A cursory glance at Bar Exam Toolbox’s Brainy Bar Bank reveals some pretty wide schisms between two of the most popular (as in “lots-of-people-do-it,” not “lots-of-people-like-it”) tests in our profession. For instance, although both California (CA) and Universal Bar Exam (UBE) test-takers have to take the Multistate Professional Responsibility Exam, CA makes sure that takers can help Luke or Lisa or Len or Liz out of a slew of ethical quandaries on just about every test. Meanwhile, Professional Responsibility doesn’t appear once on the UBE.
Similarly, while UBE takers have encountered Family Law on a majority of the exams administered in the past decade, the closest CA takers get to the subject is splitting up motorcycles and vacation homes in Harry and Wanda’s divorce for a Community Property question. Community Property, by the way, is tested almost as frequently as Family Law, with 17 appearances since 2002.
Topic in Focus: Torts
One subject the two tests have in common, however, is Torts. Some people actually don’t mind Torts, thanks to what might be considered colorful fact patterns about absurdly clumsy people. However, for those who shy away from element-heavy analysis, Torts can be a bit daunting as well, as it includes some of the most sub-issue-infused-issues on the bar exam. Knowing which issues to prioritize in your Torts study can hopefully relieve some of that anxiety, regardless of which exam you’re taking.
Torts Subtopic Frequency
Unsurprisingly, when it comes to frequency, Negligence holds a top spot for both the CA and UBE. We all know the general Negligence refrain: (1) duty (2) breach (3) causation (4) damages. Yet, within the world of Negligence is a rich variety of sub-issues that the CA and UBE examiners have taken upon themselves to illuminate.
CA tends to most frequently test the issue as a whole (known as “Standard Negligence”). The UBE takes a more elemental approach. So, while an overview of Standard Negligence is par for the course in CA Torts questions, the UBE has drilled down on Standard of Care and Causation in most of the Negligence questions it asks. Meanwhile, Prima Facie Negligence (presumably, similar to “Standard Negligence” in CA), is only tested as a whole about half the time.
There are other disparities in the way Torts is tested between the two jurisdictions. One of the most glaring is that Intentional Torts are tested as often as Negligence in CA, whereas they are among the least tested topics in the UBE, appearing on only three of eleven Torts questions. Is there a cultural context to explain these differences? Do California examiners have more diabolical imaginations, taking pleasure in pain (i.e. damages)? Anyone who has taken the CA bar will likely answer that with a resounding “Yes.”
The UBE, on the other hand, prioritizes Shared Liability over Intentional Torts. Shared Liability has appeared in UBE Torts questions in one form or another in almost half of its Torts questions. CA has only examined Shared Liability in four of the last seventeen essays. Because of the difference in Torts frequency over the past ten-plus years (CA: 17; UBE: 11), this actually amounts to a similar amount of time (CA: 4/17; UBE: 5/11.) However, speaking in terms of proportionality, the UBE appears to prioritize shared conduct–or misconduct–over the CA examiners.
For both CA and UBE takers, a good move would be to memorize (meaning, write out repeatedly) Strict Liability, and Strict Products Liability in particular, since these are heavily tested in both exams. Look out for facts that trigger the following elements: 1) commercial suppliers; 2) some kind of defect (design, manufacturing, inadequate warning); 3) no substantial alterations – i.e. the defect existed when the product left the defendant’s control; 4) causation; 5) damages.
As you scroll through the Brainy Bar Bank, remember that it’s a tool for helping you study smart, and that part of studying smart is understanding bar examiner priorities. So, have fun looking at bar exams through the ages with BET’s study tools, remember to take breaks when needed, and keep an eye out for those accident-prone trespassers and exploding children’s toys.
Interested in other subject comparisons? Read more: