New Hampshire Bar Examination (UBE)

# New Hampshire Bar Examination (UBE) - Study Notes

## Civil Procedure

### Subject Matter Jurisdiction & Personal Jurisdiction
**Courts must have authority over the subject matter and the parties before they can render a valid judgment.** The two principal bases for personal jurisdiction are: (1) presence of the defendant within the state (Burnham v. Superior Court, 495 U.S. 604, 1990 — tag-jurisdiction rule); (2) minimum contacts with the forum state such that exercising jurisdiction does not offend traditional notions of fair play and substantial justice (International Shoe Co. v. Washington, 326 U.S. 310, 1945 — minimum contacts standard).

**Diversity jurisdiction exists when parties are of diverse citizenship and the amount in controversy exceeds $75,000.** Federal courts may also exercise federal question jurisdiction when a claim arises under the Constitution, federal statutes, or federal treaties (28 U.S.C. § 1331).

### Pleading Requirements
**A complaint must contain: (1) a short plain statement of the grounds for jurisdiction; (2) a short plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for judgment** (Federal Rules of Civil Procedure Rule 8(a)). The pleading standard requires plausibility; conclusory statements and bare assertions are insufficient. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) (establishing plausibility standard for 12(b)(6) motions).

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## Constitutional Law

### Establishment Clause & Free Exercise
**The Establishment Clause, via the First Amendment applied to the states through the Fourteenth Amendment, prohibits government from establishing religion.** The test from Lemon v. Kurtzman, 403 U.S. 602 (1971), requires: (1) a secular purpose; (2) a primary effect that neither advances nor inhibits religion; and (3) no excessive government entanglement with religion. A more recent approach emphasizes whether the law is neutral and of general applicability (Employment Division v. Smith, 494 U.S. 872, 1990).

**The Free Exercise Clause protects the right to believe and practice religion without government interference.** Religious conduct may be regulated if the regulation is neutral, generally applicable, and serves a compelling state interest (Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 1993).

### Due Process & Equal Protection
**The Fifth Amendment's Due Process Clause (binding on federal government) and the Fourteenth Amendment's Due Process Clause (binding on states) protect fundamental rights and require procedural fairness.** Substantive due process protects liberty interests; procedural due process requires notice and opportunity to be heard (Mathews v. Eldridge, 424 U.S. 319, 1976 — three-factor balancing test).

**Equal Protection (Fourteenth Amendment) requires states to treat similarly situated persons similarly.** Different tiers of scrutiny apply: strict scrutiny (race, national origin, religion); intermediate scrutiny (gender, legitimacy); rational basis (economic/social regulation). See Craig v. Boren, 429 U.S. 190 (1976) (intermediate scrutiny for gender classification).

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## Contracts

### Formation: Offer & Acceptance
**A contract requires: (1) offer; (2) acceptance; (3) consideration; (4) manifestation of mutual assent; and (5) no defenses to formation.** An offer is a manifestation of willingness to enter a bargain, made so as to justify another person in understanding that his assent to that bargain is invited and will conclude it (Restatement (Second) of Contracts § 24).

**Acceptance must be unequivocal and mirror the offer's terms.** Acceptance by performance is permitted in unilateral contracts; the offeror can revoke before full performance. See Carlill v. Carbolic Smoke Ball Co. [1893] 1 QB 256 (unilateral offer accepted by performance). In the US context, Lucy v. Zehmer, 196 Va. 493 (1954), established that objective manifestation of intent controls, not secret subjective intent.

### Consideration
**Consideration is a bargained-for exchange of value; each party must incur a detriment (or the other receive a benefit).** Nominal consideration may be insufficient if not bargained-for (Hamer v. Sidway, 124 N.Y. 538, 1891 — forbearance to sue is consideration). Past consideration is generally not valid; the exchange must be contemporaneous with the formation of the contract.

### Conditions & Performance
**Conditions precedent must occur before a party's duty to perform arises.** A condition subsequent discharges a duty after it has arisen. Conditions may be express, implied in fact, or implied in law (Restatement (Second) of Contracts § 224).

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## Criminal Law & Procedure

### Right to Counsel
**The Sixth Amendment guarantees the right to counsel in all serious criminal cases.** In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that states must provide counsel to indigent defendants at no cost. This right extends to critical stages of prosecution: arraignment, interrogation, and appeal (Arkansas v. Sanders, 442 U.S. 753, 1979).

### Miranda Rights & Custodial Interrogation
**When a suspect is in custody and subjected to interrogation, police must provide Miranda warnings: right to remain silent, statement can be used against them, right to counsel, counsel appointed if indigent.** Miranda v. Arizona, 384 U.S. 436 (1966). Failure to give warnings renders statements inadmissible if the suspect was not advised and in custody. See Edwards v. Arizona, 451 U.S. 477 (1981) (invocation of right to counsel requires cessation of all interrogation).

### Unreasonable Search & Seizure
**The Fourth Amendment prohibits unreasonable searches and seizures. A search requires a warrant supported by probable cause, or must fall within a recognized exception (consent, hot pursuit, plain view, vehicle exception).** Katz v. United States, 389 U.S. 347 (1967), established the "reasonable expectation of privacy" standard. Searches incident to a lawful arrest are permitted (Chimel v. California, 395 U.S. 752, 1969).

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## Evidence

### Hearsay Definition & Rule
**Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Federal Rules of Evidence 801-806 provide the definition and exceptions.** An out-of-court statement by a witness, offered to prove the truth of what was stated, is hearsay and inadmissible unless an exception applies (Crawford v. Washington, 541 U.S. 36, 2004, requires confrontation for certain statements).

### Exceptions to Hearsay
**Exceptions include: (1) statements against interest; (2) dying declarations; (3) excited utterances; (4) statements for medical diagnosis or treatment; (5) business records (FRE 803); (6) prior inconsistent statements by unavailable declarant (FRE 804).** The declarant's credibility may still be challenged. See FRE 806.

### Witness Competency & Privilege
**A witness is competent unless disqualified by rule or statute. Competency requires: (1) ability to perceive; (2) ability to recollect; (3) ability to communicate; (4) understanding of obligation to tell the truth** (FRE 601-602). Privilege (attorney-client, spousal, priest-penitent, physician-patient) permits witnesses to refuse to testify without waiver of the privilege.

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## Real Property

### Present Possessory Estates
**A fee simple is the most extensive ownership interest; it descends to heirs and can be freely transferred (unlimited duration, infinite divisibility).** A life estate lasts for the life of the measuring life and is not devisable (Whitacre v. Whitacre, 16 Md. 488, 1860 — life estate for another's life).

**A leasehold estate grants possession for a fixed term; the landlord retains reversion (return of the property at lease end).** Four types: (1) term of years (fixed period); (2) periodic tenancy (month-to-month, year-to-year); (3) tenancy at will (no fixed term, revocable at either party's will); (4) tenancy at sufferance (remains after lease termination without permission).

### Future Interests
**A remainder is a future interest held by one other than the grantor that takes effect after a prior possessory estate. A reversion is a future interest retained by the grantor.**  A vested remainder is not subject to a condition precedent. A contingent remainder is subject to a condition precedent or held in an unascertained person. Shifting executory interests can cut short a prior estate (Shelley's Case rule: "to A for life, remainder to A's heirs" collapses to fee simple in A).

### Concurrent Ownership
**Joint tenancy requires: (1) unity of time (all interests acquired simultaneously); (2) unity of title (same instrument); (3) unity of possession (each tenant can possess the whole); (4) unity of intent (clear statement or statutory presumption).** Joint tenants have survivorship rights; on death, a joint tenant's interest passes to the surviving joint tenant(s), not to the decedent's estate. Tenancy in common has no survivorship; interests pass through the tenant's estate. See Tenancy by the Entirety (married couples): similar to joint tenancy but with immunity from creditors of one spouse.

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## Torts

### Duty & Breach in Negligence
**Negligence requires: (1) duty of care owed to the plaintiff; (2) breach of that duty; (3) causation (actual and proximate); and (4) damages.** The standard of care is what a reasonable person would do under the same circumstances. Professional actors (surgeons, accountants) are held to a professional standard.

**Breach is determined by the Learned Hand formula: if the burden of precaution is less than the probability of harm multiplied by the magnitude of harm, a reasonable person would take precaution.** United States v. Carroll Towing Co., 159 F.2d 169 (2d Cir. 1947).

### Proximate Cause (Legal Causation)
**Proximate cause limits liability to those harms within the scope of the risk that made conduct wrongful.** Foreseeable intervening causes do not break the chain of causation. Unforeseeable acts (e.g., third-party criminal conduct) typically do break the chain, unless the third party was foreseeable (Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 1928 — zone of danger test).

### Strict Liability & Abnormally Dangerous Activities
**Strict liability applies without regard to the actor's care if the activity is abnormally dangerous for the locality.** Examples: blasting, pile driving, wild animal keeping. A defendant in a strict liability context is liable for all direct results, even if no negligence occurred. See Rylands v. Fletcher (1868) — liability for non-natural use of land that causes escape of water or other substances.

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## Business Associations & Agency

### Agency Formation
**An agency relationship requires: (1) assent by principal and agent; (2) agent to act on behalf of principal; (3) principal's control over agent.** Actual authority arises from the principal's manifestation to the agent; apparent authority arises from the principal's manifestation to a third party. See Restatement (Third) of Agency § 1.01.

### Principal's Liability
**A principal is liable for the torts of an agent if the agent acts within the scope of employment (employee agents) or with actual or apparent authority (independent contractors).** Respondeat superior holds an employer liable for employee negligence committed within the scope of employment. See Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir. 1968).

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## Family Law

### Marriage & Divorce
**Divorce requires: (1) jurisdiction over the parties and subject matter; (2) grounds (fault-based or no-fault); (3) residence for statutory period.** No-fault grounds: irreconcilable differences, irretrievable breakdown. Fault-based: adultery, cruelty, abandonment. Property is divided equitably (not necessarily 50-50); courts consider duration of marriage, contributions, economic disparity.

### Child Support & Custody
**Child support is an obligation of both parents, usually determined by statutory guidelines based on income and custody arrangement.** Custody decisions are made in the child's best interest; courts consider parental fitness, stability, relationship with each parent, and the child's preferences (varies by age). See Uniform Child Custody Jurisdiction & Enforcement Act (UCCJEA).

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## Secured Transactions (UCC Article 9)

### Creation of Security Interest
**A security interest attaches to collateral when: (1) debtor has rights in the collateral or power to transfer them; (2) creditor gives value; (3) debtor authenticates a security agreement that describes the collateral.** See UCC § 9-203. Attachment allows the creditor to enforce the security interest against the debtor.

### Perfection
**Perfection gives a secured creditor priority over unsecured creditors and the debtor's trustee in bankruptcy.** Perfection typically occurs by filing a financing statement with the Secretary of State (UCC § 9-501-9-507). Exceptions: purchase money security interests in consumer goods (automatic perfection); pledges (possession); instruments (taken as collateral, may require control).

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## Professional Responsibility (MPRE)

### Confidentiality & Duty of Loyalty
**A lawyer must not disclose information relating to client representation without informed consent (Model Rule 1.6).** Exceptions include disclosure to prevent reasonably certain death or bodily harm, and to comply with law or court order. A lawyer owes a fiduciary duty of loyalty to the client and must not represent conflicting interests without informed written consent.

### Candor to the Tribunal
**A lawyer must be candid to the tribunal and must not knowingly offer false evidence.** If a lawyer learns that evidence offered is false, the lawyer must take reasonable corrective measures (MR 3.3). A lawyer must disclose all legal authorities in the controlling jurisdiction that are adverse to the client's position.