California Bar Exam Predictions: February 2013 – Part Two

Hello Everyone,

Thank you for following my blog and for your kind words and emails. Okay, so here we are (here you are) about to take the bar exam in a few days. And there is so much to know . . . and it might seem like there isn’t enough time to know it all . . .

You should know that everyone feels this way. I felt this way before the bar exam when I took it (and passed it) and everyone I know who has passed the exam feels this way leading up to the exam. So, before I get into more “predictions” (and the caveat about how there is absolutely no way that anyone can “predict” the essay topics) I wanted to give you some advice about how to approach the weekend.

1) Actively work at being calm. It is perfectly normal for bar examinees to go into panic mode. While it is normal, it is not helpful. Therefore, you simply have to keep your level of panic and anxiety under control – I tell my students to actively concentrate on being calm while they study and to constantly tell themselves (especially in these final days leading up to the exam) that they can do it.

2) Be realistic. Understand that no one walks into the bar exam knowing everything and, thankfully, that is not what is required of you to pass. Instead, your focus should be on identifying and resolving the legal issues and problems presented by each fact pattern. All too often, examinees lose sight of this and think that the exam is about having an absolutely perfect memory of definitions and rules. Take a look at any released bar exam answer and you will know that this is not true. Of course, it is important to know the law and to have the ability to write proper rule statements. But, far more important than perfect rule statements is to be able to show the graders that you truly understand the legal concepts that are being tested and that you can resolve these issues by having a solid discussion (using the facts and explaining why something is or is not . . . something). This is the key – to identify and resolve legal issues and to do so consistently.

Some of the released answers are flat out wrong when it comes to the definitions. However, what the released answers evidence consistently is that the examinee has a breadth of knowledge about the subject and that they have a command of what the legal issues/problems are presented by the fact pattern. Therefore, you should . . . READ ESSAYS (see number 3, below):

3) Read past bar exam essays and answers. I know that I have emphasized this before many times. But, you may not see the benefit of reading essays right now, on Friday or on Saturday, for example. I know the temptation is to simply stick to your memorization (and this is certainly something that you should spend time on). However, if you can not identify the issue on the fact pattern – your memorization of an outline will be of little service to you. So, to that end, please take time out to review essays and to especially study the answers (this is often the only way to truly gain an understanding of how the issues and legal problems come up on the California bar exam).

Okay . . . “predictions”

So I have mentioned that I think Civil Procedure could repeat and that Criminal Law and Procedure could  repeat. And, I believe I already suggested that you take a look at Property Easements as well as Torts (with Products Liability being a possibility as well as a Tort/Remedies crossover – remember, however, that whenever a subject has been absent from the test for a while – as Torts has – that virtually anything could be tested within the topic – so do not skip Defamation – that is certainly a possibility).

If you would like to see some past exams and receive other tips, I will be happy to put you on our email list for tips – simply send me an email to: and indicate: “Send me bar exam tips” in the subject line and I will add you to our list.

Okay, now onto . . .

Other Possible Areas for Testing:

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 ripenot 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:  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, 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).

Okay, I will write more tomorrow.

Keep reading essays and stay positive!

All the best to you in your studies!

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