How to Conquer Constitutional Law on the California Bar Exam
Here, we tell you how to conquer Constitutional Law on the California Bar Exam. Constitutional Law is regularly tested on the California Bar Exam. The good news is, it is somewhat predictable in terms of how it is tested.
Here, we tell you how to approach Constitutional Law on the California Bar Exam so that you can maximize your points (and your chances of passing the bar exam!).
Constitutional Law on the California Bar Exam
1. First, know how Constitutional Law is tested.
Constitutional Law does not always appear on the California Bar Exam. It shows up about once every 2–3 exams. It tends to be tested on its own, though it is sometimes combined with Real Property or Criminal Law. (When it is combined with Real Property, takings and the substantive Due Process Clause tends to be tested.)
The good news is that you can apply general MBE law to a Constitutional Law question. California law has not been tested on Constitutional Law questions.
2. Be aware of the highly tested issues.
The State Bar of California tests certain issues over and over again on Constitutional Law questions. (We have a more detailed overview of these issues in our California Bar Exam One-Sheets.)
Some of the “favorite” California Bar Exam issues in Constitutional Law questions include:
- Standing: In particular, the examiners like to test standing of organizations or associations. Note that an organization can sue for an injury to itself and can also sue for injuries to its members if: a member or members have standing, the member’s injury is related to the purpose of the association, and individual members are not required to participate in the lawsuit.
- The Dormant Commerce Clause: States may not discriminate against interstate commerce or unreasonably burden interstate commerce. Discriminatory laws are struck down unless they can pass strict scrutiny. A nondiscriminatory law is upheld if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.
- The Due Process Clause and Equal Protection Clause: Make sure to know the different standards of scrutiny (i.e., strict, intermediate, and rational basis). All standards have been tested on the California Bar Exam.
- Free speech: This is a broad topic but it is also a popular one. The Examiners particularly like to test time, place, and manner restrictions and general free speech principles.
- The Establishment Clause and Free Exercise Clause
- Establishment Clause: Any law that favors one religion over another will be struck down under strict scrutiny. Neutral laws follow a three-part test developed in Lemon v. Kurtzman: (1) the state must have a secular legislative purpose, (2) the primary effect must not be to advance nor inhibit religion, and (3) it must not foster excessive governmental entanglement with religion.
- Free Exercise Clause: A state may regulate or prohibit the conduct or activity if the regulation is neutral and of general applicability.
3. Be aware of the approach you should use to highly tested topics.
We recommend looking at past essays so you can see how to approach the highly tested Constitutional Law issues.
- When free speech is an issue, you should give a brief overview of how the plaintiff needs to have standing and how a government actor must be found.
- When the Equal Protection Clause or Due Process Clause is tested, you should give an overview of all the levels of scrutiny before zeroing in on the appropriate one.
- When standing is tested, you should state the general requirements of injury-in-fact, causation, and redressability before addressing any specific issues of standing—e.g., standing of an organization.
Getting a general approach for these highly tested issues will help you maximize your score and it will save you time since you won’t have to spend too much time thinking about what to write if you already have an approach.
The best way to get good at Constitutional Law on the California Bar Exam is to practice essays! Not only will you become acquainted with how Constitutional Law is tested, but you also will be helping boost your MBE score, since you will see 25 scored Constitutional Law questions on the MBE!
Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Constitutional Law essay questions:
- February 2018 essay question and student answer (see essay question #2 on the exam)
- July 2016 essay question and student answer (see essay question #4 on the exam)
Good luck studying for the California Bar Exam!
Go to the next topic, Chapter 8: Contracts.
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