Rethinking Criminal Law on the bar exam

Last week, thousands of aspiring lawyers took the bar exam.  In New York, Criminal Law and Criminal Procedure are tested on both the Multistate Bar Exam and state portions of the bar exam.  Including these subjects on the "New York day" makes perfect sense to me.

The MBE is a different matter altogether.  The MBE is a six hour, 200 multiple choice question exam that is administered in most states.  Both questions and their answers are developed by the National Conference of Bar Examiners.  "The questions on the examination are designed to be answered by applying fundamental legal principles rather than local case or statutory law," says the NCBE.  What are the fundamental legal principles that apply to Criminal Law?  Most bar takers are taught to look to the common law, Model Penal Code, and modern statutory developments to ascertain these principles.

But this is unrealistic and unworkable.  Putting aside Criminal Procedure, which does have a core set of U.S. Supreme Court decisions that make up its framework, there is no such thing as "fundamental legal principles" in Criminal Law.  Very few states still have a common law approach to the subject.  Nearly every state's Criminal Law is governed by the "local case or statutory law" that the MBE rejects.  Common law, MPC, and modern statutory developments often conflict with one another.

There are some things that states' "local case or statutory law" have in common—mens rea, actus reus, causation, and other general principles.  But even with these broad categories, the details are so numerous and varied that it is difficult just to ascertain which rules most states follow.  The NCBE "subject matter outline" for Criminal Law is not much help.  It is a half page long.  Students, bar prep companies, and others are left guessing which rules are applicable and which ones are not majority rules.

In my view, Criminal Law should be tested solely on the state portion of the bar exam.  (LC)

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