Here is part two of my “predictions” – be sure to read my earlier post for part one of my predictions. Again, I do not claim to be able to predict what will be on the bar exam. However, I do think that it can be helpful, especially in these final days leading up to the bar exam, to consider potential essay scenarios. As I mentioned in my earlier post, these “predictions” are based upon what has and has not been tested in recent years as well as my review of the history of essay testing on the California bar exam. See below for the remaining topics that are possible on the February 2016 bar exam. Please bear in mind that anything could be tested. It is not a good idea to assume that a topic will not come up on the exam. Be prepared for any subject!
Torts – As I mentioned yesterday, I think you could see either Torts or Contracts. I also think that Remedies is likely as it is tested heavily on the California bar exam (see my earlier post, Part One). While any area of Torts could be tested, it makes sense to look at what is the most common area for testing as well as what we have not seen tested in some time. The most common area of testing in Torts is negligence. Areas of Torts that have not been tested in some time include: products liability and strict liability. Torts remedies is also possible or perhaps in one of the miscellaneous Tort areas like Abuse of Process and Malicious Prosecution or Nuisance. If you were to see Nuisance, then you would likely also have coverage of Remedies. Be sure to have both a basic approach for Tort Remedies (1. Damages, 2. Restitution and 3. Injunctive relief) as well as knowing the specific types of Tort Damages, Restitutionary Remedies and the elements of Injunction).
Possibly Contracts or Contract Remedies – Know your Contracts approach up through Remedies. Be prepared for an exam dealing with the UCC. I say this not because it is the most likely essay scenario, but because when it is tested examinees often struggle with how to answer a UCC exam. Therefore, you will want to make sure that you are comfortable with how this is tested. Sure, you need to know the rules. But, most examinees who take the bar (pass or fail) know the rules. Make sure that in addition to knowing the rules that you know how the bar examiners test the subjects on the essays. For example, review a UCC exam so that you can see how it is answered and see what the examiners embrace.
The examiners have not tested the issue of a “hybrid” contract on the exam in some time. This issue comes up when it is unclear whether the contract on your fact pattern is governed by the Common Law or the UCC. This occurs where a significant or important part of the contract is a service and a significant or important part of the contract is a moveable tangible good. What the bar examiners want you to do in this situation is to discuss – right after “choice of law” – hybrid contract and apply the “predominant purpose” test.
Past examples of a hybrid contract on the California bar exam have included the following: Buyer contracts with Seller to purchase a turbine (a moveable, tangible good – for which the UCC would apply). Buyer agrees to a purchase price of $60,000.00. In addition to purchasing the turbine from buyer, buyer agrees to install the turbine on a platform in the Atlantic Ocean. Seller is not the only seller of turbines. But, Seller is the only company that can install the turbine in the Atlantic Ocean (the installation part of the contract is a service – governed by the Common Law of Contracts). Seller agrees to install the turbine for $20,000.00.
This scenario (while not tested often) has not been tested in some time on the California bar exam. As a result, it is worth some thought. Should you see something like this on your exam, do not try to force the right answer. Instead, show the bar examiners that you see the issue and that you understand that either the Common Law of Contracts or the UCC could ultimately govern the contract. The right answer will be that you consider both options by applying the predominant purpose test. Weigh the possibility of each and then come to a conclusion.
Once you address the hybrid contract issue, then you should approach the rest of the essay as though it were a UCC exam (where you discuss both the common law and the UCC – for examples of this, review any past Contracts UCC exam and you will see what you need to do). Most Contracts essays do not involve a hybrid contract issue. However, since it has not been tested in some time, it is a good idea to keep it in mind. Equally likely, I think, could be a fairly straight forward common law Contracts essay where formation is at issue, breach and then remedies.
Remember that any topic could be tested – including topics that were tested on the July 2015 bar exam. In fact, on most bar exam administrations, two or more topics will repeat from one bar exam to the next. As a result, you should not dismiss subjects that were tested in July.
If Property were to repeat: Property was tested on the July 2015 bar exam. If property is tested you should be aware that LandLord/Tenant is one of the most common areas for testing. However, we have not seen testing of easements in some time. Easements can be tested in the context of landlord/tenant or in the context of a landsale contract. If you were to see the latter, you would likely be called upon to discuss, notice (actual, constructive and inquiry) and possibly the covenants of a general warranty deed.
If Criminal Procedure were to repeat – As mentioned in my earlier post, Criminal Procedure could come up as a cross-over with Criminal Law (Murder). Be sure to read my earlier post.
If Civil Procedure were to repeat – Bear in mind that the most common areas for testing in Civil Procedure include jurisdiction – both personal jurisdiction and subject matter jurisdiction. While jurisdictional issues could easily repeat, if you do see Civil Procedure on the exam, you may see areas that have not been tested in some time: these include: Class Actions, Notice and Code pleading distinctions (if tested this would be a tack on issue, not the whole essay. Remember that Federal courts follow Notice pleading and CA follows Code or Fact Pleading). Other testable tack on issues include: remititur and additur and the 7th Amendment right to a jury trial.
I will continue to post up through the bar exam.
All the best in your studies and on the exam!
Bar Exam Guru