5. Understanding Bar Exam

What laws are being tested?

  • “United States” is a federal republic consisting of 50 states
  • Each state –
    • is a separate political constituent created and governed by its own state constitution;
    • makes its own state laws on most matters
    • has its own state court, state legislature, and state executive government
  • Above the 50 states, there is 1 “federal entity” which –
    • is a separate political constituent created and governed by the U.S. Constitution;
    • makes federal laws on limited matters that have significance on the whole nation (e.g. national defense, fundamental human rights, antitrust, etc.); and
    • has its own federal court, federal legislature (i.e. Congress), and federal executive government
  • Conflicts may occur between:
    • federal law & state law; and
    • one state law & another state law.
  • This means Bar Exam candidates are potentially exposed to different sets of laws

Who writes Bar Exam questions?

  • Many states are too lazy to write their own Bar Exam questions
    • To date, around 40 states (including New York) have delegated the whole portion of Bar Exam works to a national organization, “National Conference of Bar Examiners (“NCBE”)”
    • The remaining 10 states (including California) have delegated partial portion of Bar Exam to NCBE
  • To ensure impartiality, NCBE writes exam questions from a national perspective, but not over-emphasizing one particular state
  • This means Uniform Bar Exam focuses on “Federal Law” or “Laws of Majority among the 50 states”
    • If NCBE syllabus stipulates that only federal law is tested for a particular subject, then you do not need to study state law
    • Otherwise, for other subjects, you only need to understand the broad principles of majority states law, but not the technicalities (because each state probably varies with each other)

Wait a minute…what does the word “Majority” mean?

  • It is wrong by simply counting the number of states among the 50 states (i.e. if 26 states adopt “Position X” while 24 states adopt “Position Y”, it is wrong to say “Position X” is necessarily the majority states law). This is because:-
    • Majority in number of states does not mean majority in number of population
    • Position X may be an outdated view where the 26 states may be striving for reform; by contrast, Position Y may be a modern view that is gaining more prevalence 
  • Always remember that NCBE is a national organization, so NCBE naturally resorts to other national legal organizations that publish persuasive “model laws” to figure out what positions the NCBE considers to be “majority”. For example,
    • American Law Institute” has published:
      • “Restatements of the Law”, particularly on subjects of Agency, Contract, Tort, Conflict of laws, Property, Trusts
      • “Model Penal Code” on Criminal Law
    • Uniform Law Commission” has published:
      • “Uniform Commercial Code” (on Contract, Secured Transaction), “Uniform Probate Code” (on Estates), “Uniform Trust Code” (on Trusts)

Now, you have a basic understanding on what laws are being tested in the Bar Exam.

In the next few blogs, I will go in-depth on how you are being tested in the 3 components of the Bar Exam, namely the “Multistate Bar Examination” (MBE), “Multistate Essay Examination” (MEE), and “Multistate Performance Test” (MPT).

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