Paul Pfau talks about the bar's new subject matter and why candidates who know the law, still fail the California bar exam.
LSJ: First, a little bit about the new subject matter having been added. Many students are saying "Oh no! Three new subjects!" Is that really the case? Three new, full subjects?
PFAU: Well, the three new subjects that were just added are not entirely three full subjects. Part of the subject matter enhances some of the subjects that are presently on the bar exam. For Evidence, you now also need to know California Evidence. There are many similarities between the two. But there are some areas that are a little different. For example, in the area of privileges, there are typically many more areas in California than as is generally the case under the Federal rules of Evidence (FRE). And there are some other differences. But it isn't an overly tremendous burden in order to learn the differences involving the new California subject matter.
With respect to Civil Procedure, like Evidence, you need to now know the federal rules and the new California rules. Once again, there are many similarities. For example, you need to know subject matter jurisdiction, personal jurisdiction, and so forth. But those rules will vary from the federal to the California jurisdiction. The same overview, however, in terms of how Civil Procedure is organized, is generally the same. If you think about Civil Procedure as a subject that impacts the prosecution of a civil case, beginning with what court to bring the case to, what law to apply, choice of law, pretrial, trial, appellate, and final judgement issues, you can organize both the federal rules and California rules around those basic themes. Then, just know the variations on those themes as they relate to both the federal and California rules.
The only subject where new information, or where completely new subject matter is required, is the area of Business Associations, where, now, one needs not only to know Corporations, but also Agency & Partnership. However, many of those concepts will probably be familiar to students in other areas, such as respondeat superior, vicarious liability, and so forth. So, yes, there are "three new subject areas" -- with quotes around it, but all if it can be easily digestible depending on your approach to learning and understanding both the similarities and the differences.
LSJ: Will the new subject matter impact pass rates?
PFAU: Well, my comment, at best, will probably be anecdotal. There is some evidence that when the bar adds new subject matter, the par pass rates for the initial administration may at least be the same, if not a little better. So, in that regard, it can offer an opportunity to students who take the time to integrate the new subject matter with the current subject matter. Other than that, the new subject matter implicitly will affect pass rates if students don't learn it. So, it is important to begin to integrate that into the preparation process as soon as reasonably possible. But, once again, the subject matter does not create an unreasonable burden, given the similarity to the subject matter that is presently required on the exam. Keeping in mind, however, that part of an applicants grade is impacted by their competition through the "scaling process" - the new subjects can add an opportunity for those applicants who emphasize them in their preparation.
Continued
