Bar Passage Seminar Program BYU Law School Seminar #1

The Seminar Program  Seminar #1: Introduction to the Bar and the Multistate Bar Exam (MBE)  January 21, 6:00 pm  Seminar #2: MBE subjects continued  January 29, 6:00 pm  Seminar #3: Multistate Essay Exam (MEE)  February 5, 6:00 pm  Seminar #4: Multistate Performance Test (MPT)  February 12, 6:00 pm

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Commercial Bar Prep, Typical Daily Schedule  Courses typically begin the 3 rd week in May and last approximately 60 days—until the Bar Exam  Daily Schedule:  9 am - 12pm: Lecture and note taking  12 pm -1 pm: Lunch Break  1 pm - 5 pm: Outline, practice questions, practice essays  5pm - 7pm: Dinner Break  7 pm - 9 pm: Outline and note review, outline preview for tomorrow

The Bar in General

Typical Bar Exam  2 days, 6-7 hours of testing per day  Composed of:  MBE (multiple choice)  MEE (short essay)  MPT (longer essay/work product)  These “national” tests are written by the National Conference of Bar Examiners (NCBE)  Many state bar organizations write their own essays or performance tests (and therefore don’t use the NCBE provided MEE or MPT)  All states but Louisiana use the NCBE provided MBE  Some states require 3 days of testing

The Uniform Bar Exam (UBE)

The UBE Jurisdictions offering the UBE  Alabama  Arizona  Colorado  Idaho  Missouri  Montana  Nebraska  New Hampshire  North Dakota  Utah  Washington (July 2013)  Wyoming UBE composition and weight  The UBE is composed of the MBE, the MEE (6 essays), and the MPT (2 performance tests)  Grading weight:  MBE: 50%  MEE: 30%  MPT: 20%  It is uniformly administered, graded, and scored by user jurisdictions and results in a portable score.

The Multistate Bar Exam (MBE)

MBE Basics and Jurisdictions  The multiple choice aspect of the Bar  Administered the second day of the bar exam (on the last Wednesday in February and the last Wednesday in July each year)  “Purpose is to assess the extent to which an examinee can apply fundamental legal principles and legal reasoning to analyze given fact patterns.”  Given by all jurisdictions except Louisiana  Each jurisdiction determines its own policy with regard to the relative weight given to the MBE and other sections

The MBE Test  Contains 200 multiple choice questions, 190 of which are scored  The 10 unscored are being evaluated for future use  There are 4 possible answers on each question  a, b, c, d  Morning testing session:  100 questions in 3 hours  Afternoon testing session:  100 questions in 3 hours  Subject areas: Constitutional Law (31), Contracts (33), Criminal Law and Procedure (31), Evidence (31), Real Property (31), and Torts (33).

MBE Scoring  The MBE is scaled. This is a form of curve grading based on the difficulty of the particular exam you are taking and how others taking it perform in comparison.  EXAMPLE: a raw score of 50% would probably put you close to the bottom 10% of those taking the test, while a raw score of 70% would probably put you in the top 10%  THIS MEANS that you can get questions wrong and still get a great score. It also means that you don’t have a lot of wiggle room.  Each jurisdiction individually determines what a “passing” score is. UBE jurisdictions use the same standard.

MBE Timing  100 questions in 3 hours  Shoot to spend 1.8 minutes per question  Try to answer 33 questions per hour  Remember that an incredibly long Rule Against Perpetutites question counts the same as the short and easy criminal law questions.  Be prepared to skip a few questions—and when you skip, truly skip  You can always come back if you have time (only to the 100 you’re currently answering)

MBE Strategy  Typical approach: ① Identify the area of law by reading the call of the question ② Scan the answer choices (be careful not to jump to conclusions!) ③ Read the fact pattern critically and carefully ④ Re-read the call of the question, and carefully read each answer choice ⑤ Eliminate incorrect answer choices ⑥ Apply the rule and exception to the fact pattern

MBE Strategy  Eliminate an answer choice if:  The answer mischaracterizes the fact  The answer choice assumes a fact in dispute  The answer’s reasoning is legally incorrect  The law is stated incorrectly  The answer applies a minority rule  A rule of law is perfectly stated, but inapplicable to the issue  The answer is not the “best” answer  The answer is partly true, and partly false

MBE Strategy—Other Tips  NEVER assume facts  Avoid skipping around  If two answers are exactly opposite, one is probably true  Be leery of absolutes (“always” or “never”)  Focus on conjunctions (“because,” “if,” “only if,” “unless”)  After each question, let it go, even if you’ve marked it to come back later  Do as many practice questions as you possibly can

MBE Strategy  MOST IMPORTANTLY KNOW THE LAW  You know how to study for this—it’s very similar to any other multiple choice law school exam  Use commercial outlines to make your own condensed version  MEMORIZE rules and exceptions to rules  Then practice, practice, practice

Constitutional Law 31 questions

Constitutional Law Subject Matter Outline I.The nature of judicial review A.Relationship of state and federal courts B.Jurisdiction C.Judicial review II.The separation of powers A.Powers of Congress B.Powers of President C.Federal interbranch relationships III.The relation of nation and states in the federal system A.Intergovernmental immunities B.Federalism-based limits on state authority IV.Individual rights A.State action B.Due process C.Equal protection D.Takings E.P&I Clause, Contracts clause, Bills of Attainder, Ex Post Facto F.First Amendment freedoms Visit to find full outlines

Sample Constitutional Question #1 A statute in the state of Texona prohibits any retailer of books, magazines, pictures or posters from “publicly displaying or selling to any person any material that may be harmful to minors because of the violent or sexually explicit nature of its pictorial content.” Violation of this statute is a misdemeanor. Corner Stone displays publicly and sells magazines containing violent and sexually explicit pictures. The owner of this store is prosecuted under the above statute for these actions. In defending against this prosecution in a Texona trial court, the argument that would be the best defense for Corner Stone is that the statute violates the a.First Amendment as it is incorporated into the Fourteenth Amendment, because the statute is excessively vague and overbroad. b.First Amendment as it is incorporated into the Fourteenth Amendment because a state may not prohibit the sale of violent or sexually explicit material in the absence of proof that the material is utterly without any redeeming value in the marketplace of ideas. c.Equal protection of the laws clause, because the state irrationally treats violent and sexually explicit material that is pictorial differently from such material that is wholly composed of printed words. d.Equal protection of the laws clause, because the statute irrationally distinguishes between violent and sexually explicit pictorial material that may harm minors and such material that may harm only adults.

Sample Constitutional Question #2 The state of Green imposes a tax on the “income” of each of its residents. As defined in the taxing statute, “income” includes the fair rental value of the use of any automobile provided by the taxpayer’s employer for the taxpayer’s personal use. The federal government supplies automobiles to some of its employees who are residents of Green so that they may perform their jobs. A federal government employee supplied with an automobile for this purpose may also use it for the employee’s own personal business. Assume there is no federal legislation on this subject. May the state of Green collect this tax on the fair rental value of the personal use of the automobiles furnished by the federal government to these employees? a.No, because such a tax would be a tax on the United States. b.No, because such a tax would be a tax upon activities performed on behalf of the United States, since the automobiles are primarily used by these federal employees in the discharge of their official duties. c.Yes, because the tax is imposed on the employees rather than on the United States, and the tax does not discriminate against persons who are employed by the United States. d.Yes, because an exemption from such state taxes for federal employees would be a denial to others of the equal protection of the laws.

Sample Constitutional Question #3 Agitator, a baseball fan, has a fierce temper and an extremely loud voice. Attending a baseball game in which a number of calls went against the home team, Agitator repeatedly stood up, brandished his fist, and angrily shouted, “Kill the umpires!” The fourth time he engaged in this conduct, many other spectators followed Agitator in rising from their seats, brandishing their fists, and shouting, “Kill the umpires!” The home team lost the game. Although no violence ensued, spectators crowded menacingly around the umpires after the game. As a result, the umpires were able to leave the field and stadium only with the help of a massive police escort. For his conduct, Agitator was charged with inciting to riot and was convicted in a jury trial in state court. He appealed. The state supreme court reversed his conviction. In its opinion, the court discussed in detail decisions of the United States Supreme court detailing the First Amendment free speech clause as incorporated into the Fourteenth Amendment. At the end of that discussion, however, the court stated that it “need not resolve how, on the basis of these cases,” the United State Supreme Court would decide Agitator’s case. Instead, the court stated, “this “court has always given the free-speech guarantee of the state’s constitution the broadest possible interpretation. As a result, we hold that in this case, where no riot or other violence actually occurred, the state constitution does not permit this conviction for incitement to riot to stand.” The United States Supreme Court should a.Affirm the state supreme court’s decision, because Agitator’s ballpark shout is commonplace hyperbole that cannot, consistently with the First and Fourteenth Amendments, be punished. b.Remand the case to the state supreme court with directions that it resolve the First and Fourteenth Amendment free- speech issues that is discussed in such detail. c.Dismiss the writ as improvidently granted, because the state supreme court’s decision rests on an independent and inadequate state law ground. d.Reverse the decision of the state supreme court, because incitement to violent action is not a free speech protected by the First and Fourteenth Amendments.

Sample Constitutional Question #4 The vaccination of children against childhood contagious diseases (such as measles, diphtheria, and whooping cough) has traditionally been a function of private doctors and local and state health departments. Because vaccination rates have declined in recent years, especially in urban areas, the President proposes to appoint a Presidential Advisory Commission on Vaccination which would be charged with conducting a national publicity campaign to encourage vaccination as a public health measure. No federal statute authorizes or prohibits this action by the President. The activities of the Presidential Advisory Commission on Vaccination would be financed entirely from funds appropriated by Congress to the Office of the President for “such other purposes the President may think appropriate.” May the President constitutionally create such a commission for this purpose? a.Yes, because the President has plenary authority to provide for the health, safety, and welfare of the people of the United States. b.Yes, because this action is within the scope of executive authority vested in the President by the Constitution, and no federal statute prohibits it. c.No, because the protection of children against common diseases by vaccination is a traditional state function, and, therefore, is reserved to the states by the Tenth Amendment. d.No, because Congress has not specifically authorized the creation and support of such a new federal agency.

Sample Constitutional Question #5 The legislature of State X enacts a statute that it believes reconciles the state’s interest in the preservation of human life with a woman’s right to reproductive choice. That statute permits a woman to have an abortion on demand during the first trimester of pregnancy but prohibits a woman from having an abortion after that time unless her physician determines that the abortion is necessary to protect the woman’s life or health. If challenged on constitutional grounds in an appropriate court, this statute will probably he held a.Constitutional, because the state has made a rational policy choice that creates an equitable balance between the compelling state interest in protecting fetal life and the fundamental right of a woman to reproductive choice. b.Constitutional, because recent rulings by the US Supreme Court indicate that after the first trimester a fetus may be characterized as a person whose right to life is protected by the due process clause of the Fourteenth Amendment. c.Unconstitutional, because the state has, without adequate justification, placed an undue burden on the fundamental right of a woman to reproductive choice prior to fetal viability. d.Unconstitutional, because a statute unqualifiedly permitting an abortion at one state of pregnancy, and denying it at another with only minor exceptions, establishes an arbitrary classification in violation of the equal protection clause of the Fourteenth Amendment.

Sample Constitutional Question #6 State Y has a state employee grievance system that requires any state employee who wishes to file a grievance against the state to submit that grievance for final resolution to a panel of three arbitrators chosen by the parties from a statewide board of 13 arbitrators. In any given case, the grievant and the state alternate in exercising the right of each party to eliminate five members of the board, leaving a panel of three members to decide their case. At the present time, the full board is composed of seven male arbitrators and six female arbitrators. Ellen, a female state employee, filed a sexual harassment grievance against her male supervisor and the state. Anne, the state’s attorney, exercised all of her five strikes to eliminate five of the female arbitrators. At the time she did so, Anne stated that she struck the five female arbitrators solely because she believed women, as a group, would necessarily be biased in favor of another woman who was claiming sexual harassment. Counsel for Ellen eliminated four males and one female arbitrator, all solely on grounds of specific bias or conflicts of interest. As a result, the panel was all male. When the panel ruled against Ellen on the merits of her case, she filed an action in an appropriate state court, challenging the panel selection process as a gender-based denial of equal protection of the laws. In this case, the court should hold that the panel selection process is a.Unconstitutional, because the gender classification used by the state’s attorney in this case does not satisfy the requirements of intermediate scrutiny. b.Unconstitutional, because the gender classification used by the state’s attorney in this case denies the grievant the right to a jury made up of her peers. c.Constitutional, because the gender classification used by the state’s attorney in this case satisfies the requirements of the strict scrutiny test. d.Constitutional, because the gender classification used by the state’s attorney in this case satisfies the requirements of the rational basis test.

Next Seminar… Next 5 MBE subjects with outlines and practice MBE questions Contracts Criminal Law and Procedure Evidence Real Property Torts