Cecily Zamora
Constitutional law is a regular feature of the California Bar Exam, and while it is somewhat predictable, it does not appear in every exam. Remedies, on the other hand, are often tested on their own but sometimes appear alongside other subjects, including Constitutional Law. The remedies portion of the exam typically focuses on legal, restitutionary, and equitable remedies, with fact patterns that cue test-takers to identify the relevant remedy or remedies that could be granted. Constitutional Law and Remedies have been combined in the past, with essay questions covering topics such as the Free Exercise Clause, the Establishment Clause, and free speech.
| Characteristics | Values |
|---|---|
| Frequency of Testing | Constitutional Law is regularly tested on the California Bar Exam, appearing about once every two to three exam administrations. |
| Subjects Tested With | Constitutional Law is usually tested on its own but is sometimes combined with Real Property, Criminal Law, or Remedies. |
| Types of Questions | The California Bar Exam includes essay questions. |
| Topics Covered | Topics vary and may include the Free Exercise Clause, the Establishment Clause, free speech, the Dormant Commerce Clause, the Contracts Clause, and more. |
| Preparation Strategies | Students can practice answering essay questions from previous exams to familiarize themselves with highly tested topics and question structures. |
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What You'll Learn
Injunctions and prior restraints
In the United States, the First Amendment guarantees freedom of speech, and any prior restraint on speech is generally considered unconstitutional. However, there are certain exceptions, such as in cases of national security or to prevent imminent lawless action. To be valid, a prior restraint must meet strict scrutiny, which means that it must be narrowly tailored, reasonable, and definite. It is important to note that prior restraints are generally viewed with scepticism by courts and are subject to strict scrutiny because they restrict free speech before it occurs.
In the context of the California Bar Exam, it is important to understand how injunctions and prior restraints interact with other areas of law, such as defamation and free speech. For example, in the case of Balboa Island Village Inn v. Lemen, the California Supreme Court approved a targeted injunction that forbade the defendant from repeating proved defamation. This case illustrates how an injunction can be used as a prior restraint on speech in certain circumstances.
Additionally, when studying for the California Bar Exam, it is crucial to be familiar with the different types of injunctions and prior restraints that may be tested. These include temporary restraining orders (TROs), preliminary injunctions, permanent injunctions, and specific performance. Understanding the requirements for obtaining each type of injunction and the legal standards that must be met is essential for successfully answering essay questions on the exam.
In conclusion, injunctions and prior restraints are important topics in constitutional law and are frequently tested on the California Bar Exam. To prepare effectively, it is crucial to understand the legal doctrines surrounding these concepts, their interaction with other areas of law, and the different types of injunctions and prior restraints that may be encountered. By studying relevant case law and practising essay questions, bar exam candidates can enhance their understanding of these complex legal concepts and improve their chances of success on the examination.
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Ripeness, mootness, and free speech
Remedies are often tested on their own in the California Bar Exam, but they can also be combined with other subjects, such as Contracts, Constitutional Law, Torts, Evidence, and/or Professional Responsibility. When answering Remedies essay questions, it is helpful to determine the claim that might be raised and the remedies that the party might seek. Legal, restitutionary, and equitable remedies should be discussed, with legal remedies analysed prior to equitable remedies.
Constitutional Law is regularly tested on the California Bar Exam and is somewhat predictable in terms of how it is tested. It does not appear in every exam but shows up about once every two to three exam administrations. It tends to be tested on its own but is sometimes combined with Real Property or Criminal Law.
The July 2019 Constitutional Law essay combined Remedies and Constitutional Law and covered ripeness, mootness, and free speech, among other topics.
Ripeness refers to the existence of a real controversy at all stages of review. If the matter has already been resolved, the case will be dismissed as moot, with an exception for controversies capable of repetition. Mootness is also related to the plaintiff's ability to prove injury or the threat of injury, causation, and redressability.
Free speech is a broad topic that is frequently tested in the California Bar Exam. Examiners often test time-place-and-manner restrictions and general free speech principles. The First Amendment generally prohibits the government from restricting the content of speech unless it can prove that the restriction is necessary to achieve a compelling government interest. However, certain categories are not protected by the First Amendment, including speech inciting imminent lawless action and fighting words. The government can place reasonable regulations on the time, place, and manner of speech, depending on whether the forum is public or nonpublic. If the forum is a traditional or designated public forum, the regulation must be content-neutral and reasonably related to a legitimate government interest. Content-neutral speech regulations are generally subject to intermediate scrutiny.
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Substantive due process and takings
Constitutional Law is regularly tested on the California Bar Exam, and it is somewhat predictable in terms of how it is tested. It does not appear on every exam but shows up about once every two to three exam administrations. It tends to be tested on its own, although it is sometimes combined with Real Property, Criminal Law, or Remedies.
When Constitutional Law is combined with Real Property, topics such as takings and the substantive Due Process Clause tend to be tested. Substantive due process is the principle that the Fifth and Fourteenth Amendments of the U.S. Constitution protect certain fundamental rights from government interference. Specifically, the Fifth and Fourteenth Amendments prohibit the government from depriving any person of "life, liberty, or property without due process of law." The Fifth Amendment applies to federal action, and the Fourteenth Amendment applies to state action.
The concept of substantive due process is evolving, and it has been interpreted to include things such as the right to work in an ordinary job, to marry, and to raise one's children. The Supreme Court has determined that fundamental rights protected by substantive due process are those deeply rooted in US history and tradition, viewed in light of evolving social norms. These rights are not explicitly listed in the Bill of Rights but are assumed in certain Amendments. For example, the Supreme Court has interpreted substantive due process to include the right to privacy.
When answering Remedies essay questions, it is helpful to determine the claim that might be raised and any remedies the party might seek. Discuss legal, restitutionary, and equitable remedies, analyzing legal remedies before equitable ones. Remedies questions often ask about the specific remedy, remedies, or relief that could be granted. Remedies are often tested on their own but are sometimes combined with another subject, such as Contracts, Constitutional Law, Torts, Evidence, and/or Professional Responsibility.
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Tort and contract law
Remedies, torts, and contracts are all regularly tested on the California Bar Exam. Constitutional law is also regularly tested, but it does not appear in every exam and is somewhat predictable in terms of how it is tested.
When answering remedies essay questions, it is helpful to determine the claim that might be raised and any remedies the party might seek. Legal, restitutionary, and equitable remedies should be discussed, with legal remedies analyzed before equitable remedies. Remedies are often tested on their own but are sometimes combined with another subject, such as contracts, torts, constitutional law, evidence, or professional responsibility.
Torts are tested about once every year and a half. Negligence is the most tested topic in torts on the California Bar Exam essay portion and the MBE portion. It is a good idea to dedicate a lot of time to making sure you have mastered negligence. When addressing a products liability issue, you should analyze both strict products liability and negligent products liability. Other highly tested topics in torts include contributory negligence, assumption of risk, and comparative negligence.
Contracts are also tested on the California Bar Exam. For example, in February 2021, an essay question combined remedies with contracts, applying the UCC and covering contract formation, the Statute of Frauds, the perfect-tender rule, warranties, revocation of acceptance, expectations, compensatory damages, and rescission.
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Sovereign immunity
Constitutional law is regularly tested on the California Bar Exam, although it does not appear in the essay portion of every exam. It tends to be tested on its own but is sometimes combined with other subjects such as Real Property, Criminal Law, Contracts, Torts, Evidence, and/or Professional Responsibility. When combined with Real Property, the focus is often on takings and the substantive Due Process Clause.
Remedies are also often tested on the California Bar Exam, either on their own or combined with other subjects. When answering Remedies essay questions, it is important to determine the claim being raised and the remedies the party might seek. Legal, restitutionary, and equitable remedies should all be discussed, with legal remedies analysed before equitable remedies. Remedies fact patterns may specifically ask about the remedy, remedies, or relief that could be granted.
When tested on remedies in the California Bar Exam, sovereign immunity could be relevant in several ways. For example, essay questions might ask candidates to discuss the impact of sovereign immunity on the availability of legal remedies for individuals seeking redress from the state. Candidates might also be asked to analyse the process for waiving sovereign immunity and the implications for potential remedies. Understanding the concept of sovereign immunity and its application is crucial for effectively addressing such questions.
Additionally, the interplay between sovereign immunity and constitutional rights can be explored in essay questions. Candidates may be presented with scenarios involving alleged violations of constitutional rights by state entities and asked to discuss the remedies available to aggrieved individuals in light of sovereign immunity principles. This requires an understanding of both the scope of sovereign immunity and the protections afforded by the relevant constitutional provisions.
In preparation for the California Bar Exam, it is essential to familiarise yourself with the nuances of sovereign immunity and its potential exceptions. Exam takers should also practise analysing fact patterns, identifying relevant issues, and proposing appropriate remedies while considering the implications of sovereign immunity. By honing these skills and knowledge, candidates can effectively navigate remedies questions related to sovereign immunity and enhance their overall performance on the California Bar Exam.
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Frequently asked questions
One example is the July 2019 Constitutional Law essay, which covers the standing of an organization, ripeness, mootness, the Free Exercise Clause, the Establishment Clause, and free speech.
It is helpful to determine the claim that might be raised as well as any remedies that the party might seek. Discuss legal, restitutionary, and equitable remedies, and analyze legal remedies before analyzing equitable remedies.
Constitutional Law is regularly tested on the California Bar Exam, but it does not appear in the essay portion of every exam. It shows up about once every two to three exam administrations.
