Bar None Review will offer free bar exam workshops on Wednesday, May 21st and Saturday, May 24th. To register, contact Bar None Review at: (562) 799-5581 or via email at: pass@barnonereview.com
Lisa Duncanson
Program Director/Founder
Bar None Review
(562) 799-5581
barnonereview.com
Here are a few of the messages we received this evening:
“Thank you so much for all of the help. Your template method was exactly what I needed. I especially appreciate the prompt response with comments to all of teh practice essays I uploaded for review. I uploaded over 30 essays and the extensive comments were a very helpful guide for future essays. When I took the exam, I knew exactly what to write and what issues to cover. I would recommend Bar None Review to anybody studying for the California Bar Exam.” James Garrett.
“I fricken passed the bar!!!!!!!! Thank you so much!” Ryan
“My name appears on the pass list! Thank you so much for all of your support!” Victoria, 1st time taker from Trinity Law School.
“I passed on my seventh attempt. Thank you so much for helping me end this once and for all. I could not have done it without you!” Barbara
Hello Everyone,
If you are taking the July 2008 bar exam, then I recommend that you begin (if you have not already begun) your studies now. It is never too early to start preparing for the bar exam. If you are in your last semester of law school you are probably busy with your final classes and perhaps looking into or seeking employment opportunities. While these are both important, you should not delay in preparing for your next major hurdle - that of passing the bar exam. If you have not already chosen a bar review program, then you had better get going on that very quickly. Whether you have enrolled in a course or not, you should begin your studies now.
Here is what I recommend:
1. Prepare for your bar prep by determining where you will study when you are not in class (will it be your bedroom, an office, a library? Think about it and make a plan).
2. Make a list of your best and worst subjects in law school.
3. Identify your strengths and weaknesses early (for example, do you have trouble with MBEs or with writing? You ought to know by now which areas you have difficulty with in terms of testing. This will be important as you will want to devote more time to the areas that present trouble).
4. Set aside time each week to study for the bar. Your bar class will likely not begin until after you graduate from law school. However, you should NOT postpone your studies until then. Instead, begin taking practice mbes so that you can begin to familiarize yourself with the format of the bar exam and re-acquaint yourself with subjects that you have not studied in a long time.
5. Begin preparing your family and friends for your upcoming unavailability (see our post about “disconnecting” during bar studies). Your family and friends know what it has been like to have you in law school. They certainly remember that you have midterms and finals and that during those few weeks each year that you were probably unavailable. However, they may not have an appreciation for the battle that is ahead of you when you begin your preparations for the bar exam. You will do yourself a great service in explaining to everyone now what this process will require. Let your family and friends know that you will be unavailable once you begin your bar studies. It is very helpful to prepare those around you for your absence. I am not suggesting that you don’t talk to anyone at all for two months. However, if you are serious about passing the bar exam, you will limit your social activity and focus on your studies. To really have an excellent chance of passing the bar on your first attempt (or any attempt for that matter) you will need to study all day and everyday for two months. During this two month period of time you will need to take breaks. BUT, you will not have time to go out several nights a week, to take lots of phone calls, spend copious amounts of time emailing and text messaging and surfing the net.
Stay tuned for more advice in the coming days and weeks. Also, if you are interested in receiving our free MBE strategies call our office at (562) 799-5581 or simply send us an email at: pass@barnonereview.com
Congratulations to all of you who are about to graduate from law school and good luck to all who are awaiting bar results from the February 2008 bar exam!
Sincerely,
Program Director/Founder
Bar None Review
(562) 799-5581
barnonereview.com
Hello Everyone,
As is pretty common during this time of year, I have received many questions about bar exam predictions for the upcoming bar exam. I am pasting my reply to one of these questions below. See what I had to say to George below.
We should have more information/predictions posted by Tuesday, so please visit again. But, keep in mind that no one can predict the essay topics on the bar exam. It would be incredibly foolish to think that you could predict which subjects to study and which subjects you could skip. Yet, I have students ask me every bar round for advice about “which subjects” to study. The answer is: everything. You need to study every tested topic.
Stay tuned . . . more postings to follow in the next few days. Until then, good luck in your studies!
Sincerely,
Lisa Duncanson
Founder/Program Director
Bar None Review
Hello George,
First of all, thank you for visiting.
I am currently in the midst of grading my students’ three-day simulated bar exam. I will be returning their exams tomorrow and as a result do not have a great deal of time to respond today. However, I will post a list of possible topics that I think could be particularly likely - given their absence on past exams. Check back on Monday or Tuesday and I should have some information up then.
Until then, here are some of my thoughts: Criminal Procedure perhaps crossed with another topic (like Evidence) or simply just Criminal Procedure all by itself.
Civil Procedure is pretty high on everyone’s list of predicted topics (I would guess that most bar review companies would be predicting Civil Procedure), simply because it has not been tested in some time. Add to the fact that it has not been tested in a while and that there are a few California additions (as of July 2007) now being tested, and I think most anyone in the bar review business would predict Civil Procedure.
Corporations also has not been tested in some time and is another likely subject. However, it is really important to recognize that you need to know every subject and know it well because the California bar examiners have really designed an exam that is nearly impossible to predict. In fact, the examiners actually employ statisticians to make sure that the frequency and pattern of subjects chosen for the exam are not predictable.
Here is a warning that I give all of my students - do not think that because something was just tested on the prior exam that it will not be on the very next exam. You CAN NOT discount these topics or presume that what was on the last bar exam will not be on the next. A perfect example of this are the past two bar examinations (February 2007 and July 2007). Both of administrations tested Constitutional Law First Amendment Speech. Yet, most people presumed that since it was just tested on the February 2007 bar exam that it would not be tested again on the July 2007 bar exam. In fact, many topics have repeated three times back to back from one bar exam to the next.
If you were to review every past bar exam over the past 25 years in California you would see that nearly every bar round there is a repeat of 3 subjects from one bar exam to the next. Often these show up in the form of a cross over on the next exam where the topic repeats. For example, you might see a full blown First Amendment Speech essay (as we did on the February 2007 bar exam) and then it is followed up on the next bar exam administration as a crossover (we saw this in July 2007 where Criminal Law Murder was one call of a two call essay question and First Amendment Speech was the second call of that essay question).
I hope this helps for now. I will do my best to put up more about topics I think are likely. I would use this information as a way to include additional review on certain areas - but, NOT as a replacement for studying and reviewing all areas. I am sure that you realize this.
Thank you again for your comment. If you wish to contact me directly you may do so at pass@barnonereview.com
Please bear in mind that I will be pretty swamped for the next few days. However, we try to respond to every email as quickly as possible.
Good luck to you!
Sincerely,
Lisa Duncanson
Program Director/Founder
Bar None Review
(562) 799-5581
barnonereview.com
Hello Everyone,
What should you be doing in these last couple of weeks before the bar exam? Well, studying of course. But, how should you study? One of the most important things to do over the next two weeks is to keep a positive attitude while you are studying. Tell yourself before you study a topic that you will be able to remember it on exam day. It really makes a difference if you approach your studying with a positive mind set. You will remember more and remember more easily for doing so.
Having a study plan is really critical at this point. Therefore, if you do not have one put together, get to work on it now. Take the remaining days, up through the bar exam, and plot out your time and where you will focus.
You will naturally want to review and memorize every subject. However, how will you do that? Give it some thought and develop a plan for doing it. This might sound easier said than done, but you can do it. Simply divide up every day into sections, a morning section, an afternoon section and an evening section and determine what you will do during each section.
I recommend that you fill your morning and afternoon sections with the most difficult work (like doing MBEs or reviewing and memorizing the law) and reserve the evenings for more passive, less strenuous work (like studying essay exams and answers).
Whatever you decide to do, definitely develop a plan of action and stick to it. One of the biggest mistakes students make during the last couple of weeks is to simply study blindly without any particular purpose. Instead, be proactive and create a plan for yourself. Pace yourself in such a way that you move through assignments throughout the day. If you do this, you will feel a sense of accomplishment and feel more positive about taking the bar exam.
If you do not create a plan for yourself (and I mean setting out tasks to do throughout the entire day, hour by hour) you will likely feel less in control, less satisfied at the end of a study day and less confident about taking the bar exam.
So, make a plan, do it now and follow it. You will feel in control because you are taking control! And, you will increase your chances of success by taking charge of your own future and having the confidence in yourself to do so!
Good luck to you in the next few weeks and on the exam days!
Sincerely,
Lisa Duncanson
Program Director/Founder
Bar None Review
(562) 799-5581
barnonereview.com
Hello Everyone,
Well here it is January 2008 and your bar studies for the February 2008 bar exam are hopefully well under way. However, if you feel that you haven’t quite carved out a bar study routine, here are a few pointers.
A SUCCESSFUL STUDY PLAN
Perhaps one of the most important things for those preparing for the bar exam is to have a successful study plan. I don’t mean an assignment list provided to you by your bar prep provider. Instead, I mean a “study plan”, a plan for success. A successful study plan not only includes assignments - like completing MBEs, writing practice essays, reviewing and memorizing the substantive law - but it also takes into account the realities of your day - “I need to eat”, “I need to rest”, “I need to exercise”, “I need to keep my stress level at a manageable level”, “I need to work part time” or “I need to work full time”, “I need to stay healthy”. These are all critical to your success on the bar exam and will play as important a role in your success on the bar as your actual bar study.
HOW DO I CREATE A SUCCESSFUL STUDY PLAN?
A successful study plan requires: taking into account your weaknesses and strengths, establishing a routine and habit of study, creating and adhering to a realistic routine that will address your weaknesses and maintain or improve your strengths while also taking into account the amount of time that you actually have available to study (for example, whether you have all day to study, or you work part time, or you are working full time etc.) See below for a sample one day study schedule.
Finally, a successful study plan should maximize your effectiveness by scheduling the right kinds of work during the right times of day or evening (for example, it does not make much sense to practice MBE questions at 9:00 pm after a long work day when you are exhausted). Instead, get up earlier the next day to do MBEs in the morning before going to work. Even if all you can do is ten MBEs before going to work, do it. And, do it every day and you will establish a routine.
It is important to make adjustments to your study plan based upon what is realistic for you. Once you determine what you will do each day and for how long, you will likely need to make adjustments to your plan. You may discover that your initial plan of completing 50 MBEs after attending a four hour bar review lecture is not realistic for you. While it is very important to do a significant number of MBEs and to write many practice exams, you should also realize that this practice is best done at your peak times - when you are most alert. Therefore, you may decide to complete 20 MBEs before going to your bar review lecture and then an additional 20 MBEs after your bar review lecture.
ESTABLISH A ROUTINE:
One of the key features of any successful study plan is to establish a routine. While you will have some study days where your study day ends earlier or goes later, the key is establishing a regular routine. This includes where you study, how often you eat, exercise, take breaks as well as the types of study you do during the day and when. For example - getting in the habit/routine of completing MBEs every morning at the same time and place every day, writing practice essays on a regular basis (for example, you might use the following routine: write a practice essay every Monday, Wednesday and Friday).
Below you will find an example of a typical study day from a good study plan. Here is a sample study day for someone who does not have to work and can devote their entire time to bar study: Note that other study days would likely incorporate writing practice exams and/or attending a bar review lecture or workshop).
SAMPLE ONE DAY STUDY SCHEDULE:
7:00 am - workout - short run or walk - (For example, 1 mile run/walk through your neighborhood)
7:30/7:45 am - shower, have a healthy breakfast and “disconnect for the day”. By disconnecting for the day, I mean: disconnect from your cell phone, the internet, text messaging and anything else that can lead to wasted time and loss of focus. This is really critical. Protect your study time, commit to certain study hours and refrain from checking email, voice mail, surfing the internet, checking and replying to text messages, and prepare your friends and family for your absence - see post: “Disconnecting to Pass the Bar”).
8:30 - 9:30 am - Complete 30 - 33 Torts MBEs
9:30 am - Take five minute break (do a couple of jumping jacks, just move around for a bit, eat a quick and healthy snack - for example, grab 6 or 8 almonds. Healthy snacks throughout the day are important to ensure a successful study day. We have all heard that eating small amounts throughout the day will help to keep your blood sugar level steady. This will help maintain your energy level through out the day as well and will lead to a much more productive study day).
9:35 am - check answers for the Torts MBEs above, review the explanations and make flashcards for each missed MBE. (Note: the amount of time this will take will vary and depend upon how many MBEs you missed, so take the time you need - the corrections you make now will result in a higher MBE score later on).
10:30 am - ten minute break - get up from your desk, move a bit, eat an apple or some other healthy snack like a couple of stalks of celery with peanut butter.
10:40 am - BEGIN ESSAY ISSUE SPOTTING EXERCISE. Read through four torts essays. For each essay, use the following method: 1) read and issue spot the essay, 2) quickly check the model answer to see if you correctly identified the issues, 3) if you did not spot all of the issues then go back to the fact pattern and try to identify which facts trigger the issues that you missed, 4) read the entire model answer, 5) study the model answer and create your own outline from the answer - this outline should be your model for how to approach this essay in the future. You will likely spend about 40 - 50 minutes per essay (15 minutes to issues spot, 5 minutes to check your issues, 20 - 30 minutes to sort out missed issues and to create your own outline/approach for tackling this essay in the future).
10:40 - 11:20 am - Torts Essay One (from “Essay Issue Spotting Exercise” above)
11:20 am - five minute break - get up from your desk, move around.
11:25 am - 12:05 pm - Torts Essay Two (from “Essay Issue Spotting Exercise” above)
12:05 pm - 12: 50 pm- lunch break - eat healthy, have something you enjoy, relax (AVOID: email, cell phone, t.v., surfing the net - these are all potential distractions that could lead to lost time - how many times have you just intended to “quickly check your email” and found that it lead to getting involved in replying to emails, becoming emotionally engaged in someone else’s problem, or simply just wasting an hour surfing the web. Don’t take the risk of picking up your cell phone or checking your email. Instead, protect the time you have promised to yourself to study - guard it. See also: post about “Disconnecting to Pass the Bar”).
12:50 - 1:30 pm - Torts Essay Three (from “Essay Issue Spotting Exercise” above)
1:30 - 1:35 pm - five minute break - get up from your desk, move around.
1:35 - 2:15 pm - Torts Essay Four (from “Essay Issue Spotting Exercise” above)
2:15 - 2:25 pm - ten minute break - get up from your desk, move around, perhaps go outside for some fresh air, have a healthy snack.
2:25 pm - OUTLINE REVIEW - Study/review Contracts substantive outline - it is recommended that you conduct your review in 50 minute increments, taking a 5 or 10 minute break every 50 minutes. This will enable you to study more hours per day and to study more effectively/productively because the breaks will prevent fatigue and will allow for more alert study periods. See recommended outline study intervals below:
2:25 - 3:15 pm - Review Contracts outline (see above).
3:15 - 3:25 pm - 5 or 10 minute break (get up, move around, stretch).
3::25 - 4:15 - Continue Contracts outline review.
4:15 - 4:25 pm - 5 or 10 minute break (get up, move around, stretch, eat a healthy snack).
4:25 - 5:15 pm - Continue Contracts outline review
5:15 - 6:15 pm - Dinner break - get up, move around, stretch, eat something healthy, make a short phone call to a supportive friend, spouse or family member - the key here is to only contact someone who is supportive of you, positive and aware and respectful of your commitment to study for and pass the bar).
6:15 - 7:15 pm - REVIEW TWO CONTRACTS ESSAYS (Spend 30 minutes for each essay and do the following: 1) Read and issue spot Contracts essay (15 minutes), 2) Check issues against the answer, read entire answer and make note of missed issues (15 minutes).
7:15 - 7:20 pm - Take a 5 minute break.
7:20 - 8:00 pm - REVIEW ESSAY APPROACHES FOR TORTS (Review the approaches/outlines that you created for the four Torts essays earlier during the day. The reason this makes sense is that you will reinforce the issue spotting and organization that you learned from your earlier review. And, since exam fact patterns repeat over and over again from one bar exam to the next, this review of past bar essays is one of the most effective ways to improve your issues spotting ability and to prepare for writing a well organized essay. Spend about ten minutes to review each essay outline/approach).
8:00 pm - End your study and relax.
Ultimately, your success on the bar exam will not come down to counting up how many MBEs you complete or how many hours you spend memorizing but instead, it will come from a combination of things.
Be positive, be flexible and adhere to a regular and realistic routine. In addition, keep in mind that your goal when reviewing a topic on a given day is not necessarily to master the entire subject that day. Instead, your goal should be to gain a better understanding of the topic that day and to recognize that you will need to repetitively review every topic over a period of time (two months is typical) in order to truly master it.
Students often find themselves frustrated by their own unrealistic expectations and goals. Instead of embarking on an eight or ten hour review of your Contracts outline, review it for three hours (taking a short break every hour) and then follow that with a review of two or three Contracts essays. By reviewing essays in the same topic, you will give yourself a context to the rules you are reading and trying to memorize. Repeat this several times during the weak while alternating your review of other topics, completing MBEs and writing practice essays.
Above all, work at maintaining a positive attitude. This will be much easier to do if you begin with realistic goals.
Good luck to you!
Lisa Duncanson
Program Director/Founder
Bar None Review
(562) 799-5581
barnonereview.com
First, Happy Holidays to you all. Second, we have had a lot of interest in the “How to Make MBE Flashcards” Handout. As a result, we are going to offer additional materials through our site for a limited time. This will be available sometime this weekend - so check back here in the next day or so.
I will provide instructions here for creating a student login on the Bar None Review site. This is normally only available for enrolled students. However, this weekend we will be creating an access area for non-enrolled students where we will provide some of our resources and guides free. Think of it as a bar exam Christmas present from us to you!
If you are studying for the February 2008 bar exam, be sure to give yourself some time off for the holidays - not too much, mind you. But, take some time off, it will do you good.
Good luck!
Lisa Duncanson
Program Director/Founder
Bar None Review
(562) 799-5581
barnonereview.com
November 18, 2007
Hello Everyone,
The following post is a reprint of “What to do if you fail the California bar exam”. Given that this is a timely topic for many, I am re-posting it here.
Good luck to all of you who are re-taking the bar exam!
If you have failed the bar exam, keep in mind that you are in good company. Also, realize that the bar exam is not an IQ test. Many very bright and hardworking examinees fail the exam. If you have failed, you will need to do the following:
1) Get past being devastated as quickly as possible - as harsh as this sounds, you really do just need to get back to work as soon as you can. Those that do, have the best chance of passing the next exam. Start by doing MBEs.
2) This is going to hurt, but - find out why you failed - this starts by getting your scores back from the bar. The bar will automatically mail score sheets to all examinees who failed the bar. This usually takes 1 - 3 days after bar results come out (so, for July 2007 examinees who fail, it could be as soon as November 17th). When you get your scores, don’t panic and don’t make assumptions about any one section. You will receive both a raw score and a scaled score. Take the time to read the materials that come with your score sheet that explain the raw and scaled scores. See also, other posts on this blog about making it to re-read and interpreting bar scores. And, if you need help interpreting your scores, you can get it free through Bar None Review barnonereview.com
3) Commit to taking and passing the next exam - in almost every case, I would recommend taking the very next bar exam. Obviously there are sometimes reasons to sit out a bar exam administration - but in most cases, the best advice is to take the very next exam. Think about it, the material seems like it has fallen out of your head right now - just think how hard it will be to put it all back together if you wait another six months - that would be a whole year since your last review - not a good plan.
4) Develop a plan of attack - Your plan might include taking another bar review course, hiring a tutor, or continuing your studies on your own. There are many courses available (assuming you already tried barbri) that cater to different needs - small classes, private tutorials. Do your research and due diligence before enrolling in a course. Ask for references, ask to see the course materials before enrolling, make sure the bar review provider is a good fit for your needs. And, don’t abandon your common sense - if it sounds too good to be true - it probably is. But, whatever you do (take a course or study on your own) make a plan - figure out how many hours you will study each day, where you will study, how long will you have to review each topic, how many essays you will write each week, how many MBEs you will do each day, how many PTs you will write - figure it out, map it out and develop a plan.
5) Work hard - no matter how hard you worked the first time, you are going to have to work just that hard again. And, if in your honest assessment of your prior bar studies you conclude that you did not work hard enough - well then you are going to have to work harder. There simply is no magic bullet.
Lisa Duncanson
Program Director/Founder
Bar None Review
barnonereview.com
November 18, 2007
Here is a model answer for Question 4 from the July 2007 bar exam.
Please note, the following exam answer is published by Bar None Review. You may not re-publish this model answer without written permission from Bar None Review.
1. May Dan be found guilty of the crime of murder or any lesser-included offense?
HOMICIDE
A homicide is an unlawful killing of another. Here, Dan’s actions (setting a copy of the Declaration of Independence on fire) caused the death of a pedestrian. Therefore, Dan committed a homicide.
MURDER
Under the Common Law, a murder is the unlawful killing of another with malice aforethought. Malice aforethought is prove in the following ways:
1. Intent to kill;
2. Intent to inflict serious bodily injury;
3. Wantonness or reckless disregard for human life; or
4. FMR (when a killing occurs during the commission of an inherently dangerous felony)
INTENT TO KILL
Here, Dan did not intend to kill anyone. Instead, he intended to burn a copy of the U.S. Constitution. The facts state that Dan “involuntarily” let the burning document go when the flames began to burn his hand. This does not evidence any intent on Dan’s part to kill.
WANTONNESS/RECKLESS DISREGARD
However, the government might argue that Dan acted with a reckless disregard for human life since he was burning parchment in a public place where pedestrians are likely to be. The State may further argue that Dan was reckless in burning paper near a construction site. Construction sites are known to have scrap pieces of wood and other items that could be highly flammable. In this case, the construction site had an open drum of flammable liquid. While it may seem unlikely that a construction company would leave flammable liquids in an open drum, it is certainly likely that a construction site could have flammable items on site. Therefore, the State might succeed on this argument.
FELONY MURDER
The State could try to prove that Dan is guilty of felony murder. A felony murder is a killing that occurs during the commission of an inherently dangerous felony. The inherently dangerous felonies include: burglary, arson, robbery, rape, kidnapping and sodomy. Here, the only viable basis for felony murder would be that Dan somehow committed arson. Under the Common Law, arson is the malicious burning of the dwelling house of another. Modernly, however, any structure (four walls and a ceiling) will suffice. The problem here is that the facts make no mention of any structure. While there is a drum – it is an “open drum” and therefore could not be construed as a structure under the modern definition of arson.
Therefore the only way that Dan could be found guilty of murder is if the State can prove that Dan’s conduct of burning the document in a public place, near a construction site and pedestrians, amounts to a reckless disregard for hum life. If so, then Dan will be guilty of murder.
STATUTORY DEGREES OF MURDER
FIRST DEGREE
First-degree murder is any murder that is committed with premeditation and deliberation. Most jurisdictions classify felony murder as a first-degree offense. However, here Dan did not premeditate or deliberate. He “involuntarily” dropped the burning document. In addition, unless the killing was committed during the commission of an inherently dangerous felony, Dan will not be convicted of first-degree murder.
SECOND DEGREE
All murders that are not first degree, are second-degree murder unless mitigated down to some form of manslaughter.
MANSLAUGHTER
There are two types of manslaughter – voluntary and involuntary. If the death results from criminal negligence then the killing is considered involuntary manslaughter. Here, the State may successfully argue that it was criminally negligent to light a document on fire on a windy day near a construction site and where pedestrians are likely to be nearby. If the State meets its burden, then Dan could be found guilty of involuntary manslaughter.
MISDEMEANOR MANSLAUGHTER
State may also successfully argue that since the killing occurred during the commission of a misdemeanor, that Dan is guilty of misdemeanor manslaughter.
CRIME OF ATTEMPT (attempt to burn copy of U.S. Constitution)
Here, Dan thought that he was burning a copy of the U.S. Constitution. Instead he actually burned a copy of the Declaration of Independence. Dan will argue mistake of fact. However, a mistake of fact will only work as a defense to criminal guilt if the mistake of fact negates the state of mind required for the crime. Attempt crimes required specific intent (in this case, the specific intent to burn a copy of the U.S. Constitution). The state of mind required is the intent to burn a copy of the U.S. Constitution. Here, Dan “believed” that he was burning a copy of the U.S. Constitution. Even though he did not actually burn a copy of the U.S. Constitution, the fact that he was mistaken, does not negate the state of mind that is required. Therefore, Dan may be convicted (subject to the constitutionality of the regulation – discussed infra.) of an attempted misdemeanor (attempted burning of a copy of the U.S. Constitution).
2. How should the court rule on each ground of Dan’s motion to dismiss?
2a. MISTAKE OF FACT – Here, Dan will argue that he cannot be found guilty of attempt to burn the U.S. Constitution because the document he actually burned was a copy of the Declaration of Independence. However, Dan “believed” that the document he was burning was a copy of the Declaration of Independence. Mistake of fact will be a defense only when the mistake of fact negates the state of mind required for the crime. Here, Dan intended to burn a copy of the U.S. Constitution. The fact that he did not actually burn a copy of the U.S. Constitution will not relieve him of criminal liability for the attempt crime because the mistake of fact does not negate the required state of mind.
Therefore, the court should deny the first ground for Dan’s motion to dismiss.
2b. FIRST AMENDMENT VIOLATION – Here, Dan will argue that the statute violates his First Amendment Right of speech and of assembly.
The First Amendment states in part, “that Congress shall make no law . . . abridging the freedom of speech.” This right is incorporated to the states via the Fourteenth Amendment.
SYMBOLIC SPEECH – TEXAS v. JOHNSON
The government may regulate conduct but not beliefs. Symbolic speech – like burning a flag in political protest – is First Amendment protected speech. (Texas v. Johnson) Here, Dan will argue that he burned the document as an expression of political protest and that the act of burning what he believed to be a copy of the U.S. Constitution is symbolic speech. Dan set fire to what he believed was a copy of the U.S. Constitution while saying: “ . . . they can take your constitutional rights away just as fast as I can destroy this copy of the U.S. Constitution.” Dan did not simply intend to burn a piece of paper. Instead, Dan intended to burn the U.S. Constitution as an expression of an idea. This symbolic speech is protected under the First Amendment.
CONTENT-BASED RESTRICTION – Dan will argue that the regulation constitutes a content-based restriction on his speech and is therefore presumptively invalid. Content-based restrictions are subject to strict scrutiny. Under the strict scrutiny standard, the government bears the burden to prove that the regulation is necessary to achieve a compelling governmental interest. Here, the government is regulating based upon content (by criminalizing the burning of copies of the U.S. Constitution) and as such must meet the strict scrutiny standard. There is no compelling governmental interest in preventing citizens from burning “copies of the U.S. Constitution”. Therefore, Dan will likely succeed in his First Amendment claim.
CONTENT NEUTRAL – TIME, PLACE AND MANNER RESTRICTION
The state will argue that the regulation neutral as to content and is simply a regulation of conduct (burning) that is intended to protect the public from the dangers of fire. Assuming the State can overcome Dan’s argument that this is a content-based regulation (which is doubtful given that the regulation specifically criminalizes burning copies of the U.S. Constitution) then the state would then need to prove that the regulation is narrowly tailored to a significant government interest and that the regulation leaves open ample alternative channels of communication.
SIGNIFICANT GOVERNMENT INTEREST
The significant government interest at stake would be public safety. In addition, the government has a significant interest in being able to carry out important government business at a state capitol building. Burning of documents in front of the state capitol while persons are attempting to enter the building could interrupt this important business and could put citizens in danger.
AMPLE ALTERNATIVE CHANNELS
Here the regulation does not leave open ample alternative channels for this kind of communication because it makes burning a copy of the U.S. Constitution illegal anywhere. Therefore, the State will likely lose.
VAGUENESS AND OVERBREADTH
There appear to be no issues with respect to vagueness and over breadth.
PRIOR RESTRAINT
A prior restraint exists where the government must approve of the speech before it occurs. Prior restraints are presumptively invalid due to their chilling effects on speech. In order to stand, prior restraints must pass strict scrutiny. Here, by criminalizing conduct that amounts to symbolic speech, the regulation is a prior restraint on speech. As discussed above, there is no compelling governmental issue at stake. Therefore, the regulation is unconstitutional.
FREEDOM OF ASSOCIATION
Here, Dan may try to argue that the regulation violates his First Amendment right of assembly. The First Amendment protects not only the basic rights to communicate, but it also protects the right to join with others in exercising these rights. This protection is incorporated to the states via the Fourteenth Amendment. Here, Dan was speaking to “half a dozen people entering the front doors” of the capitol. His argument here is weak because the regulation does not prevent him from assembling with others, but merely prevents him from burning the U.S. Constitution.
Copyright 2007 Bar None Review. All rights reserved.
November 18, 2007
Hello Everyone,
Bar None Review will be conducting free bar exam writing workshops during the month of November. Students will receive free Bar Exam Writing Templates and instruction on how to write for the California bar examiners.
Regardless of which bar review program you choose, our workshops will provide you with a great head start towards writing successfully for the California bar examiners. For a complete listing of upcoming workshop dates, please visit: Bar None Review and select: Upcoming Workshops from the menu tab on the left.
If you would like to reserve a space or would like more information, please contact our office at (562) 799-5581 to reserve your space or simply send an email to pass@barnonereview.com
We look forward to being of assistance.
Sincerely,
Lisa Duncanson
Program Director/Founder
Bar None Review
(562) 799-5581
barnonereview.com
