UBE MEE Frequently Tested Topics Analysis
Historical Testing Frequency by Subject
Statistical analysis of the Multistate Essay Exam subjects over the last decade reveals that certain topics are nearly ubiquitous, while others appear in cycles. Civil Procedure stands as the most frequently tested subject, appearing on almost every exam administration since the UBE's inception. Following closely are Business Associations MEE topics, which include Agency, Partnership, and Corporations. These are often rotated or combined to test the breadth of a candidate's knowledge regarding business entities. Trusts and Estates MEE and Secured Transactions MEE also maintain high-frequency status, often appearing in alternating cycles. Understanding these frequencies allows candidates to allocate their study hours proportionally. For instance, while Conflict of Laws is a technical subject, it rarely appears as a standalone essay, typically manifesting as a minor sub-issue within a larger Torts or Wills question. Scoring is based on the identification of the "Relative Importance" of issues, meaning that missing a high-frequency rule often results in a more significant point deduction than missing an obscure one.
The Concept of 'Crossover' Subjects
Crossover subjects involve essay prompts that integrate two or more legal disciplines into a single fact pattern. This is a common tactic for highly tested MEE areas such as Contracts and Secured Transactions, or Wills and Conflict of Laws. The goal of a crossover question is to assess the candidate’s ability to recognize where one body of law ends and another begins. For example, a question might start with a contract for the sale of goods (UCC Article 2) and transition into how the buyer financed the purchase (UCC Article 9). In these scenarios, the point sheet used by graders allocates specific credit for the transition analysis. Candidates must be wary of "siloing" their knowledge; the ability to apply the Internal Affairs Doctrine in a Corporations question that also involves a choice-of-law issue is a hallmark of an advanced examinee. Recognizing these intersections is essential for achieving a score of 4 or higher on the 1-6 MEE scale.
Using NCBE Subject Matter Outline for Prediction
While MEE topic predictions are never guaranteed, the NCBE Subject Matter Outline provides the definitive boundaries of what can be tested. This document distinguishes between "major" and "minor" topics within a subject. For instance, in Evidence, the Hearsay rule and its exceptions are explicitly emphasized, making them a certainty if Evidence appears. Predictive modeling often looks at the "gap" since a topic was last tested. If a subject like Torts has been absent for three consecutive administrations, its probability of appearing increases significantly. However, candidates should use the outline to identify "cluster topics." The NCBE frequently clusters subjects like Agency and Partnership because they share the underlying principle of vicarious liability. By studying the outline’s hierarchy, students can focus on the "black letter law" that forms the backbone of the exam, ensuring they are prepared for the most probable permutations of the six essay slots.
Business Associations: Agency, Partnerships, and Corporations
Fiduciary Duties and the Business Judgment Rule
In the realm of Business Associations, the Duty of Care and the Duty of Loyalty are the most critical concepts for MEE success. The Duty of Care requires directors to act with the care that an ordinarily prudent person in a like position would exercise under similar circumstances. Central to this is the Business Judgment Rule (BJR), a rebuttable presumption that directors acted on an informed basis, in good faith, and in the honest belief that the action taken was in the best interests of the company. To overcome the BJR, a plaintiff must show gross negligence or a lack of rational business purpose. On the MEE, examiners often present a board decision that seems questionable but falls within the BJR's protection, testing whether the candidate knows the high bar required for judicial interference. Conversely, the Duty of Loyalty is often implicated by "interested director transactions," where the Intrinsic Fairness Test replaces the BJR, shifting the burden to the defendant to prove the transaction was fair to the corporation.
Piercing the Corporate Veil and Entity Liability
Entity liability questions often hinge on the concept of Limited Liability, where shareholders are generally not personally liable for the corporation's debts. However, the MEE frequently tests the exception: Piercing the Corporate Veil. This equitable remedy allows creditors to reach the personal assets of shareholders or parent corporations. Graders look for a three-part analysis: (1) the corporation is a mere "alter ego" or "instrumentality" of the shareholders; (2) there was a failure to observe corporate formalities or commingling of funds; and (3) the corporate form was used to commit fraud or promote injustice. In a Partnership context, the analysis shifts to the Statement of Authority and the statutory default of joint and several liability for all obligations of a general partnership. Candidates must distinguish between the rigid formalities of a De Jure Corporation and the more flexible, yet high-risk, structure of a General Partnership when determining who is ultimately responsible for a judgment.
Rights and Liabilities of Partners
Partnership law on the MEE is primarily governed by the Uniform Partnership Act (UPA) or its revised version (RUPA). A key area of focus is the Actual Authority vs. Apparent Authority of a partner to bind the partnership to third parties. Under RUPA, every partner is an agent of the partnership for the purpose of its business. If a partner acts without actual authority, the partnership may still be bound if the act was for "apparently carrying on in the ordinary course the partnership business," unless the third party knew the partner lacked authority. Furthermore, the MEE often tests the financial rights of partners, specifically the default rule that partners share profits and losses equally, regardless of their capital contributions, unless otherwise agreed. When an essay describes a partner withdrawing, candidates must apply the rules of Dissociation, distinguishing between rightful and wrongful dissociation and the resulting impact on the partner’s right to management and distributions.
Derivative Suits and Shareholder Rights
Shareholder litigation is a sophisticated subtopic that tests the procedural requirements of a Derivative Suit versus a direct suit. In a derivative action, a shareholder sues on behalf of the corporation to redress an injury to the entity itself, such as a breach of fiduciary duty by an officer. The MEE frequently focuses on the Demand Requirement, where the shareholder must first demand that the board of directors take action unless such demand would be "futile." Futility is usually found when a majority of the board is interested or lacks independence. In contrast, a direct suit is brought by a shareholder for an injury to themselves personally, such as the denial of voting rights or the failure to pay a declared dividend. Candidates must also understand the Right of Inspection, which allows shareholders to examine corporate books and records for a "proper purpose," a phrase that must be defined and applied to the specific facts of the prompt to earn full credit.
Trusts and Estates: Wills, Intestacy, and Trust Administration
Will Execution, Revocation, and Challenges
A standard Wills essay typically begins with the validity of the instrument. Candidates must evaluate the Formalities of Execution, which under the majority rule require a writing, signed by the testator, and witnessed by two disinterested parties (the Attested Will). If these are missing, the MEE may test the Holographic Will exception, requiring the material provisions to be in the testator's handwriting. Revocation is another high-yield area, specifically Revocation by Physical Act (tearing, burning, or canceling) or by a subsequent instrument. A common trap involves the Doctrine of Dependent Relative Revocation (DRR), where a court may disregard a revocation if it was based on a mistake of law or fact regarding the validity of a new will. If the revocation is undone via DRR, the original will is "revived" to prevent intestacy, provided it aligns with the testator’s presumed intent. Challenges based on Undue Influence or Lack of Testamentary Capacity require a fact-intensive analysis of whether the testator’s free will was overborne by another party.
Intestate Succession and Calculation of Shares
When a decedent dies without a valid will, or a will only disposes of part of the estate, the laws of Intestate Succession apply. The MEE frequently asks candidates to calculate the distribution of assets among a surviving spouse and descendants. The most critical distinction to master is the method of distribution among issue: Modern Per Stirpes, Strict Per Stirpes, or Per Capita at Each Generation. Under the Per Capita at Each Generation approach (the UPC approach), the estate is divided into equal shares at the first generation with living takers, and the shares of deceased members at that level are pooled and distributed equally among their children. This ensures that all cousins, for example, receive the same amount. Candidates must also be aware of the Slayer Statute, which prevents a person who feloniously and intentionally kills the decedent from inheriting, and the Simultaneous Death Act, which requires an heir to survive the decedent by 120 hours to take under intestacy.
Creation and Termination of Trusts
Trust law on the MEE focuses on the Five Elements of a Valid Trust: (1) a settlor with capacity, (2) present intent to create a trust, (3) a competent trustee, (4) a definite beneficiary, and (5) trust property (Res). A common issue is the "precatory language" trap, where a settlor expresses a mere wish or hope (e.g., "I would like my son to use this money for school") rather than a mandatory instruction. Such language generally does not create a trust. Regarding termination, the Claflin Doctrine is a frequent testing point, stating that a trust may be terminated early by the consent of all beneficiaries only if the termination does not frustrate a Material Purpose of the trust (such as a spendthrift provision). If the trust’s purpose becomes illegal, impossible, or wasteful, the court may apply the Cy Pres Doctrine to charitable trusts to redirect the funds to a purpose as near as possible to the settlor’s original intent.
Fiduciary Duties of Trustees and Personal Representatives
The conduct of a trustee is governed by the Uniform Trust Code (UTC), which imposes strict fiduciary duties. The Duty of Loyalty is paramount, often tested through the "No Further Inquiry" rule: if a trustee engages in self-dealing (e.g., buying trust assets for themselves), the transaction is a per se breach, and the court will not inquire into whether the price was fair. The Duty of Prudence (or the Prudent Investor Rule) requires the trustee to manage the trust assets as a prudent investor would, emphasizing the need for Diversification to minimize risk. On the MEE, a trustee who invests the entire trust corpus into a single volatile stock has breached this duty. For Personal Representatives in an estate, the duties are similar but focused on the prompt settlement and distribution of the estate. Candidates must discuss the trustee's liability for losses resulting from a breach and the potential for Surcharge actions to restore the trust's value.
Secured Transactions (Article 9 UCC)
Attachment: Creating an Enforceable Security Interest
Secured Transactions is often considered a "formulaic" subject on the MEE, and it always begins with Attachment. For a security interest to be enforceable against the debtor, three requirements must be met: (1) Value must be given by the secured party; (2) The debtor must have rights in the collateral; and (3) There must be a Security Agreement that provides a description of the collateral. The description must "reasonably identify" the property; generic descriptions like "all the debtor's assets" are insufficient in a security agreement (though acceptable in a financing statement). A frequent sub-issue is the Purchase Money Security Interest (PMSI), which arises when a lender provides the funds used by the debtor to purchase the specific collateral. Identifying a PMSI is crucial because it often grants the creditor "super-priority" over earlier-filed interests, a concept that is a staple of MEE fact patterns involving competing creditors.
Perfection: Methods and Priority Rules
Once a security interest has attached, the creditor must "perfect" it to ensure priority over third parties. The MEE tests the five methods of Perfection: Filing a Financing Statement, Possession, Control, Automatic Perfection (specifically for PMSI in Consumer Goods), and Temporary Perfection. The most common method is filing a UCC-1 Financing Statement with the Secretary of State. Priority disputes form the core of Article 9 essays. The general rule is "First to File or Perfect," but exceptions abound. For example, a Buyer in the Ordinary Course of Business (BIOC) takes collateral free of a security interest created by the seller, even if perfected. Similarly, the Garage Sale Rule (Consumer-to-Consumer exception) can strip a PMSI of its priority if the buyer purchases without knowledge of the interest. Candidates must systematically apply the Priority Tier List, starting with statutory liens, then BIOCs, then perfected interests, and finally unperfected interests.
Default and Enforcement of Security Interests
When a debtor defaults, the secured party has the right to repossess the collateral. The MEE often focuses on the Self-Help Repossession rule, which allows a creditor to take the property without judicial process as long as they do not "Breach the Peace." A breach of the peace is generally defined as any conduct that has the potential to lead to violence, such as breaking into a locked garage or continuing to repossess over the debtor's physical objection. After repossession, the creditor usually conducts a Commercially Reasonable Sale. Every aspect of the sale, including the method, time, and place, must be commercially reasonable. Failure to comply with these rules can lead to the Rebuttable Presumption Rule, where the court presumes the value of the collateral was equal to the debt, thereby eliminating the creditor's right to a Deficiency Judgment unless the creditor can prove otherwise.
Scope of Article 9 and Collateral Classification
Before applying Article 9 rules, one must ensure the transaction falls within its scope. Article 9 applies to any transaction, regardless of its form, that creates a security interest in personal property or fixtures by contract. It does not apply to real estate mortgages or statutory liens. A critical preliminary step in any MEE essay is the Classification of Collateral, as the rules for perfection and priority often change based on the category. Collateral is classified based on the Debtor’s Primary Use. The four categories of goods are: (1) Consumer Goods (personal use), (2) Equipment (business use), (3) Inventory (held for sale or lease), and (4) Farm Products. Other categories include Accounts (rights to payment), Instruments, and General Intangibles. Correctly labeling a piece of machinery as "Equipment" rather than "Inventory" is often the difference between applying the correct or incorrect perfection rule, particularly regarding PMSI notification requirements.
Divorce Grounds, Property Division, and Alimony
Family Law essays frequently center on the dissolution of marriage. While many states have moved toward "No-Fault" divorce, the MEE still tests the traditional grounds such as adultery or desertion if the prompt specifies. The most high-yield topic, however, is Equitable Distribution. Candidates must distinguish between Marital Property (acquired during the marriage) and Separate Property (acquired before marriage or by gift/inheritance). Only marital property is subject to division. Issues arise with "commingled" assets or the appreciation of separate property due to marital effort. Regarding Alimony (spousal support), the court looks at the recipient's need and the payor's ability to pay. Unlike property division, alimony is modifiable upon a "Substantial Change in Circumstances." Candidates should use the Uniform Marriage and Divorce Act (UMDA) as a guide for the factors courts consider, such as the duration of the marriage and the standard of living established during it.
Child Custody and Visitation Determinations
The universal standard for all child-related issues is the Best Interests of the Child (BIOC). This is a multi-factor test where the court considers the wishes of the parents, the wishes of the child (if of sufficient age), the child's adjustment to home and school, and the mental and physical health of all parties involved. The MEE often presents a "Joint Custody" vs. "Sole Custody" dispute. It is important to note that the Primary Caretaker Doctrine is a common tie-breaker used in many jurisdictions. Visitation rights are almost always granted to the non-custodial parent unless it would "seriously endanger" the child’s physical or emotional health. A recurring MEE theme is the Constitutional Right of Fit Parents to make decisions regarding the upbringing of their children, which limits the ability of third parties (like grandparents) to seek visitation over a parent's objection, as established in Troxel v. Granville.
Child Support Calculation and Enforcement
Child support is typically calculated using the Income Shares Model, which aims to provide the child with the same proportion of parental income they would have received if the parents lived together. Unlike alimony, child support is the right of the child, and parents cannot contract away the obligation. The MEE frequently tests the Uniform Interstate Family Support Act (UIFSA), which governs the jurisdiction to issue and modify support orders. Under UIFSA, the state that issued the initial order has Continuing Exclusive Jurisdiction (CEJ) as long as at least one party (parent or child) continues to reside in that state. This prevents multiple states from issuing conflicting support orders. Enforcement mechanisms, such as wage withholding, tax refund interception, and driver's license suspension, are also highly tested areas when a payor parent falls into arrears.
Paternity and Parental Rights
Paternity issues often arise in the context of child support or inheritance. Most jurisdictions apply a Presumption of Parentage if a child is born during a marriage or within 300 days of its termination. For non-marital children, paternity can be established through a voluntary acknowledgment or a paternity suit involving DNA evidence. The MEE may also test the rights of Unwed Fathers, who must demonstrate a "substantial commitment to the responsibilities of parenthood" to gain constitutional protection of their parental rights. In adoption scenarios, the Termination of Parental Rights must occur first, either voluntarily or involuntarily through a showing of unfitness by "Clear and Convincing Evidence." This higher evidentiary standard is a critical detail to mention, as it protects the fundamental liberty interest parents have in their children.
Civil Procedure on the MEE vs. the MBE
MEE Focus: Complex Joinder and Jurisdictional Issues
While the MBE focuses on the granular details of timing and motions, the MEE Civil Procedure questions often lean into complex structural issues. Subject Matter Jurisdiction (SMJ) is a perennial favorite, specifically the requirements for Diversity Jurisdiction (complete diversity + amount in controversy >$75,000) and Supplemental Jurisdiction under 28 U.S.C. § 1367. The MEE frequently tests whether a defendant’s counterclaim or a third-party claim (Impleader) can stay in federal court despite lacking an independent basis for SMJ. Another high-yield area is Joinder of Parties, including Compulsory Joinder (Rule 19) and Permissive Joinder (Rule 20). Candidates must analyze whether a party is "necessary" and "indispensable," which requires a three-step inquiry: (1) Should the party be joined? (2) Can they be joined (jurisdiction)? and (3) If not, can the case proceed in "equity and good conscience"?
Pretrial Motions and Appellate Procedure
The MEE frequently tests the standards for Summary Judgment (Rule 56) and Judgment as a Matter of Law (JMOL, Rule 50). For Summary Judgment, the movant must show there is no "genuine dispute as to any material fact" and they are entitled to judgment as a matter of law. In contrast, a JMOL motion is made during trial and argues that a "reasonable jury" would not have a legally sufficient evidentiary basis to find for the non-moving party. A common trap is the Renewed JMOL, which can only be filed if the party moved for a JMOL at the close of all evidence. Regarding appeals, the Final Judgment Rule is the starting point, but the MEE often tests exceptions like the Collateral Order Doctrine or Interlocutory Appeals under § 1292. Understanding the "Standard of Review" (e.g., De Novo for legal issues, Clearly Erroneous for facts) is essential for scoring highly on appellate procedure prompts.
Subject Matter Jurisdiction Nuances
Beyond basic Diversity and Federal Question jurisdiction, the MEE explores nuances like Removal Jurisdiction. A defendant can remove a case from state to federal court if the case could have originally been filed there. However, the Forum Defendant Rule prevents removal if the basis is diversity and any defendant is a citizen of the forum state. Another frequent topic is Personal Jurisdiction (PJ), specifically the "Minimum Contacts" analysis from International Shoe. Candidates must discuss Purposeful Availment and whether the claim "arises out of or relates to" the defendant’s contacts with the forum (Specific PJ). For General PJ, the defendant must be "at home" in the forum (domicile for individuals, place of incorporation/principal place of business for corporations). The Long-Arm Statute of the state must also be mentioned as the first step in any PJ analysis.
Differences from MBE Civil Procedure Focus
The primary difference between the two formats is the level of synthesis required. The MBE might ask a single question about the deadline to file an Answer (21 days), whereas the MEE will ask how a lack of Service of Process affects the court's ability to enter a Default Judgment. On the MEE, the Erie Doctrine is much more common than on the MBE. Candidates must be prepared to write a full "Erie analysis": Is there a federal law on point that conflicts with state law? If so, does it violate the Rules Enabling Act? If there is no federal law, is the state law "substantive" or "procedural"? This requires a discussion of Outcome Determinism and the prevention of Forum Shopping. While the MBE tests the "what," the MEE tests the "why" and the "how" of procedural fairness and judicial economy.
Contracts and Sales (UCC Article 2) Crossover
Every Contracts essay must first identify the governing law. The Common Law applies to services and real estate, while UCC Article 2 applies to the sale of goods. If a contract involves both, the Predominant Purpose Test determines which law applies. Formation issues often center on the Battle of the Forms (UCC 2-207), which replaces the common law Mirror Image Rule. Under 2-207, an expression of acceptance operates as an acceptance even if it states additional or different terms. Between merchants, these additional terms become part of the contract unless they materially alter it, the offer expressly limits acceptance to its terms, or objection is given. Candidates must be adept at identifying whether the parties are "Merchants" (those who deal in goods of the kind), as this status triggers several special rules throughout Article 2.
Warranties and Remedies for Breach
Once a contract is formed and breached, the MEE focuses on remedies. In a UCC context, this includes the Implied Warranty of Merchantability (the goods are fit for ordinary purposes) and the Implied Warranty of Fitness for a Particular Purpose. For breaches, the buyer’s remedies include Cover (buying substitute goods and recovering the price difference) or Market Price Damages. The seller’s remedies include Resale Damages or, if the seller has an unlimited supply of goods, Lost Profit Damages (the Lost Volume Seller rule). Under Common Law, the focus is on Expectation Damages, which aim to put the non-breaching party in the position they would have been in had the contract been performed. Candidates must also discuss Consequential Damages, which are recoverable only if they were reasonably foreseeable at the time of contracting, as established in Hadley v. Baxendale.
Statute of Frauds Applications
The Statute of Frauds (SOF) is a perennial MEE favorite, requiring certain contracts to be in writing to be enforceable. These include contracts for the sale of land, contracts that cannot be performed within one year, and the sale of goods for $500 or more (UCC). The MEE often tests the exceptions to the SOF. For the sale of goods, these include Specially Manufactured Goods, Part Payment or Acceptance, and the Merchant’s Confirmatory Memo rule. Under the common law for land sale, the Part Performance exception (taking possession, making improvements, or paying part of the price) is a frequent testing point. A successful essay will first state the general rule, identify why the SOF applies, and then analyze whether an exception saves the oral agreement from being unenforceable.
Third-Party Beneficiaries and Assignment
Contracts essays frequently involve parties who were not part of the original agreement. An Intended Beneficiary has the right to sue to enforce a contract, whereas an Incidental Beneficiary does not. The key is whether the contracting parties intended to confer a benefit on the third party. Furthermore, the MEE tests the Assignment of Rights and the Delegation of Duties. Generally, all rights are assignable unless the assignment materially changes the obligor's duty or risk. Duties are delegable unless the contract involves personal services or special skill. A common MEE nuance is the "Anti-Assignment Clause." Under the UCC, a clause prohibiting the assignment of "the contract" is construed as only prohibiting the delegation of duties, not the assignment of the right to receive payment. This distinction is vital for accurately resolving disputes between original parties and new assignees.
Lower Frequency But Critical Subjects
Conflict of Laws: Choice of Law Approaches
Conflict of Laws is rarely a standalone subject but frequently appears in Torts, Contracts, or Property essays. Candidates must be familiar with the three main approaches to Choice of Law: (1) The Vested Rights (First Restatement) approach, which looks to where the injury occurred (Lex Loci Delicti) or where the contract was formed; (2) The Most Significant Relationship (Second Restatement) approach, which weighs various policy factors and contacts; and (3) The Governmental Interest Analysis, which looks at whether a state has an interest in applying its law to the dispute. In MEE answers, identifying a "False Conflict" (where only one state has a real interest) can save time and demonstrate expertise. The Full Faith and Credit Clause is also relevant, requiring states to recognize the valid judgments of sister states.
Criminal Procedure Beyond the MBE Scope
While the MBE covers the 4th, 5th, and 6th Amendments extensively, the MEE may delve into more procedural aspects such as Grand Jury Proceedings or Pretrial Release. A common MEE focus is the Exclusionary Rule and its exceptions, such as Inevitable Discovery or the Good Faith Exception. In a 5th Amendment context, the MEE often tests the nuances of the Miranda waiver—specifically whether it was "knowing, voluntary, and intelligent." Crossover with Evidence is common here, particularly regarding the admissibility of a defendant’s prior statements for impeachment purposes even if they were obtained in violation of Miranda. Candidates should also be prepared for questions on the Right to Counsel at various stages of the criminal process, from post-indictment lineups to the first appeal of right.
Professional Responsibility Ethics Rules
Professional Responsibility (PR) is a high-stakes subject because it can be integrated into almost any other essay. The focus is usually on the ABA Model Rules of Professional Conduct. Key areas include Conflicts of Interest (both current and former clients), the Duty of Confidentiality, and the Duty of Candor to the Tribunal. A recurring theme is the "Informed Consent, Confirmed in Writing" requirement for waiving certain conflicts. The MEE also tests the distinction between the ethical duty of confidentiality and the Attorney-Client Privilege, which is a narrower evidentiary rule. If a PR issue appears, it is often because an attorney in the fact pattern is representing two partners in a business formation or a husband and wife in a will drafting, necessitating a discussion of the potential for "material limitation" on the representation.