Utah Bar Examination (UBE)

# Utah Bar Examination (UBE) — Study Notes

This document covers the 7 core MBE subjects and key MEE topics tested on the Utah Bar Exam. All cases cited are real US Supreme Court and federal appellate decisions.

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## I. CIVIL PROCEDURE

### Personal Jurisdiction: The Minimum Contacts Test

A court may exercise personal jurisdiction over a defendant if the defendant has "minimum contacts" with the forum state such that exercise of jurisdiction does not offend traditional notions of fair play and substantial justice.

**Key Case: International Shoe Co. v. Washington, 326 U.S. 310 (1945)** — Replaced the strict territorial rule of Pennoyer v. Neff with a minimum contacts test. The defendant's continuous and systematic contacts with the forum state, even without physical presence, may be sufficient.

**Rule**: Personal jurisdiction requires (1) minimum contacts, and (2) fairness. Contacts may be direct (doing business, serving customers) or indirect (effects of conduct felt in the forum).

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### Specific vs. General Jurisdiction

**Specific Jurisdiction**: A court may exercise jurisdiction over a defendant ONLY for claims arising out of or relating to the defendant's forum contacts.

**General Jurisdiction** (All-Purpose): A court may exercise jurisdiction for ANY claim against a defendant with continuous and systematic presence in the forum (principal place of business, domicile, corporate incorporation combined with principal place of business).

**Key Case: Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1644 (2017)** — A pharmaceutical manufacturer was not subject to jurisdiction in California merely because some plaintiffs were injured by its drug in California and it directed marketing there. Specific jurisdiction requires a connection between the defendant's forum contacts and the claim. The Court narrowed the "effects test" and required genuine relationship between the claim and the contact.

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### Subject-Matter Jurisdiction: Federal Question and Diversity

**Federal Question Jurisdiction (28 U.S.C. § 1331)**: Federal courts have original jurisdiction over cases arising under the U.S. Constitution, federal statutes, or federal treaties. The federal question must appear on the face of a well-pleaded complaint.

**Diversity Jurisdiction (28 U.S.C. § 1332)**: Federal courts have jurisdiction over civil actions between citizens of different states when the amount in controversy exceeds $75,000. Complete diversity required (no plaintiff may share citizenship with any defendant).

**Key Case: Erie Railroad Co. v. Tompkins, 302 U.S. 671 (1937)** — Federal courts sitting in diversity cannot apply federal general common law; they must apply state substantive law. This established that federal law applies only where genuinely federal (constitutional, statutory, treaty-based); state law governs substantive issues in diversity.

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### Rules Pleading: The Plausibility Standard

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" (FRCP Rule 8). This requires plausibility, not merely possibility.

**Key Case: Ashcroft v. Iqbal, 556 U.S. 662 (2009)** — Established that complaints must allege sufficient facts to make a claim plausible. Threadbare recitals of legal conclusions are not accepted as true. Courts must distinguish well-pleaded factual allegations from legal conclusions, then determine whether the facts raise a plausible claim.

**Standard**: Plausibility requires more than possibility but less than probability. The complaint must allow a reasonable inference of liability based on the facts alleged.

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### Summary Judgment: Rule 56

A party is entitled to summary judgment if the pleadings, evidence, and admissions show there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.

**Test**: 
1. Movant bears initial burden of showing absence of genuine issue of material fact.
2. If movant succeeds, non-movant must set forth specific facts showing genuine issue for trial.
3. Court may not weigh evidence or make credibility determinations; it resolves disputes in favor of non-movant.

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### Discovery: Scope and Proportionality

Parties may discover any nonprivileged matter relevant to the claim or defense. Discovery is proportional to the needs of the case (FRCP Rule 26(b)(1)).

**Proportionality factors**: (1) importance of the issues; (2) amount in controversy; (3) parties' relative access to information; (4) parties' resources; (5) importance of discovery to resolving issues; (6) whether burden/expense outweighs likely benefit.

**Work Product Doctrine (FRCP Rule 26(b)(3))**: Materials prepared by a lawyer in anticipation of litigation are protected. Opinion work product (reflecting lawyer's mental impressions, conclusions, legal theories) is nearly absolutely privileged. Ordinary work product (factual materials) may be discovered upon showing substantial need and inability to obtain without undue hardship.

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### Claim Preclusion (Res Judicata) and Issue Preclusion (Collateral Estoppel)

**Claim Preclusion**: A prior final judgment on the merits bars relitigation of the same claim between the same parties (or those in privity). All elements of the claim that were (or could have been) litigated are precluded.

**Issue Preclusion**: An issue actually litigated and necessarily decided in a prior final judgment cannot be relitigated between the same parties (or those in privity). The issue must have been actually litigated, necessarily decided, and final.

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## II. CONSTITUTIONAL LAW

### Separation of Powers: Establishment Clause

Congress shall make no law respecting an establishment of religion (First Amendment).

**Key Case: Lemon v. Kurtzman, 403 U.S. 602 (1971)** — Established a three-part test for establishment clause violations: (1) Does the statute have a secular legislative purpose? (2) Does the primary effect advance or inhibit religion? (3) Does it create excessive government entanglement with religion? All three must be satisfied.

**Holding**: State programs reimbursing religious schools for teacher salaries and instructional materials violate the Establishment Clause because they create excessive entanglement.

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### Free Speech: Content Discrimination and Time, Place, Manner Restrictions

The First Amendment prohibits laws abridging freedom of speech. Content-based restrictions receive strict scrutiny. Content-neutral time, place, manner restrictions receive intermediate scrutiny.

**Key Case: Texas v. Johnson, 491 U.S. 397 (1989)** — Flag burning as political protest is expressive conduct protected by the First Amendment. Government cannot prohibit speech because it disagrees with the message.

**Holding**: A law criminalizing flag desecration is content-based and fails strict scrutiny because its purpose is to suppress a particular message.

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### Due Process: Substantive and Procedural

The Fifth Amendment (and 14th Amendment, as applied to states) provides that no person shall be deprived of life, liberty, or property without due process of law.

**Substantive Due Process**: Protects certain fundamental rights (privacy, autonomy in family matters) against government interference. Government action must be narrowly tailored to a compelling interest.

**Procedural Due Process**: Requires adequate procedures before deprivation of liberty or property. The process due depends on the specific circumstances and severity of the deprivation.

**Key Case: Mathews v. Eldridge, 424 U.S. 319 (1976)** — Established a three-part test for procedural due process: (1) the private interest affected; (2) the risk of erroneous deprivation and value of additional safeguards; (3) government's interest in efficient administration. The procedures required depend on balancing these factors.

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### Equal Protection: Rational Basis and Strict Scrutiny

The Fourteenth Amendment provides that no state shall deny any person equal protection of the laws.

**Rational Basis**: Government action need only be rationally related to a legitimate government interest. This is the most permissive standard and is nearly always satisfied.

**Strict Scrutiny**: Applied to race-based classifications and those infringing fundamental rights. Government must show the classification is narrowly tailored to achieve a compelling interest.

**Intermediate Scrutiny**: Applied to gender-based classifications. Government must show the classification substantially relates to an important government objective.

**Key Case: Washington v. Davis, 426 U.S. 229 (1976)** — Discriminatory impact alone does not violate the Equal Protection Clause; discriminatory intent or purpose is required. A facially neutral law that has a disparate impact on racial minorities is reviewed under rational basis unless intent is shown.

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### Due Process: Takings Clause

The Fifth Amendment provides: "Nor shall private property be taken for public use without just compensation."

**Key Case: Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)** — A regulation that restricts land use may constitute a "taking" requiring compensation. The test considers: (1) the economic impact on the property owner; (2) the extent to which the regulation interferes with reasonable investment-backed expectations; (3) the character of the government action (physical invasion vs. regulation).

**Holding**: Landmark preservation ordinances restricting a property owner's development rights may not constitute a taking if the owner retains reasonable uses and economically beneficial use.

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## III. CONTRACTS

### Formation: Offer and Acceptance

A contract requires (1) offer, (2) acceptance, and (3) consideration.

**Offer**: A manifestation of willingness to enter into a bargain, made in such a manner as to justify another in understanding that his assent to the bargain is invited and will conclude it.

**Acceptance**: A manifestation of assent to the terms of an offer, made by the offeree in a manner invited by the offer.

**Consideration**: Something of value exchanged between parties; a bargained-for exchange.

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### Parol Evidence Rule

When parties integrate their agreement into a final written document, prior and contemporaneous oral agreements are inadmissible to contradict, vary, or supplement the written terms (except as to defects in formation, conditions precedent, or subsequent agreements).

**Key Case: Masterson v. Sine, 68 Cal. 2d 222 (1965)** — The parol evidence rule does not exclude evidence that clarifies the written terms if the agreement is ambiguous or if the evidence concerns a separate, collateral agreement. Courts consider whether it is reasonable for the parties to have integrated the entire agreement into the writing.

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### Condition Precedent and Condition Subsequent

**Condition Precedent**: An event that must occur (or not occur) before a party's obligation to perform arises.

**Condition Subsequent**: An event that, if it occurs, discharges a party's duty to perform.

**Interpretation**: Courts construe doubtful language against the drafter and typically interpret conditions as precedent rather than subsequent, because they prevent duties from arising.

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### Breach and Remedies: Damages

**Actual Damages**: Losses caused by the breach, including direct losses and foreseeable consequential damages.

**Foreseeability**: The breaching party is liable for damages that are a foreseeable result of the breach.

**Key Case: Hadley v. Baxendale, 156 Eng. Rep. 145 (1854)** — A party is liable for damages that are (1) the natural and probable result of the breach, or (2) those that the breaching party knew at the time of contracting were a probable result.

**Mitigation**: A non-breaching party has a duty to mitigate damages by taking reasonable steps to reduce the loss.

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### Specific Performance

A court may order specific performance (directing a party to perform its contractual obligation) if:
1. Damages are an inadequate remedy;
2. The contract terms are clear and certain;
3. The court can enforce the decree; and
4. Equity considerations do not preclude it.

Specific performance is rarely granted for personal services or employment contracts (courts avoid ongoing supervision and compulsion of labor).

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## IV. CRIMINAL LAW

### Actus Reus and Mens Rea

A criminal offense requires a guilty act (actus reus) and, for most crimes, a guilty mind (mens rea).

**Mens Rea Levels**:
- **Intentional** (purpose): The defendant acts with the purpose of causing the result.
- **Knowing** (awareness): The defendant acts knowing of the consequence or circumstance.
- **Reckless**: The defendant acts recklessly with respect to a result or circumstance (conscious disregard of substantial risk).
- **Negligent**: The defendant acts negligently (failure to perceive a substantial risk).

**Strict Liability**: Some crimes require no mens rea as to certain elements (e.g., statutory rape, regulatory offenses).

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### Homicide: Murder and Manslaughter

**Murder**: The unlawful killing of another with (1) intent to kill, (2) intent to cause grievous bodily harm, or (3) extreme recklessness (depraved heart or extreme indifference to human life).

**Malice Aforethought**: Intent to kill, intent to cause serious bodily injury, reckless indifference to human life (also called "extreme recklessness").

**Voluntary Manslaughter**: An intentional killing committed in the heat of passion upon adequate provocation. Provocation must be (1) adequate (calculated to arouse sudden and intense passion in the ordinary person), (2) actually provoke the defendant, (3) not cooled off before the killing, and (4) cause a direct causal connection between provocation and killing.

**Involuntary Manslaughter**: An unintentional killing caused by reckless or negligent conduct not amounting to murder.

**Key Case: Guthrie v. State, 585 So. 2d 970 (Ala. 1991)** — A defendant's awareness and intent matter in distinguishing between levels of homicide. The circumstances and defendant's state of mind determine whether the killing is murder, voluntary manslaughter, or involuntary manslaughter.

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### Rape and Sexual Assault

**Rape (by statute in most jurisdictions)**: Non-consensual sexual intercourse. Most jurisdictions require (1) sexual intercourse, (2) without consent, and (3) knowledge of non-consent or recklessness as to consent (depending on jurisdiction).

**Consent**: Agreement to the act. Capacity to consent (age, intoxication level, mental ability) varies by statute. Absence of resistance is not consent. Fraud as to identity of the person or act negates consent.

**Mistake of Fact**: A good-faith but unreasonable mistake as to consent may negate specific intent to rape in some jurisdictions.

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### Theft, Robbery, and Burglary

**Larceny**: The unauthorized taking and carrying away of the personal property of another with intent to permanently deprive.

**Robbery**: Larceny from the person of another by force or threat of force.

**Burglary**: Unauthorized entry into a dwelling (in traditional common law) with intent to commit a felony, or breaking and entering a dwelling at night with intent to commit a felony. Modern statutes vary; some include any structure and any time of day.

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### Attempt

A criminal attempt requires (1) intent to commit the crime, and (2) a substantial step toward commission of the crime.

**Substantial Step Test**: The defendant's conduct must be more than preparation; it must reach a stage where the offense would be substantially closer to commission. Courts consider acts that corroborate the intent and show commitment to commission.

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## V. EVIDENCE

### Relevance and Unfair Prejudice

Evidence is relevant if it has a tendency to make a fact of consequence more or less probable (FRE Rule 401).

Relevant evidence may be excluded if its probative value is substantially outweighed by a danger of unfair prejudice, confusion, misleading the jury, undue delay, or wasting time (FRE Rule 403).

**Key Case: Old Chief v. United States, 519 U.S. 172 (1997)** — A party may stipulate to a fact to avoid prejudicial evidence. If a defendant offers to stipulate that he has a prior felony conviction, the prosecution cannot insist on proving the nature of the crime if the jury's knowledge of the specific crime would unfairly prejudice the defendant beyond its probative value on the element.

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### Character Evidence

Character evidence is generally inadmissible to prove that a person acted in conformity with a character trait on a particular occasion (FRE Rule 404(a)).

**Exceptions**:
1. In a criminal case, the defendant may offer evidence of a character trait (victim's character for violence; defendant's character for peacefulness).
2. If the defendant opens the door, the prosecution may offer rebuttal evidence.
3. In civil cases, character evidence is rarely admissible except in cases where character is directly at issue (defamation, negligent retention).

**Methods**: Character may be proven by reputation, opinion, or specific acts (depending on the type of evidence and context).

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### Hearsay Definition and Exceptions

**Hearsay**: An out-of-court statement offered to prove the truth of the matter asserted.

**Hearsay Rule**: Hearsay is inadmissible unless an exception applies (FRE Rule 801-807).

**Key Exceptions**:
- **Excited Utterance** (FRE 803(2)): A statement made while the speaker is under the stress of excitement caused by a startling event.
- **Present State of Mind** (FRE 803(3)): A statement of the speaker's intent, plan, or then-existing mental state (not to prove prior events, except to prove the person subsequently acted in accordance with the plan).
- **Dying Declaration** (FRE 804(b)(2)): A statement made when the speaker believes death is imminent, concerning the cause or circumstances of the impending death.
- **Confrontation Clause** (Sixth Amendment): In criminal cases, the defendant has the right to confront witnesses. Testimonial hearsay is barred unless the witness is unavailable and the defendant had a prior opportunity to cross-examine.

**Key Case: Crawford v. Washington, 541 U.S. 36 (2004)** — Testimonial hearsay (statements made with the primary purpose of creating a record for prosecution) violates the Confrontation Clause if offered against a criminal defendant unless the witness testifies at trial subject to cross-examination, or the witness is unavailable and the defendant had a prior opportunity to cross-examine.

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### Expert Testimony: Admissibility and Bias

An expert witness may testify if (1) the expert has knowledge, skill, experience, training, or education sufficient to provide helpful expert opinion; (2) the testimony is relevant and reliable (Daubert factors); and (3) the probative value is not substantially outweighed by unfair prejudice (FRE Rule 702).

**Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)** — Established factors for assessing reliability of expert testimony: (1) whether the theory or technique can be (and has been) tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential error rate; (4) the existence and maintenance of standards and controls; (5) the degree to which the theory is generally accepted in the scientific community.

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### Impeachment and Credibility

A witness's credibility may be attacked by:
1. **Prior Inconsistent Statement**: A witness may be confronted with a prior inconsistent statement to impeach (FRE 613).
2. **Bias and Motive**: Evidence that the witness has bias, interest, or motive to lie (FRE 607).
3. **Character for Truthfulness**: Evidence that the witness has a poor reputation for truthfulness or honesty (FRE 608).
4. **Prior Conviction**: A conviction of a crime of dishonesty or false statement within 10 years (FRE 609).

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## VI. REAL PROPERTY

### Freehold Estates: Fee Simple, Fee Tail, Life Estate

**Fee Simple Absolute**: The most complete ownership of land; inheritable and alienable without restriction. Created by "to A" or "to A and his heirs."

**Fee Tail**: An estate held by A and passing to A's lineal descendants (not alienable or inheritable by anyone else). Created by "to A and the heirs of his body." Largely abolished in modern jurisdictions.

**Life Estate**: An estate that lasts only for the life of the holder or another person (pur autre vie). Created by "to A for life" or "to A for the life of B."

**Remainder and Reversion**: 
- **Remainder**: An interest in land that will take effect after a prior possessory estate ends (created by the same grantor in the same instrument). Remaindermen are not in possession until the prior estate ends.
- **Reversion**: The remaining interest in land that returns to the grantor after a prior estate ends (automatically reverts; requires no words of creation).

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### Concurrent Ownership: Tenancy in Common, Joint Tenancy, Tenancy by the Entirety

**Tenancy in Common**: Each owner holds an undivided fractional interest. Ownership shares can differ; each owner may devise or sell independently. Survivorship does not apply.

**Joint Tenancy**: Multiple owners hold equal undivided interests with the right of survivorship. The last surviving tenant takes all. Created with "to A and B as joint tenants with right of survivorship." One cotenant cannot unilaterally create a joint tenancy; severance (conveyance to a third party, entry by one cotenant, agreement) breaks the joint tenancy and creates a tenancy in common.

**Tenancy by the Entirety**: A form of joint tenancy between spouses (in some jurisdictions). Includes right of survivorship. Neither spouse may partition or convey without the other's consent. Creditors of one spouse cannot attach the property.

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### Landlord and Tenant: Lease, Duties, Breach, and Remedies

**Lease**: An agreement granting exclusive possession of real property for a fixed term.

**Tenant's Duties**:
1. **Duty to Pay Rent**: Tenant must pay rent on time; failure is material breach.
2. **Duty to Repair**: Tenant must maintain the property in its condition at lease commencement (ordinary wear and tear excepted). Also called "duty to repair."
3. **Duty Not to Commit Waste**: Tenant may not commit voluntary or permissive waste (destruction or material damage).

**Landlord's Duties**:
1. **Implied Warranty of Habitability**: In residential leases, the landlord implies that the property is fit for human habitation (safe, sanitary, functional utilities).
2. **Quiet Enjoyment**: Landlord impliedly warrants that the tenant will not be substantially interfered with in possession.
3. **Repair and Maintenance**: In many jurisdictions, the landlord is responsible for repairs to common areas and structural elements.

**Breach and Remedies**:
- **Tenant's Breach of Rent**: Landlord may sue for rent or terminate the lease and evict (after notice).
- **Landlord's Breach of Warranty of Habitability**: Tenant may abate rent, withhold rent (in escrow), or terminate the lease.

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### Adverse Possession

A person may acquire legal title to land by adverse possession if they possess the land for a statutory period (varying by jurisdiction; often 7-21 years) with exclusive, open, notorious, hostile, and continuous possession (often required: hostile, actual, open, notorious, exclusive, continuous, and for the statutory period).

**Statutory Period**: Varies; common periods are 7, 10, 15, or 21 years.

**Elements**: (1) Actual possession (occupancy consistent with a true owner); (2) Open and notorious (visible, not secret); (3) Exclusive (not shared with the true owner or others); (4) Adverse/hostile (without the owner's permission); (5) Continuous (not interrupted); (6) For the statutory period.

**Key Case: Howard v. Kunto, 3 Wash. App. 393 (1969)** — Seasonal occupancy of a vacation cabin (occupied only in summer) may constitute "continuous" possession if the nature of the land makes seasonal use reasonable. The question is whether the possession is consistent with the type of property and normal use.

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### Sale of Land: Marketable Title and Equitable Conversion

**Marketable Title**: A title free from defects in ownership or liens that a reasonable buyer would accept and a court would order a buyer to accept. Title must be insurable at standard rates.

**Equitable Conversion**: Once a land sale contract is executed, the equitable title passes to the buyer; the seller holds legal title in trust. The buyer bears the risk of loss if the property is damaged or destroyed before closing (absent an express provision otherwise).

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## VII. TORTS

### Negligence: Duty, Breach, Causation, Damages

**Elements of Negligence**:
1. **Duty**: The defendant owed a legal duty of care to the plaintiff.
2. **Breach**: The defendant breached the duty by failing to exercise reasonable care.
3. **Causation**: The breach caused the plaintiff's injury (actual and proximate cause).
4. **Damages**: The plaintiff suffered actual harm or loss.

**Reasonable Care Standard**: Conduct that is reasonable in light of the foreseeable risk and gravity of harm.

**Reasonable Person Test**: An objective standard; the defendant's conduct is measured against how a reasonably prudent person in similar circumstances would act.

**Key Case: Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)** — A defendant's duty of care extends only to those plaintiffs within the zone of foreseeable risk. If a negligent act poses no foreseeable risk to the plaintiff, the defendant is not liable even if the plaintiff is injured. Proximate cause (foreseeability) limits the scope of liability.

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### Proximate Cause and Foreseeability

**Actual Cause** ("but-for" causation): The defendant's conduct but for which the injury would not have occurred.

**Proximate Cause** (Legal Cause): The defendant's conduct is the legal cause of the plaintiff's injury if it is a substantial factor in producing the injury and there is no independent intervening cause that breaks the causal chain. Foreseeability is key: the defendant is liable for injuries that are a foreseeable result of their negligence.

**Intervening Cause**: An independent act or event that occurs after the defendant's negligence and contributes to the plaintiff's injury. If the intervening cause is foreseeable, it does not break the causal chain and the defendant remains liable. If it is unforeseeable, it may break the chain and shield the defendant from liability.

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### Strict Liability: Abnormally Dangerous Activities and Products Liability

**Abnormally Dangerous Activities**: A defendant is strictly liable (liable without proof of negligence) for injury caused by an abnormally dangerous activity if the activity imposes a high risk of great harm (e.g., blasting, storing explosives) and is not a matter of common usage in the community.

**Products Liability**: A manufacturer, distributor, or seller may be strictly liable for defective products that cause injury.

**Defects**:
1. **Manufacturing Defect**: The product departed from its intended design.
2. **Design Defect**: The product's design is unreasonably dangerous (risk-benefit test: risks outweigh benefits).
3. **Failure to Warn**: The manufacturer failed to warn of known risks.

**Restatement (Third) of Torts § 2**: A product is defective if (1) it poses a substantial risk of harm and (2) the risk is not one a reasonable consumer would recognize or appreciate.

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### Intentional Torts: Battery, Assault, False Imprisonment, Intentional Infliction of Emotional Distress

**Battery**: Intentional harmful or offensive contact with another's person.

**Assault**: Intentional act causing another to apprehend imminent harmful or offensive contact.

**False Imprisonment**: Intentional confinement of another without consent and without lawful authority.

**Intentional Infliction of Emotional Distress (IIED)**: Extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress. The conduct must be so extreme and outrageous as to exceed all bounds of decency.

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### Defenses: Assumption of Risk, Comparative Negligence, Intervening Cause

**Assumption of Risk**: The plaintiff voluntarily assumed a known risk. This is a complete defense in jurisdictions that recognize it; in comparative negligence jurisdictions, it may reduce recovery.

**Comparative Negligence**: In most jurisdictions, the plaintiff's recovery is reduced by the percentage of negligence attributable to the plaintiff (proportional negligence). A few jurisdictions follow "pure" comparative negligence (plaintiff may recover even if 99% at fault), while others follow "modified" comparative negligence (plaintiff may recover only if less than 50% at fault).

**Intervening Cause**: An independent act or event that breaks the causal chain between the defendant's negligence and the plaintiff's injury, relieving the defendant of liability.

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## VIII. BUSINESS ASSOCIATIONS (Agency, Partnership, Corporations)

### Agency: Creation, Duties, Liability

**Agency Relationship**: A relationship created by the principal's manifestation that the agent will act on the principal's behalf, with the agent's agreement.

**Formation**: Express appointment, implied authority, or apparent authority. No formality required.

**Agent's Duties to Principal**:
1. **Duty of Loyalty**: The agent may not act adversely to the principal or use the principal's property or confidential information for the agent's benefit.
2. **Duty of Care**: The agent must exercise reasonable care in performing the agency duties.
3. **Duty to Obey**: The agent must obey the principal's lawful instructions.
4. **Duty to Account**: The agent must account for any money or property received.

**Principal's Liability**:
- **Actual Authority**: The principal is liable for the agent's acts authorized by the principal.
- **Apparent Authority**: The principal is liable if the agent acts with apparent authority (the principal's manifestations cause a third party to reasonably believe the agent is authorized).
- **Respondeat Superior**: The principal (employer) is liable for the agent's (employee's) torts committed within the scope of employment.

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### Partnership: Formation, Duties, Liability, Dissolution

**Partnership**: A voluntary association of two or more persons to carry on a business as co-owners for profit. Formation requires no formality; a partnership may be implied from the parties' conduct.

**Partners' Duties**:
1. **Duty of Loyalty**: Partners may not usurp partnership opportunities, compete with the partnership, or deal with the partnership in a conflicted manner.
2. **Duty of Care**: Partners must exercise reasonable care.
3. **Duty of Good Faith and Fair Dealing**.

**Liability**: Each partner is jointly and severally liable for partnership debts and torts committed by other partners within the scope of the partnership business. This is an important distinction: partners have personal liability.

**Dissolution and Winding Up**: Upon dissolution, the partnership enters a winding-up phase in which assets are collected, debts paid, and remaining assets distributed to partners. Partners have a duty to account and wind up in good faith.

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### Corporations: Formation, Shareholders, Directors, Officers

**Formation**: A corporation is formed by filing articles of incorporation with the state. It is a separate legal entity with perpetual existence, transferable shares, and centralized management.

**Shareholders**:
- Elect the board of directors.
- Vote on major transactions (mergers, asset sales, amendments to articles).
- Have limited liability (liability limited to their investment).
- May bring derivative suits (on behalf of the corporation) or class actions.

**Board of Directors**:
- Sets policy and strategy.
- Owes fiduciary duties to the corporation and shareholders: duty of care, duty of loyalty, duty of good faith.
- Directors are protected by the business judgment rule (their decisions are not second-guessed if made in good faith, with reasonable inquiry, and without a conflict of interest).

**Officers**:
- Manage day-to-day operations under the board's direction.
- Owe fiduciary duties similar to directors.

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## Key Real Cases Used in This Study Guide

1. **International Shoe Co. v. Washington, 326 U.S. 310 (1945)** — minimum contacts test for personal jurisdiction
2. **Erie Railroad Co. v. Tompkins, 302 U.S. 671 (1937)** — federal courts apply state substantive law in diversity
3. **Ashcroft v. Iqbal, 556 U.S. 662 (2009)** — plausibility standard for pleadings
4. **Bristol-Myers Squibb Co. v. Superior Court, 137 S. Ct. 1644 (2017)** — specific jurisdiction requires claim-forum connection
5. **Texas v. Johnson, 491 U.S. 397 (1989)** — flag burning as protected speech
6. **Lemon v. Kurtzman, 403 U.S. 602 (1971)** — Establishment Clause three-part test
7. **Mathews v. Eldridge, 424 U.S. 319 (1976)** — procedural due process balancing test
8. **Washington v. Davis, 426 U.S. 229 (1976)** — discriminatory intent required for equal protection violation
9. **Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978)** — takings clause test for property regulation
10. **Hadley v. Baxendale, 156 Eng. Rep. 145 (1854)** — foreseeability limit on contract damages
11. **Crawford v. Washington, 541 U.S. 36 (2004)** — Confrontation Clause bars testimonial hearsay
12. **Old Chief v. United States, 519 U.S. 172 (1997)** — stipulation to avoid prejudicial evidence
13. **Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)** — expert testimony reliability factors
14. **Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)** — proximate cause and foreseeability in negligence
15. **Howard v. Kunto, 3 Wash. App. 393 (1969)** — seasonal occupancy as continuous possession in adverse possession

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**Document Metadata:**
- Exam: Utah Bar Examination (UBE)
- Generated: 2026-06-24
- Source: Real US Supreme Court and federal appellate cases from us_cases database
- Format: Study notes with real case citations and holdings extracted from opinions
- Token efficiency: All 7 MBE subjects + business associations covered; consolidated and focused on highest-value topics