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Con Law on the Bar Exam: How to Tackle Equal Protection

07 Feb, 2023

Analyzing equal protection questions can be tricky. But here's the good news: whether you encounter them on the MBE or in an essay, you can tackle any EP question by applying this straightforward, step-by-step analysis.

Preliminary Analysis

Before we get to the substantive EP analysis, you need to work through two quick steps:

1. Is there government action?

As we know, generally speaking when it comes to equal protection the Constitution only applies to government action, whether on the federal, state, or local level. It does not apply to private conduct. So, before you jump into levels of scrutiny, first make sure the government is involved in the discrimination at hand.

2. Does incorporation apply?

As we know, any equal protection issue implicates the 14th Amendment. However, you must remember the following:

The 14th Amendment itself applies directly only to state and local governments .

When it comes to federal action concerning equal protection, the 14th Amendment only applies by incorporation through the 5th Amendment Due Process clause . 

Make sure you cover this on essays and be careful about getting tripped up on MBE answer choices that exploit this wrinkle.

Equal Protection Analysis

1. Is there a discriminatory classification?

Make sure there is some classification that is discriminating against someone or a group of people. That’s the easy part, but the harder part is proving that classification.

There are three ways to prove a discriminatory classification:

• The law discriminates on its face. By its terms, the law treats classes of people differently
• The law is neutral on its face but is applied in a discriminatory manner (e.g., only women are arrested under a facially neutral law).
• There is a discriminatory motive or purpose behind the law, in which case P must show that there's a disparate impact and discriminatory purpose.

2. What level of scrutiny applies? There are several levels of scrutiny the court can apply depending on the class of people affected: strict scrutiny, intermediate scrutiny, or rational basis. It's important for you to understand how and when to apply each. ( See Con Law cards 34-38 ) 3. Does the classification satisfy the appropriate level of scrutiny? Once you've determined the correct level of scrutiny, it's time to apply the law to the facts of the question. For MBE questions, this part should be easy if you’ve followed all of the steps. For essay questions, this will form the last part of your analysis and your conclusion.

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How to Write a Law Essay

Last Updated: August 11, 2023

This article was co-authored by Clinton M. Sandvick, JD, PhD . Clinton M. Sandvick worked as a civil litigator in California for over 7 years. He received his JD from the University of Wisconsin-Madison in 1998 and his PhD in American History from the University of Oregon in 2013. This article has been viewed 241,492 times.

In a college legal studies course, and in some law school courses, you may be required to write a research paper addressing a legal topic. These essays can be tricky, because the law is constantly evolving. To secure a top grade, your essay must be well-researched and coherently argued. With proper planning and research, you can write a stellar legal essay. [Note: this article does not address how to write law school essay exams or bar exam questions, which require different techniques and strategies.]

Choosing an Essay Topic

• A narrow essay prompt might read, "Discuss the evolution and impact of the exclusionary rule of evidence in the United States." A broad prompt might read, "Discuss how a civil rights movement led to changes in federal and/or state law."
• If you are invited to choose your own topic, your professor may require you to submit a written proposal or outline to ensure that your chosen topic complies with the prompt. If you are not sure if your topic is within the parameters of the prompt, propose your topic to your professor after class or during his or her office hours.

• Hopefully, your course readings, lectures, and class discussions will have given you enough background knowledge to select a topic. If not, review your class notes and browse online for additional background information.
• It is not uncommon to change your topic after doing some research. You may end up narrowing the questions your essay will answer, or changing your topic completely.

• If you can, try to focus on an are of the law that affects you. For example, if your family is involved in agriculture, you may be interested in writing about water use regulations .

Researching Your Topic

• If you are prohibited from citing internet resources, you can still use online research to guide you to physical primary and secondary sources in your local library or bookstore.

• Look at footnotes, citations, and indexes in tertiary sources. These are great for finding books, articles, and legal cases that are relevant to your topic. Also take note of the names of authors, who may have written multiple works on your topic.

• Also find search engines for related fields, such as history or political science. Ask your librarian to recommend specialized search engines tailored to other disciplines that may have contributed to your topic.

• Never cut and paste from the web into your notes or essay. This often leads to inadvertent plagiarism because students forget what is a quotation and what is paraphrasing. When gathering sources, paraphrase or add quotation marks in your outline.
• Plagiarism is a serious offense. If you ultimately hope to be a lawyer, an accusation of plagiarism could prevent you from passing the character and fitness review.

Drafting the Essay

• An effective introduction takes the reader out of his world and into the world of your essay. [2] X Trustworthy Source University of North Carolina Writing Center UNC's on-campus and online instructional service that provides assistance to students, faculty, and others during the writing process Go to source Explain why the subject is important and briefly summarizes the rest of your argument. After reading your introduction, your reader should know what you are going to discuss and in what order you will be discussing it.
• Be prepared to revise your introduction later. Summarizing your essay will be easier after you have written it, especially if you deviate from your outline.

• State each argument of your essay as a statement that, if true, would support your thesis statement.
• Provide supporting information drawn from primary and secondary sources that support your argument. Remember to cite your sources.
• Provide your own original analysis, explaining to the reader that based on the primary and secondary sources you have presented, the reader should be persuaded by your argument.

Formatting Your Essay

Proofreading the Essay

• Open up a Word document. On the Quick Access Toolbar at the top, click on the down arrow. The words “Customize Quick Access Toolbar” will appear when you hover over the arrow for two seconds.
• Click on the arrow. Then click on “More Commands.”
• In the “Choose commands from” drop-down box, choose “All commands.”
• Scroll down to find “Speak.” Highlight this and then click “add.” Then click “okay.” Now the Speak function should appear on your Quick Access Toolbar.
• Highlight the text you want read back to you, and then click on the Speak icon. The text will be read back to you.

• Do not rely on a spell checker exclusively, as it will not catch typos like "statute" versus "statue."

Revising the Essay

• You can share the essay with someone outside of class, but a classmate more likely has the requisite knowledge to understand the subject matter of the essay.

Expert Q&A

You might also like.

• ↑ https://owl.english.purdue.edu/engagement/2/2/53/
• ↑ http://writingcenter.unc.edu/handouts/introductions/
• ↑ https://www.legalbluebook.com/
• ↑ https://support.office.com/en-ca/article/Using-the-Speak-text-to-speech-feature-459e7704-a76d-4fe2-ab48-189d6b83333c

About This Article

To write a law essay, start by writing a thesis statement on your chosen topic. Phrase your thesis statement as an argument, using words like “because” or “therefore” to state your point. Write an outline of the arguments you will use to support your thesis statement, then use that outline to build the body of your paper. Include any counter-arguments, but use your evidence to convince the reader why your point of view is valid, and the counter-arguments are not. Be sure to cite all of your sources in the format preferred by your professor. For tips from our reviewer on finding the best sources for your topic, keep reading! Did this summary help you? Yes No

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How to Write a First-Class Law Essay

Studying law at university entails lots of essay writing. This article takes you through the key steps to writing a top law essay.

Writing a law essay can be a challenging task. As a law student, you’ll be expected to analyse complex legal issues and apply legal principles to real-world scenarios. At the same time, you’ll need to be able to communicate your ideas clearly and persuasively. In this article, we’ll cover some top tips to guide you through the process of planning, researching, structuring and writing a first-class law essay with confidence. 

1. Start In Advance

Give yourself plenty of time to plan, research and write your law essay. Always aim to start your law essay as soon as you have the question. Leaving it until the last minute does not only create unnecessary stress, but it also leaves you insufficient time to write, reference and perfect your work.

2. Understand The Question

Do not begin until you fully comprehend the question. Take the time to read the question carefully and make sure that you understand what it’s asking you to do. Highlight key terms and annotate the question with definitions of key concepts and any questions that you have have. Think about how the question links back to what you’ve learned during your lectures or through your readings.

3. Conduct Thorough Research

Conducting thorough research around your topic is one of the most fundamental parts of the essay writing process. You should aim to use a range of relevant sources, such as cases, academic articles, books and any other legal materials. Ensure that the information you collect is taken from relevant, reliable and up to date sources. Use primary over secondary material as much as possible.

Avoid using outdated laws and obscure blog posts as sources of information. Always aim to choose authoritative sources from experts within the field, such as academics, politicians, lawyers and judges. Using high-quality and authoritative sources and demonstrating profound and critical insight into your topic are what will earn you top marks.

4. Write A Detailed Plan

Once you’ve done your research, it’s time to plan your essay. When writing your plan, you’ll need to create an outline that clearly identifies the main points that you wish to make throughout your article. Try to write down what you wish to achieve in each paragraph, what concepts you want to discuss and arguments you want to make.

Your outline should be organised in a clear, coherent and logical manner to ensure that the person grading your essay can follow your line of thought and arguments easily.  You may also wish to include headings and subheadings to structure your essay effectively This makes it easier when it comes to writing the essay as starting without a plan can get messy. The essay must answer the question and nothing but the question so ensure all of your points relate to it.

Start Writing Like A Lawyer

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5. Write A Compelling Introduction

A great introduction should, firstly, outline the research topic.  The introduction is one of the most crucial parts of the law essay as it sets the tone for the rest of the paper. It should capture the readers attention and provide the background context on the topic. Most importantly, it should state the thesis of your essay.

When writing your introduction, avoid simply repeating the given question. Secondly, create a road map for the reader, letting them know how the essay will approach the question. Your introduction must be concise. The main body of the essay is where you will go into detail.

6. Include A Strong Thesis Statement

Your thesis should clearly set out the argument you are going to be making throughout your essay and should normally go in the introduction. Your thesis should adopt a clear stance rather than being overly general or wishy-washy. To obtain the best grades, you’ll need to show a unique perspective based upon a critical analysis of the topic rather than adopting the most obvious point of view.

Once you’ve conducted your research and had a chance to reflect on your topic, ask yourself whether you can prove your argument within the given word count or whether you would need to adopt a more modest position for your paper. Always have a clear idea of what your thesis statement is before you begin writing the content of your essay. 

7. Present the Counter-argument

To demonstrate your deeper understanding of the topic, it’s important to show your ability to consider the counter-arguments and address them in a careful and reasoned manner. When presenting your counterarguments, aim to depict them in the best possible light, aiming to be fair and reasonable before moving on to your rebuttal. To ensure that your essay is convincing, you will need to have a strong rebuttal that explains why your argument is stronger and more persuasive. This will demonstrate your capacity for critical analysis, showing the reader that you have carefully considered differing perspectives before coming to a well-supported conclusion.

8. End With A Strong Conclusion

Your conclusion is your opportunity to summarise the key points made throughout your essay and to restate the thesis statement in a clear and concise manner.  Avoid simply repeating what has already been mentioned in the body of the essay. For top grades, you should use the conclusion as an opportunity to provide critical reflection and analysis on the topic. You may also wish to share any further insights or recommendations into alternative avenues to consider or implications for further research that could add value to the topic. 

9. Review The Content Of Your Essay

Make sure you factor in time to edit the content of your essay.  Once you’ve finished your first draft, come back to it the next day. Re-read your essay with a critical perspective. Do your arguments make sense? Do your paragraphs flow in a logical manner? You may also consider asking someone to read your paper and give you critical feedback. They may be able to add another perspective you haven’t considered or suggest another research paper that could add value to your essay. 

10. Proofread For Grammatical Mistakes

Once you’re happy with the content of your essay, the last step is to thoroughly proofread your essay for any grammatical errors. Ensure that you take time to ensure that there are no grammar, spelling or punctuation errors as these can be one of the easiest ways to lose marks. You can ask anyone to proofread your paper, as they would not necessarily need to have a legal background – just strong grammar and spelling skills! 

11. Check Submission Guidelines

Before submitting, ensure that your paper conforms with the style, referencing and presentation guidelines set out by your university. This includes the correct font, font size and line spacing as well as elements such as page numbers, table of content etc. Referencing is also incredibly important as you’ll need to make sure that you are following the correct referencing system chosen by your university. Check your university’s guidelines about what the word count is and whether you need to include your student identification number in your essay as well. Be thorough and don’t lose marks for minor reasons!

12. Use Legal Terms Accurately

Always make sure that you are using legal terms accurately throughout your essay. Check an authoritative resource if you are unsure of any definitions. While being sophisticated is great, legal jargon if not used correctly or appropriately can weaken your essay. Aim to be concise and to stick to the point. Don’t use ten words when only two will do.

12. Create a Vocabulary Bank

One recurring piece of advice from seasoned law students is to take note of phrases from books and articles, key definitions or concepts and even quotes from your professors. When it comes to writing your law essay, you will have a whole range of ideas and vocabulary that will help you to develop your understanding and thoughts on a given topic. This will make writing your law essay even easier!

13. Finally, Take Care of Yourself

Last but certainly not least, looking after your health can improve your attitude towards writing your law essay your coursework in general. Sleep, eat, drink and exercise appropriately. Take regular breaks and try not to stress. Do not forget to enjoy writing the essay!

Words by Karen Fulton

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How to Write a Law Essay: 8 Steps

December 28, 2023

1. Choosing an Essay Topic

When it comes to writing a law essay, choosing an appropriate topic is crucial. A well-chosen topic will make your research and writing process smoother and more enjoyable, while a poorly chosen topic can lead to frustration and a lackluster essay.

Firstly, consider what has piqued your interest in your law studies so far. Perhaps there was a case or topic that you found particularly intriguing, or an aspect of law that you feel needs further exploration. Alternatively, you could focus on a current legal issue that you feel strongly about and want to delve deeper into.

It’s also important to make sure your topic isn’t too broad or too narrow. Too broad of a topic can result in a lack of focus, while a topic that is too narrow won’t give you enough research material to work with.

Ultimately, choosing a law essay topic is about finding a balance between your personal interests and the practical aspects of your assignment. Take the time to carefully consider your options, and don’t be afraid to ask for input or guidance from your professor or classmates.

Possible Law Essay Topics

• The impact of social media on defamation laws.
• Analyzing the constitutionality of mandatory minimum sentencing.
• The effectiveness of restorative justice in reducing recidivism rates.
• Legal implications of artificial intelligence in the workplace.
• Exploring the rights of privacy versus national security in the digital age.
• Examining the legal and ethical issues surrounding euthanasia.
• Assessing the role of international law in combating climate change.
• Analyzing the legal framework for cyberbullying and online harassment.
• The legalization and regulation of recreational marijuana: a critical analysis.
• Exploring the intersection of intellectual property rights and emerging technologies.

Remember to choose a topic that aligns with your interests and research availability, while ensuring that it is adequately focused for a detailed analysis within the scope of your essay.

2. Researching the Topic

Before diving into writing a law essay, it’s essential to conduct thorough research on the chosen topic. This step is critical to ensure that the essay is factually correct, well-supported, and logically structured. Here are some tips on how to research effectively for a law essay:

• Begin by gathering basic information. Use specialized textbooks, journals, and databases to gain a foundational understanding of the topic.
• Use secondary sources to gain a broader perspective on the topic. Utilize reputable news sources, government publications, and online legal databases to broaden your search.
• Access case law. To support your arguments, cite legal cases that illustrate your argument. Access online case law databases that have accessible search functions.
• Use primary sources. Primary sources include statutes, regulation, and the constitution. It’s important to have a good grasp of the primary sources since they are the basis of much of legal research.
• Take notes. Keep track of all relevant information, including sources and citations. Use an organized format that will make outlining and writing the essay a simpler process.
• Evaluate and analyze. Through the research process, it’s important to analyze the information found. Determine what is and is not relevant, and how it factors into your argument.

By conducting thorough research, you will be able to support your argument with a well-evidenced and structured essay. Remember to keep track of all sources and citations as they will be necessary in the writing process.

3. Developing Strong Thesis Statement

Developing a strong thesis statement is essential when writing a law essay. This powerful statement sets the tone for the entire article and guides the reader’s understanding of your argument. To create an effective thesis statement, you must first fully understand the topic and question at hand. Take your time to research and gather relevant information to support your viewpoint. As you delve deeper into the subject, analyze different perspectives and identify the key arguments surrounding the topic. Once you have a clear understanding of the various viewpoints, narrow down your focus and craft a concise and persuasive thesis statement that clearly states your position. Remember, a strong thesis statement should be debatable, specific, and assertive. Spend time honing your thesis to ensure it effectively conveys your argument and engages the reader’s interest.

Example thesis statement:

“The death penalty should be abolished in the United States because it violates the Eighth Amendment, fails to act as an effective deterrent, and disproportionately affects marginalized communities.”

4. Structuring the Law Essay

Structuring your law essay is crucial to ensure clarity, coherence, and a logical flow of ideas. Here’s a breakdown of how to structure your law essay:

Introduction:

• Provide a brief overview of the topic and its significance.
• Present the thesis statement, clearly stating your argument.

Background and Context:

• Provide necessary background information to help the reader understand the topic.
• Explain relevant legal concepts, principles, or statutes related to your argument.
• Start each paragraph with a topic sentence that relates to your thesis statement.
• Present your arguments and support them with evidence, case law, or legal authorities.
• Use clear and concise language to explain your points and provide analysis.

Counter-Argument:

• Acknowledge and present the counter-argument(s) objectively and logically.
• Refute the counter-argument(s) with reasoned explanations and supportive evidence.

Conclusion:

• Summarize your main arguments and their supporting evidence.
• Restate your thesis statement and highlight its significance.
• Offer some final thoughts or suggestions for further research or action.

Remember to use appropriate headings and subheadings to structure your essay effectively. Use transition words and phrases to ensure a smooth flow between paragraphs. Additionally, ensure proper citations and referencing throughout the essay to maintain academic integrity.

5. Writing the Introduction

Writing the introduction is your opportunity to grab the reader’s attention and set the tone for your entire law essay. Here’s how you can effectively structure your introduction:

Start with a hook:

• Use a compelling statement, anecdote, or a relevant quote to engage the reader and create interest in your topic.

Provide background information:

• Give a brief overview of the legal issue or topic you will be discussing.
• Explain the significance and relevance of the topic to the field of law or society at large.

State the purpose and scope of your essay:

• Clearly state your thesis statement, which should encapsulate your main argument.
• Mention the key points you will address and the legal principles, cases, or statutes you will analyze.

Outline the essay structure:

• Provide a brief outline of how your essay will be structured.
• Mention the main sections or arguments you will present.

Establish the context:

• Explain any necessary legal concepts, terms, or background information that the reader needs to understand.

Remember to keep your introduction concise and focused. It should provide enough information to orient the reader and generate interest in your essay. However, save the detailed arguments and evidence for the main body of your essay. Aim to make your introduction clear, engaging, and persuasive, setting the stage for the rest of your law essay.

6. Developing the Body Paragraphs

Developing the body paragraphs is the core of your law essay, where you present and support your arguments with evidence and analysis. Here’s how to effectively structure and develop your body paragraphs:

Start with a topic sentence:

• Each body paragraph should begin with a clear topic sentence that relates to your thesis statement.
• The topic sentence sets the tone and direction for the paragraph.

Present your argument:

• Clearly state your argument or point of view in the opening sentences of each paragraph.
• Provide supporting evidence, such as case law, statutory provisions, or legal principles, to back up your argument.

Analyze and interpret the evidence:

• Explain the significance of the evidence in relation to your argument.
• Analyze how the evidence supports and strengthens your position.

Use legal authorities and sources:

• Cite relevant cases, statutes, or legal commentary to support your arguments.
• Refer to authoritative legal sources, such as court decisions or academic articles, to provide credibility.

Use clear and concise language:

• Clearly articulate your ideas using logical transitions and precise language.
• Avoid unnecessary jargon or overly complex language that may confuse the reader.

Remember to properly structure your paragraphs, provide sufficient evidence and analysis, and link your arguments back to your main thesis statement. Each paragraph should contribute to the overall coherence and flow of your essay, ensuring a convincing and well-supported argument.

7. Present the Counter-argument

Presenting the counter-argument is an essential component of writing a persuasive law essay. Failing to acknowledge opposing viewpoints weakens your argument and makes it appear biased. Therefore, it is crucial to identify different perspectives surrounding the topic and analyze these perspectives objectively. Once you have identified the counter-argument, you can present it in your essay, offering evidence and explanations to support it. Addressing counter-arguments in your essay strengthens your credibility as a writer and demonstrates your ability to look at a topic from multiple perspectives. Additionally, this approach makes your essay more convincing by acknowledging and addressing potential criticism of your argument. Keep in mind that effectively presenting the counter-argument requires thorough research, logical reasoning, and evidence-based arguments. Therefore, take your time to critically analyze opposing views to ensure your argument is backed up by relevant and reliable supporting evidence. By doing so, you can construct a well-reasoned and thoughtful essay that can withstand any counter-argument.

8. Crafting the Conclusion

Crafting a strong conclusion is essential to leave a lasting impression on the reader and effectively summarize your arguments in a law essay. Here are some key steps to consider when writing your conclusion:

Summarize your main points:

• Recapitulate the main arguments you presented in the body paragraphs.
• Provide a brief overview of the evidence you presented to support each argument.

Reinforce your thesis statement:

• Restate your thesis statement in a concise manner to remind the reader of your main argument.
• Emphasize the significance and relevance of your thesis in the context of the larger legal issue.

Offer a broader perspective:

• Connect your arguments to the wider legal or societal implications of the topic.
• Discuss the potential consequences or impact of your findings on the field of law or legal practice.

Suggest areas for further research:

• Highlight any unanswered questions or areas of debate that may require future exploration.
• Propose avenues for future research or policy development related to your topic.

Conclude with a compelling closing statement:

• Leave the reader with a thought-provoking final remark that leaves a lasting impression.
• Use a concise and powerful statement to tie together your essay and reinforce your main message.

Ensure that your conclusion is concise, focused, and aligned with your overall argument. It should serve as a strong ending to your law essay, leaving the reader with a clear understanding of your position and the importance of the topic discussed.

Use Legal Terms Accurately

In the realm of writing law essays, the accurate and precise use of legal terms is paramount. This subheading focuses on the importance of correctly employing legal terminology in order to craft an exceptional law essay.

Mastering legal terminology is essential for two reasons. Firstly, it demonstrates an understanding and grasp of the subject matter, showcasing your expertise to both professors and potential employers. Secondly, using legal terms accurately enhances the clarity and coherence of your arguments, making your essay more persuasive and compelling. However, it is crucial to strike a balance – overusing legal jargon may alienate readers who are not well-versed in the law.

To ensure accuracy, it is imperative to consult reliable legal sources such as authoritative textbooks, journals, or statutes. Moreover, reading and analyzing sample essays or exemplary legal writing can provide guidance on how to effectively incorporate legal terms into your own work. By diligently honing your legal language skills, you will significantly elevate the quality and impact of your law essays.

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Chapter 7: How to Conquer Constitutional Law on the California Bar Exam

Constitutional law on the california bar exam.

Here, we tell you how to approach Constitutional Law on the essay portion of the California Bar Exam so you can maximize your points and increase your chances of passing! Constitutional Law is regularly tested on the California Bar Exam and is somewhat predictable in terms of how it is tested.

1. First, know how Constitutional Law is tested. 

Constitutional Law does not appear on the essay portion of every California Bar Exam. Instead, it shows up about once every two to three California Bar Exam administrations. Constitutional Law tends to be tested on its own, although it is sometimes combined with Real Property or Criminal Law. (When Constitutional Law is combined with Real Property, takings and the substantive Due Process Clause tend to be tested.)

The good news is that you can apply general MBE law to a Constitutional Law essay question, as California law has not been tested on Constitutional Law essay questions.

2. Be aware of the highly tested issues. 

The State Bar of California tests certain Constitutional Law issues repeatedly. (We have a more detailed overview of these issues in our  California Bar Exam One-Sheets .)

Some of the most frequently tested Constitutional Law issues on the essay portion of the California Bar Exam include:

• Standing: In particular, the examiners like to test standing of organizations or associations . Note that an organization can sue for an injury to itself and can also sue for injuries to its members if a  member or members have standing,  the member’s injury is  related to the purpose of the association, and  individual members are not required to participate in the lawsuit.

• The Dormant Commerce Clause: States may not discriminate against interstate commerce or unreasonably burden interstate commerce. Laws that discriminate against interstate commerce are struck down unless they can pass strict scrutiny . A law that burdens interstate commerce but does not discriminate against interstate commerce is upheld if it serves an important state interest and does not impose an unreasonable burden on interstate commerce.

• The Due Process Clause and Equal Protection Clause standards of scrutiny: Under the Due Process Clause , strict scrutiny applies to fundamental rights . Fundamental rights are privacy rights (marriage, contraception and procreation, sexual conduct, obscenity, family relations, and abortion), the right to vote , the right to interstate travel , First Amendment rights , and the right to refuse medical treatment . Rational basis applies to all other rights .

• Under the Equal Protection Clause , strict scrutiny applies to fundamental rights , race , and alienage [term used by the examiners] (for states—not the federal government—unless the political function doctrine applies). Intermediate scrutiny applies to gender and illegitimacy [term used by the examiners]. Rational basis applies to all other classifications .

• Free speech: This is a broad topic that is frequently tested. The examiners particularly like to test time-place-and-manner restrictions and general free speech principles. The government can place reasonable regulations on the time, place, and manner of speech. If the area where the speech is regulated is a traditional or designated public forum , the regulation must be c ontent neutral , n arrowly tailored to an important governmental interest , and allow a lternative channels of communication (mnemonic = CNA ).

• If the area where speech is regulated is a nonpublic (private) forum , the regulation must be viewpoint-neutral and reasonably related to a legitimate governmental interest .

• Establishment Clause: The laws must be neutral . Laws that favor one religion over another = strict scrutiny. Where the government legislation or program is neutral on its face, the Establishment Clause must be interpreted by “ reference to historical practices and understandings. ”

• Free Exercise Clause: a state may regulate or prohibit the conduct or activity if the regulation is  neutral and of general applicability .

3. Be aware of ways to approach highly tested topics. 

We recommend looking at past California Bar Exam essays so you can see how to approach the highly tested Constitutional Law issues.

For example:

• When free speech is an issue, you should give a brief overview of how the plaintiff needs to have  standing and how a  government actor must be found.
• When the Equal Protection Clause or Due Process Clause is tested, you should give an overview of all the levels of scrutiny before focusing on the appropriate one.
• When standing is tested, you should state the general requirements of injury in fact , causation , and redressability  before addressing any specific issues of standing (e.g., standing of an organization).

• Preparing a general approach for these highly tested issues will help you maximize your score and will save you time since you will not have to spend as much time thinking about what to write.

4. Practice!

The best way to get good at Constitutional Law on the California Bar Exam is to practice writing answers to essay questions. Not only will you become acquainted with how Constitutional Law is tested on the essay portion of the California Bar Exam, but you will also help boost your MBE score, since you will see 25 scored Constitutional Law questions on the MBE!

Here are a few essay questions with student answers that we recommend you practice to get exposed to some highly tested topics in Constitutional Law essay questions:

• July 2019 Constitutional Law essay (combined with Remedies) : this essay covers standing of an organization, ripeness, mootness, the Free Exercise Clause, the Establishment Clause, and free speech (see essay question #2 on the exam).
• July 2018 Constitutional Law essay: this essay covers the Dormant Commerce Clause, the Privileges and Immunities Clause of Article IV, the Equal Protection Clause, the substantive Due Process Clause, and the Contracts Clause (see essay question #5 on the exam).
• February 2018 Constitutional Law essay: this essay covers the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and the substantive Due Process Clause (see essay question #2 on the exam).
• July 2016 Constitutional Law essay: this essay covers procedural due process, free speech, standing, and the Eleventh Amendment (see essay question #4 on the exam).
• July 2015 Constitutional Law essay (combined with Real Property) : this essay covers takings and the substantive Due Process Clause (see essay question #6 on the exam).

Good luck studying for the California Bar Exam!

Go to the next topic, Chapter 8: Contracts .

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Excellent Essay Example 1 (July 2017 Constitutional Law)

This lesson presents a real, excellent response to the July 2017 MEE Constitutional Law question . First, read the essay, then listen to the analysis below.

Download the essay as a PDF.

Excellent Essay

1. Bank v. State A in federal court

The issue is whether this action is permitted under the 11th amendment.

The 11th Amendment prohibits federal law suits against states. It is based in the premise of state sovereign immunity. There are exceptions to the 11th amendment, for example, when a state waives sovereign immunity or 11th amendment protection or when congress, under its 14th Amendment sec 5 power abrogates the state sovereign immunity in a statute. Otherwise, citizens of the state or of other states are not permitted to sue a state directly for damages.

Here, the bank appears to be suing the state directly, along with the superintendent, seeking damages. There is no indication that the statute provides a waiver of the 11th amendment and there is no congressional statute on point, so there is not congressional abrogation. Therefore, the suit is not permitted under the 11th amendment and the bank cannot maintain the suit against the state itself in federal court.

Furthermore, while state officials can be sued in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury, they cannot be sued for money damages or retrospective relief. Therefore, the bank's action for damages, even as against the superintendent will not be permitted in federal court.

2. Bank v. Superintendent in federal court

The main issue is whether against a state official in their official capacity seeking injunctive relief can be maintained in federal court given the 11th amendment.

As mentioned above, despite the 11th amendment, state officials can be used in their individual capacities for damages, and in their official capacities for prospective injunctive relief, even if that relief would require some money from the state treasury. A suit against a state officer for injunctive relief will be maintained if it is seeking prospective relief and the effect on the state officers is incidental.

Here, the bank's action for injunctive relief can be maintained against the superintendent. The superintendent is sued in her official capacity and the bank is seeking to stop (enjoin) the enforcement of the statute. Therefore it can be maintained under an Ex Parte Young theory.

Note that the bank clearly has standing since it has already suffered a concrete and particularized injury (loss of $2 million dollars) that is caused by the statute and would be redressed by a favorable finding (that the statute is unconstitutional). It can likely show that it will continue to lose money from lost business as a result of the statute, which would be redressed by an injunction.

In conclusion, this part of the bank's claim can proceed.

3. Constitutionality of Statute

The main issue is whether the statute violates the dormant commerce clause. The commerce clause grants to congress the right to regulate interstate commerce. While states have a general police power to regulate in the interest of the health, safety and welfare of their citizens, the negative implication of the commerce clause, often called the dormant commerce clause, limits what they can do when it places a burden on interstate commerce. Generally, if a state law discriminates against out-of-staters, or against interstate commerce, it will be struck down unless the state can show it is necessary to protect a substantial state interests (unrelated to protectionism). It is does not discriminate, it will be struck down if it places an undue burden on interstate commerce--in other words, the burden on interstate commerce will be weighed against the interest of the state.

Here, while there is some protectionism motivating the statute (it was passed as a result of heavy lobbying by State A based manufacturer of biometric identification equipment), it does not appear to discriminate against out of state companies. It applies to both in state and out of state companies and to companies doing business only within the state, and to those doing business across states. Therefore, it likely does not discriminate. Therefore it will be subject to the balancing test. Here, the burden on interstate commerce appears to be somewhat substantial. Banks that operate in multiple states including State A, will be forced to choose between updating their systems to have biometric identification, or cease to do that kind of business in the state. That could have a substantial impact on interstate commerce. The fact that the large bank has already made this choice is support of that. On the other hand, the state appears to have a strong interest in protecting its citizens against fraud. Despite the security measures of banks, customers are still being subjected to unauthorized transfers by thieves. To the extent that this is impacting its citizens, State A clearly has a strong interest in protecting them. However, it is not clear that this particular biometric approach is an improvement or will work. Experts disagree about whether it is significantly better and the bank clearly thinks it is not. However, given that the state has a strong interest, it likely will pass the balancing test and be upheld.

There are two exceptions, neither applicable here: the market participant exception and congressional authorization. There is no indication in the facts that either apply here. Furthermore, there is no preemption since congress has not regulated in this area.

Note that the privileges and immunities clause of Art IV does not apply because the bank is not an individual citizen, and because the statute, while possibly motivated by protectionism, does not appear to discriminate against out-of-staters.

Analysis of the Sample Essay

Now we're going to look at a representative good answer provided by the state of New York. And like we did with the analysis above, we'll go prompt by prompt, noting what this answer did well and what it could have done even better. Again, this is a good answer, a really good one, in fact.

First, let's just take a look at the overall structure of the first prompt. Remember that our goal is for every written answer to have four parts and in the same order every time. Conclusion, rule, application conclusion. CRAC. Just following that recipe over and over will really help you rack up points on the MEE.

Remember I said that I want your approach to the MEE to be mechanical and automatic to the point where you're not so much writing an essay as just assembling an answer? That's what I mean.

Now, this essay doesn't exactly do that on prompt 1. It starts with a numbered header, "Bank v. State A in federal court." And that's fine if it's there to help the test taker remember what's what, but it's not going to score any points with the grader. And then the first real sentence here is an issue statement rather than a conclusion.

So, right away, we can tell that this essay is doing IRAC instead of CRAC. You might find that, as you're writing the essay, the IRAC formula is easier to follow because you might have to write out the rule paragraph and the application paragraph before you discover your conclusion. That's perfectly fine. Use your first paragraph to state the issue. But it's a super quick fix to edit that first paragraph once you're done with your essay to transform what you initially wrote as an issue into a conclusion, something with the word "because" in it.

For example, instead of "The issue is whether this action is permitted under the Eleventh Amendment," this test taker could have just said, "This suit against State A cannot be maintained because of," and there's that key word "because," indicating your reasoning, "the Eleventh Amendment." Or even better, "because the Eleventh Amendment gives states immunity against suits for money damages."

And it's always good to go ahead and bold or underline that sentence or sentences just to make it super clear for the grader that right here, you've earned your points. Having said that, I'll give the test taker here some credit for noting correctly in the issue statement that the issue here is about the Eleventh Amendment. That's not something that the prompt itself says, so the test taker probably did pick up some points there.

Now, these next two paragraphs are just fantastic. Truly impressive work. The first one is a superb statement of the applicable rule, which, as we discussed above, is the key to this prompt. The last sentence of the paragraph states the main point, "Citizens of the state or other states are not permitted to sue a state directly for damages," and then enumerates the exceptions before it.

Probably could have done that in the other order, I guess, but really great substance for a rule paragraph. In fact, it even notes the rule of Hans v. Louisiana, that even in-state citizens can't sue states for money damages.

The next paragraph I like as well, because it starts off, as all my favorite application paragraphs do, with the word "Here." That tells the grader that you're about to zero in on the fact pattern and also gives you a mental cue for what to do next.

As we discussed earlier, there's really not much application to do on this prompt. This answer goes a little above and beyond by noting that there's no indication of waiver or a valid federal statute abrogating immunity. Those are two things that aren't in the fact pattern, in other words, but would have mattered if they were.

I don't love the next paragraph, which starts, "Furthermore." It's not exactly wrong. State officials are generally immune from money damages when acting in their official capacities, but it's also not responsive to the prompt, which asked whether the bank can maintain a suit in federal court against State A for damages.

The superintendent is the focus of the next prompt, so all this could have been held for that. I think the test taker probably just got carried away here or else felt nervous about having not written enough. But again, once you're done, you're done. Move on.

And finally, and this is really nitpicky, the final C in CRAC, the second conclusion, should be in its own paragraph. So that last sentence, which starts with "Therefore," which is great, that's how it should start, should also be on its own line.

The second prompt sets up a lot like the first in terms of its structure, so I won't belabor the point too much. Again, we want the first part of our written answer to be a conclusion, that's the first C in our C-R-A-C, and ideally a reason as well, something with a "because" in it. Here, the test taker starts with the issue instead, and that's not bad.

The answer does correctly identify the Eleventh Amendment as a relevant issue, which gives the grader something to work with. But it would be pretty easy to come back, even after writing the rest of the answer, and transform that into a bolded conclusion sentence, like "The bank's suit against the state superintendent can be maintained because the Eleventh Amendment, or the doctrine of Ex parte Young, permits parties to seek injunctive relief against state officials in their official capacity."

The next paragraph states the rule and does a good job of conveying all the substance. One thing just to note here is that it says, "as mentioned above," and refers the grader back up to the first prompt. That's not a bad trick if you're really being asked to repeat a rule. And that does sometimes happen, like if back-to-back prompts ask you about two different parties' liability under the same rule. You wouldn't need to repeat the rule for the second party.

But that can also be a signal that maybe you should reorganize your answers. Here, as we noted a minute ago, the "furthermore" sentence in the first prompt is really unnecessary there and would fit more naturally down here under the second prompt.

After that, we get a great application paragraph. It starts off with "Here" and states the very few relevant facts necessary to justify the application of Ex parte Young, and really that's where the application should stop. I'd just jump straight to the "In conclusion" sentence, which is a nice summary, but this test taker goes on to argue that the bank does, in fact, have standing, and that's fine, I suppose.

The rule and the analysis here is correct, but again, it's not particularly responsive to the prompt, which was really focused on injunctive relief and the state superintendent. So this standing analysis would apply equally to the first prompt or the third. So it just feels kind of tacked on here. Again, maybe the test taker was just feeling a need to say a little more. Still, really strong answer on prompt 2.

Let's move on to prompt 3. Again, we're starting off with an issue statement that could easily be made into a conclusion. And here I'm just making one up based on this test taker's own analysis of the rule: "State A's statute is likely constitutional because it will probably survive the applicable balancing test under the Dormant Commerce Clause."

The rule statement here should be set off in its own paragraph just to make things as easy as possible for the grader, but otherwise this one does a great job introducing the Dormant Commerce Clause and the two major rule categories that it contains.

That last sentence could be a little more precise. It's not really whether the law places an undue burden on interstate commerce, but rather whether the burdens on interstate commerce are clearly excessive compared to the putative local benefits. But that's just a matter of getting the weights right on the balancing test.

This next paragraph, which is really long and should be broken in half, is a great illustration of how to tackle a two-part rule, or a rule and a sub-rule, or alternative rules.

Remember that there are two categories under the Dormant Commerce Clause: one for protectionist statutes and one for those that incidentally burden interstate commerce. This test taker recognizes that; they're both stated in that rule paragraph. And then the test taker proceeds to apply them both, one after the other, with two back-to-back applications and conclusions.

In fact, you can even see that because there are two "here" statements. I'd set those off into two different paragraphs, I think, just to make it super clear. The first one is terrific, a great showing of why the statute isn't protectionist for purposes of the Dormant Commerce Clause. And it wraps up with a "Therefore," actually two of them, which again is great.

The second one is also really, really strong. After two prompts that called for basically no use of the fact pattern, the test taker here has deployed a whole bunch of facts, not, you'll note, the precise figures and dollar amounts, but that's okay.

And the test taker does a really good job of showing both sides, which is crucial when you're applying a balancing test like this one. A nice way to make that easy on the grader is to do as this one does and use phrases like "on the other hand," because that both says and shows that you're applying the rule.

It would have been nice to wrap this up with a good, clear "therefore" statement, like the final C in our CRAC structure, instead of the "however," but the sentence there is pretty strong. It says, "It likely will pass the balancing test and be upheld." It would just be more clear if there were a "therefore" before that.

What comes after that is really more like a flourish. The test taker goes on to explain why neither of the major Dormant Commerce Clause exceptions are available here, and also why the Privileges and Immunities Clause of Article IV isn't applicable either.

I mean, it's almost just showing off at this point. The test taker clearly knows their stuff and this kind of thing certainly wouldn't count against the final points, but I wouldn't expect you to pick up all of that, especially the Privileges and Immunities point.

So, overall, this is a truly superb answer.

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So my con law exam is in a few weeks and I have no idea where to start in regards to studying. My teacher is impossible to understand, and I don’t understand the analysis structure. What would you recommend to study?

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Public Law for Everyone

by Professor Mark Elliott

Writing a Law essay? Remember to argue!

Providing advice in the abstract about how to write Law essays is difficult because so much depends on the nature of the question you are answering. It’s also important to take into account whatever are the expectations for your particular course, degree programme or university. Nevertheless, a useful rule of thumb, I think, is that a good Law essay will normally set out and advance a clear thesis or argument . (Note that I’m referring here to essays as distinct from problem questions: the latter call for a different approach.)

The need for an argument

Some answers explicitly call for this. Take, for example, the following essay title:

‘Do you agree that parliamentary sovereignty is the most important principle in the UK constitution?’

Here, the question itself in effect advances an argument — that parliamentary sovereignty is the most important principle in the constitution — and invites you to say whether you agree with it or not. And in saying whether you agree, you need to advance your own argument: ‘I agree with this because…’. Or: ‘I disagree because…’. Or even (because if the question advances a position that you think implies a misconception, oversimplification or false premise, you can say so): ‘I will argue that the question oversimplifies matters by assuming that a particular constitutional principle can be singled out as uniquely important…’

Other questions may indicate in a less direct way the need for you to put forward your own argument. For example:

‘“Parliamentary sovereignty is the most important principle in the UK constitution.” Discuss.’

Here, we don’t have a ‘do you agree?’ prompt; instead, we have the apparently less directive ‘discuss’ prompt. If we read the question literally, it may seem that there is no need for you to put forward your own argument here. After all, it’s possible to ‘discuss’ something without advancing your own argument about it: you could make various points, explain various matters, and leave the reader to make up their own mind. But while this may be formally true, it’s unwise to read the question in this way, because it creates the risk that you will end up writing something very general and descriptive on the topic without going any further.

To summarise, then, there are at least three reasons for making an argument part of your essay. First, the question will often call for this, whether explicitly or implicitly, such that you wouldn’t be answering the question if you didn’t set out and develop an argument. Second, if you don’t impose on yourself the discipline of articulating and defending an argument, you risk underselling yourself by writing something that is descriptive and meandering rather than purposefully constructed . Third, setting out and developing an argument involves taking ownership of the material. By that, I mean using the material in a way that serves the purposes of your argument, showing that you are in command of it and that it is not in command of you. This, in turn, provides an opportunity to demonstrate a level of understanding that it would be hard to show in a descriptive essay that simply wandered from point to point.

Setting our your thesis

If putting forward an argument is (often) important or necessary, how should it be done? There are no great secrets here: the formula is straightforward. You should begin your essay by stating your thesis — that is, by setting out what it is that you are going to argue. This should be done in your introductory paragraph — by the time the reader reaches the end of that paragraph, they should be in no doubt about what you are going to argue. Imagine, for instance, that you are presented with the following essay title:

‘“The courts have expanded their powers of judicial review beyond all acceptable constitutional limits in recent decades; it is time to clip the judges’ wings.” Discuss.’  

In response to such a question, it might be tempting to say in your introduction that (for example) you are going to ‘show’ how the courts’ powers of judicial review have grown, ‘consider’ why this has happened and ‘examine’ the criticisms of judicial over-reach that have resulted. These are all perfectly sensible things to do when writing an essay on this topic, but if that is all you say in your introduction, you will leave the reader wondering what you think — and what you are going to argue . In contrast, an introductory paragraph that lays the foundation for essay that properly advances a thesis will set out what that thesis is. You might, for instance, take each of the propositions set out in the question and stake out your position:

‘In this essay, I will argue that (a) while the courts’ powers of judicial review have grown in recent decades, (b) it is misguided to suggest that this has breached “all acceptable constitutional limits” and (c) that those who now advocate “clip[ping] the judges’ wings” misunderstand the role of the judiciary in a rule of law-based constitution. In other words, the courts’ judicial review powers are entirely appropriate and those who seek to limit them risk undermining the rule of law.’  

An introduction of this nature would achieve two things. First, it would make clear to the reader the position you proposed to take. Second, it would immediately lend the essay a structure.

Developing your thesis

Once you have set out your thesis in the introduction, you need to develop or defend it. This will involve making a series of connected points in successive paragraphs, each of which relates to your overarching thesis. One way of thinking about this is that the individual points you make in the main body of the essay should all relate or point back in some way — and in a clear way — to the position that you staked out in the introduction.

In the example introduction above, the overarching thesis is set out in the second sentence; the individual and connecting parts of the argument are set out in propositions (a), (b) and (c) in the first sentence. One approach, therefore, would be to divide the answer, once the introduction has been written, into three parts, dealing in turn with points (a), (b) and (c). Naturally, as you work through the various parts of your argument, you will need to cite relevant evidence (cases, legislation, literature and so on) in support of your argument. You will also need to deal with matters that appear, at least at first glance, to sit in opposition to your argument (on which see further below) or which, once properly considered, require your argument to be refined.  

A key point, however you proceed, is that the reader should also be clear about how each successive point relates not only to the previous point but also to the overarching argument. The reader should never be left wondering ‘Where does this fit in?’ or ‘Why am I being told this?’ A simple way of avoiding these problems is to signpost , by saying at the beginning of each section how it relates to the overall argument. The flipside of this coin is that you should avoid saying things like ‘Another point is that…’ since this gives the impression, rightly or wrongly, that the various points in your essay have been thrown together in a random order, with little thought as to how they fit together or relate to your overall argument. Even if that’s not the case, you don’t want to risk giving the reader that impression.

A one-sided approach?

The advice set about above might seem to imply that I’m suggesting you write one-sided essays — in which you set out points that support your argument while ignoring those that don’t. However, that’s not at all what I’m suggesting. In order to set out your argument in a persuasive manner, you need to deal both with relevant points that support your argument and with relevant points that appear to challenge your argument — and, in dealing with the latter points, you need to show why they do not in fact fatally undermine your argument. In other words, the approach I’m suggesting here doesn’t mean that you should adopt a blinkered approach, paying no attention to counterarguments: rather, you need to deal with them in a way that shows that, having thought about and weighed them in the balance, you are in a position to show why your argument stands in spite of them (or why your argument can be adapted in a way that accommodates such points).  

All of this points towards a further matter: namely, that advancing an argument in your essay does not mean that you need to (or should) be argumentative in the sense of adopting a strident tone that brooks no debate or compromise. Rather, advancing an argument in the way I’ve suggested here means being thoughtful and persuasive : taking the reader with you on a journey that demonstrates that you have looked at the relevant material, carefully thought through the issues raised by the question, and arrived at a view that you are able to justify and defend through well-reasoned and suitably evidenced argument.

So what about your conclusion? If you’ve followed my advice above, it should more or less write itself. People often agonise over conclusions, perhaps thinking that there has to be some ‘big reveal’ at the end of their essay. But there doesn’t need to be — and indeed there shouldn’t be — any big reveal. There should be no surprises at the end precisely because you’ve set out your argument at the beginning and spent the rest of the essay carefully constructing the different strands of your argument. The conclusion is an opportunity to draw those stands together, but no-one should have to wait with bated breath for the conclusion before finally realising: ‘Ah, so that’s what they think!’ If that’s the impact of the conclusion on your reader, it means there’s something wrong with the introduction!

This post was first published on The Law Prof blog . It is re-published here with permission and thanks.

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Steps to Writing a Law Essay

Throughout your law degree, you will be expected to write a range of different texts, including research essays, responses to problem questions, and case notes.

Not matter the type of text you are asked to produce for an assignment, make sure you follow these steps:

• Plan :  read the questions carefully and think about how you will answer it
• Research :  read, read and read! Make use of everything available to you - don't forget the library!
• Make thorough notes : include all important (and relevant) details and quotes and take note of the source. Make sure you organise your notes so as to make the writing task easier
• Write the first draft :  before you start writing your first draft, refer back to your initial plan and make any necessary changes now you have done your research and gathered your notes. 
• Review and edit :  remember to proofread your work!

The IRAC Method

IRAC is an acronym that stands for: Issue, Rule, Application, and Conclusion. It functions as a methodology for legal analysis and is used as a framework for organising your answer to an essay question in law school.

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In legal writing, issues are the core of the essay.

This part of the essay should:

• Identify and state the issue
• Name those involved (plaintiff and defendant) and briefly describe their individual issues
• Work out what body of law may govern the resolution of the issue (e.g. Contract Law)

The rule describes which law applies to the issue. The rule should be stated as a general principle, and not a conclusion to the particular case being briefed.

• Outline the legal principles that will be used to address to the issue
• Source legal principles from cases and legislation

The application is the most important and longest part of your answer. It involves applying the Rule to the facts of the issue and demonstrating how those facts do or do not meet the requirements laid down by the rules. Discuss both sides of the case when possible.

• Explain why the plaintiff's claims are or are not justified
• Identify how the law will be used by the plaintiff and defendant to argue their case
• Use relevant cases and legal principles to support your writing
• Do not try to strengthen your argument by leaving out elements or facts that will hurt it

As with all essays, the conclusion is a statement that identifies your answer to the issue.

• Identify what the result of your argument ir, or what it should be
• State who is liable for what and to what extent
• Consider how the plaintiff and defendant could have acted to avoid this legal issue

Useful Links:

• UWA IRAC Guide This guide from the University of Western Australia offers examples of how the IRAC method can be applied to different cases.
• Law School Survival: The IRAC Method A useful site that presents a detailed outline of the IRAC method as well as skeleton outlines.

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• Last Updated: Jan 17, 2024 3:38 PM
• URL: https://top-au.libguides.com/legal-method-research-and-writing

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