Recent Trends On The California Bar Exam
If you are wondering how often certain issues appear on the California Bar Exam, then read further to get an in-depth look at recent trends on the California Bar Exam. We have reviewed California essays from February 2010 onwards and provided our insights below.
Recent Trends On The California Bar Exam
Note: Starting in July 2017, the California Bar Exam changed the format of the written portion of the exam to 5 one-hour essays 1 90-minute performance test). However, with this change, we expect to see more crossover essays, meaning that more than one subject could be tested in one fact pattern.
Agency & Partnership
Since February 2010 Agency and Partnership has been tested five times. While Agency and Partnership can be tested by itself in an essay, it can also appear in a crossover essay with Corporations, Professional Responsibility or Torts. Typically, the Examiners usually like to stick with testing more mainstream issues, including actual and apparent authority, vicarious liability, how to form a general partnership, how to form a limited liability partnership, and how creditors may recover from a partnership.
One of the recent trends on the California Bar Exam is that the Federal Rules of Civil Procedure are more likely to be tested than the California Code of Civil Procedure. Many essays require students to systematically analyze personal jurisdiction, subject matter jurisdiction, as well as issue and claim preclusion. However, also be mindful the Examiners also like to occasionally test issues relating to discovery. The California Code of Civil Procedure was only tested in some detail in July 2016 (e.g., venue, service of process). Interestingly, the July 2016 essay required a knowledge of both the California Code of Civil Procedure and the Federal Rules of Civil Procedure. However, because the Federal Rules of Civil Procedure are not tested on the Multistate Bar Exam, it is certainly possible that the Examiners could write more questions focused on the California Code of Civil Procedure.
Community Property is one of the Examiners’ favorite subject on the exam. It often is tested by itself but can appear in a crossover essay with Professional Responsibility, Trusts or Wills. Every Community Property essay requires a standard introductory paragraph – a definition of separate property and community property (and if implicated by the facts, a definition of quasi community property). Commonly tested issues include when the marital community terminates, the use of community property to improve separate property, transmutation of property, and whether spouses owe each other a fiduciary duty of loyalty.
A recent trend on the California Bar Exam is testing individual rights in detail (e.g., the Equal Protection Clause, Due Process Clause, Free Exercise Clause, Establishment Clause, and freedom of speech). Generally, Constitutional Law is tested by itself, but it can also appear in conjunction with Real Property with specific emphasis on the Takings Clause. Constitutional Law questions have become more nuanced in recent years.
Since February 2010, common law has been tested on seven of the essays, while UCC Article 2 has been tested three times. Contracts is undoubtedly one of the most frequently tested subjects. Oftentimes it will appear in combination with a Remedies question. It is imperative to have a solid grasp on damages. Further, contract formation, performance, breach and discharge are heavily tested areas on the essays.
Since February 2010, Corporations is more likely to appear in a crossover essay. It has been tested in combination with Agency and Partnership, as well as Professional Responsibility. Some of the more frequently tested issues include fiduciary duties, piercing the corporate veil, and derivative lawsuits. In addition, we strongly recommend having a sound understanding of securities law (i.e., 10b-5 and 16(b)).
Criminal Law and Procedure
As of February 2010, Criminal Law has only been tested by itself in two essays. Each of these essays focused in part on inchoate crimes (conspiracy, solicitation, and attempt). Similarly, Criminal Procedure has only been tested by itself in two essays during the same period. These essays had a strong emphasis on the Fourth Amendment warrant exceptions. And on four of the essays, Criminal Law and Criminal Procedure issues appeared together. Thus, it is important to be ready for any of the above combinations.
For Evidence, it is important to be well versed in the Federal Rules of Evidence as well as the California Evidence Code. Since February 2010, the Federal Rules of Evidence have been tested four times on the essays and the California Evidence Code has been tested five times on the essays. Evidence questions, even more so that other fact patterns, tend to be racehorse essays, in which examinees have to raise as many valid objections as possible to the proffered evidence. These objections may be based on the form of the questioning (e.g., argumentative, compound question, leading question, etc.) or it may be based on the substance (e.g., nonhearsay, hearsay, authentication, etc.).
While the majority of the Evidence fact patterns are in narrative format, it is possible to encounter fact patterns that are in transcript format. Many students find the transcript style questions to be more challenging. So, it is a good idea to review a few of these.
Without a doubt, the most important trend on the California Bar Exam is that Professional Responsibility is the most heavily tested subject on the essays. It has appeared on an essay on every single exam since February 2010 except for one! The majority of fact patterns will ask examinees to discuss both California law and the ABA rules in their answers. On May 10, 2018, the California Supreme Court issued an order approving new Rules of Professional Conduct, which went into effect November 1, 2018. Keep this in mind as you review any Professional Responsibility essays prior to the February 2019 exam. The law may be different than the rules in the high scoring student answers on the California Bar Exam site.
Professional Responsibility can be tested by itself. Or it can appear in conjunction with Business Associations (Agency and Partnership, Corporations). This is the most highly tested crossover subject for Professional Responsibility! It has also been combined with Contracts, Evidence, and Community Property!
Generally, Real Property is tested by itself, though it may be combined with Constitutional Law or Torts. Most commonly, the Real Property fact patterns focus upon landlord-tenant issues, easements, zoning, real covenants and equitable servitudes. As of February 2010, present interests have appeared twice on the essays. Specifically, fee simple determinable and fee simple subject to condition subsequent. Thus, we do not recommend ignoring present interests as you review!
Remedies is a more frequently tested subject on the exam. It can appear by itself or often times, in conjunction with Contracts and/or Torts. Remedies tends to be the shortest outline out of all of the subjects on the California Bar Exam. However, review Remedies carefully! It generally appears similar ways, so it is one of the more predictable essays on the exam.
A recent trend in Torts on the California Bar Exam is that the fact patterns do not always center upon negligence. However, negligence is still the most highly tested area! But do not be surprised if you encounter questions about nuisance, strict liability, products liability, intentional torts. One issue that has not been tested in quite some time is defamation. Occasionally, the Examiners will pose a question about a lesser tested issue in Torts such as misrepresentation or malicious prosecution. While Torts is often tested by itself, if it is combined with another subject, it usually appears with Remedies.
Since February 2010, Trusts has been tested six times. Each of those essays involved a crossover question with Wills and/or Community Property. However, the most common crossover in this area is Wills/Trusts. Some of the more frequently tested issues include how to create a valid trust, the different duties of the trustee and what damages the beneficiaries may recover if the trustee breaches his duties.
Wills essays require examinees to be well-versed in California law. Further, Wills most often appears in crossover essays with Community Property and/or Trusts. Since February 2010, of the nine times that Wills was tested, it was only tested by itself once! Some of the issues that the Examiners expect exam takers to have a solid understanding of include how to execute a valid will, how to revoke a will, intestacy and omitted children.
We hope that you found our review of the recent trends on the California Bar Exam to be useful!
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