Notes

Today was the last day of the bar exam.

We had a contracts and remedies crossover, real property, and a wills and community property crossover, in that order. The first question was easy, with specific calls and well-defined facts. The second question was pretty straightforward, too. I finished it fifteen minutes early, as did the guy next to me. And I noticed a lot of people getting up to go to the bathroom toward the end of that hour. The third question was tough to organize and had a pretty sticky issue with some quasi-community property stock, but otherwise wasn’t particularly difficult.

Then in the afternoon there was a racehorse-y performance test with some extremely fact-intensive analysis of custody for the purposes of a Miranda violation. For the uninitiated, Miranda is the case that gave us the famous warning: “You have the right to remain silent. Anything you say can and will be used against you in court. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.” Basically, if a statement is obtained from someone who is in police custody, during police interrogation, that statement is inadmissible unless the Miranda warning is given and a “knowing and intelligent” waiver of the Miranda rights is obtained. But if the statement is made by someone who is not in custody, you don’t need a warning or waiver. So defendants are always trying to argue that their statements were made while in custody, while prosecutors and police are always trying to argue that statements were made while not in custody. Our performance test this afternoon gave us a case where we had to argue on behalf of a prosecutor that a particular defendant was not in custody when he made self-incriminating statements. It was not remotely interesting. Also, I thought the cops were jerks, so it was hard to argue for their side. But whatever.

Now it’s over. Even though I had two margaritas a while ago, it still hasn’t really hit me that I don’t have to study anymore. We’re going to enjoy a bottle of champagne in a bit, though.

Studying for the bar exam is a drag. Taking the bar exam is not too bad. If you can graduate from law school, survive bar review, and drag yourself to the exam site for the first session, the eighteen hours of testing is not too bad. My bar exam was not nearly so hard as I expected. I didn’t walk out of any sessions feeling like I had blown them. Everything seemed pretty straightforward. The MBE felt weird, but everything else went down essentially the way I practiced it.

Obviously I can’t tell anybody how to pass the bar exam because I’ve not yet actually passed, but I’m not particularly worried about failing. I would say just make sure you study. If you study hard and then keep yourself together during the exam, it won’t be too bad. You will memorize at least ten times more law than you actually need, which will ultimately be disappointing, but there’s no other way to approach it.

Anyway, like I said, there’s a bottle of champagne waiting for me.

The Multistate Bar Exam (“MBE”) is comprised of two hundred multiple-choice questions. California administers the MBE as the second day of its three-day general bar exam. Today was that day for me.

For some people, the MBE is the hardest part of the test. Others have an easier time. Last week, while studying one morning at Starbucks, I ran into a former classmate who said the MBE was the easiest part of the California bar exam when he took it last summer. A few minutes ago someone else called me and said that when he took the bar exam, the MBE was maybe the toughest part. So it could go either way. My experience was more like the former classmate’s. Compared to writing three essays and a performance test, it seemed pretty easy to me. But I know everybody is different when it comes to multiple-choice questions.

There are two parts to the MBE. One hundred questions in a three-hour morning session, then one hundred questions in a three-hour afternoon session.

The Mood

Yesterday, things were tense at the test site. Nobody knew what was going to happen. Just about everybody was nervous. Today the mood was much lighter. People were laughing and talking and generally engaged in much more relaxed body language. Maybe that’s because we are more familiar with the process, but I heard other people pointing out that the nice thing about the MBE is that we don’t have to produce anything from memory. The answers are right there to be chosen. I think that had a lot to do with the mood. There may also be a good number of people like me, my former classmate, and my partner here with me, who feel that the MBE is the least stressful part of the bar exam.

The Warning

When we started the morning session, the lady up front who reads the instructions and “general instructions” began with a stern warning that we are not to discuss or disclose, in whole in part, in writing or orally, any content from the MBE. I am cynical. I suspect this warning must be how the National Committee of Bar Examiners keeps from having to write all new questions for each administration of the test. In the past, bar review companies would pay people to attend administrations of the MBE and memorize the questions, to be reproduced later and used to help their customer students practice. Then there was a lawsuit. Now there’s a warning. And the front of the test booklet has a statement to the effect that by breaking the seal on the book you are certifying that you are not taking the exam for any reason other than to gain admittance to the bar in the jurisdiction where you are sitting for the exam.

So I will not be talking about any of the questions here. Not that I could if I wanted to. It’s hard to remember any specific content from any of two hundred multiple choice questions.

The Test

If you properly prepare, the MBE is not too bad. I did about 2,500 practice questions. (The former classmate I met at Starbucks had done 7,000, which seems like overkill to me.) Both BAR/BRI and MicroMash provide explanations for all of the answers to their practice questions, so every time I missed a question, I wrote down in a notebook whatever I should have known to get the correct answer. That resulted in about 140 pages of handwritten notes. From those, I made flash cards of the more difficult rules.

My system seemed to work pretty well. There were not that many questions today where I honestly did not know the applicable rule of law. Maybe four or five. For most of the questions, I felt pretty confident in my answers. I was less sure about may be ten or twenty percent of them, but for all of those I was able to narrow the four available choices to two possible choices, which is a good place to be. My system might not work for everybody, but whatever you do, have a system.

Unique Things about the MBE

When you go to the MBE, you don’t take your computer. It’s just an ordinary standardized test. They give you a booklet and a machine-readable answer sheet. You use a pencil and you fill in bubbles. If you finish early—and a lot of people do—you can leave early. Technically, you can leave the exam room early on the first and third days, but you are not allowed to take your computer until the session ends, so you are still pretty much bound to the time schedule.

Today I finished the morning session about twenty minutes early and the afternoon session about fifty minutes early. My partner also finished early, so we left the exam site early. If you want to get out early, you need to finish before they call the five minute warning. Once there are only five minutes left, nobody is allowed to leave. Then, after time is called, you have to sit there while all the tests are collected, which takes about twenty minutes and is a major drag. So if you finish twenty minutes before time is called, you are really getting away from the exam site about forty minutes before the people who took the entire time. In our opinion, that is a major benefit of finishing quickly, not least because it gives you a longer lunch break. We were able to come back to our hotel, use the bathroom in our room, go down to the hotel restaurant, and have delicious pizzas for lunch. It was much more relaxing than yesterday’s mad-dash to Taco Bell.

Nevertheless, if you are taking the MBE, do not try to work faster than your natural pace. If you need the whole time, then take the whole time. During our practice tests, my partner and I both were consistently able to finish 100 questions in two and a half hours, so we were able to finish early without rushing our natural pace. That’s another reason to do a lot of practice questions and to do them in timed sets that approximate the real thing. It helps to know what you can handle, or whether you need to work on improving your speed.

Miscellany

There really isn’t much more to say about the MBE.

But if you are taking the bar exam in a location like the San Mateo Expo Center, where there are perhaps more than a thousand applicants in a single huge room, I recommend getting up and going to the bathroom or to get water at least once, even if you think you don’t need to. On your way back to your seat, look out across the crowd. It’s pretty weird. I don’t know if I’ve ever seen more people in one place making less noise.

The other weird thing to experience is the effect of the rule that communication between test-takers is prohibited during the session. In a large location like this one, there are enough people that, at any given moment, at least a few are up to use the bathroom or drink water, so there is pretty constant traffic. But nobody wants to break the rules. So far I have gotten up to use the bathroom twice. Both times, I felt almost like a ghost. There are people everywhere, but none of them look at you because none of them want to be perceived as communicating. And you don’t look at them. Everybody just drifts around, looking at the floor, staring into space, whatever. It almost feels forbidden to just look up and across the crowd of people working at their tables. I could only manage to look for a couple seconds each time before I felt this weird, invisible compulsion to look back down at the floor.

While waiting to go inside for the afternoon session today, we talked to a couple other people from SJCL—so far as we know, there are only five of us at this location—and observed that the “security” of the bar exam is pretty easy to enforce because every single applicant has enormous amounts of time, money, education, and expectation invested in this exam. I don’t think I have ever witnessed or participated in another social setting where the alignment of interests among all the constituents is so stringent that none of them are screwing around. Nobody wants to get one of those “Rule XII violation notices” that they keep telling us about.

Everybody is polite and courteous. Nobody is really complaining, except to make some quiet remarks that the repetitive instructions make us feel like grade schoolers sometimes. When proctors tell people to do something, they do it. Yesterday the proctor for my group told us to turn in our materials in a way that contradicted the instructions. Several of us said something like, “Oh, I thought we were supposed to do it differently,” but everybody did what the proctor said.

Don’t be confused about this point though. Most of the proctors are not being “strict” or harsh. There is one lady who seems to be a lot more high strung than the other proctors. Maybe she is in charge. But she certainly doesn’t seem to be striking fear into anyone’s heart. The requirements for admission to the State Bar of California are quite enough, thank you very much.

It makes me think about society in general. Whenever you get into your car and drive on public roads, you are facing potential consequences every bit as grave and life-altering as failing the bar exam, if not more so. There should be a similar alignment of interests creating this high level of cooperation and courtesy. But there isn’t. Drive anywhere and you’ll see that an astonishing number of people are complete jackasses, flagrantly violating multiple rules. Those violations make driving dangerous, increase the likelihood of death or serious injuries, and everyone would benefit if everyone recognized their shared interest in safety. But they don’t.

Anyway, it’s just something to think about until tomorrow, when I’ll probably write about what it’s like to finish the dreaded California bar exam.

[Note: I originally published this post this morning. Then, after listening to the stern warning about disclosing information regarding the MBE this morning, I wondered whether there were any rules that would get me in trouble for talking about an essay question after a session had ended but before the whole exam had ended. So I pulled the post and read through all the rules that the state bar association sent me, as well as Rule XII of the Rules Regulating Admission to Practice Law in California, but didn't find anything that made this post objectionable. So here it is.]

A while ago I checked to see what kind of search terms were bringing people to my blog overnight. Here are a couple:

California Bar Exam June 2008 Executive Order

“executive order” “bar exam” 2008 california

So I was right. That second question threw everybody off. Apparently somebody was thrown so hard they even forgot that we are taking the July bar exam, and not the June bar exam, which does not exist.

Basically, I first asked whether there were any executive powers expressly granted to the President by the Constitution that would have authorized the Order. Then I looked to see whether there had been a Congressional delegation of legislative power. For the preemption part, I just discussed the same rules I would use for Congressional preemption, even though I have no idea whether they would actually be used. In the final section, regarding the Fourth Amendment, I basically just went through my outline from state action to reasonable expectation of privacy to the warrant requirement to exceptions to the warrant requirement. I analyzed the “National Security Requests” as though they were warrants and then made comparisons like asking whether the “Secretary of Homeland Security,” who issues the Requests, would be a “neutral and detached magistrate.” Stuff like that.

At least one other person has pointed out, and I agree, that it’s not clear whether that question was a true constitutional law and criminal procedure crossover. The Fourth Amendment discussion is clearly within the purview of criminal procedure, but the analysis was so far afield from every practice question I’ve done that I’m not sure. If I had to guess, I’d say this question will just go down as one of those really weird ones that Professor Sakai will pull out during future BAR/BRI essay workshops to make bar candidates groan and quiver with fear. And he’ll say, “Yeah, that’s right. This was question number two in 2008. How about that?”

Now we’re off to the MBE.

We just got back to our room after the first full day of the California bar exam, followed by a delicious chicken dinner in the hotel restaurant. We are exhausted. And stuffed. The chicken dinner we ordered came with a breast, a thigh, and a leg, together with carrots, asparagus, and rice. Neither of us finished, but it was super-tasty. If you’re going to be taking the bar exam, you might as well eat good food. Stay at a nice hotel.

Anyway, the test. In all the stuff I read beforehand, from various sites on the web, and in everything people told me, nobody really said what the exam is actually like, down to the nitty-gritty details. So I thought it might be helpful for some people to explain how it all goes down.

Other locations may be a little different. (E.g., in Los Angeles this morning there was an earthquake—a friend sent me a text message and said chandeliers were swinging and people were screaming during the third essay question). Here’s how it went down in San Mateo, July 2008.

Getting in the Door

The instructions we received in the mail from the state bar told us that people using laptops needed to be at the test site, seated, with their computers ready to go by 8:15. They recommended arriving about twenty minutes early and told us that we would need our admission tickets and a photo ID to get in. But that’s all they told us. So we showed up pretty early, before 7:30, because we were thinking that getting a couple thousand people through the doors and seated was going to take a while. Twenty minutes didn’t seem like nearly enough time. Turns out we were wrong. The instructions make sense, now that we know how the process works, but the stuff they leave out is the stuff that made us worried about getting up early enough.

When we arrived at about 7:20, there were already a bunch of people standing around. The doors were locked. Nobody knew what was supposed to be happening. New people would trickle in from the parking lot, walk past and say, “Are the doors open yet? Is this the right place?” It was very odd. So we just stood there, holding our stuff, as the crowd amassed. There weren’t nearly so many freaked out people as I expected. Most everybody looked ready to go. Nobody was studying outlines or doing any last-minute cramming. Fate was upon us.

About fifteen minutes before 8:00, a pudgy, middle-aged guy emerged from one of the doors. There were hundreds of people standing around out there, spread out over a pretty substantial area. Maybe seventy yards across and about twenty yards deep. I don’t know. But big enough that one guy standing near the door and talking in an ordinary voice was not going to be very helpful. He said something about how, after we got inside, people with briefcases or backpacks needed to leave them against the walls. Then he went back in.

A few minutes later, from another door, a woman emerged, but she didn’t come very far out. She said some stuff we couldn’t hear. She was basically talking to about four people who were standing next to her. It wasn’t very helpful. None of us really knew what was going on and we just wanted to go inside and set our stuff down.

Finally, around 8:00, they opened the doors and we all streamed in. That thing about the admission ticket and the photo ID? There was just a guy at the door kind of glancing at our tickets. He tried to be helpful. He told me my seat was in the third section over. He told my partner her seat was in the second section over. Wrong on both counts.

Once we got in, we just had to find the seat with our applicant number.

Sitting Down

The “desks” were ordinary tables, probably the eight foot long variety, lined up end to end. Two padded folding chairs to each table. Electrical outlets strung out along cables on the floor. Each chair had a badge with an applicant’s name and number, with a packet of papers.

Once we found our seats, we plugged in our computers, fired them up, and started the ExamSoft application. We also unpacked supplies from our clear plastic bags. I recommend a large ZipLoc bag, the kind that are about eight or ten inches on a side. I don’t know what volume they hold. Anyway, we all pulled out our pens and pencils and highlighters and clocks and earplugs.

Each group of thirty seats has a proctor, who was there telling us to get out our photo ID and our admission ticket, to leave them on the table in front of us throughout the exam. We also needed to put our badges onto the front of our clothing somewhere. You have to wear the badge while you’re taking the test, but then you leave it at your desk when you leave for lunch or at the end of the day.

Once you get set up at your table, you pretty much just wait for the instructions and “general announcements” to begin.

Instructions and General Announcements

Starting around 8:30, there was a lady at the front of the room who read some scripted instructions and “general announcements.” You have to write your name and applicant number on these colored covers that, I presume, your answers will go into once they’re downloaded and printed. She walked us through that. Then she told us the basic rules, where the bathrooms were, etc. Most of the rules are no-brainers, but there are some specific ones, like the fact that you’re not allowed to leave after they give the five minute warning. But you can leave any time before that.

The instructions are a little ominous. They’re completely scripted. The lady was clearly just reading them. And very mechanically. At the beginning she said something like, “The morning session will begin immediately at the conclusion of the general announcements.” When she said that, it was sort of like when you get onto the roller coaster and the harness comes down and they lock you in. There’s no getting off.

The First Moments of the Bar Exam

And, true to what she said, the exam began at the conclusion of the announcements. One minute you’re sitting there listening to someone tell you not to talk to anybody but the proctors during the exam, the next minute you’re on the clock with the most important test you’ve ever taken.

It’s a little weird. For the last few minutes before it started, I felt strange and detached. The bar exam is this terrifying event that I’d been anticipating for three years and, suddenly, actually being there seemed banal. It was just a big, cavernous room that has probably held livestock exhibitions before, with bare concrete floors, filled with some of the smartest and most irritating people I have ever met, many of whom are pacing or tapping or rocking or staring into space or trying to make small talk with the people next to them.

And that’s a weird thing in itself. Here are all these hundreds of people you have never met, but for this one period of three days, you are all on pretty much the same page. You are all thinking about the same stuff. Everybody is talking about stuff that Professor Honigsburg said in BAR/BRI. I heard somebody say, “Good ideeeeeeaa?” If you took BAR/BRI, you know exactly what that’s about.

When I could tell the instructions were coming to a close, I put in my foam earplugs. That made for an eerie feeling. The foam expanded and all the sound just went away and all I could hear was my own breathing. I kept reaching for my pocket because I wanted to pull out my iPhone and send a text message to somebody, anybody, but my phone was back in the car. My computer had me locked out of everything, so no internet. I wasn’t allowed to talk to anybody. And the loudest thing I could hear was my own breathing. Immediately, I thought of that scene from Saving Private Ryan, shortly after they land on the beach and the sound goes muffled, everything goes in slow motion, and the perspective seems like it has been ripped out of reality and is hovering in some other dimension.

So there we were. The lady up front said we could begin. I started the time on my watch, which I had previously set to noon and stopped, for easier time-telling during the session. I typed “begin” on ExamSoft. I turned the page to open my exam.

Even in law school, when the stakes were much lower, there was something just a little bit terrifying every time an exam began. I just knew that for the next three hours, I would be doing nothing but reading, analyzing, and writing. The bar exam feels the same way. You just have to breathe and go.

For the first couple seconds, there was this weird feeling: “Wow. My first bar exam question.” But then, since I’ve studied and practice, instinct kicked in. I read the call of the question. I read the fact pattern. I started outlining. That’s really the only way to do it, I think. You just get mechanical, you go step by step, and you never, ever freak out.

The First Three Essay Questions

Last night, my partner said something about how the first three questions usually follow a pattern. The first one is a “racehorse” (there are so many issues to talk about that you write frantically for the entire hour), the second one is a “thinkum” (there are only a couple issues, but you have to grapple with them pretty hard), and the third one could be anything.

Our first question was on professional responsibility, a subject I hate. You’d think it should be easy, but it’s ridiculously complex. These questions are like minefields, filled with hidden duties just itching to be breached. But I got started without really stopping to contemplate anything. An hour later, I was still writing frantically.

You have to stop after an hour though. If you don’t, you will get yourself all screwed up.

So I turned the page. Constitutional law and the Fourth Amendment. Is that a criminal procedure crossover? Wait, the whole thing is about an executive order. I didn’t study executive orders. Everybody said the hot topic in constitutional law was individual rights. What is this monster?

About fifteen minutes into that second question, while I was staring at the fact pattern and trying to figure out what to write, I suddenly realized that it was a “thinkum.” And that the first one had been a “racehorse.” They were following the pattern.

The third question was a pretty normal contracts question. Nothing really weird. Contracts questions always leave this weird flavor in my mouth, but I never do particularly badly on them. This one felt like every other contracts question I have written: I have no idea how well I did. But I’m glad it felt normal.

So those were the three essays. A “racehorse,” a “thinkum,” and a “whatever.” Once I realized we were following the pattern, even though it gave me no real help answering the questions, I felt better. It freed me up on that constitutional law question. I realized I could be creative. I remembered the email from my boss yesterday, who wished me good luck and said that when I got that one question when I wouldn’t have any idea, “bullshit works.”

Talking to a few people later, it seems most everybody had the same experience with that second question. During that question I did glance around and saw quite a few empty screens well into the hour. A lot of people were just sitting there staring at the fact pattern. So that was probably one of those questions that makes or breaks you, where they separate the sheep from the goats.

Lunch

Once you finish the morning essays, it’s not like you can just get up and take off to lunch. You have to sit there while they collect everybody’s scratch paper and answer covers and whatnot. That takes about twenty minutes. It’s pretty excruciating. I just wanted to get out of there, eat something, go to the bathroom, whatever. But they make you sit there and wait.

Most people just stayed around the exam site, eating lunch in their cars or whatever. We drove over to a Taco Bell we reconnoitered yesterday because we wanted to eat something familiar. We just got our food to go and drove back to eat in the parking lot. Then we went back to the doors, locked again, and went through pretty much the same drill as the morning session.

The First Performance Test

After lunch, any nervousness from the morning was completely gone. I just wanted to take a nap. But there I was, getting locked in for another three hours.

First, before we started, they had us give them fingerprints. While we were out at lunch, they left a little inkpad and two separately wrapped moist towelettes on each table. They require you to give fingerprints to make sure you are who you claim to be. Impostors not allowed. So unless you’re like that dude from Gattaca, there’s no faking it. If you refuse to give them fingerprints, they give you a Rule XII warning notice.

Our first performance test was a refreshingly straightforward affair. The instructions were simple, the materials were easy to understand, and the assignment was just an ordinary neutral memorandum. There were a lot of things to discuss, so it was a little racehorse-y, but other than that we thought it was pretty easy, especially after some of the practice tests we did. A couple of those were downright painful.

The end of the performance test is just like the end of the essay session. You sit there and wait for about twenty minutes while the proctors collect everybody’s stuff.

One Day Down

Only one day is finished, but it feels like two. When I studied, there were several days when I put in the equivalent of two three-hour sessions, and they were tiring, but never so exhausting as this. All in all, though, I have been pleasantly surprised that the bar exam is nowhere near as scary or difficult as I expected. And, really, when you think about it, there is no reason it would be any different. If you study hard and you do a lot of practice questions, how much variation can there really be? There are only so many things they can ask and all your essays follow pretty much the same pattern: Issue, Rule, Analysis, Conclusion, Issue, Rule Analysis, Conclusion, and so on. Even when they throw you a weird question about the constitutionality of an executive order, the range of possibilities is not excessive. You can make something up. Bullshit works.

Of course, we still have the MBE tomorrow—that’s 200 multiple choice questions—and another round of three essays and a performance test on Thursday. But we know that professional responsibility, constitutional law, contracts, and maybe even criminal procedure are probably off the table. They still might hit us with a vicious performance test, which worries us a little, but we’re in it now. Things are not going badly. We’re not demoralized.

Maybe somebody taking a future bar exam will stumble on this page and find it helpful to see the mechanics of how the thing plays out. It’s not that bad. Most of the proctors are very nice. A couple of them got a little irritated when people stood up before we were dismissed, but otherwise they’re not mean or anything. Just make sure you study and do lots of practice questions. They can’t give you anything so outlandish that your brain will melt and drip out of your ears.

But now it’s time to relax. I’ll probably post again tomorrow and tell you about the MBE.

We stopped studying at 5:30. Then we went downstairs to the hotel restaurant and ate chicken caesar salads for dinner. We walked to the exam site, to see how long it takes, so if someone slashes our tires during the night, we’ll know what to do. It’s 25 minutes from our hotel room to the registration area for the exam. Then we had a drink at the hotel bar and came back up to the room.

The San Mateo Expo Center is kind of dumpy. It’s not a convention center, but more like a fairground. The two “rooms” where the exam will be administered are just bare, cavernous, barn-like halls. There are folding tables lined up in rows, with two chairs at each table. For every thirty seats—three rows of five tables—there is a chair for a proctor. In front of the tables, they have thick, black electrical cables with outlet boxes every couple feet, for plugging in laptops. It does not look remotely pleasant. We did manage to find a rack of chairs around back that had not been set up yet. We pulled one off the rack and tested it, to see how it “sat.” Fairly comfortable. They’re pretty sturdy, too, for folding chairs.

All around the hotel we see people who will be taking the bar exam. They’re easy to spot. Some of them are lugging around green BAR/BRI books. Others of them are studying outlines. Some of them, you just know that single people dressed so casually, with backpacks and such, checking into a hotel like this on a Monday afternoon, surely are only here for the bar exam.

The ones who are still studying, well, they need to stop. There’s nothing they’re going to learn the night before the bar exam that they didn’t already know. Since a large part of the bar exam is just not freaking out, taking some time to relax seems the most sensible thing to do.

At any rate, it’s time for bed. Tomorrow, the bar exam.

The California bar exam begins on Tuesday morning, less than three days from now. Tomorrow is the last full day I have to prepare; on Monday morning we are traveling to the exam site and exploring the environs. We have decided that once we eat dinner on Monday night, there will be no more last-minute studying. As a practical matter, though, I suspect the last-minute studying will end when we arrive at the hotel, check in, and lug our stuff up to the suite.

But I am tired of studying anyway. It feels pretty strange to have so much detailed, specifically organized, and potentially useful information crammed into my head. I think the contents of my skull must be something akin to a supersaturated fluid right now. On Friday, the pressure will be released, everything will fall out of solution, and I will probably never again remember eight different ways to terminate an easement (estoppel, necessity ending, destruction by other than a willful act of the owner of the servient tenement, condemnation of the servient tenement, release in writing, abandonment, merger of title to the easement and the servient tenement in the same person, prescription).

If I really wanted to waste time and chase readers away, I could probably sit here for the rest of the night and spew legal rules all over the page. Does anybody want to know what the landlord’s rights are when a tenant breaches the duty to pay rent while out of possession of the leased premises? How about all the elements of the M’Naghten, Model Penal Code, Durham, and “irresistible impulse” tests for insanity? Requirements for a corporate officer or director to recover permissive indemnification for litigation expenses? Didn’t think so.

For the last few days, there has hardly been a moment when I haven’t been thinking about legal rules for the bar exam. If you had a conversation with me during the last three days, I was probably not paying much attention to you. Instead, I was thinking thoughts like, “So the Federal Rules of Evidence allow a judgment of conviction for a felony to come in as an exception to the hearsay rule to prove any fact essential to that judgment, but under the California Evidence Code that only works in civil cases. I have to remember to note the California distinction if that comes on the exam. Remember, evidence question, criminal case, hearsay, felony judgment, California distinction. Oh, and stop forgetting about Proposition 8 every time you look at an evidence question involving a criminal case. Evidence, criminal case, Proposition 8. Remember.”

It sort of reminds me of that one episode of Star Trek: The Next Generation where Commander Data has a girlfriend. They kiss and the following dialogue ensues:

Girlfriend Jenna: What were you just thinking? 

Data: In that particular moment, I was reconfiguring the warp field parameters, analyzing the collected works of Charles Dickens, calculating the maximum pressure I could safely apply to your lips, considering a new food supplement for Spot . . .

Jenna: I’m glad I was in there somewhere.

It’s not a terribly interesting way to exist. Exhausting, too. But when I go to bed tonight, all of this will keep running, absent a pharmaceutical intervention. “Don’t forget that Congress can consent to a state law burdening interstate commerce and discriminating against residents of other states. Don’t forget Proposition 8. Don’t forget to mention every document and person referred to in the file if a performance test requires fact-gathering. Don’t forget that false light invasion of privacy can overlap with defamation. Don’t forget that when a fraudulent representation prevents a testator from revoking his or her will, the will is not probated, but the intestate heirs may take only as constructive trustees for the intended beneficiaries.” You get the idea.

It’ll be pretty disappointing if I fail and have to do this again.

For those of you keeping track, yes, today is my birthday. My age is now the square root of that number of years at which, when you reach it, said Yoda to Luke Skywalker, “look as good, you will not.” I’m not a Jedi yet, either. Still need to pass the California bar exam next week.

There now remain only eight full days before the California bar exam. If you discount the Monday before the exam, when I will be traveling up to San Mateo and casing the joint, then there are only seven full days left to study.

So far I have:

• Written close to 40 practice essays, encompassing all of the subjects covered on the exam. (The number is approximate because I wrote a few of them by hand and they have gotten lost in my piles of preparation materials. But there are 33 typed up on my computer.)
• Written 4 practice performance tests.
• Answered just over 2,200 multiple-choice MBE questions.
• Written about 250 pages of outlines for all the subjects covered on the exam.
• Created enough flash cards to make a stack about two and a quarter inches tall.

I haven’t counted how many hours I’ve spent studying. It’s a lot. More than I have ever spent studying for anything. I lost track of how many legal pads I’ve used up but I’ve completely drained about five blue Pilot Precise V5 pens and about three Sharpie Accent Highlighters.

And now it looks like my trusty Apple Pro Mouse is dead. Or dying. (Replacing that before the exam will make for another annoying unforeseen expense, after the AC adapter for my MacBook and the earbuds for my iPhone, both of which died a few weeks ago and had to be replaced.)

Based on the Google searches that bring people here, I assume that some of you are looking to compare your bar review progress to others. I have no idea how my numbers stack up. But I am tired of studying and rapidly approaching the place I always tried to reach about a day before final exams during law school: complete and utter boredom with the material. Everything seems too familiar.

When I see a flash card that says “piercing the corporate veil” on one side, my inner monologue tumbles through something like “avoid injustice, alter ego, undercapitalization, shareholder personally liable, easier for tort victim, whatever,” which is pretty much a summary of what’s on the other side of the card, except for the “whatever” part. But the “whatever” part is pretty much a summary of how I feel.

Yesterday, I was so sick of studying that I actually spent a couple hours reading Heidegger. You know, to unwind. And if you know anything about Heidegger, that should tell you what studying for the bar exam is like.

The last BAR/BRI lecture was this morning. Now there are twelve full days left before the California bar exam. I have about 250 pages of outlines that I constructed from my lecture notes. Those outlines cover almost everything I need to know for the exam, but everyone says it’s impossible to know everything anyway. Nevertheless, I still need to study and do a bunch more practice questions.

To that end, I will try to stay away from this blog for the next couple weeks. If I post something, feel free to comment and tell me to shut up, stop blogging, and study.

Law.com has a commentary that expresses fairly well some of the main reasons why I like Barack Obama. Here are a couple excerpts:

Obama’s legal education, his law review work and his teaching have produced a presidential candidate whose positions on major issues have been described as nuanced, compromised, centrist or insincere. They might be all or some of these things, but many of them are also legally sophisticated. This matters to anyone who wants to truly understand Obama’s thinking. Legal analysis cannot be adequately portrayed in political terms, and to push Obama’s beliefs back and forth along the conventional left-right spectrum badly misrepresents them.

. . .

I sense a certain temperament and a style of thinking that sounds and feels very familiar. I would be surprised if many of my colleagues in legal academia did not sense it too. 

The rest of the commentary discusses Obama’s positions on both the child-rape-death-penalty case recently decided by the Supreme Court and his vote for the wiretapping bill last week.