MBE Trap: MIMIC

You’ll often be presented on MBE questions with facts indicating that improper character evidence has been offered. And that’ll be a choice in the answers: inadmissible character evidence, inadmissible propensity evidence, or something of the sort.

But before choosing that answer, make sure it’s not a trap. Just because a certain type of evidence cannot be offered for one purpose doesn’t mean it cannot be offered for another purpose. That’s an important theme throughout all of Evidence law: determining what evidence is offered is far less helpful than determining why the evidence is offered. There are five often tested non-character purposes for offering what might at first seem to be inadmissible character evidence: ~Motive ~Intent ~Mistake (it’s actually “absence of mistake,” but that would mess up the MIMIC thing). ~Identity ~Common Plan or Scheme These aren’t the only admissible purposes, though. Evidence won't be inadmissible for character purposes unless offered to prove a general character or propensity to commit the charged crime. If offered for another purpose it's admissible, unless inadmissible for another reason.

MBE Tip: Character Evidence

A few important points to keep in mind to clear up a topic that most of my students find confusing: character evidence in a criminal case:

In a criminal case, the defense can open the door with positive reputation or opinion evidence but *only if that evidence is pertinent to the crime for which the defendant has been charged. The prosecution cannot open the door with negative evidence in the way described above. That would be deemed inadmissible character evidence. But once that door has been opened, the prosecution can walk through it in two different ways. The prosecution can call on direct its own witness to rebut the defendant’s character witness. If it chooses that route, it’ll be limited to the same evidence the defense was limited to when opening the door: pertinent reputation or opinion evidence. The prosecution can instead choose to cross examine the defendant’s character witness. Here, the prosecution can rebut defendant’s character witness with reputation evidence, opinion evidence, *and evidence of specific acts by defendant. Why are specific acts allowed on cross but not on direct. The theory is that those questions are geared not towards proving the defendant’s character (which would be inadmissible character evidence) but instead towards impeaching the defendant’s character witness.

MBE Tip: Recklessness vs. Negligence

Distinguishing recklessness from negligence will be important in criminal law and possibly elsewhere. In criminal law, you're especially likely to need this distinction when tested on homicide.

Why so? Murder under the common law could be committed in four ways (each way provided for the malice aforethought needed to commit the crime). One of those ways was called "depraved heart" murder (a dramatic term, for sure) and, essentially, meant that you killed someone and, though you didn't intend to do so, you acted recklessly, and your recklessness was the cause of death.

Involuntary manslaughter (a type of homicide different from murder), in contrast, required a lesser degree of fault. If you were negligent, and your negligence killed someone, that was enough.

The bar examiners will sometimes ask you to "pick the most serious crime for which the defendant can be convicted." This question directly requires that you distinguish negligence from recklessness, provided that both murder and involuntary manslaughter are choices.

A bit of a trick is just to realize that these two standards are so similar that the more serious crime (here, murder) is likely correct. In other words, if the facts support involuntary manslaughter, then (on this test) they often support murder.

But tricks only take you so far. It's good to understand the distinction. With recklessness, you consciously disregard the risks posed to others. In other words, you realize the danger you pose, but you ignore that realization and act anyway.

Negligence is quite different. If you consciously ignore the risks, then you've acted worse than negligently. With negligence, your error isn't to consciously ignore the risks; it's to not realize those risks when reasonable people would have realized them. Not quite as bad as consciously ignoring them.

These are degrees of fault. A conscious disregard is worthy of more fault than a lack of reasonable care. As such, the crime is more serious when you've done the former than it is when you've done the latter.

MBE Trap: Negligence

In a negligence question, the fact that someone is harmed provides you with potential damages, but does not provide you with a reason to conclude anything about liability. This is so even if the person harmed is a child, or the elderly, or however else the test writers want to try to pull on your emotional strings.

Damages is a necessary condition of a claim for negligence, but it's not a sufficient condition. (As an aside, it's interesting how this type of logical reasoning that you might remember from the LSAT plays into the MBE quite often.) When you see in a negligence question terrible harm caused to a vulnerable person, make sure that there's at least some degree of fault on the part of the person sued. And then make sure that the elements of causation are satisfied. Then, it's fair to make a conclusion

MBE Tip: Logic

Answer choices that merely provide that an essential element has been satisfied should be viewed with lots of skepticism.

For example:

“Liable for battery because x made contact with y and that contact would be offensive to a reasonable person” looks good. It’s got that battery vibe to it.

But elements are necessary conditions, not sufficient conditions (warning: LSAT memories). Stating that an element or any number of elements less than all required elements have been satisfied really says very little of help. It’s certainly not dispositive and these answer choices imply that it is.

If there were 1000 necessary components to creating a computer chip, telling me that 999 of those components are included would not allow me to know that the chip will function. Only 1000 is sufficient for anything definite.

On the other hand, answer choices that eliminate even one element are great. If I know that one of those elements in the computer chip is missing, I can draw a valid conclusion.

MBE Trap: Conspiracy

Imagine 2 people (call them x and y) agree to commit bank robbery (inflation, and all that), and each performs an act sufficient to evidence that they had that agreement.

X decides soon after not only to inform y that he wants nothing to do with the bank robbery, but also to take an additional step of informing the police of y's plans so that the police are waiting for y at the bank. The police are in fact waiting for y and arrest him before any robbery takes place. X has *not withdrawn from the conspiracy. The trap in these questions is that x has withdrawn from something, but he's withdrawn from the crime that was the subject of the conspiracy (the bank robbery). Once a crime has been completed, there's no withdrawal, and the crime of conspiracy was completed upon the agreement and the act evidencing the agreement. If you want to withdraw from a crime, you're going to need to do that before you've completed the crime. To avoid falling for this trap, it should be enough to remember there's no withdrawing from the crime of conspiracy (once the conspiracy has occurred), but it is possible (as was done here) to withdraw from the crime that was the subject of the conspiracy if sufficient steps are taken to effect that withdrawal.

A 4-Step Approach to Hearsay Questions

A 4-step approach to dealing with hearsay on the MBE. Hearsay is to evidence what mortgages is to property what negligence is to torts, etc. They love to test it.

Step 1: Is there an out-of-court statement? If no, it's not hearsay. If yes, move on to step 2. Step 2: Is the out of court statement offered to the court to prove the truth of the matter asserted? If no, it's not hearsay. If yes, move on to step 3. Step 3: Is the statement exempted (or excluded) from the rule against hearsay? If yes, it's non-hearsay. If no, move on to step 4. Step 4: Are there any available hearsay exceptions? If yes, it's admissible hearsay, sometimes referred to as hearsay but an exception. If no, it's inadmissible hearsay.

Employee vs Independent Contractor

Although Employment Law as a subject in itself isn't tested on the UBE, the distinction between an employee and an independent contractor may show up in the subject of Agency, which is tested with some frequency on the essays, and in Torts on both the MBE and on the essays. The distinction plays on liability. An employer is more likely to be liable for the acts of his/her employee than for the acts of an independent contractor. An initial consideration is to determine employee status. Then, scope of employment must be analyzed since an employer is liable only for acts of an employee that occur within the scope of employment. 

The general test of whether a person is an employee is whether the person's conduct in performance of a service is subject to the employer's control or right to control. A number of factors are relevant to this "control" inquiry, including the following:

~Where, when, and how the work is performed. If the person, for example, has set hours and the employer is providing all the tools necessary to do the job, that lends itself to employee status.

~Is the work temporary or ongoing. Temporary work is more likely to be done by an independent contractor, but if there is no specific endpoint, employee status is more likely.

~Does the person have complete autonomy do to the work in the manner he/she sees fit? If instead, the employer directs such things, the person is more likely an employee.

~Is the person free to accept work from other businesses? If so, probably an independent contractor, if not, probably an employee. 

~Is the employer deducting taxes from payments? Employers do so for employees, but rarely for independent contractors. 

There's also some circumstantial evidence that can help guide this decision. Employees generally have company email addresses, attend staff meetings/parties, etc. In other words, if someone is treated as if the person is an employee, it may be because the person is considered an employee by the employer. 

Determining that someone is an employee rather than an independent contractor doesn't end the inquiry for employer liability, however. An employer is liable only for the acts of employees that occur within the scope of the employee's employment. Thus, scope of employment is the next element. 

Whether an employee is acting within the scope of employment depends on whether the employee's act is of a kind that the employee was hired to perform. Also important is to analyze whether the act occurs substantially within the authorized time and space limits provided by the employer, and whether the act is motivated, at least in part, to serve the interests of the employer. 

A final note worth remembering is that the fact that the act may not have been explicitly authorized by the employer is not determinative. An unauthorized act that fits the formulation above may still be deemed an act within the scope of the employee's employment. 

Character Evidence vs. Impeachment

A foundational problem that people have with Evidence on the MBE is knowing whether the question is testing impeachment or character evidence. It’s tough to apply the correct law without knowing which law they are testing!

A solution (in those questions testing either impeachment or character): ~if a witness who is not the defendant is the focus, then the question is testing the rules of impeachment. ~if the defendant who is not a witness is the focus then the question is testing the rules of character evidence. ~if the defendant who is also a witness is the focus, things are less definite. As a witness, the defendant is subject to impeachment. But as the defendant, the rules of character apply. The best approach (this actually *always applies in Evidence) is to determine the reason why the evidence is offered. The reasons for impeaching a witness, and the reasons for excluding character evidence, sit on very different policies.

MBE Trap: Voluntary Manslaughter

Probably the easiest way to understand voluntary manslaughter (under the common law) is to think of it in the following terms: voluntary manslaughter = murder + adequate provocation. In other words, first the elements of murder must be satisfied, and then if there's adequate provocation in addition to those elements, there's a case for voluntary manslaughter. 

That brings me to the trap: the test writers will instead see if you'll make the following mistake: voluntary manslaughter = murder + provocation. 

You'll notice that the word "adequate" is missing from the trap definition. They'll set up fact patterns where a person kills another because the person is "enraged" or "extremely heated" or "very angry." But those are all subjective feelings, and the word "adequate" requires that you first determine that the provocation would also have had the same effect on a reasonable person. 

The fact that someone is enraged isn't irrelevant, but it's also not dispositive. If the person is a "hot head" such that a reasonable person would not have felt that same degree of rage, then don't be so quick to reduce the crime to voluntary manslaughter. 

It's entirely possible for someone to murder another person even if the murderer is extremely angry when committing that act. 

MBE Trap: Option Contracts

There's a trap that appears with relative frequency on the MBE involving option contracts both under the common law and under the UCC. The idea is that for some reason an attempted option never comes about. Under the common law, it's generally because consideration isn't paid for the option. Under the UCC, the time limit for exercising the option has expired. The offeror, thinking that there is no option, then goes ahead and makes that same offer to another (usually someone who is not on notice of the original offer: a "BFP").

The key to not falling for this trap is to remember the following: there is a difference between a revoked offer and a revocable offer.

So, for example, imagine a situation under the common law in which the offeror promises to hold open the offer for x amount of time provided that the offeree give the offeror $100 to hold the offer open. The money is never paid. 

All this means is that the offeror is not bound to hold the offer open: it's revocable. But the fact that the offer is revocable does not mean that the offer is revoked. The offeree, even though no consideration was paid to effectuate the option, can still accept the offer, and if the offeror makes the same offer to another without first revoking the initial offer, the original offeree can accept that initial offer and then potentially sue for breach. 

The same holds for a UCC "firm offer" which is the equivalent of an option contract under the common law. Once that time has run (3 months if not modified downward by the parties) the offer becomes revocable. But it's not revoked. The offeror still must revoke the offer even when the option fails. The key difference is that the offeror is not bound to hold that offer open if no option is involved: the offeror is free to revoke, but still must do so. 

State Taxation (Florida Bar Exam)

What could be more interesting than a discussion on taxation in the state of Florida? You don't need to answer that, but Florida Constitutional Law is a *heavily tested subject, and so if taking the Florida Bar Exam, it'll be important to know it well.

There are limits on the state's right to tax. The following taxes are all relevant for the exam:

Ad Valorem Taxes: These taxes are assessed based on the value of property. Only local governments (rather than the state itself) may levy these taxes either on real estate or on tangible personal property other than vehicles, boats, airplanes, or motor homes. The Florida Constitution places a 10 mill cap on ad valorem taxes. A mill is equal to one dollar for for 1000 dollars of property value, so that cap is 10 dollars for every 1000 dollars of property value. Note, though, that the tax can be imposed by schools, counties, and cities, so the combined cap is 30 dollars for every 1000 dollars of property value. 

There are some exemptions to ad valorem taxes. Property owned by federal, state, or county governments is immune for this type of taxation. Property leased by the government for government purposes is likewise immune. Also immune is property owned by a municipality and used exclusively for municipal or public purposes. Importantly, the exemption does not apply to property owned by a municipality and leased to a profit-making venture. 

Also, it's worth noting that there is a limit on the amount of revenue (through ad valorem taxes or other taxes) that Florida can raise in any given year. Specifically, state revenues collected during the fiscal year may not exceed the revenues collected in the prior year plus an adjustment for growth. A 2/3 supermajority vote is required in both houses of the legislature to raise or impose a new state tax or fee. 

Income & Sales Tax: Although there are corporate income taxes in Florida, there is no personal income tax. There's a 6% sales tax. Local governments can also impose sales taxes which will be in addition to any sales tax imposed by the state. 

Homestead Tax Exemption:

Homestead is defined, in part, as contiguous residential property owned by a natural person up to 1/2 acre within a municipality or 160 acres outside of a municipality. When assessing the value of Homestead for purposes of taxation, there is a tax exemption which decreases the property value by $50,000. Counties or municipalities may grant an additional $50,000 exemption for those aged 65 or older with incomes of $20,000 or less. In other words, with this exemption, the property value decreases, and with that decrease in property value, the amount taxed on the property is decreased as well. 

Fees:

Lastly, it's worth understanding the difference between taxes and fees. Fees may be assessed on users of government facilities. Local governments will also use fees (in addition to taxes) to supplement revenue. Some examples might include a fee for parking in government-owned lots or the fees to use a government-owned park. Because fees are not taxes, there is less regulation. (For example, although taxation might first require legislation, a fee will not.)

Fees, however, are not without restriction. The amount of the fee must be determined using a formula based on the per capita cost of using the facility. There should be no surplus: the fee should cover the cost of running the facility; it must not be intended to generate a profit. Further, the fee must be applied toward the facility. 

The Contracts Clause

The Contracts Clause is not the most commonly tested topic within Constitutional Law on the bar exam. But it's shown up on both the MBE and on essays, so it's a good idea to go into the test with a framework for addressing it.

The Contracts Clause, in part, provides that no state shall pass any laws impairing the obligation of contracts. In determining whether there has been such an impairment, a few questions are addressed. First, whether there is a contractual relationship at issue. If so, next determine whether a state law substantially impairs that contractual relationship. If it does, determine the state's interest in doing so.

Likely, the the part of the analysis that will require the most attention is determining whether the impairment is substantial. And in making that determination, it's helpful to understand what type of state law will not substantially impair a contract. 

A state law does not substantially impair a contract if it merely tracks the contracting parties' likely intent or expectations or if it allows for either party to easily override the statutory provision. In such instances, although there might still be some degree of impairment, the impairment is not deemed substantial. Likewise, a state statute will not substantially impair a private contract if the statute relates to an area already heavily regulated by the state. The parties could have anticipated state involvement and so the impairment will not be deemed substantial. 

In contrast, a state statute does substantially impair a private contract if the statute negates a material term of the contract or negates a term of the contract that induced a party to enter into the contract. 

Once you've determined that a state statute substantially impairs a private contract, the next element to consider is whether, notwithstanding that impairment, the state statute is an appropriate and reasonable measure to serve a significant and legitimate state interest. Yet another constitutional law test to remember, and it seems like some sort of hybrid of other tests you may have already learned. 

The purpose of requiring that a state have a significant and legitimate interest is to ensure that the statute is intended to further that interest rather than to further the interest of one of the privately contracting parties. Because a state statute intended only to favor a privately contracting party will be deemed to violate the Contracts Clause. 

An Approach to Answering MBE Questions

I chose the title of this post with intention. What I'm about to outline is *an approach to answering questions on the MBE, rather than *the approach. People find different approaches useful, and even as I teach students, we work together to figure out the best individual approach. But that said, I do have a preference, and it's outlined below:

Step 1: Read the Call of the Question:

On the MBE, for the most part though not always, the test makers will assign you one of two characters. You'll either be a judge or a lawyer. A judge question is more objectively stated; the question might read something like "who should prevail?" A lawyer question, on the other hand, requires that you take a side and determine the best argument for that side. Such a question might read "what is the best argument for the plaintiff prevailing?"

Reading the call of the question will often provide you with your role. In addition, when practicing for the MBE, at least at the beginning, students will often practice subject by subject. But, on the exam, the cards are thoroughly shuffled, such that all the subjects are jumbled throughout. The call will often clue you in to the subject you're dealing with in a specific question, and that gives you a slight advantage moving on to the facts. 

In general, not reading the call of the question and jumping right into the facts is a bit like getting into a car and driving somewhere with no destination in mind. You sort of find your way as you're traveling throughout the facts. Reading the call gives you an idea of where the question is headed. 

Step 2: Read the Facts:

This here is a rather straight forward step. Before beginning to attempt to answer the question, you've got to read the facts. This step does, however, relate back to step 1. If you've determined that your role is as a lawyer, you should read the facts with an eye towards advocating for whichever "client" they've assigned you. On the other hand, we'd hope that judges would read the facts more objectively, and you should do the same if your role is as a judge in the question. 

Step 3: Eliminate the Two Worst Answers:

After reading the facts, students often begin hunting for the correct answer. Completely natural to do so, but I recommend otherwise. On the MBE, most questions present you with two roads, so to speak, in the answer choices. One road might be the "yes" road, and one the "no" road. Or one might be the "overruled" road, and one the "sustained" road. Many other possibilities as well, but the idea is that two answers point one way, and two answers point another. After reading the facts, the hope is that you'll have an idea which road the correct answer falls within. And then you should first go down the other road. 

The reason for going down the other road is that the goal is to eliminate answers, rather than to hunt down the perfect answer. On this test, there are three answers that are so wrong that they cannot even be argued by any reasonable person as correct. If any one answer other than the correct answer could be argued as correct, then the question is flawed. And these questions are under heavy scrutiny prior to making it onto the exam. Flawed questions are very rare. 

Because three answers must be so wrong that no reasonable person can argue them as correct, it's easier to eliminate wrong answers than it is to try to find the perfect answer. In fact, the perfect answer might not be there! Instead, one answer is not definitely wrong. That's worth understanding well, and it's what makes this a challenging exam. The right answer is simply the answer that is not definitely wrong. 

Go down the road where you do not believe the correct answer resides. Read those two answers, and unless they convince you otherwise (be open to this, of course), cross them out. You'll then be down to two answers, one correct, and one incorrect. 

Step 4: Eliminate One More Answer:

This is tough, no getting around it. You'll now need to travel down the road where you believe the correct answer resides, and eliminate one of the two answers residing on that road. But even with just two answers, the idea is not to spot the right one and choose it. The logic here is the same as it was in step 3. Even with two answers remaining, one of those two answers is so wrong that no reasonable person can argue it as correct. You've got to examine the two remaining answers and find something wrong with one of them. When you've found something wrong with one of the two answers, get rid of it. Only the correct answer remains. 

Step 5: Choose the Last Answer Standing:

At this point, you've eliminate three of the four answer choices. I wouldn't recommend blindly picking the answer that's left. But it's important to understand that most of the work and strategy went into eliminating the others, so the presumption should be that the answer choice left is "correct" as that word applies on this test. In other words, don't be so quick to decide that one of the answers you've already eliminated is better. The idea here is to confirm that the answer not eliminated does not have any blatant flaws. As long as the answer is not obviously wrong, and you're confident that you've found something in each of the other answers that makes each of those other answers wrong, choose the last answer standing. That answer may not be perfect, but it's perfect enough. 

July 2024 Bar Exam Results

Almost all states release some data as to how the candidates in their state performed and I'll organize all that data below as it comes in.

Once scores are released, I'll post here in this post the pass percentages for each state. Listed, for comparison, will be the percentages for both July 2024 and July 2023. Also listed when available will be the number of examinees in each state who took the most recent exam. 

Alabama:

July 2024 Pass Percentage: 57%

July 2023 Pass Percentage: 54%

# of test takers: 561

Alaska:

July 2024 Pass Percentage: 66%

July 2023 Pass Percentage: 58%

# of test takers: 66

Arizona:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 68%

# of test takers: 505

Arkansas:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 70%

# of test takers: 261

California:

July 2024 Pass Percentage: 54%

July 2023 Pass Percentage: 52%

# of test takers: 8,291

Colorado:

July 2024 Pass Percentage: 80%

July 2023 Pass Percentage: 74%

# of test takers: 744

Connecticut:

July 2024 Pass Percentage: 63%

July 2023 Pass Percentage: 56%

# of test takers: 411

Delaware:

July 2024 Pass Percentage: 67%

July 2023 Pass Percentage: 64%

# of test takers: 199

District of Columbia:

July 2024 Pass Percentage: 79%

July 2023 Pass Percentage: 78%

# of test takers: 2,520

Florida:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 61%

# of test takers: 2,892

Georgia:

July 2024 Pass Percentage: 70%

July 2023 Pass Percentage: 70%

# of test takers: 1,181

Hawaii:

July 2024 Pass Percentage: 68%

July 2023 Pass Percentage: 63%

# of test takers: 168

Idaho:

July 2024 Pass Percentage: 71%

July 2023 Pass Percentage: 66%

# of test takers: N/A

Illinois:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 70%

# of test takers: 2,276

Indiana:

July 2024 Pass Percentage: 73%

July 2023 Pass Percentage: 70%

# of test takers: 466

Iowa:

July 2024 Pass Percentage: 84%

July 2023 Pass Percentage: 86%

# of test takers: 189

Kansas:

July 2024 Pass Percentage: 76%

July 2023 Pass Percentage: 77%

# of test takers: 156

Kentucky:

July 2024 Pass Percentage: 77%

July 2023 Pass Percentage: 76%

# of test takers: 366

Louisiana:

July 2024 Pass Percentage: 66%

July 2023 Pass Percentage: 70%

# of test takers: 535

Maine:

July 2024 Pass Percentage: 73%

July 2023 Pass Percentage: 68%

# of test takers: N/A

Maryland:

July 2024 Pass Percentage: 63%

July 2023 Pass Percentage: 59%

# of test takers: 838

Massachusettes:

July 2024 Pass Percentage: 76%

July 2023 Pass Percentage: 73%

# of test takers: 1,717

Michigan:

July 2024 Pass Percentage: 64%

July 2023 Pass Percentage: 55%

# of test takers: 769

Mississippi:

July 2024 Pass Percentage: 80%

July 2023 Pass Percentage: 73%

# of test takers: 151

Missouri:

July 2024 Pass Percentage: 80%

July 2023 Pass Percentage: 81%

# of test takers: 640

Nebraska:

July 2024 Pass Percentage: 79%

July 2023 Pass Percentage: 70%

# of test takers: 229

Nevada:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 63%

# of test takers: 359

New Hampshire:

July 2024 Pass Percentage: 75%

July 2023 Pass Percentage: 63%

# of test takers: 115

New Jersey:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 61%

# of test takers: 1,038

New Mexico:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 71%

# of test takers: 196

New York:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 66%

# of test takers: 10, 392

North Carolina:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 69%

# of test takers: 882

North Dakota:

July 2024 Pass Percentage: 69%

July 2023 Pass Percentage: 60%

# of test takers: 68

Ohio:

July 2024 Pass Percentage: 75%

July 2023 Pass Percentage: 73%

# of test takers: 1,075

Oklahoma:

July 2024 Pass Percentage: 77%

July 2023 Pass Percentage: 68%

# of test takers: 407

Oregon:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 69%

# of test takers: 421

Pennsylvania:

July 2024 Pass Percentage: 77%

July 2023 Pass Percentage: 71%

# of test takers: 1,497

Rhode Island:

July 2024 Pass Percentage: 67%

July 2023 Pass Percentage: 73%

# of test takers: N/A

South Dakota:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 74%

# of test takers: 80

Tennessee:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 67%

# of test takers: 759

Texas:

July 2024 Pass Percentage: 75%

July 2023 Pass Percentage: 71%

# of test takers: 3,323

Utah:

July 2024 Pass Percentage: 88%

July 2023 Pass Percentage: 92%

# of test takers: 336

Vermont:

July 2024 Pass Percentage: 53%

July 2023 Pass Percentage: 58%

# of test takers: 49

Virginia:

July 2024 Pass Percentage: 74%

July 2023 Pass Percentage: 75%

# of test takers: N/A

Washington:

July 2024 Pass Percentage: 73%

July 2023 Pass Percentage: 70%

# of test takers: 734

West Virginia:

July 2024 Pass Percentage: 72%

July 2023 Pass Percentage: 72%

# of test takers: 132

Wisconsin

July 2024 Pass Percentage: 62%

July 2023 Pass Percentage: 58%

# of test takers: 120

Wyoming:

July 2024 Pass Percentage: 65%

July 2023 Pass Percentage: 80%

# of test takers: 52

States & Territories That Have Adopted The NextGen Bar Exam

This post will be ongoing and updated as new states/territories adopt the NextGen Bar Exam. Also listed is the date of first administration.

Alaska

July 2028

Arizona:

July 2027

Colorado:

July 2028

Connecticut: 

July 2026

Florida:

July 2028

Georgia: 

July 2028

Guam

July 2028

Illinois:

July 2028

Indiana

July 2028

Iowa:

July 2027

Kansas:

July 2028

Kentucky:

July 2027

Maryland:

July 2026

Minnesota:

July 2027

Missouri:

July 2026

Nebraska:

July 2027

New Mexico:

July 2027

New York:

July 2028

North Dakota:

July 2027

Northern Mariana Islands:

July 2026

Oklahoma:

July 2028

Oregon:

July 2026

South Dakota:

July 2027

Tennessee:

July 2027

Texas:

July 2028

Utah: 

July 2028

Vermont:

July 2027

Virginia: 

July 2028

Washington:

July 2026

West Virginia:

July 2027

Wyoming:

July 2027

Termination of an Easement

Assume that a valid easement has been created. Easements do not, necessarily, last indefinitely, so it must be determined how a valid easement that has been created can be terminated. And there are quite a few ways to do so. 

Estoppel pops up from time to time in multiple areas of law. Here, too, even an oral expression of an intent to abandon an easement might terminate the easement if the person burdened by the easement materially changes his/her position in reasonable reliance on the easement holder's assurances that the easement will be abandoned. 

Easements created by necessity can, likewise, terminate as soon as the necessity ends. If the land burdened by an easement (the servient estate) is destroyed, any easement on the land is terminated. 

An interesting issue that sometimes shows up on the exam is sort of a hybrid easement/eminent domain issue. Imagine that the land burdened by an easement is rightfully condemned by the government. Any easement on the land condemned is terminated. Whether the easement holder is entitled to any of the compensation required to be paid by the government is a question not entirely agreed upon by the courts. 

Another avenue for terminating an easement is through release. A release by the person benefitted by the easement to the person burdened by the easement will terminate the easement. Similarly, abandoning the easement will terminate it, but be sure that there is some physical act (rather than just an oral promise to abandon) that evidences the intent to abandon (for example, building a structure that blocks the easement).

An important method for terminating an easement is termination by merger. An easement is extinguished when title to the easement and title to the land burdened by the easement become vested in the same person. If the same person acquires ownership of both the easement and the servient estate, these merge and the easement is terminated. 

Lastly, an easement may be terminated by prescription. Here the owner of the land burdened by the easement adversely possesses the easement in such a way that the easement is terminated. The elements are similar but slightly different than the elements traditional to adverse possession. To terminate an easement through prescription, the owner of the servient estate must continuously interfere with the easement holder's right to use the easement, and that interference must be open/notorious, actual, and hostile to the easement holder. As with creating an easement by prescription, the element of exclusivity is not required.