Monthly Archives: February 2013

California Bar Exam: Day Three – Reaching the Finish Line!

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Hello All,

By now you have taken essays 4, 5 and 6 and know that Essay number 4 was Product Liability, Essay number 5 was Civil Procedure crossed with Evidence and Essay number 6 was Business Organizations (Partnerships and Corporations) all appeared on today’s exam.

I would not be surprised if today’s PT involved Constitutional Law . . . but, of course, anything is possible  . . . including some Professional Responsibility.

I am anxious to hear what was on the Performance Test. So . . . when you have a chance . . . and if you are so inclined . . . please email me at: pass@barnonereview.com with any details.

Al the best to all who are taking the exam today!

Sincerely,

Lisa Duncanson

California Bar Exam Tips: Possible Cross-Over

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Hello All,

I have received a number of emails asking for an example of how Professional Responsibility and Torts could show up  together on an essay.

Here is one example of  a possible scenarios of Torts and Professional Responsibility tested together as a cross-over:

Abuse of Process, Malicious Prosecution and Professional Responsibility: One past bar exam fact pattern tested Process Torts in the context of PR in this way: Attorney is hired by client to sue on their behalf for a Tort cause of action (past exams have included defamation or negligence). Attorney misses statute of limitations, but files cause of action on behalf of client despite knowledge that the underlying cause of action is time barred. Client then has a cause of action for negligence against attorney (watch for calls of question – the examiners may limit your discussion) for failing to file claim on time, but, to prevail in negligence cause of action against attorney, client would have to prove that he/she would have prevailed in the underlying claim. Attorney is liable for abuse of process and/or malicious prosecution (depending upon how the call of the question(s) is/are asked) to the party attorney has filed the time barred action against on behalf of his client. The PR issue comes up in a light way – and would generally be asked of you by the call of the question. Issues in PR that could arise from this fact pattern would include: duty of competence (breach of), duty of diligence (failure to complete matter in a timely fashion), duty to the tribunal (breach of this duty by filing a claim that is time barred).

I will do my best to provide an additional example for a Torts/PR cross-over or other cross-over scenarios – do not stay up for it – get some rest if you can and check in tomorrow morning. If I provide any more this evening . . . it will be a quick read.

Other obvious cross-over areas are:

Wills & Trusts, Corporations and PR, Trusts and PR

Whatever you see subject wise tomorrow, remember to focus on problem solving, use headings, force a visual structure on your exam.

All the best to you tomorrow!

Lisa Duncanson

California Bar Exam Tips: If Civil Procedure Were Tested . . .

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Hello All,

If you have been following my blog you will know that I do not really like to call my “predictions” predictions. I do not claim to be able to predict the bar exam. I have simply come up with what I call essay scenarios that I think might be worth considering. I made these “essay scenarios” available during the past week. And, since so far the subjects tested on day one were all expected subjects, I am not varying my predictions much.

Here is an excerpt from an earlier approach about the possibility of Civil Procedure being tested (including a California unique concept you might want to take a few minutes to review):

As far as subjects that could repeat from the July 2012 bar exam round – this time, I feel that of the subjects that could repeat, that Civil Procedure is a very good possibility as is Community Property.

Possible Essay Scenarios (from my previous posting earlier this week):

If Civil Procedure were to repeat: The most commonly tested issues in civil procedure are: jurisdiction and collateral estoppel and res judicata. Last bar round, personal jurisdiction was tested (along with subject matter jurisdiction and supplemental jurisdiction). The essay was primarily about personal jurisdiction (and had a full discussion of minimum contacts). Prior to July 2012, the last time in personam jurisdiction was tested was in 2006. As a result, it would certainly not be unusual if you were tested on Civil Procedure again and in fact personal jurisdiction again. This happens. So – be prepared for it. Most would not be expecting it. However, if Civil Procedure were to repeat then I would expect an essay exam that possibly tested either some of the California specific areas (the California bar examiners have yet to test anything California specific in Civil Procedure – take a look at demurrer and SLAPP Suits and the responsive motion to a SLAPP Suit called an “Anti-SLAPP” motion – incidentally the area of SLAPP suits would be a great cross over with the First Amendment – I am not saying you will get this on this bar round – but some day it is coming) and/or some of the other issues that were not tested on the last bar administration. For example – collateral estoppel and res judicata. I thought both were a good possibility for testing (along with personal jurisdiction) on the last bar exam.

One of the last times collateral estoppel and res judicata were tested was in the context of in personam jurisdiction. I have a past essay exam from the bar exam that tests both together. This exam is no longer on the California bar website. Incidentally, that administration tested Personal Jurisdiction (specifically: IPJ with a full minimum contacts analysis) and Collateral Estoppel and Res Judicata.

Another area within Civil Procedure that I would suggest you take a look is the area of “interlocutory appeals” – this is usually tested briefly as a fairly short “tack on issue” in a Civil Procedure exam. The issue is usually tested in this way – one of the parties is appealing prior to there being a final judgment (could even be on the basis of the court’s denial of one of the parties wish to use collateral estoppel or res judicata to bar the re-litigation of an issue or a claim). Since the party is attempting to appeal prior to a final judgment in the instant case – this generates an issue with respect to interlocutory appeals. It is a short discussion, but one that must be had and one that has certainly come up many times on the bar exam in the past.

Class actions has not been tested in a very long time – I keep thinking that is due, but, If you look at what is most often tested in Civil Procedure it is jurisdiction (PJ and SMJ and Venue) and Collateral Estoppel and Res Judicata. So while class actions has been absent for many bar rounds, it is still no more likely in my mind, as Collateral Estoppel and Res Judicata. Since jurisdiction is such a heavily tested area, it would not be unusual to see an exam on this bar administration that tested (in a more emphasized way) subject matter jurisdiction. This could easily be done and tested with other typical issues like: Venue, Remand and/or Removal.

Incidentally – with respect to issue and claim preclusion – be sure not to mix up Res Judicata and Collateral Estoppel – make sure you know which one is issue preclusion and which one is claim preclusion. Here is one way to keep the two straight: the “C”s do not go together – in other words: Collateral Estoppel is Issue Preclusion and Res Judicata is Claim Preclusion. Should you get tested on this area – be certain to make note of the California (and minority) “primary rights” view with respect to claims (Res Judicata).

 

California Bar Exam Tip: If Constitutional Law Is Tested . . .

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Hello All,

I have received many emails asking for a link to my earlier Constitutional Law posts. I have copied and pasted the relevant portions below:

I have attached as a download, a past Constitutional Law Essay that I think is worth reviewing.

The reason I think it makes good sense to review this exam the day before is because of this simple fact – a very similar essay exam may appear on day three of the California Bar Exam. Therefore, it just makes sense to read through the essay. You can download it here: ConLaw Handout 2 F-05

This past essay exam is from the February 2005 bar exam. I think it is worth a read. DO NOT test yourself on this. Instead, simply read through it (stay calm while you do so) and read and study the answer. Spend about 20 – 30 minutes on it (a few more minutes if you think you will benefit from it). The key here is to be able to glean some insights into both the approach for Constitutional Law (the approach that is embraced by the California Bar Examiners) and also how to handle an essay that is similar to this Constitutional Law exam. I think it is quite likely that you would see something like this tested. It is certainly possible. Given that possibility – it can not hurt you to read through it. And, remember, it is really important that you simply “read through it” – DO NOT TEST yourself on this – simply read through it and do your best to connect the dots between the fact pattern and what was generated in the answers. Focus on this: “If I were to get this particular essay exam on the actual bar exam, how would I write my answer?”

Hopefully, you would stick to the issues that are addressed in both answers and even better, if you do see something similar to this particular essay exam, you will remember how to handle it tomorrow.

And here is my earlier post regarding Constitutional Law and one of the approaches that would be helpful if you were faced with evaluating the Constitutionality of a state statute:

Constitutional Law: Constitutional Law was not tested on the last bar round. Now, that on its own is not enough to simply put it on the table so to speak. However, I do think it is a real possibility. But, this whole exam is not usually made up of all six essays from the MBE topics. So, something has to (in my opinion) come into the mix other than the MBE subjects being tested on the essays. Still Constitutional Law I think is a real possibility. First Amendment was tested last time (in February 2012). Now that does not mean that the First Amendment will not be tested again this time. However, I do have some thoughts on what I think might be a bit more likely. Just also keep in mind, the First Amendment is a favorite and is tested heavily – so do not presume it will not be on the test.

Possible Constitutional Law Essay Scenario: Evaluating the Constitutionality of a state or federal statute. Now this is a broad area as it could involve Equal Protection, Fundamental Rights (Privacy is a typical hot topic) and Due Process and either the Commerce Clause or Dormant Commerce Clause. And, of course whenever you are facing a Constitutional Law exam, you will typically begin your answer (but, pay attention to the call of the question) with an “Article III, Case or Controversy Requirements” discussion and State Action (both must be present to make a Constitutional claim). So, you might be thinking, she just predicted the possibility of virtually everything within Constitutional Law. Not really. If you have to evaluate the Constitutionality of a state statute – you will handle certain things in a certain order (unless directed otherwise by the call or calls of the question). For example, if you have to determine the Constitutionality of a state statute you will likely go about it in this order:

1) State Action (prove this up quickly – it is a preliminary issue generally – unless the facts really pose it as an issue – for example, a company town or a private entity performing some service or business that is generally conducted by the government – if you have facts like that, then develop this area, if not, then prove it up and move on)

2) Article III Case or Controversy Requirements (Standing – actual injury or personal stake in the outcome, causation, and redress ability (also, could be tested on third party standing or associational standing or the exception to the general rule that there is not “taxpayer standing” – but only bring these up if the facts generate it), the issue must be ripe, not moot, and must not involve a political question)

3) Is there an issue with respect to 11th Amendment Immunity?  This is generally a very quick discussion – but worth points to bring up IF you are dealing with a state statute (but, don’t dismiss the whole Constitutional Claim because of the 11th Amendment – it is just an area to bring up, address quickly and move on).

4) Does the state have the power to act? There will generally be a basis here and you should identify the state’s power as stemming from the 10th Amendment (certain powers are reserved to the states via the 10 Amendment – health, welfare, safety, education and morals)

5) Are there any pre-emption issues? Be careful here – there does not necessarily have to be a federal law provided to you on the fact pattern in order for preemption to be an issue (Supremacy Clause issue). Watch out for situations where the state is regulating the radio or television – if so – the FCC regulates this area and you then need to address the possibility that the state regulation is preempted by federal law.

6) Does the state law place an undue burden on interstate commerce? (this may or may not be an issue – it is simply a question you should ask yourself so that you are able to generate the issue, spot it, if it is present). If the state law discriminates between out-of-staters and in-staters (for example, a tax on all trucks coming in from out of state to deliver milk in plastic milk containers or a tax on all large trucks of a certain size and many of these trucks travel across the US) then you likely have an issue to discuss here.

7) Does the state law violate the Constitution? Here you should ask yourself whether or not there is an Equal Protection violation (it may be obvious and it may not be – hence, the reason to ask yourself). Also ask whether there is a Due Process violation (address both Procedural Due Process and Substantive Due Process and note that your discussion of Procedural Due Process on an essay exam is usually limited to notice and an opportunity to be heard . . . usually) and of course look to see whether there is a First Amendment violation (infringement on speech, the freedom of association or Religion – both free exercise and establishment clause. Also note: if you were tested on religion, you should discuss both Free Exercise and Establishment Clause – these come up together)

Possible Community Property Scenario:  Community Property was tested last time – but as a cross-over with Professional Responsibility. You may not want to hear this, but Van Camp and Pereira have not been tested in a while (these are the tests – or “accounting methods” for value enhanced separate property businesses). If this concept makes your eyes roll into the back of your head – take a deep breath and calm down. Remember that these tests are to determine what portion of a separate property business should be considered community property. It is not too much more complicated than that (for bar exam purposes). Review these tests (take five or ten minutes – even do it tomorrow morning if that is what you prefer – just in case), know which favors community property and which favors separate property – try your best to keep these tests straight – don’t worry – you can rely on short term memory for this. Also, remember that you should generally talk about both if either seems to be tested. It may be that the fact pattern (assuming you get a Community Property fact pattern that tests this area) where Van Camp seems to be the more applicable test. That is fine, write about it and still explain Pereira and quickly explain what the result would be if the court were to apply Pereira – remember, you are trying to show the grader your breadth of knowledge).

Best of luck to you all!
Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

California Bar Exam Tips: “Predictions” for Day Three’s Essays & Performance Test

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Hello All,

Congratulations on being 2/3 of the way done with the California Bar Exam.

Hopefully by now you are resting, have had a healthy meal and may be doing a light review of topics for tomorrow.

We had an issue with the site crashing (more bandwidth next bar round – even the California bar exam’s website has crashed in past years due to heavy traffic – so I guess my site is not immune either).

So, the long awaited “predictions” for day three’s essays and some tips and suggestions regarding tomorrow’s performance test . . .

DAY THREE – ESSAY “PREDICTIONS”:

The caveat (I know you have read it in previous posts) again is that no one can predict this exam. So far Criminal Law, Professional Responsibility and Tort Remedies (possibly some other Remedies too) were tested on day one. PTA was an objective writing assignment that involved a restrictive covenant.

None of the above was a surprise subject wise. Everyone expected Criminal Law (but, many were expecting a murder essay). I certainly expected to see a full Professional Responsibility essay and Tort Remedies was also on our list. Since the subjects I was expecting have shown up, I am not varying my earlier “predictions” much.

So here is the short hand version:

I still think that Torts is a real possibility. Many examinees will presume that Torts is not going to be tested since there was an issue of conversion on yesterday’s exam. However, I still think that Torts is equally likely to show up. I also would think it would be highly likely to see a cross-over exam. Torts makes for a good cross-over with Professional Responsibility.
I have not changed my mind much about the “predicted” topics. Therefore, I would most definitely look over Constitutional Law (I feel this is quite likely – I have posted a Constitutional Law Essay here on the blog in an earlier post – I do recommend that you read or re-read my prior posts on Con Law – you will find the Constitutional Law Essay and an approach that may come in handy).
I also feel that Civil Procedure is possible. (Again, I am not changing my mind much about my earlier predictions. Due to yesterday’s PT that involved a non-compete clause (so I am told) I am a bit less inclined to think that a Property essay is as likely. However, ANYTHING is possible. Looking over what has NOT been tested within the area of Property in some time – Covenants, Equitable Servitudes and Easements are all areas within Property that have not shown up incredibly recently.
Essentially, you know that you need to be prepared for anything. That does not mean that you need to know every single rule statement perfectly. But, if you have any subject that you are particularly dreading seeing tomorrow – then regardless of my “predictions” that is where I would spend some of my time if I were you.
Many are predicting Corporations – it is certainly possible – but not my first pick right now.
Professional Responsibility OFTEN repeats as part of a question on day three – so be sure to review PR.
Evidence always makes for a good cross over and could repeat.
I will be writing more in the next 20 minutes or so . . . I just want to get these basic “predictions” up right now. For those of you who have been following the blog – there is nothing really all that new.
Please check back in for other possible suggested essay scenarios – these will only take a few minutes to read and will be worthwhile – especially if you actually see it on tomorrow’s exam.
PERFORMANCE TEST TIPS:
Most would predict a persuasive PT for tomorrow. While I would tend to agree, the most important thing is to simply follow instructions to a T. PT A (from what I have heard) seems to have been fairly straightforward and was an objective assignment.
I would expect that perhaps PTB would include more cases, and or statutes and could possibly require you to write multiple documents.
However, if I had to pick a particular type of PT for tomorrow, I would pick an appellate brief. This may or may not be what you get, of course. But, in the event that you do . . . pay close attention to which parts of the “brief” you are asked to write. For example, on past Performance Tests, examinees were asked to write an Appellate Brief (in the senior partner memo – or assigning memo) but were also instructed in that same memo (to you, the applicant) to only write certain sections of the brief. In these past exams, there was an internal/firm-wide/”to all associates” memo within the case file that provided instructions on how all appellate briefs should be written. Often, examinees will follow that second “firm wide” memo to all associates blindly, disregarding the instructions from the Senior Partner memo to “only write sections . . . ” etc.
Just be careful, read very carefully and remember, the PT is form over substance and you must, must, must, above all . . . FOLLOW INSTRUCTIONS.
Keep your wits about you, you can do this!
All the best to all who are studying for the exam!

California Bar Exam: Day Two and “Predictions” for Day Three

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Hello All,

Right now you are most likely taking the AM section of the MBE . . . unless you are an attorney taker. And, in just an hour or so, you will be half way done with the California bar exam! Congratulations!

So, as promised, I will be posting about what I think might be possible for day three’s essays. I am taking into account what was covered in yesterday’s Performance Test A into my assessments of what I would expect you to possibly see for testing tomorrow.

First, some comments about yesterday’s essays:

1. Day One is over – do not rehash it, replay or worry about it. It is done and you can not go back and re-do it and there is nothing to be gained from going over it and over it again.

2. The above being said – I think there are some things that I can say that might help you put Day One’s essays to bed – so to speak. Aside from simply putting Day One behind you – perhaps this will help: Essay number three had many options as to what could have been discussed. This essay was very similar to Essay #2 from the July 2003 bar exam (something I have brought up on many, many occasions in my bar review course). I have used this essay (from the July 2003 bar exam) as an example of what would be considered an “oddball” essay. On the July 2003 bar exam, the fact pattern was very similar, but the call of the question in 2003 was different. It was different in that examinees were asked to discuss “trust remedies”. This confused many examinees. This bar round it was a different call (and quite frankly, in my opinion, easier to deal with because the calls lead you to certain issues that a call of ‘trust remedies’ might not have). The point of all of this is that I have used this past exam as an example of what I would refer to as an “oddball” essay exam in order to illustrate how various answers (very different responses) would be acceptable. In fact, the story that I relay to my students is this:

“On Day One of the July 2003 bar exam, several of my students called me to discuss essay number two – the essay that tested ‘trust remedies’. I remember two students in particular with whom I spoke to that night. One was a valedictorian from an ABA law school and the other was a repeat taker who had attended a non-accredited law school. Both called me and told me how they handled that ‘oddball’ essay. Each had a very different route to resolving the issues presented and doing their best to answer the call of the question. However, both had some overlap in their coverage. I was confident that both examinees had successfully answered that question. And, both ultimately passed that bar round.”

The reason I even tell this story is to underscore for my students (and now for you) the importance of simply focusing on doing your absolute best to resolve the legal problem(s) presented in the fact pattern. Sometimes we get so caught up in the rules and definitions that we have been attempting to memorize for months that we lose sight of some of our common sense and practical ability to problem solve.

So where does that leave you with yesterday’s essays? Day one is over. What I want to make clear regarding essay number three is that there were variations of answers that will all be correct. Some will have addressed some Contract issues while others perhaps more regarding Torts and specific Tort Remedies – I could give you a list of the two or three issues that I believe a passing answer for that essay absolutely had to have . . . but I will not do that right now – because it will NOT serve you well to think that you missed one or more of those issues. AND regardless of how you did yesterday – you are still in the game – you simply have to take that approach. If you feel badly about yesterday – LET IT GO. That is your choice – to take that approach – and I urge you to make that choice.

You can take on today and tomorrow and no matter what happened yesterday, you can still take this test and make it your last. Be positive and let yesterday go.

One last thing about yesterday’s essays – many have written in indicating that day one was really hard. So, all of you reading this should keep the test in perspective. Yesterday was not likely a walk in the park for anyone. It was simply what it was – and now it is behind you – relish in that. And, resolve and commit to the rest of the exam with as much vigor and confidence as you can possibly muster.

One of the messages I received yesterday was from an examinee who told me of some of the mistakes he felt he had made and asked me if I thought there was “still hope”. I actually receive that same email many times over from many examinees. And, my answer is this: of course there is still hope. You go for it and do not allow this test to get the best of you. Perform at your best today, let yesterday go and tomorrow – do the exact same thing.

“Predictions”

I will be posting again today with my “predictions” for tomorrow’s essays and some thoughts about the Performance Test.

Until then, put yesterday and this morning behind you. Stay positive and believe in yourself.

All the best to all who are taking the exam today!

Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com

California Bar Exam: Day One’s Essays

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Hello Everyone,

Very soon you will be done with one third of the California bar exam! Congratulations!

I am about to meet up with some of my students here in Ontario. But, I wanted to write a post before heading out for a bit.

Below you will find: 1) three recounts of what was tested by three different examinees, and 2) my thoughts on what could be tested on day three’s essays.

Thank you to all of you who took the time on your lunch break to write in and tell me what was on today’s essays!

So, you all know that Essay One was Criminal Law, Essay Two was Professional Responsibility and Essay Three was Remedies.

Remember – I have not seen these fact patterns – so I am relying on examinee’s accounts of what was tested. But, I am fairly certain that the above topics were tested.

Here are a few of the reports I have received from examinees:

Report Number One – Examinee’s factual recollection of Day One’s Essays (DISCLAIMER: no one’s memory or assessment of what was tested is going to be perfect – do not freak out or worry that you might have missed something – this is ONE person’s account and it is fairly detailed. If reading this causes you anxiety – then do not read it):

Essay One – Criminal Law

Max and sons A B and C operate an art store. As partners. Max
regularly purchases stolen art and resells for profit. Max didn’t tell
sons of his illegal activities.

Sons suspect art is stolen.

Max contracted with Ted to buy a stolen painting. Max and sons picked
up the painting.

Allen read an article about the stolen painting and suspects that the
painting is stolen but didn’t discuss with anyone.

Burt contacted Ted and asked him to send a copy of the painting
instead to Max and planned to keep the real painting for resale.

Carl regularly sold information about Max’s illegal activities to law
enforcement and was continuing to participate for that purpose.

Discuss m a b and c’s:

1. Possibility of Conviction for conspiracy to receive stolen goods.
2. Possibility of conviction for receiving stolen property
3. Possibility of conviction of attempt to receive stolen property.

Essay 2 – Professional Responsibility

Carol applied for rental of an appartment from Landlords inc. Carol
had small children and believes that she was denied because she has
small children.

Carol hired Abel to represent her in suing Landlords for violating the
statute of anti-discrimination.

Landlords retained Barbara. Barbara told A that she is representing L.

Abel took Ford to lunch. Ford is a previous employee of L who
participated in the decision of C’s application and A asked about L’s
practices and what F and B talked about in their conversation.

B took deposition of C. During deposition A suspected that C was
falsifying her income but didn’t say anything.

After the deposition, B offered to settle for 5k. A agreed and signed the offer and
told C about it that night. C was not happy about the amount.

What ethical violations?

Essay 3 – Tort Remedies*

Mary and frank orally agreed to purchase property in 2004 jointly. They
agreed that F would occupy the property and if sold, M would receive
half of the sales price.

M gave $40k and F paid 40k, that he embezzled from Tanner, to purchase
the property at $80k.

F sold the property in 2012 for $300k. M asked for $150 and F offered to
pay back 40K.

M and T sues F for conversion. Court finds liability for conversion on F.

Discuss what remedy or remedies m has and what defenses f can assert
and the probability of success.

Discuss what remedy or remedies T has and F’s defenses and
possibilities of success.

*Many are in agreement that “Tort Remedies” was tested. However, other examinees have reported Contract Remedies coming up as well as a Statute of Frauds issue being a possible discussable point. The thing to remember is that there IS latitude with respect to discussions – proof of this is pretty evident from the released answers from the California bar exam. So, if you disagree with any of this, do not panic.

Another Examinee’s report of what was tested on Day One’s Essays:

Essay 1: Criminal Law: Conspiracy, attempt, impossibility, mistake, partnerships?

Essay 2: Professional Responsibility: settlement offers, communications with represented client (former employee), suspected perjury (in deposition)
Essay 3:  Remedies: replevin, equitable lien, constructive trust, quasi-contract
Another Examinee’s report of what was tested on Day One’s Essays:
Essay 1: Crimes (no crim pro) – conspiracy, accomplice liability, receipt of stolen property, attempt.Essay 2: Professional Responsibility:  Lawyer had lunch with former employee of represented organization; lawyer didn’t communicate settlement offer to client and made the decision to accept it on his own; lawyer suspected client lied during deposition testimony.

Essay 3: Remedies – D was liable for conversion against 2 Ps.  Call was to discuss all remedies and defenses to remedies and decide who will prevail.

The whole thing felt like a major time crunch!  Hoping I did good enough! Thank you for all you do!

So, now what?

Well, on to day two (for those of you who are taking the MBEs tomorrow). And for those of you who are attorney takers, you will likely be spending the day tomorrow studying and would like to have some ideas as to what might be coming on Thursday’s Essays.

I want to know what was tested on today’s performance test before I commit to what I think might be likely/possible essay scenarios for Thursday. But, for now, I am still leaning towards Civil Procedure as a likely repeat from the July bar exam. I am also still thinking that Constitutional Law is likely (see my earlier posts that include a past Constitutional Law essay for your review as well as an approach). I think that Commerce Clause and/or Equal Protection is very possible. Remember that Due Process includes both Procedural Due Process and Substantive Due Process). Privacy is an area that has not shown up in a while and often when it does it is in the area of rights to familial decisions, having children etc. and therefore involves both a fundamental right (Privacy) as well as a potential Equal Protection claim – in particular if girls/women are being treated differently with respect to these rights – and if it is any other group – that is not a suspect class – but whose rights are being infringed upon – there can still be an equal protection claim (although not likely win-able) applying the rational basis test.

With respect to Constitutional Law – please review my prior posts from earlier this week. I am still leaning towards what I stated previously.

Now, what about Torts? I mentioned in an earlier post that I was a bit suspicious of Torts – it was too obvious and I was inclined to think that Tort Remedies might come up AND that if it did you could STILL see Torts again. (Review prior posts from the past week – past bar rounds examinees were tested on Contracts on Day one and then a full Contracts/Remedies essay on Day three – this is also possible with Torts and Tort Remedies). So, just don’t dismiss Torts.

My thoughts on Property – While I still see it as a possibility – it feels a bit less likely to me now given the context of today’s remedies essay. However, you know that anything is possible.

I will write more about my thoughts on “predictions” later after I hear what is/was on today’s Performance Test A.

For example, if it tested Professional Responsibility heavily – then I would not expect to see much in the way of Professional Responsibility on Thursday’s essays (remember, PR repeats from day one to day three – very often it is a cross over on one of the days and a full PR essay on another).

So, I am waiting to hear more about what was tested this afternoon before I weigh in more heavily.

Congratulations on being one third of the way done with the bar exam!

All the best,

Lisa Duncanson