Apr 19, 2008

Why Are My Bar Exam Books Inconsistent?

A common complaint we hear from students in the bar review industry is that the multiple materials they use for bar prep vary significantly on specific points of law. Rule statements from one textbook may be different from those in another, and this causes great anxiety for students understandably interested in picking up every last essay point.

One of the reasons that the books are inconsistent is that the terminology in cases and commentaries is also not consistent. The Restatements occasionally help to remedy that situation, but often this takes an incredible amount of effort and time. Moreover, a Restatement is considered a secondary authority - a treatise published to address uncertainties but not binding. While they are often cited in court cases, they are still not the final word on the black letter law.

So it may be that one bar exam book pulls a rule from the Restatement, while another draws it from the highest binding opinion. It's not a big deal. The graders know that there is a difference and will give you credit for either definition. Most of the time they mean the same thing anyway.


fper said...

Which would you rather see on an essay answer, a Restatement definition or a case definition (assuming there is a substantive difference). I would think the Restatement would be more consistent.

The Bar Code said...

It doesn't matter. Restatement definitions are usually more concise, which is good. But that can also mean they give you much less factual analysis to work with (fewer elements). When in doubt, give the rule that gives you the most facts to work with.