So, as you may be able to tell, I wasn’t having a good day yesterday. I decided to take most of today off to kind of relax and bring myself to a better place. I am feeling a bit better today.
In continuing with my essay series, here is my self-reflection on the answer I wrote for the February 2013 MEE on Constitutional Law. You can find the essay question here.
I decided to write the essay all over again, with the 30-minute time limit. I decided to model the structure and organization of my essay response in the same way that it appears on the rubric. I am doing this because so that it’s easier for the exam grader to give me points. I kind of like stating the conclusion first because I think it lets the exam grader know where I’m headed before I get there. I am liking the CREAC format. It’s an organizational format that I’d never used before.
One thing to remember is that there are always three issues on every MEE essay. Even if the question prompt only poses two questions or issues, there are actually three. I didn’t know this going into the exam, so I only wrote down two issues, even though in my analysis I actually did three. It would have been better to separate the three issues and analyze them individually, regardless of what the question prompt look like. If you look at the question prompt, it only poses two questions. What it’s missing is really the third issue which should be analyzed first, because the two issues listed there on the question prompt turn on how you answer the first issue. That first issue is: “When a privately owned company operates a town, should it be treated as if it were a state for the purpose of constitutional analysis?” I had addressed this in my analysis of the other two issues, but I should have given this issue its own analysis.
I think the examiners wanted me to fall into a trap and say that the 14th Amendment makes the Constitution’s provisions applicable to the states, and that AutoCo is not a state actor, so it is not obligated to uphold the Constitution like the states are. Luckily, I didn’t fall for that. How it turns out is that the AutoCo should be treated like a state due to the public function doctrine, the son’s expulsion was in violation of the 1st Amendment, and that the father’s trespass arrest violated the 1st Amendment.
I was spot on with the first two issues, but I completely missed the third issue. I thought that the anti-leaflet ordinance was just a time, place, and manner issue and since leafleting is just one of many ways to convey speech, the father would just have to pick another way to do it, like talking aloud, or holding up a banner. Now, I realize that my understanding of the time, place, and manner restrictions was wrong. A medium is a way of communicating speech. So leafleting is a way to communicate speech. Banning a way of communicating speech is not allowed. So, what we have here in this essay is a total and complete ban, and not a time, place, or manner restriction. Because it’s a total ban rather than a TPM restriction, then the analysis goes to intermediate scrutiny, and you never reach the TPM analysis altogether.
The intermediate scrutiny for 1st Amendment purposes is: i) the regulation must be narrowly tailored to achieve a significant government interest; and ii) the regulation must leave open ample alternative channels for expressive activity; and iii) the true purpose for the regulation may can’t be the suppression of ideas.
States can regulate the incidental effects of speech out in public if they do it on a content neutral basis. The government’s interest in keeping the sidewalks clear of litter just isn’t strong enough to justify a ban on leafleting. However, to sanction the person distributing the leaflets just because the people who received his leaflets were littering would be over extending that power to regulate. Also, the total medium ban on the leafleting isn’t narrowly tailored, and it eliminates an entire channel of expression meaning that there might not be enough alternative channels of communication open to the person who wants to communicate the speech.
It took me a while to understand why I hadn’t performed well on this essay. In my mind, TPM was the major argument for the father, yet, I didn’t have a handle on what TPM restrictions are all about. I had to call a colleague and discuss the essay. Now that I’ve got it all sorted out, I am feeling that my knowledge has grown a little.
Your friends and family pity you to your face, ridicule you in private, and then are sure to let you know that they’re having a good time this summer, but that they’re just checking in to see how you’re doing.
They send you all kinds of text messages like, “hey, just wanted to see how your summer is going.”
“I’m hanging out on the beach. Getting all this sand in my Barbri books sucks.” – Said no bar retaker ever.
How the heck do you think my summer’s going? Oh that’s right, you passed and I didn’t. So you really have no idea how my summer’s going.
Then you receive pictures of your friends and family on vacation with smiling faces captioned, “wish you were here!”
They ask you to do all sorts of distracting things, like go out to lunch or out to the bar. Or your sister decides to dump your nephews on you and then head out for a day of shopping. I didn’t sign up for this crap. I signed up for the bar. Again.
People will always say they understand what you’re going through, including your family. Then they blast every TV in the house and get mad when you hide in your room all day.
What’s really painful is that you’re in a time in your life when you are trying to be the most positive person you can be, and everyone around you is sabotaging that.
The only person who understands what a bar retaker is going through is a fellow bar retaker.
Which 3 essay subjects do you hope appear on the exam? What about those subjects make you confident in your ability to answer essay questions about them?
The three essay subjects I hope to see on the exam are 1) secured transactions 2) commercial paper 3) and a tie between agency and one specific area of property – mortgages.
Unlucky for me, commercial paper and agency already appeared on February’s exam so I am thinking that it’s a slim chance they’ll be on there again. It was kind of an anomaly for commercial paper to be on there. I was told it rarely ever gets tested. I was glad the bar examiners threw that curveball because my confidence shot through the roof when I saw that in the essay portion. What makes me confident about these particular areas is that I find commercial paper and secured transactions to be fairly straightforward – there is just a right answer, and it’s not so open ended like some other topics like constitutional law or even civil procedure or conflicts of laws. I feel like the analysis is straight to the point and there’s nothing to really waver back and forth about. I also had a great law school experience in these courses. My professor was an excellent professor.
Agency is also one of my favorite topics because the lecturer, Professor Kaufman, albeit kind of crazy, all over the place, and impulsive, he had a way of presenting the material in a very dumbed-down way that made it easy to digest and memorize. I hated sitting through his lectures but the end result was a very neatly organized outline with the concepts broken down in such a way that it was some of the least painful material to memorize.
I really like the mortgages subtopic of property. I gained a lot of confidence in that area because I took some courses in law school on foreclosures and creditors’ remedies. I felt more prepared for that than I did for any other area of property, so going into the next exam I would really like to see an essay on mortgages. I heard it was heavily tested a year ago and it caught everyone off guard, but if it comes I think I’ll be ready for it.
When there is an essay topic that I feel is right up my alley, as I did when agency and commercial paper appeared on the last exam, my confidence shot through the roof. As a result, my best writing style emerges and I am always happy with the result.
Which 3 subjects do you hope don’t appear on the essay portion? Why? What can you do to prepare if those subject show up? Do you need to change your study methods for those topics? Should you practice with these subjects more?
The three essay topics I hope will not appear on the essay portion of the exam are…well, there are more than three: evidence, conflicts of law, civil procedure, wills, trusts.
I didn’t get a solid background on these areas of law while I was in law school. I can blame it on myself for some of it, but I think a lot of it had to do with the professors. The professors I had for civil procedure and evidence really weren’t all that great. I didn’t take conflicts, and I didn’t pay attention in wills & trusts. So that part was my fault. Now, as a result, I am seeing that I feel the least confident when it comes to these areas of law. The fact that my base knowledge in these areas is so weak is such a confidence killer.
When I went to see my bar exam counselor, she told me that to quell anxiety on the bar exam, you have to show up as prepared as you can be in ALL the subjects so that when an essay that you normally wouldn’t like shows up, you’ll be confident because you will be prepared. Basically, she said preparedness is confidence. Last time I took the bar exam, I didn’t have time (or rather, didn’t make time) to practice enough essays to gain the confidence I will need for approaching these topics on the exam. This time, I will be certain to carve out enough time for extra memorization in these topics and time to write (or at least outline) a good amount of essays in all these topics.
This time around, I will make outlines for ALL of the topics, all 16 of them. I have already started on many of them. This is something I hadn’t done last time and I now realize the importance of synthesizing and condensing the information. Outlines are kind of like roadmaps for your mind; they keep you on track when you want to start wandering off in your analysis. Creating my own outline will help me to see the natural flow of thought for each subject area. Another technique I would like to try is to draw out flow charts for certain topics, like evidence. I think evidence is an area that is very conducive to flow charting, especially when working on hearsay and the exceptions. I just found these amazing evidence flowcharts right now. There’s one on determining hearsay initially, and then one to see if the evidence can come in on a hearsay exception. These charts are a life saver!
When I see an essay topic I don’t like, it’s as if it’s not even “me” writing the essay. When I read it over, it’s as if I wasn’t the person who wrote it – the end result is completely unrecognizable as something I would have written. My writing style isn’t that quintessential “me” that I am used to when I lack confidence in the topic.
I struggled with the Fertile Octogenarian Rule of the Rule Against Perpetuities and the Unborn Widow Rule of the Rule Against Perpetuities when I first started studying for the bar exam. These rules are so ridiculous. I think I have finally broken it down into a digestible format. Once I started seeing these rules like this, it was as if my eyes were opened to an entirely new universe. I hope this helps you as much as it helped me.
Fertile Octogenarian Rule – legal fiction that points out the logical flaws in the RAP. Can be used to invoke the RAP to make an interest in property void. The rule assumes that a living person, regardless of sex, age, or physical condition, will always be capable of having more children, thus allowing an interest to vest 21 years after all the lives in being at the time of the grant are dead. Old people get married all the time. Then if they adopt, those legal adoptions can be counted as “having more children.” So the new child doesn’t necessarily have to come from the old woman’s body, making age of the woman irrelevant.
Unborn Widow Rule – legal fiction that points out the logical flaws in the RAP. Can be used to invoke the RAP to make an interest in property void. Without more, a bare reference “to J’s widow” is construed to refer to the unknown person who fits that description on J’s death. It’s not necessarily the person who is J’s wife at the time the instrument is drafted. The RAP presumes the possibility that an old man might marry a very young woman, so young that she wasn’t even born at the time of the grant.
Example of Unborn Widow Rule in Motion: J.’s father conveys: “To J for J’s life, then J’s widow for life, then to J’s surviving children.” It could be J’s current wife, but it might not be. What if J gets married to a new woman who wasn’t born at the time of the conveyance? Consider J. Howard Marshall & Anna Nicole Smith – he was 89, she was 26 when they married – what if the instrument was drafted sometime before Anna Nicole was born? He was already 63 years old when she was born! Also, J. Howard Marshall was married to a few other women before he met Anna Nicole. The bequest will potentially tie up the property for the entirety of J’s life, plus that of J’s alleged widow, who is not yet a life in being and might live more than 21 years after J’s death. In this situation, the interest must fail.
If you are confused, just look at this picture. It says it all.
Today’s journaling exercise from Bar Exam Mind: A Strategy Guide for an Anxiety-Free Bar Exam by Matt Racine is this: Review two quotes and write about what they mean for bar prep.
Lack of time is actually lack of priorities. – Timothy Ferriss
This is SO me. Sooooooo me. I always feel like I’ve run out of time, or that I just don’t have enough time to do all the things I want to do. This quote really makes me think about myself. Is it that I don’t have enough time? Or is that I don’t care? Or is it that I just don’t care enough to prioritize? Or is it that I suck at prioritizing tasks?
I think it’s that I don’t put enough diligence into prioritization. I used to have one of those day planner agenda books well after Google calendar and iCal were in existence. In tune with most of the legal profession, I am slow to upgrade technology to the 21st century. I am the type of person that tends to forget appointments or miss out on doing something that I should have done or that I really, sincerely wanted to do because I failed to mark it down in my agenda. Then, somehow, I run out of time or I just don’t have time to begin with, and so on and so forth.
This quote is an eye-opener. What it is saying to me that the time is there, but the priorities are not. If you want to get something done, you will do it because you have made it a priority. This especially rings true for bar studies. Last time, I ran out of time to make my own condensed bar outlines and flash cards. I think the real truth is that I didn’t figure out how to make the time to do it. That is to say, I did not prioritize such tasks, and then later blamed it on Barbri’s schedule being too full for me to incorporate outline creation and flash cards into the daily study routine.
What I am seeing now is that I think prioritization is important when studying for the bar. There is a lot of material to internalize, and you have to do it in your own way by prioritizing the type of study habits and techniques that have proven to work for you in the past. Even if that means not doing things Barbri’s way, and eliminating some of the tasks Barbri sets out for you and replacing them with your own, highly prioritized tasks.
This time, I have begun the creation of condensed subject matter outlines for all of the areas of law to be tested on the exam. I have also started creating flash cards on all of the MBE subjects. I am feeling better about bar exam round two already.
The second quote is:
[Diligence is] the necessity of giving sufficient attention to detail to avoid error and prevail against obstacles. – Atul Gawande
One thing I am doing this time around that helps me avoid error by giving sufficient attention to detail is that I have created and Excel spreadsheet for logging all of the MBE practice questions that I get wrong. I had mentioned this in an earlier post and I think it is such a wonderful thing that it’s worth mentioning again. By looking at this spreadsheet, I can see the exact topics that trip me up time and time again and spend more time focusing on improvement in those areas. If you are doing Barbri, the StudySmart online MPQ essentially does something similar – it tracks your multiple choice questions and lets you know which specific topics in evidence, for example, are troubling you. As I mentioned, I am an old-school type of person, so I tend to stick to the paper and pencil multiple choice.
What I am already noticing the second time around for bar study is that the concepts are coming back to me faster. The first time around, I had to learn everything from what seemed like scratch. It was as if I’d never taken a year of torts, a year of contracts, and so on in law school. This time it is allowing me to focus, giving sufficient attention to detail. Now that I am paying more attention to the details rather than trying to shove information in my brain, I am starting to see how all of the moving parts of various areas of law work together. It is not just a matter of rote memorization anymore. It is a matter of observing the inner workings of the concepts and having that “a-ha!” moment in my mind that makes me feel a great sense of accomplishment. Those kinds of moments are priceless.
I am feeling much better about getting a “pass” this time. I feel like in my mind I can see my name on that pass list. This is a feeling I didn’t have last time.
My law school offers a lot of wonderful perks to its students. One such perk is that the school assigns each student a bar exam counselor. The bar exam counselor’s job is to help students pass the bar. I had a counselor the first time I took the bar, but I didn’t really rely on her assistance. I met with her once, emailed her once, and that was it. Really, what she was there for was to give me feedback on my essays, go over tips on how to improve the efficiency of my studying, and so forth. I figured I would just do what Barbri told me to do and I would be fine. As you can see, I was not fine. So I crawled back to her, asking her for help. Here are some of the highlights of our meeting.