Bar Exam Predictions: Part One

Hello All,

Thank you for following the blog and for your patience this July regarding the expected Bar Exam Predictions. We had a record turn out in our class sessions and this “guru” has been very busy. Also, please understand that my enrolled students expect me to provide the predictions to them first. I hope that you find the materials available on this blog helpful (see downloads on the “free stuff” page, if you haven’t already, for downloads). Also, be sure to join our July 2016 Bar Exam Tips List here.

About my “predictions” I do not claim to be able to predict what will be tested on the California bar exam. Nor do I recommend that you study based upon anyone’s predictions. However, I do think it can be helpful to know of some possible essay scenarios when going into the bar exam. I base the essay scenarios that I come up with upon the following: 1) historically favorite areas of testing by the California Bar Examiners, 2) areas that have not been tested on the bar exam for some time (Criminal Law MURDER, for example) and 3) just my gut and my experience with the exam over the past twenty-five plus years.

What I think is very possible to show up on the exam: First of all, you should know (if you do not already) that any topic can be tested on the essays AND that generally at least two topics (and I don’t just mean Professional Responsibility) will repeat from one bar exam round to the very next. And, some topics repeat three or more times back to back. My point: you should not dismiss any topic because it was already tested on the past two or even three bar exams.

What was tested last time that could repeat? Anything, but . . . While anything could repeat from the prior bar round, I am inclined to think that Evidence could repeat either as an entire essay or as a cross-over (think spousal and marital privileges crossed-over with a wills or community property essay – yes, the bar examiners have done this before and could do it again). If you would like to see an example of this kind of cross-over, sign up for our bar exam tips list, and I will send you one.

Past bar exam essays have also tested Evidence with Criminal Law & Procedure. Sometimes we see testimonial issues that come up in the Criminal Law & Procedure context that involve a hearsay issue. While the admissibility of a statement on a Criminal Procedure essay usually involves the 5th Amendment – the examiners have (and easily could) test hearsay in this context as well. Professional Responsibility is typically on every bar exam essay, so naturally this would be an expected repeat topic. No surprise there

But, what about Remedies? The February 2016 bar exam had Contracts and Contract Remedies on the same day, two different essays. Most would write off Contracts and would figure that Remedies is also not likely. However, it would be unwise to assume that the bar examiners could not repeat these topics. What do I think is more likely to repeat? Possibly Remedies. But, remember, with Remedies there needs to be a gateway to the Remedies discussion. This is typically Torts or Contracts. I would not be surprised if you were to see another Remedies exam, but this time with Torts as the gateway to the Remedies discussion (think of Nuisance, for example) In this way, the examiners could repeat Torts and Remedies without re-testing any of the issues that were tested in the Torts essay or Remedies essays from the February 2016 bar exam. Just keep this in mind. Mostly, I want to underscore that you SHOULD NOT assume that a topic will not show up this time, simply because it was tested last time. That could not be further from what is typical.

Criminal Law/Murder – It has been some time since the bar examiners have tested murder. This topic has been predicted for several bar rounds now as it has been absent from the California bar exam for some time. Perhaps this will be the bar round that it finally reappears on the essay section of the bar. If so, keep in mind that Criminal Law murder is often tested in conjunction with Criminal Procedure. Criminal Procedure was tested last on the July 2015 and tested almost exclusively 4th Amendment issues. As a result, I could envision a Criminal Law & Procedure exam that tests a 5th, 6th and/or 8th Amendment issue crossed over with a murder. Of course, you could also see testing of the 4th Amendment (admissibility of physical evidence) too. But, it has been a very long time since the California bar examiners have tested 6th Amendment jury issues (voir dire, peremptory challenges, Batson issues, right to an impartial jury and jury of peers) and it has also been some time since we have seen testing of 8th Amendment issues on the essay exam.

Remedies as a possible repeater – Last bar round I felt that you would see testing in either Contract Remedies or Tort Remedies and that either was equally likely. I also thought that Torts was very likely. In February 2016, the bar examiners tested Torts, Contracts and Contract Remedies. So, no real surprises there. I do think that there is a good possibility that you will see Remedies again and this time (as I mentioned above) I think it could be in the context of Torts (perhaps Nuisance) but also be sure to review all areas of Torts, including strict liability. But, also recognize that it could be something as simple as mentioning that a party could use Constructive Trust to recover – for example one spouse from another on a Community Property exam. Always be mindful of Remedies. And, the last thing you want to do is assume that a topic will not appear on the exam because it was tested last time!

Property – this is a topic that was not on the February 2016 bar exam. Still, the fact that Property was not tested in February does not guarantee that Property will show up on the July 2016 bar exam. However, if Property were to be tested, I think there are a few areas that might be a bit more likely than others. First of all, Landlord Tenant is one of the most heavily tested areas of Property. As a result, this is always something you should be prepared to handle on the California essay exam. Other frequently tested issues are Joint Tenancy, Tenants in Common and rights of c0-tenants. Joint Tenancy was tested not all that long ago, but it comes up quite frequently and has been a recent favorite area for testing (along with restraints on alienation and future interests). As a result, it could certainly be tested again.

However, an area that has not been tested in some time is the area of Easements. It is not as much of a frequent flyer on the bar exam as is Landlord Tenant issues, but it has been a while since it has been tested on the essays. As a result, I think you should be prepared for it (and of course, you should be prepared for anything)!

If you were to see an Easements issue, I would not be surprised if you saw it in the context of a land sale contract fact pattern (where Betty is granted an easement by Grantor for a right of way over Grantor’s land, Betty fails to record. Grantor sells his parcel to Buyer. This issue becomes (in part) whether Buyer takes the land subject to an Easement or not. This requires 1) a discussion of whether Betty had a valid easement (full Easement Approach), 2) whether Buyer had notice (actual, constructive or inquiry), and possibly a discussion of everyone’s favorite: the Recording Statutes. In addition, this essay scenario also requires a discussion of the covenants of a general warranty deed (the three present and three future covenants). Here is a quick, step-by-step approach for Easements:

  1. Define easements (and be sure to include that an easement is a non-possessory interest in land).
  2. Is the easement appurtenant or in gross? (This is a quick discussion, but necessary)
  3. Is the easement affirmative or negative? (This is also a quick discussion)
  4. How was the easement created? (Here, you should discuss as many ways that the easement could have been created. This is often the longest part of your discussion in an easement analysis).
  5. What is the scope of the Easement? (This can be an issue, but is not generally as heavily discussed as step 4.
  6. Termination (NOTE: on the essay exam, Termination is generally not an issue because it does not make for good testing to include it as an issue on an Easements essay – think about it this way: if there were facts for termination, then there would be no reason to discuss steps 1 – 5. Historically, when the bar examiners have tested Easements, they have not included facts that show the easement has been terminated. Just something to keep in mind).

Constitutional Law – Constitutional Law was on the July 2015 bar exam. It was not tested on the February 2016 bar exam. What I think is significant about the last time Constitutional Law appeared on the California bar exam is that it was a very narrow  area of testing (regulatory takings) leaving most all areas untested. I think that any area of Constitutional Law is possible this bar round. However, there are a few areas that I think you should be on look out for – these include the Dormant Commerce Clause (as this has not been tested in years) or possibly the First Amendment (as this is one of the more heavily tested areas within Constitutional Law and is tested frequently). Other areas that could come up: testing of the fundamental right of privacy. This is a favorite area of the bar examiners. It is often tested in the area of teenage pregnancy (eg. regulation requires female high school students who become pregnant to attend a special school while pregnant – this brings up issues of both privacy – which is a fundamental right and subject to strict scrutiny, as well as gender discrimination – which is subject to intermediate scrutiny. In addition, a fact pattern like this also brings up issues of mootness and the exception to mootness from Roe v. Wade – where an issue that is moot, but capable of repetition yet evading review). While these are a few areas that I think might be more likely, remember, anything could be tested.

What scenario generates a Dormant Commerce Clause issue? When you see a fact pattern with a state law that as applied treats out-of-staters differently than in-staters or taxes an activity that affects interstate commerce. The main issue will be whether or not the state law places an undue burden on interstate commerce. Remember that you will need to address the state’s power to act (under the powers reserved to the state via the 10th Amendment – that the state may regulate on behalf of Safety, Health, Welfare, Education and Morals of their citizens).

If you were to see an essay that tests the Dormant Commerce Clause you should be aware that this same essay could also generate issues in the following areas: 1) State action, 2) 11th Amendment Immunity (this would be a very brief discussion/mention on your exam), 3) Article III Case or Controversy requirements, 4) Substantive and Procedural Due Process 3) Privileges and Immunities (this is usually a brief discussion, if it comes up at all) and 5) a potential Contracts Clause violation. If you would like to see an example of a Dormant Commerce Clause exam testing some of these issues, be sure to join our bar exam tips list.

Professional Responsibility – Of course, you should be prepared for testing in Professional Responsibility. However, it makes sense to also take an extra look at areas that have not been tested in some time in PR. These areas include: the advertising and solicitation rules, rules on perjury and rules for turning over evidence – for example a gun, or the whereabouts of a gun, given to attorney by client. If you see an issue with respect to a client giving their attorney evidence from a crime or telling the attorney the whereabouts of evidence of a crime – you should also address the tension between the duty of candor owed to the tribunal and the duty to keep client confidences and explain how this is resolved.

Always in Professional Responsibility you should be prepared to discuss conflicts of interests (both potential conflicts of interests and actual conflicts of interest) as well as the issue of an attorney’s withdrawal- when must an attorney withdraw, when may an attorney withdraw and how must an attorney withdraw properly (assuming the attorney may withdraw in the first place). Again, always be prepared to discuss any potential and actual conflicts of interest on your exam (an example that has not been tested in some time is where a third party pays the attorney’s fees – for example: Mother pays for son’s legal fees – first this is generally discussed as a potential conflict. When and if it becomes an actual conflict – you should discuss the actual conflict).

I also think that Business Organizations is a good possibility as well as Community Property and/or Wills. But, more on this tomorrow in Part Two of the “predictions.” Remember, anything can be tested.

All the best in your studies and on the exam!


Lisa Duncanson
Bar Exam Guru


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