First of all, good luck to all of those who are taking the February 2011 bar exam.
While it is not realistic to think that one could predict the topics on the bar exam, there are subjects that seem to each round seem more likely to appear than others.
Here is our list of topics that might show up this round:
Property (Two of the most common areas of testing in property are: 1) landlord tenant issues and 2) easement issues (which can include recording statutes – the application of which will determine whether a successor in interest takes land subject to an easement). For landlord tenant issues the typical scenario is a leasehold with a non-assignments clause in the lease, tenant subleases to a new tenant in spite of the non-assignment provision, new tenant fails to pay rent, and there are arguments for non-payment of rent – constructive eviction (as long as the tenant actually moves out), partial eviction (if tenant stays) or breach of warranty of habitability (so long as it is a residential lease, but, discuss even if it is in a commercial lease setting and explain that generally the warranty of habitability is not extended to commercial leases. Less common areas of testing are: equitable servitudes and covenants real, takings (regulatory takings are the most likely as this gives you more to discuss than a simple taking) and land sale contracts. Covenants and Equitable Servitudes have been absent from the test for a spell, so if property were tested, I would not be surprised if it were in this area or another area that has not been seen on the exam recently which is land sale contract issues (which can include mortgages, whether there is good title, recording statutes)
Wills (but, expect it to be an oddball question – the reason for that is that since it has not been tested as recently as some of the subjects, it is likely to be a topic that most people will expect or predict. Therefore, in my opinion, the bar examiners, if they test Wills this round, would likely test it in a less than straightforward way).
Constitutional Law (First Amendment Religion has not been tested in some time now. Also, constitutionality of a statute is a likely option for testing – this is always very common. If Con Law is tested and it is not a First Amendment issue, then Standing/Case or Controversy Requirements are likely)
Professional Responsibility (This is an obvious prediction since it is on nearly every bar exam. In 1994, the California bar examiners announced that Professional Responsibility will be tested on the written portion of each bar exam. Of course this could mean the essays or the performance test or both. On most bar rounds, Professional Responsibility shows up on at least one day of the essay portion of the bar exam. However, on a few occasions the bar examiners have tested Professional Responsibility only on the performance test section. This is more rare, but, is a possibility).
Civil Procedure (The California bar examiners have yet to test any California specific rules of civil procedure since the addition of this area to the test in July of 2007. As a result, it would be expected that something from the California specific areas of Civil Procedure would show up soon – even if it is to simply address a demurrer (which is motion that is only available under the California Rules – while there is a similar mechanism under the Federal Rules of Civil Procedure (motion for summary judgment, for example) it is something that could come up on the exam.
The most commonly tested areas of Civil Procedure are jurisdictional issues – specifically 1) subject matter jurisdiction and 2) personal jurisdiction (requiring a minimum contacts analysis).
Federal subject matter jurisdiction involves either Federal Question or Diversity based jurisdiction. Diversity Jurisdiction questions require you to address the amount in controversy and diversity of citizenship – this often brings up the following sub-issues: 1) with respect to amount in controversy: aggregation of claims to meet the amount in controversy requirement, combining the value of equitable relief (injunctive relief for example) plus a lower damages amount to meet the amount in controversy requirement. 2) diversity of citizenship: corporate citizenship often becomes an issue, requiring a discussion of principle place of business, the muscle test and the nerve center test to determine citizenship. Also, a person’s domicile can be at issue for purposes of diversity – college student moves away for college, or person moves out of state to care for a family member – these are typical scenarios.
Diversity Jurisdiction questions lend to testing of the following issues: joinder of claims and parties and removal or venue.
Of all the areas of civil procedure that have not been tested in a while – class actions is an area that has not been seen on the exam for some time. At some point, it will be on the exam again).
If one were simply to “predict” the subtopic of Civil Procedure by what has been tested most recently and least recently, then Class Actions (which has been absent for some time now), then Collateral Estoppel/Res Judicata and finally jurisdictional issues. That would be the order of what is likely simply based upon what has not been on the test in some time (and recognizing that jurisdictional issues were tested fairly recently. Still, this is not how the bar always tests – reaching back to the subtopic that has not been tested in a long time. Like I said above, it isn’t a good idea to think you can predict this test. However, there are areas that you want to perhaps give a little extra attention to).
Expect topics from the last bar administration to repeat on this bar exam – From the last bar exam administration, I would expect three topics to repeat (that would mean three from the following: Torts, Criminal Law/Procedure, Evidence, Professional Responsibility, Community Property, and Business Organizations). My pick for the repeats are: Evidence, Professional Responsibility and either Crim Law/Pro or Corporations.
I am not leaning towards Corporations, but, if it were to show up, I would think that the securities area (10b5 & 16b) could come up OR a fact pattern that lends itself to Securities but, you are told to apply on the common law – this would limit you to fraud, misrep and ultra vires issues.
While Torts is not my first pick for topics to show up on this exam administration, topics repeat back to back all of the time. (Torts was tested on the last bar exam and has been a frequent topic for testing in the past several years). However, if Torts were to be tested on this bar exam, I would predict either Tort Remedies or defamation. Also, I would not be surprised to see a Torts/Contracts/Remedies cross over. This is not unusual and is due at some point in the relatively near future.
Cross-overs – Expect to get a few (Cross-over essays were absent from the last bar exam administration. As a result, I would expect a couple of essays to test multiple topics on this bar round. An easy crossover topic is always professional responsibility. Other good candidates for crossovers are: Evidence, Community Property, Wills&Trusts and Criminal Procedure. These are very commonly tested as cross over exams).
Evidence always lends itself to a great cross over exam since it can come up in nearly any context – a property essay for example, “At trial, Hal attempted to admit the statement of Wilma . . . ” The upside of a cross-over exam is that typically the bar examiners provide separate calls that identify the different topics (for example: Can Hal prevent Wilma from testifying in the probate case? This is an example of how a marital/spousal issue can come up as a cross over exam in Wills). The key thing to remember is that it will not be harder to write an essay that is a cross over. In fact, it may be easier since the calls on a cross-over essay generally make the issues pretty clear.
“Frequent Flyers” Any topic can repeat from one bar round to the next . . . and, in fact, it is not unusual to see one topic three times back to back. Yep, that’s right, the same subject on a February bar round, again on the following July bar round and then again on the following February bar round. Most people are surprised by this and make the mistake of thinking that if something was tested on the last bar administration that it is not likely to show up on the next bar exam. This could not be further from the truth. Typically you will see three subjects repeat from one bar round to the next (either as a whole essay or as part of an essay on a cross-over essay). Of these repeating topics, there have been a few over the years that have appeared back to back a little more frequently than other topics. Evidence has appeared three times back to back, Civil Procedure has appeared three times back to back, Community Property, Constitutional Law and Criminal La/Procedure have all repeated back to back on three successive bar rounds.
I know, not what you were expecting, right? Well, it just goes to show that you need to be equally prepared for every topic.
So, these are my thoughts on this upcoming test. I have been providing my students with sample tests in these areas through out our course. I do not like to “predict’ the test as I think that is a very foolish way to study for the exam. However, there ARE some topics that have not been on the exam in some time and as a result, I make certain that my students see essays in these areas as well as the commonly tested areas. Our students begin every class day by writing a past California bar essay. I use these practice essays as a way to ensure that our students get the the actual bar examination and don’t see anything on the essays that they have not already seen, studied and written before. It makes taking the bar exam a much, much easier experience.
Okay, one more thought – the 8th Amendment has not been tested on the California bar exam in some time. This typically includes either 8th Amendment bail issues (common past areas of testing included: right against excessive bail, that the purpose of bail is to ensure the Defendant’s appearance at trial and NOT to punish the Defendant, also that there is not a constitutional right to lower bail for indigents. Another past common area for the 8th Amendment is Cruel and Unusual Punishment with respect to the imposition of the death penalty – here the examiners are testing the adherence to the guidelines for imposition of the death penalty. If this is tested, it is often tested along with peremptory challenges – based upon belief or not believing in the death penalty).
And, as I think of it, 6th Amendment issues are always a favorite. See the Criminal Procedure Exam Writing Template (found on the Bar None Review website under “Exam Templates” at http://www.barnonereview.com
Good luck to all who are taking the February 2011 bar exam!!!
Bar None Review