Passachusetts No More!

By Tania N Shah, Esq. President, LawTutors, LLC
The July 2012 Essay portion of the MA Bar Exam renders the commonly known nickname “Passachusetts” no longer applicable. Compared to the last thirty bar exams, these essays were by far the most issue-laden and challenging, especially with respect to the time given to answer each question.  With 36 minutes per essay (to issue-spot, outline and write), Massachusetts is definitely making their bar students rise to the type of challenge we see in states like New York, California and Florida. 

For example, in Question 7 of the Afternoon Session of the Essay Exam, a student is asked to analyze the various issues surrounding a domestic relations question. In the past, these usually focused on straight forward pre-marital agreements, support and custody issues. This essay, while involving  agreement and support issues, also included capacity to marry, void and voidable marriage (drunk impotent creepy CEO husband who marries 16 year old), interesting contractual  issues, issues surrounding modern conception (IVF), and issues surrounding forcing someone to be a baby-daddy.  While the concepts themselves are not too difficult, two significant changes must be noted from the Domestic Relations question of the past:

1.       Instead of just a few issues to focus on, just about every Domestic Relations issue one can imagine was tested in this essay.

2.       The issues involving capacity, contract, support, ante-nuptial agreements, and divorce were numerous, not always straight forward and very dependent on one another.

3.       A student still has only 36 minutes (not a change).

Question 8 in the Afternoon Session was a mix of torts, ethics, contracts, corporations, and, just for the heck of it, criminal law.  This poor lady who used to be the VP of a corporation has everything in the world happen to her in the above-mentioned essay question. She is recruited by another corporation, told she must steal the secrets of her old corporation “or else”, she calls the lawyer of her old corporation who doesn’t care what she does, she calls her own boss who threatens her, and once she gives the information to her new boss, the new boss fires her and then both bosses attempt to defame her in all sorts of ways. Of course our poor ex-VP gets depressed, drinks too much, the bartender makes her take a cab home, and the cab driver has a record.  And, just to make things more tragic for our victim, she ends up getting beaten by the cab driver. But wait, you want to hold the cab company responsible since they never checked the cabbie’s record, but alas, the record is based on speeding, not beating passengers.  And the bartender…poor guy was just trying to be a good guy, wasn’t he? So what to do with all of this? And only in 36 minutes?

Question 3 in the Morning Session was another issue-laden essay involving just about everything that can be tested in a property essay. For starters, a student must understand that MA is a title theory state, and what that means. Then, they must also discuss:

·         Everything on easements (express, implied, prescription, merger, written)

·         Mortgages and the laws of foreclosure, what happens with recording and the difference between  Subject to and Assuming the mortgage

·         Equitable Servitudes and Restrictive Covenants

·         Nuisance

·         Fraudulent Conveyance and After-acquired title

·         Impact of Title Theory on all above issues

One must note, every  property issue in this essay seems to depend on how one analyzed the issues before that. And the seventh issue may be dependent on the first issue, which may or may not affect the outcome of the third issue (if you could even find the third issue). It is not just the numerosity of the issues, but the complexity in the ways that they are tested that has significantly changed in the last couple of years. So, you know, perfectly doable in 36 minutes right?

Lastly, Essay Question 1 in the Morning Session should make law schools in Massachusetts seriously consider making First Amendment a significant portion of their Constitutional Law Class (1^st Amendment is often offered as a separate class and not part of the curriculum in a “regular” Constitutional Law class. In fact, some schools do not require constitutional law at all). It is not just this bar exam: Massachusetts LOVES the First Amendment, especially in the context of a school setting.  I have this listed as the most highly tested Constitutional Law topic in Massachusetts since 2002, with equal protection (especially in the context of affirmative action) following as a not-so distant second. But I have seen the First Amendment come up more in the last few years than ever before, and it seems like it is always going to be a hot topic. On the bright side, this is way better than getting stuck with, say, the Habeas Corpus question they tested once or the Eminent Domain question tested another year.

The Massachusetts Bar Exam has changed. So what? Well, take California for instance: nobody has ever called California’s bar exam “Passachusetts” (not just because it doesn’t rhyme). California’s exam has always been extraordinarily hard to pass. 30% pass rates are no surprise. And Florida, for example, has always had those maddening Florida- specific multiple choice questions that could be based on seven topics, but always on four for sure, and sometimes on the other three. But regardless of their difficulty, students know what to expect.

The Moral of the Story: Massachusetts is an evolving exam, and, as evidenced by this summer’s exam, it is not evolving into something that makes life easier on law students.  Hence, it is crucial that bar programs designed to teach to the Massachusetts’ Bar Exam evolve with it, or else our students will find themselves in a difficult disparity between what they might expect and what they actually get on exam day.