Bar Exam Predictions Part One: the Possible Repeaters

Success Go Get It.jpgHello All,

Thank you for following the blog and for your patience this July regarding the expected Bar Exam Predictions. 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 the “free stuff” page, if you haven’t already, for downloads). Also, be sure to join our July 2018 Bar Exam Tips List.

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 Criminal Law and Procedure could repeat.

If Criminal Law and Procedure were to repeat – look out for testing of Criminal Law murder.

This topic has been predicted for several bar rounds now as it has been absent from the California bar exam for many years. The last time the bar examiners tested murder was February of 2008. As a result, it is considered due, perhaps overdue.

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.  Most commonly, if Criminal Law Murder is tested with Criminal Procedure, it is murder plus 4th Amendment issues.  But, the 4th Amendment has been tested a lot recently. Still, the bar examiners could repeat testing of the 4th Amendment. But, what might be more likely – assuming that you see a Criminal Law Murder exam on Tuesday – is that it may be crossed over with the 6th or 8th Amendments.

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 (right to bail, death penalty, cruel and unusual punishment).

If Constitutional Law were to repeat – Constitutional Law was tested on the February 2018 bar exam. It could repeat. If it were to repeat, what might be most likely? One area that has not been tested since 2005 is the Dormant Commerce Clause. 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.

Dormant Commerce Clause: 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. It is tested on virtually every bar round. 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 will write more soon with more thoughts on what could show up on Tuesday’s essays!

All the best in your studies and on the exam!


Lisa Duncanson
Bar Exam Guru