors Meeting: Voting & Objection to Actions 1 2.4%
Corporations Compensation of Directors & Officers 2 4.8%
Corporations Election of Directors 1 2.4%
Corporations Removal of Directors & Officers 2 4.8%
Corporations Authority of Officers 1 2.4%
Corporations Duty of Care & Business Judgment Rule 11 26.2%
Corporations Duty of Loyalty: Fiduciary Duty Owed 10 23.8%
Corporations Duty of Loyalty: Conflicting Interest Transaction 9 21.4%
Corporations Duty of Loyalty: Usurping a Corporate Opportunity 5 11.9%
Corporations Direct & Derivative Actions 3 7.1%
Corporations Fundamental Changes to a Corporation 2 4.8%
Corporations Federal Securities Law – Rule 10b-5 2 4.8%
Corporations Federal Securities Law – Section 16(b) 2 4.8%
Corporations Dissolution: Distribution of Corporate Assets 2 4.8%
Dissolution: Equitable Subordination & The Deep Rock
Corporations 1 2.4%
Doctrine

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 SmartBarPrep Frequency Analysis 6

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Civil Procedure Subject Matter Jurisdiction: California State Courts 1 2.4%

Civil Procedure Federal Subject Matter Jurisdiction: Intro Statement 12 28.6%
Civil Procedure Federal Subject Matter Jurisdiction: Federal Question 11 26.2%
Civil Procedure Federal Subject Matter Jurisdiction: Diversity of Citizenship 12 28.6%
Civil Procedure Federal Subject Matter Jurisdiction: Alienage Diversity 0 0.0%
Civil Procedure Federal Subject Matter Jurisdiction: Foreign State Diversity 0 0.0%
Federal Subject Matter Jurisdiction: Supplemental
Civil Procedure 3 7.1%
Jurisdiction
Civil Procedure Removal to Federal Court 5 11.9%
Civil Procedure Remand from Federal Court to State Court 3 7.1%
Civil Procedure Venue in Federal Court 3 7.1%
Civil Procedure Venue in California State Court 1 2.4%
Civil Procedure Residence of a Party for Venue Purposes 3 7.1%
Civil Procedure Personal Jurisdiction: Traditional Bases 8 19.0%
Personal Jurisdiction: Long Arm Statute & Constitutional
Civil Procedure 6 14.3%
Minimum Contacts Analysis
Service of Process and Notice: California State Court
Civil Procedure 1 2.4%
Actions
Civil Procedure Service of Process and Notice: Federal Court Actions 1 2.4%
Law Applied by Federal Courts: Erie Doctrine, Substance
Civil Procedure 3 7.1%
vs. Procedure, & Supremacy Clause
Civil Procedure Counterclaims 1 2.4%
Civil Procedure Amending a Pleading: Relation Back Doctrine 2 4.8%
Civil Procedure Sufficiency of Pleading: Well-Pleaded Complaint Rule 1 2.4%
Civil Procedure Compulsory Joinder of Parties 1 2.4%
Civil Procedure Joinder of Claims 1 2.4%
Civil Procedure Scope of Discoverable Information 6 14.3%
Civil Procedure Compelled Physical and Mental Examinations 3 7.1%
Document Subpoena to a Non-Party (Subpoena Duces
Civil Procedure 1 2.4%
Tecum)
Civil Procedure Depositions 1 2.4%
Civil Procedure Interrogatories in Federal Court 1 2.4%
Civil Procedure Disclosure of Expert Testimony 1 2.4%
Civil Procedure Asserting Privilege During Discovery 1 2.4%
Civil Procedure Motion to Compel Disclosure or Discovery 2 4.8%

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 SmartBarPrep Frequency Analysis 7

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Motion for Judgment as a Matter of Law / Judgment of

Civil Procedure 1 2.4%
Nonsuit
Civil Procedure Motion to Dismiss in Federal Court 1 2.4%
Civil Procedure Summary Judgment 3 7.1%
Civil Procedure Right to Jury Trial in Federal Court 3 7.1%
Civil Procedure Appeals: Final Judgment Rule 3 7.1%
Appeals: Interlocutory Appeals & Exceptions to Final
Civil Procedure 2 4.8%
Judgment Rule
Civil Procedure Claim Preclusion (Res Judicata) 5 11.9%
Civil Procedure Issue Preclusion (Collateral Estoppel) 4 9.5%
Civil Procedure Choice of Law: Real Property Cases 1 2.4%
Community Property Community Property Presumption: Guiding Principle 23 54.8%
Community Property Quasi-Community Property 8 19.0%
Community Property Illusory Transfer of Quasi-Community Property 1 2.4%
Community Property Married Woman’s Special Presumption 2 4.8%
Community Property End of the Economic Community 11 26.2%
Community Property Putative Spouse 3 7.1%
Community Property Unmarried Cohabitants 2 4.8%
Equal Rights of Spouses to Manage Property & Transfers to
Community Property 7 16.7%
Third-Parties
Community Property Fiduciary Duties of Spouses 4 9.5%
Property Acquired with Comingled Funds (The Moore
Community Property 2 4.8%
Principle)
Community Property Jointly Titled Property & Anti-Lucas Statute 5 11.9%
Community Property Personal Injury Awards & Settlements 8 19.0%
Community Property Disability & Workers’ Compensation Payments 1 2.4%
Community Property Separate Property Business (Van Camp & Pereira Tests) 5 11.9%
Community Property Goodwill of a Business 3 7.1%
Community Property Life Insurance 1 2.4%
Community Property Stock Options 2 4.8%
Community Property Credit & Acquisitions of Property Using Credit 3 7.1%
Community Property Reimbursement for Property Acquisitions & Improvements 3 7.1%
Professional Degrees & Reimbursement for Education
Community Property 3 7.1%
Expenses
Community Property Reimbursement for Child Support & Alimony Payments 3 7.1%
Community Property Reimbursement for Medical Expenses 2 4.8%

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 SmartBarPrep Frequency Analysis 8

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Pro-Rata Rule – Community Property Funds used to Pay

Community Property 1 2.4%
Separate Property Loan
Community Property Transmutations 17 40.5%
Community Property Prenuptial Agreements 3 7.1%
Community Property Property Creditors May Reach to Satisfy Debts 9 21.4%
Community Property Distribution of Community Assets & Debts Upon Divorce 2 4.8%
Constitutional Law State Sovereign Immunity (11th Amendment) 5 11.9%
Constitutional Law Standing 10 23.8%
Constitutional Law Third-Party & Organizational Standing 3 7.1%
Constitutional Law Advisory Opinions, Ripeness, & Mootness 3 7.1%
Constitutional Law Legislative Powers: Commerce Clause 2 4.8%
Legislative Powers: Commerce Clause & Regulation of
Constitutional Law 1 2.4%
Intrastate Activities
Constitutional Law Legislative Powers: Taxing Power 0 0.0%
Constitutional Law Legislative Powers: Spending Power 1 2.4%
Constitutional Law Executive Powers: Domestic Powers 1 2.4%
Constitutional Law Executive Powers: Treaty and Foreign Affairs Powers 1 2.4%
Delegation of Congressional Powers & Non-Delegation
Constitutional Law 1 2.4%
Doctrine
Constitutional Law State Immunity from Federal Law (10th Amendment) 2 4.8%
Constitutional Law Negative Commerce Clause 3 7.1%
Constitutional Law Supremacy Clause & Preemption 2 4.8%
Constitutional Law Governmental Action (“State Action”) 3 7.1%
Constitutional Law Incorporation Doctrine 2 4.8%
Constitutional Law Prohibition Against Involuntary Servitude 1 2.4%
Constitutional Law Substantive Due Process 5 11.9%
Constitutional Law Procedural Due Process 5 11.9%
Constitutional Law Equal Protection Analysis 7 16.7%
Constitutional Law Equal Protection: Inability to Pay Filing Fees 1 2.4%
Constitutional Law Takings (5th Amendment) 7 16.7%
Constitutional Law Zoning Ordinances/Spot Zoning 1 2.4%
Constitutional Law Vested Rights Doctrine 1 2.4%
Constitutional Law Privileges and Immunities Clause 2 4.8%
Constitutional Law First Amendment – Protections Provided 5 11.9%
Constitutional Law Freedom of Religion: Establishment Clause 5 11.9%

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 SmartBarPrep Frequency Analysis 9

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Constitutional Law Freedom of Religion: Free Exercise Clause 5 11.9%

Freedom of Speech: Content-Based vs. Content-Neutral
Constitutional Law 4 9.5%
Restrictions
Constitutional Law Freedom of Speech: Prior Restraint 2 4.8%
Constitutional Law Freedom of Speech: Public Forum 3 7.1%
Constitutional Law Freedom of Speech: Designated Public Forum 2 4.8%
Freedom of Speech: Non-Public Forum & Limited Public
Constitutional Law 2 4.8%
Forum
Freedom of Speech: Licensing Requirements for Speech in
Constitutional Law 3 7.1%
Public Forums
Constitutional Law Freedom of Speech: Regulation of Expressive Conduct 3 7.1%
Constitutional Law Freedom of Speech: Regulation of Commercial Speech 1 2.4%
Constitutional Law Freedom of Speech: Government Employees 1 2.4%
Freedom of Speech: Corporate & Union Political
Constitutional Law 0 0.0%
Expenditures
Constitutional Law Freedom of Speech: Vague & Overbroad Laws 3 7.1%
Constitutional Law Unprotected Speech: Obscenity 1 2.4%
Constitutional Law Freedom of Association 1 2.4%
Contracts Applicable Law: Common Law vs. UCC 22 52.4%
Contracts Requirements to Form a Valid Contract 16 38.1%
Contracts Mutual Assent: Offer & Acceptance 6 14.3%
Contracts Termination/Revocation of Offer 3 7.1%
Contracts Merchant’s Firm Offer 1 2.4%
Contracts Advertisements 3 7.1%
Contracts Timing of Acceptance/Revocation & the Mailbox Rule 2 4.8%
Contracts Battle of the Forms (Mirror Image Rule & UCC Exception) 2 4.8%
Contracts Implied-in-Fact Contracts 1 2.4%
Contracts Output and Requirement Contracts 2 4.8%
Contracts Consideration: Bargained for Exchange 6 14.3%
Consideration Substitutes: Promissory
Contracts 2 4.8%
Estoppel/Detrimental Reliance
Contracts Incapacity 1 2.4%
Contracts Unconscionability 3 7.1%
Contracts Mutual Mistake & Unilateral Mistake 5 11.9%
Contracts Statute of Frauds: Contracts Requiring a Signed Writing 15 35.7%

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 SmartBarPrep Frequency Analysis 10

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Statute of Frauds: Exceptions when a Writing is Not

Contracts 4 9.5%
Required
Modification of Contracts: Pre-Existing Duty Rule &
Contracts 5 11.9%
Exceptions
Contracts Parol Evidence Rule 9 21.4%
Contracts Condition Precedent 4 9.5%
Contracts Frustration of Purpose 4 9.5%
Contracts Impossibility 6 14.3%
Contracts Impracticability 5 11.9%
Contracts Waiver 3 7.1%
Contracts Accord and Satisfaction 1 2.4%
Minor Breach (Substantial Performance Doctrine) vs.
Contracts 6 14.3%
Material Breach
Contracts Time is of the Essence Clause 2 4.8%
Contracts UCC Perfect Tender Rule and Exceptions 5 11.9%
Contracts UCC Acceptance of Goods & Revocation of Acceptance 1 2.4%
Contracts Anticipatory Repudiation & Adequate Assurances 10 23.8%
Contracts Implied Obligation of Good Faith and Fair Dealing 1 2.4%
Contracts Express Warranty 1 2.4%
Contracts Implied Warranty of Merchantability 4 9.5%
Contracts Implied Warranty of Fitness for a Particular Purpose 1 2.4%
Contracts Third-Party Beneficiaries & Enforcement of Rights 1 2.4%
Contracts Delegable Duties 1 2.4%
Contracts Assignment 2 4.8%
Contracts Novation 1 2.4%
Criminal Law Murder 7 16.7%
Criminal Law Felony Murder Rule 3 7.1%
Criminal Law Voluntary Manslaughter 4 9.5%
Criminal Law Involuntary Manslaughter 1 2.4%
Criminal Law Assault & Battery 2 4.8%
Criminal Law Kidnapping & False Imprisonment 2 4.8%
Criminal Law Larceny, Larceny by Trick, & False Pretenses 4 9.5%
Criminal Law Embezzlement 1 2.4%
Criminal Law Receipt of Stolen Property 2 4.8%
Criminal Law Robbery 3 7.1%

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 SmartBarPrep Frequency Analysis 11

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Criminal Law Burglary 2 4.8%

Criminal Law Extortion 1 2.4%
Criminal Law Theft Crimes: Continuing Trespass Doctrine 1 2.4%
Criminal Law Attempt 6 14.3%
Criminal Law Conspiracy 5 11.9%
Criminal Law Solicitation 2 4.8%
Criminal Law Accomplice Liability 2 4.8%
Criminal Law Accessory After the Fact 1 2.4%
Criminal Law Legal & Factual Impossibility 2 4.8%
Criminal Law Mistake of Fact or Law 1 2.4%
Criminal Law Insanity Defense (4 Tests) 1 2.4%
Criminal Law Intoxication 1 2.4%
Criminal Law Justification: Self-Defense & Defense of Others 2 4.8%
Criminal Law Imperfect Self-Defense 1 2.4%
Criminal Law Entrapment 1 2.4%
Criminal Law Duress 1 2.4%
Criminal Procedure Fourth Amendment Right – Government Action & Standing 14 33.3%
Criminal Procedure Lawful Arrests 3 7.1%
Request for Information, Stop and Inquire, & Stop and
Criminal Procedure 6 14.3%
Frisk
Warrant Requirement for All Searches, Unless an Exception
Criminal Procedure 7 16.7%
Applies
Criminal Procedure Government Use of Sensory Enhancement Technology 2 4.8%
Criminal Procedure Exception to Warrant Requirement: Plain View Doctrine 4 9.5%
Criminal Procedure Exception to Warrant Requirement: Exigent Circumstances 2 4.8%
Exception to Warrant Requirement: Search Incident to
Criminal Procedure 4 9.5%
Arrest
Criminal Procedure Exception to Warrant Requirement: Consent 3 7.1%
Exception to Warrant Requirement: Administrative &
Criminal Procedure 2 4.8%
Inventory Searches
Criminal Procedure Exception to Warrant Requirement: Checkpoints 2 4.8%
Criminal Procedure Exception to Warrant Requirement: Automobile Exception 2 4.8%
5th Amendment Privilege Against Self-Incrimination &
Criminal Procedure 10 23.8%
Miranda Rights
Criminal Procedure Waiver of Miranda Rights 1 2.4%

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 SmartBarPrep Frequency Analysis 12

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

6th Amendment Right to Counsel & Effective Assistance of

Criminal Procedure 6 14.3%
Counsel
Criminal Procedure Waiver of 6th Amendment Right to Counsel 1 2.4%
Criminal Procedure Right to Testify 1 2.4%
Criminal Procedure Right to Self-Representation 2 4.8%
Criminal Procedure Right to Speedy Trial 1 2.4%
Criminal Procedure Line-Ups & Police-Arranged Identification Procedures 2 4.8%
Criminal Procedure Due Process Clause: Catch-All 1 2.4%
Criminal Procedure Exclusionary Rule/Fruit of Poisonous Tree Doctrine 10 23.8%
Criminal Procedure Exclusionary Rule: Miranda Violations & Limitations 3 7.1%
Criminal Procedure Guilty Plea Requirements 1 2.4%
Evidence Relevance (Logical & Legal Relevance) 23 54.8%
Evidence California Proposition 8 7 16.7%
Evidence Subsequent Remedial Measures 3 7.1%
Evidence Evidence of Liability Insurance 2 4.8%
Evidence Offers to Pay Medical Bills 3 7.1%
Evidence Offers to Settle 2 4.8%
Evidence Statements of Sympathy 1 2.4%
Evidence Authentication of Evidence: General Rule 12 28.6%
Evidence Authentication of Evidence: Physical Evidence 10 23.8%
Evidence Authentication of Evidence: Voice Recordings 2 4.8%
Evidence Best Evidence Rule 11 26.2%
Evidence Character Evidence 6 14.3%
Evidence Prior Bad Acts 5 11.9%
Evidence Habit and Routine Practice 1 2.4%
Evidence Impeachment: Prior Inconsistent Statements 2 4.8%
Evidence Impeachment: Prior Convictions 2 4.8%
Evidence Impeachment: Specific Instances of Conduct (“Bad Acts”) 3 7.1%
Evidence Impeachment: Bias 1 2.4%
Evidence Lay Witness Testimony & Opinions 12 28.6%
Evidence Expert Witness Testimony 4 9.5%
Evidence Scope of Cross-Examination 1 2.4%
Evidence Refreshing Recollection 2 4.8%
Evidence Judicial Notice 2 4.8%

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 SmartBarPrep Frequency Analysis 13

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Evidence Trial Objections: Assumes Facts Not in Evidence 2 4.8%

Evidence Trial Objections: Calls for Narrative 1 2.4%
Evidence Trial Objections: Leading Question 4 9.5%
Evidence Trial Objections: Non-Responsive Answer 2 4.8%
Evidence Trial Objections: Speculation 2 4.8%
Evidence Trial Objections: Vagueness 1 2.4%
Evidence Prohibition Against Jury Investigations 1 2.4%
Evidence Hearsay Definition 22 52.4%
Evidence Multiple Hearsay 6 14.3%
Evidence Non-Hearsay: Statements Offered for Other Purpose 9 21.4%
Evidence Hearsay Exclusion: Statements by a Party Opponent 18 42.9%
Evidence Hearsay Exclusion: Adoptive Admission 2 4.8%
Evidence Hearsay Exclusion: Vicarious Admissions 6 14.3%
Evidence Hearsay Exclusion: Prior Statement of Identification 1 2.4%
Evidence Hearsay Exception: Declarant Unavailable Requirement 7 16.7%
Evidence Hearsay Exception: Dying Declaration 2 4.8%
Evidence Hearsay Exception: Statement Against Interest 8 19.0%
Evidence Hearsay Exception: Prior Statements Made Under Oath 2 4.8%
Hearsay Exception: Excited Utterance / Spontaneous
Evidence 10 23.8%
Statement
Evidence Hearsay Exception: Present Sense Impression 13 31.0%
Evidence Hearsay Exception: Business Records 8 19.0%
Evidence Hearsay Exception: Government/Public Records 2 4.8%
Evidence Hearsay Exception: Past Recollection Recorded 2 4.8%
Evidence Hearsay Exception: State of Mind 9 21.4%
Hearsay Exception: Statements Made for Medical
Evidence 2 4.8%
Diagnosis/Treatment
Evidence Hearsay Exception: Catch-All Exception 1 2.4%
Evidence Confrontation Clause (6th Amendment) 5 11.9%
Evidence Privilege & Eavesdroppers 2 4.8%
Evidence Attorney-Client Privilege 6 14.3%
Evidence Attorney Work Product Doctrine 4 9.5%
Evidence Physician-Patient Privilege 1 2.4%
Evidence Spousal Privileges: Confidential Marital Communications 2 4.8%
Evidence Spousal Privileges: Spousal Immunity 2 4.8%

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 SmartBarPrep Frequency Analysis 14

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Professional
Formation of Lawyer-Client Relationship 6 14.3%
Responsibility
Professional
Proper Scope of Lawyer-Client Relationship 5 11.9%
Responsibility
Professional
Advising or Assisting the Violation of Law 1 2.4%
Responsibility
Professional
Duty of Competence 23 54.8%
Responsibility
Professional
Duty of Communication 8 19.0%
Responsibility
Professional
Duty of Diligence 9 21.4%
Responsibility
Professional
Duty of Confidentiality 21 50.0%
Responsibility
Professional
Inadvertent Disclosure of Confidential Information 2 4.8%
Responsibility
Professional
Duty to Safeguard Property 3 7.1%
Responsibility
Professional
Conflict of Interest: Duty of Loyalty 30 71.4%
Responsibility
Professional
Conflict of Interest: Current Clients 20 47.6%
Responsibility
Professional
Conflict of Interest: Former Clients 7 16.7%
Responsibility
Professional
Conflict of Interest: Prospective Clients 0 0.0%
Responsibility
Professional
Conflict of Interest: Imputed Conflicts 3 7.1%
Responsibility
Professional
Conflict of Interest: Former Lawyer for Government 2 4.8%
Responsibility
Professional
Business Ownership by a Lawyer 1 2.4%
Responsibility
Professional Business Transactions with a Client & Pecuniary Interests
4 9.5%
Responsibility Adverse to the Client
Professional
Proprietary Interest in a Case 3 7.1%
Responsibility
Professional
Use of Current Client’s Information 2 4.8%
Responsibility
Professional
Gifts from a Client 0 0.0%
Responsibility
Professional
Acquisition of Client’s Literary/Media Rights 0 0.0%
Responsibility

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 SmartBarPrep Frequency Analysis 15

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Professional
Financial Assistance & Loans to Clients 3 7.1%
Responsibility
Professional
Payment of Legal Fees by a Third-Party 3 7.1%
Responsibility
Professional
Serving on the Board of a Client’s Organization 2 4.8%
Responsibility
Professional
Aggregate Settlements & Pleas 0 0.0%
Responsibility
Professional
Limiting Liability to a Client 1 2.4%
Responsibility
Professional
Sexual Relations with Clients 4 9.5%
Responsibility
Professional
Organization as Client: Lawyer Represents the Organization 3 7.1%
Responsibility
Professional
Organization as Client: Reporting Violations 2 4.8%
Responsibility
Professional
Mandatory Withdrawal 7 16.7%
Responsibility
Professional
Permissive Withdrawal 5 11.9%
Responsibility
Professional
Duty of Candor to the Court 12 28.6%
Responsibility
Professional
Witness Perjury 5 11.9%
Responsibility
Professional
Ex Parte Communications with the Court 1 2.4%
Responsibility
Professional
Filing Frivolous Claims & Contentions 8 19.0%
Responsibility
Professional
Obstructing or Altering Discoverable Evidence 3 7.1%
Responsibility
Professional
Improper Influence 2 4.8%
Responsibility
Professional
Proper Discovery Requests & Compliance 2 4.8%
Responsibility
Professional
Payments to Witnesses 2 4.8%
Responsibility
Professional
Lawyer as Witness 2 4.8%
Responsibility
Professional
Communication with a Represented Person 4 9.5%
Responsibility
Professional
Trial Publicity – Extrajudicial Statements to the Public 3 7.1%
Responsibility

© 2022 SmartBarPrep | www.smartbarprep.com

 SmartBarPrep Frequency Analysis 16

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Professional
Special Rules for Prosecutors 2 4.8%
Responsibility
Professional
Threat of Criminal, Administrative, or Disciplinary Charges 3 7.1%
Responsibility
Professional
Amount of Lawyer’s Fees 7 16.7%
Responsibility
Professional
General Fee Agreements 4 9.5%
Responsibility
Professional
Contingency Fee Agreements 7 16.7%
Responsibility
Professional
Advance Payments & True Retainers 0 0.0%
Responsibility
Professional
Fee Divisions Among Lawyers 3 7.1%
Responsibility
Professional
Sharing Legal Fees with Non-Lawyers 6 14.3%
Responsibility
Professional
Communications Concerning a Lawyer’s Services 0 0.0%
Responsibility
Professional
Advertising Legal Services 3 7.1%
Responsibility
Professional
Solicitation of Clients 5 11.9%
Responsibility
Professional
Compensation for Recommending Lawyer’s Services 4 9.5%
Responsibility
Professional
Professional Independence of a Lawyer 3 7.1%
Responsibility
Professional
Unauthorized Practice of Law 2 4.8%
Responsibility
Professional
Responsibilities Regarding Non-Lawyer Assistants 4 9.5%
Responsibility
Professional Employment of Disbarred, Suspended, Resigned, or
2 4.8%
Responsibility Involuntary Active Lawyer
Professional
Professional Misconduct 3 7.1%
Responsibility
Professional
Responsibilities of a Subordinate Lawyer 1 2.4%
Responsibility
Professional
Reporting Professional Misconduct 2 4.8%
Responsibility
Real Property Present Estates: Defeasible Fees 2 4.8%
Real Property Future Estates: Reverter & the Right of Re-Entry 2 4.8%
Real Property Restraints on Alienation 2 4.8%

© 2022 SmartBarPrep | www.smartbarprep.com

 SmartBarPrep Frequency Analysis 17

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Real Property Waste 1 2.4%

Real Property Joint Tenancy: Formation 5 11.9%
Real Property Joint Tenancy: Severance 5 11.9%
Real Property Co-Tenant’s Entitlement to Rent or Reimbursement 4 9.5%
Real Property Ouster of a Co-Tenant 2 4.8%
Real Property Types of Leasehold Interests 4 9.5%
Real Property Right to Terminate Tenancy for Breach of Covenant 1 2.4%
Real Property Tenant Duties: Duty to Pay Rent 3 7.1%
Real Property Landlord Duties: Duty to Deliver Possession 1 2.4%
Real Property Landlord Duties: Implied Warranty of Habitability 4 9.5%
Real Property Landlord Duties: Constructive Eviction 5 11.9%
Real Property Landlord Duties: Duty to Repair 1 2.4%
Real Property Landlord Duties: Duty to Mitigate Damages 3 7.1%
Real Property Assignment of a Lease 5 11.9%
Real Property Subleases 3 7.1%
Real Property Termination of Leases: Surrender 1 2.4%
Real Property Real Covenants 5 11.9%
Real Property Equitable Servitudes 4 9.5%
Common Scheme or Plan Doctrine (Reciprocal Negative
Real Property 1 2.4%
Servitude)
Real Property Easements by Grant, Prescription, Implication, & Necessity 6 14.3%
Real Property Scope of an Easement 1 2.4%
Real Property Termination of an Easement 3 7.1%
Real Property Licenses 1 2.4%
Real Property Fixtures 1 2.4%
Real Property Adverse Possession 2 4.8%
Real Property Requirements for a Valid Land Sale Contract 2 4.8%
Real Property Warranty of Marketable Title 2 4.8%
Real Property Revocation of a Land Sale Contract 1 2.4%
Real Property Deed Requirements 3 7.1%
Real Property Deeds: Constructive Conveyance 1 2.4%
General Warranty Deed, Special Warranty Deed, &
Real Property 2 4.8%
Quitclaim Deed
Real Property Recording Statutes 4 9.5%
Real Property Bona Fide Purchasers & The Shelter Rule 3 7.1%

© 2022 SmartBarPrep | www.smartbarprep.com

 SmartBarPrep Frequency Analysis 18

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Real Property Purchase Money Mortgage 1 2.4%

Real Property Deed of Trust 1 2.4%
Mortgages: Foreclosure, Order of Preference, & Deficiency
Real Property 2 4.8%
Judgments
Real Property Lateral Support 1 2.4%
Real Property Public and Private Nuisance 7 16.7%
Real Property Zoning Ordinances: Variances 1 2.4%
Real Property Zoning Ordinances: Previous Non-Conforming Use 1 2.4%
Real Property Discrimination: Fair Housing Act 0 0.0%
Remedies Contracts: Available Legal Remedies 14 33.3%
Remedies Expectation Damages 12 28.6%
Remedies Reliance Damages 6 14.3%
Remedies Consequential Damages 8 19.0%
Remedies Incidental Damages 8 19.0%
Remedies Restitution Damages 7 16.7%
Remedies Liquidated Damages 1 2.4%
Remedies Damages in Contracts for the Sale of Land 2 4.8%
Remedies UCC Buyer’s Remedies & Damages 4 9.5%
Remedies UCC Seller’s Remedies & Damages 1 2.4%
Remedies UCC Contractual Modification or Limitation of Remedy 1 2.4%
Remedies Unjust Enrichment (Quasi-Contract) 4 9.5%
Remedies Reformation 5 11.9%
Remedies Rescission 6 14.3%
Remedies Specific Performance 14 33.3%
Remedies Torts: Available Legal Remedies 4 9.5%
Remedies Compensatory Damages 5 11.9%
Remedies Nominal Damages 4 9.5%
Remedies Punitive Damages 3 7.1%
Remedies Restitution Damages 4 9.5%
Remedies Damages for Fraud 3 7.1%
Remedies Damages for Conversion of Property 2 4.8%
Remedies Damages for Trespass to Chattels 2 4.8%
Remedies Damages for Trespass to Land 1 2.4%
Remedies Temporary Restraining Orders 5 11.9%

© 2022 SmartBarPrep | www.smartbarprep.com

 SmartBarPrep Frequency Analysis 19

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Remedies Preliminary Injunction 6 14.3%

Remedies Permanent Injunction 3 7.1%
Remedies Declaratory Judgment in Federal Court 1 2.4%
Remedies Equitable Lien 2 4.8%
Remedies Constructive Trust 4 9.5%
Remedies Replevin 1 2.4%
Remedies Ejectment 2 4.8%
Remedies Purchase Money Resulting Trust 1 2.4%
Remedies Pro Rata Resulting Trust 1 2.4%
Remedies Defenses: Laches 12 28.6%
Remedies Defenses: Unclean Hands 11 26.2%
Remedies Defenses: Mitigation of Damages 10 23.8%
Remedies Defenses: Intentional & Negligent Misrepresentation 7 16.7%
Torts Intentional Torts: General Elements 5 11.9%
Torts Doctrine of Transferred Intent 2 4.8%
Torts Battery 5 11.9%
Torts Assault 3 7.1%
Torts False Imprisonment 2 4.8%
Torts Intentional Infliction of Emotional Distress 4 9.5%
Torts Trespass to Land 6 14.3%
Torts Trespass to Chattels & Conversion 5 11.9%
Torts Intentional Tort Defenses: Consent 2 4.8%
Torts Intentional Tort Defenses: Self-Defense/Defense of Others 1 2.4%
Torts Intentional Tort Defenses: Necessity 1 2.4%
Torts Intentional Tort Defenses: Privilege to Arrest 1 2.4%
Intentional Tort Defenses: Shopkeeper’s Privilege to Detain
Torts 1 2.4%
for Investigation
Torts Negligence Elements 15 35.7%
Torts Duty: To Whom a Duty is Owed 8 19.0%
Torts Duty: Affirmative Duty to Act 2 4.8%
Torts Standard of Care: Reasonable Person Standard 7 16.7%
Torts Standard of Care: Children 2 4.8%
Torts Standard of Care: Medical Doctors 2 4.8%
Torts Standard of Care: Professionals & Attorneys 1 2.4%

© 2022 SmartBarPrep | www.smartbarprep.com

 SmartBarPrep Frequency Analysis 20

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

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

Torts 3 7.1%
Entrants
Torts Standard of Care: Attractive Nuisance Doctrine 1 2.4%
Torts Negligence Per Se 6 14.3%
Torts Res Ipsa Loquitor 1 2.4%
Torts Causation: Actual and Proximate Cause 5 11.9%
Torts Causation: Intervening Causes 5 11.9%
Torts Causation: Eggshell Plaintiff Rule 2 4.8%
Torts Comparative Negligence & Contributory Negligence 9 21.4%
Torts Assumption of Risk 10 23.8%
Torts Negligent Infliction of Emotional Distress 4 9.5%
Vicarious Liability of Employer: Doctrine of Respondeat
Torts 5 11.9%
Superior
Torts Vicarious Liability: Employee vs. Independent Contractor 3 7.1%
Torts Joint and Several Liability 2 4.8%
Torts Survival Acts & Wrongful Death Claims 1 2.4%
Torts Defamation 5 11.9%
Torts Privacy Torts: Misappropriation of Name or Picture 1 2.4%
Torts Privacy Torts: False Light 2 4.8%
Torts Privacy Torts: Intrusion of Privacy 2 4.8%
Torts Privacy Torts: Public Disclosure of Private Facts 2 4.8%
Torts Intentional Interference with Business Relations 1 2.4%
Torts Intentional & Negligent Misrepresentation 7 16.7%
Torts Abuse of Process 1 2.4%
Torts Malicious Prosecution & Wrongful Civil Proceedings 2 4.8%
Torts Public and Private Nuisance 7 16.7%
Torts Strict Liability: Abnormally Dangerous Activity 6 14.3%
Torts Strict Liability: Wild & Domestic Animals 1 2.4%
Strict Products Liability: Liability for Manufacturing Defect,
Torts 4 9.5%
Design Defect, & Failure to Warn
Torts Products Liability: Liability for Negligence 4 9.5%
Torts Products Liability: Liability for Breach of Warranty 1 2.4%
Torts Products Liability: Indemnification 1 2.4%
Products Liability: Compliance with Government
Torts 1 2.4%
Regulations

© 2022 SmartBarPrep | www.smartbarprep.com

 SmartBarPrep Frequency Analysis 21

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Trusts Trust Formation Elements 7 16.7%

Trusts Inter Vivos & Testamentary Trusts 1 2.4%
Trusts Revocable & Irrevocable Trusts 2 4.8%
Trusts Charitable Trusts 3 7.1%
Trusts Resulting Trusts 1 2.4%
Trusts Discretionary Trusts 1 2.4%
Trusts Cy Pres Doctrine 4 9.5%
Trusts Spendthrift Trusts 1 2.4%
Trusts Rights of Creditors 1 2.4%
Trusts Modification of a Trust 1 2.4%
Trusts Termination of an Irrevocable Trust 3 7.1%
Trusts Termination of a Revocable Trust 1 2.4%
Trusts Trustee Powers 2 4.8%
Trusts Trustee Duties Owed to Beneficiaries 6 14.3%
Trusts Duty to Distribute in Accordance with the Trust Instrument 3 7.1%
Trusts Prudent Investor Rule 2 4.8%
Trusts Duty & Liability of Co-Trustees 1 2.4%
Trusts Remedies Against a Trustee 2 4.8%
Challenging the Validity of a Trust: Fraud & Undue
Trusts 1 2.4%
Influence
Wills & Estates Validity of a Will under California Law 3 7.1%
Wills & Estates Will Execution Requirements 10 23.8%
Wills & Estates Holographic Will or Codicil 10 23.8%
Wills & Estates Modification of a Will by Codicil 4 9.5%
Wills & Estates Ambiguities in a Will 2 4.8%
Wills & Estates Acts of Independent Significance 4 9.5%
Wills & Estates Integration 1 2.4%
Wills & Estates Incorporation by Reference 3 7.1%
Wills & Estates Testator Gift of Community & Separate Property 3 7.1%
Wills & Estates Revocation by Physical Act 2 4.8%
Wills & Estates Revocation by Subsequent Will or Codicil 6 14.3%
Wills & Estates Revocation by Divorce 2 4.8%
Wills & Estates Partial Revocation of a Will 1 2.4%
Wills & Estates Dependent Relevant Revocation 2 4.8%

© 2022 SmartBarPrep | www.smartbarprep.com

 SmartBarPrep Frequency Analysis 22

# of Times % out of
Rule
Subject Rule Appeared on
Exams
Past Exams Tested

Wills & Estates Revival of Revoked Wills & Republication by Codicil 3 7.1%
Wills & Estates Revocation by Operation of Law 1 2.4%
Wills & Estates Testamentary Capacity 5 11.9%
Wills & Estates Interested Witness 3 7.1%
Wills & Estates Insane Delusion 1 2.4%
Wills & Estates Fraud 1 2.4%
Wills & Estates Undue Influence 4 9.5%
Wills & Estates Individuals Who May Make a Will 1 2.4%
Wills & Estates Terms of a Will Given Effect When Probated 2 4.8%
Wills & Estates Lapse of Gifts & Anti-Lapse Statute 3 7.1%
Wills & Estates Per Capita by Representation Distribution 2 4.8%
Wills & Estates Per Stirpes Distribution 1 2.4%
Wills & Estates General Gifts 2 4.8%
Wills & Estates Specific Gifts 2 4.8%
Wills & Estates Demonstrative Gifts 1 2.4%
Wills & Estates Residual Gifts 2 4.8%
Wills & Estates Ademption 3 7.1%
Wills & Estates Abatement 2 4.8%
Wills & Estates Adopted Children 2 4.8%
Wills & Estates Joint Property: Right of Survivorship 1 2.4%
Wills & Estates Intestate Distribution 7 16.7%
Wills & Estates Omitted Spouse 5 11.9%
Wills & Estates Omitted Child 13 31.0%

© 2022 SmartBarPrep | www.smartbarprep.com

 OUR STUDY TOOLS
OPTIMIZE YOUR BAR PREP
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streamline the mountain
of information you need
to know for the bar exam.
Includes priority ratings,
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for the bar exam, with tips,
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visit www.SmartBarPrep.com to learn more
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 Practice
Questions
Real questions licensed
from the bar examiners
along with our smart
strategy to practice more
effectively for the Essays,
MBE, and PT’s.
 01 AGENCY

Agency
A. Formation

 Creation of Agency Relationship

• An agent is a person or entity that acts on behalf of Feb 2020, Essay 5
Feb 2012, Essay 4
another – the principal. Agency is a fiduciary relationship,
and exists if there is: (1) assent/consent (a formal or
2 of 42 exams 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 Feb 2020, Essay 5
the agent has actual authority. Actual authority may be Feb 2015, Essay 5
Feb 2012, Essay 4
express or implied. Express authority occurs when the
July 2010, Essay 4
6 of 42 exams principal has explicitly told the agent (either orally or in Feb 2008, Essay 6
writing) that he is entitled to act. Implied authority occurs July 2005, Essay 3
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 Feb 2020, Essay 5
the agent has apparent authority. Apparent authority arises Feb 2015, Essay 5
Feb 2012, Essay 4
where: (1) the principal holds out another as having July 2010, Essay 4
6 of 42 exams authority; AND (2) the third-party reasonably relies on that Feb 2008, Essay 6
authority. July 2005, Essay 3

• 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

© 2022 SmartBarPrep | www.smartbarprep.com 1

 01 AGENCY

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

of such authority.
• A principal will be bound to a contract even if the agent
acted on his own behalf or in violation of specific
instructions UNLESS (a) the third party had notice the agent
was exceeding his authority, or (b) the contract/transaction
was not within the ordinary usages of business (ordinary
usage includes purchase of goods at a reasonable price).
Apparent authority is NOT APPLICABLE if the third-
party has actual knowledge that the agent did not have
authority. Additionally, a third-party has a duty to make
further inquiry when the situation suggests that it may be
unreasonable to believe that the agent has authority.

 Ratification of Agent’s Contracts

• A principal’s ratification of an agent’s conduct will make the Feb 2020, Essay 5
principal liable for those contracts entered into by an agent Feb 2015, Essay 5

without actual or apparent authority. Ratification occurs

2 of 42 exams 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.

 Employee vs. Owner (Sole-Proprietor, Partner, Member,

Shareholder)
• Employee: An employee is a person who (1) is hired to Feb 2020, Essay 5
work for another person or business (the employer), (2) for
compensation (salary, wage, fee, and/or commission), AND
1 of 42 exams (3) is subject to the employer’s direction or control as to the
details of how to perform the job. Associates and Non-
Equity Partners are typically employees of a firm.
• Sole-Proprietor: A sole-proprietor is the owner of a sole
proprietorship. A sole proprietorship is a single owner for-
profit business, that operates without formally creating a
business organization.
• Partner: A partner is (1) a co-owner of a partnership, (2)
shares in the profits of the business, (3) is a party to the
partnership agreement, AND (4) has a capital account (the
individual accounting of each partner’s investment in the
© 2022 SmartBarPrep | www.smartbarprep.com 2
 01 AGENCY

partnership). Typically, partners share profits and losses

equally, unless otherwise agreed.
• Member: A member is (1) an owner or co-owner of an
LLC (Limited Liability Company), (2) is a party to the
Operating Agreement, AND (3) has a capital account (the
individual accounting of each member’s investment in the
LLC).
• Shareholder: A shareholder is the owner of one or more
shares of stock in a corporation.

C. Vicarious Tort Liability

 Vicarious Liability: Doctrine of Respondeat Superior

• Under the Doctrine of Respondeat Superior, an employer is July 2021, Essay 3
Feb 2015, Essay 5
vicariously liable for an employee’s negligent acts if the
Feb 2013, Essay 6
employee was acting within the scope of employment. A Feb 2011, Essay 4
5 of 42 exams party is generally NOT vicariously liable for the torts of an July 2006, Essay 1
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
NOTE
because an employee disregards the employer’s The Vicarious Liability rules
crossover with Torts, and have
instructions. been listed in both the Torts and
• An employee’s act is NOT within the scope of Agency subjects in the outline
because they have appeared on
employment when: (1) it occurs within an independent both Agency and Torts essays.
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.

© 2022 SmartBarPrep | www.smartbarprep.com 3

 01 AGENCY

 Vicarious Liability: Employee vs. Independent Contractor

• A party is generally NOT vicariously liable for the torts of July 2021, Essay 3
Feb 2011, Essay 4
an independent contractor. An independent contractor is a
July 2006, Essay 1
person who contracts with another to do something for him,
3 of 42 exams 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. Feb 2013, Essay 6

However, if an employee acts within the scope of his

employment in order to further the goals of the employer,
1 of 42 exams the employee may seek indemnification from the employer
for damages resulting from his negligent conduct.

© 2022 SmartBarPrep | www.smartbarprep.com 4

 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 42 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)

© 2022 SmartBarPrep | www.smartbarprep.com

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 21 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

© 2022 SmartBarPrep | www.smartbarprep.com

 Smart Sheets
For the Multistate Bar Exam (MBE)

July 2022 Edition

 02 CONSTITUTIONAL LAW
A. Constitutional Limits on Federal Court Jurisdiction
H 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.
M 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).
M Advisory Opinions, Ripeness, & Mootness – Courts
CANNOT give advisory opinions or address hypothetical
disputes.
© 2022 SmartBarPrep | www.smartbarprep.com
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
M 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.
M 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.
M 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.
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 02 CONSTITUTIONAL LAW
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
M 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).
M 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
M 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.
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F. Intergovernmental Immunities
H 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
H 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.
M 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.
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 02 CONSTITUTIONAL LAW
H. Incorporation Doctrine
M 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.
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”)
H 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
M 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
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the law is not rationally related to a legitimate govt.
interest.
M 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)
H 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/sex, non-marital children, & most likely
sexual orientation/gender identity).
• 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).
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 MBE Smart Sheets

Priority Ratings
Ratings Guide

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/MEDIUM

HIGH/MED IUM priority rating is so you can see how
important each rule is 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.

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 MBE Smart Sheets

The HIGH or MEDIUM

MEDIUM 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

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