In this post, we discuss some of the recent “favorite” issues of the Board of Law Examiners. These are issues that we find many students answer incorrectly. These are not necessarily predictions, but we would not be surprised to see any of these issues on one of the upcoming bar exams in 2018.
5 Michigan Bar Exam Essay Issues to Be Aware Of
Issue 1: Abandoned Property in a Personal Property question
Many students jump to discussing lost and mislaid property whenever they see someone “find” property in a Personal Property question. But if you see someone throw something in the trash, or near the trash, with the clear intent to abandon it, do not discuss lost and mislaid property! (In other words, do not discuss Michigan’s Lost and Unclaimed Property Act or the duty to report to law enforcement.) Instead, discuss how the property was abandoned (so long as there was intent to abandon it and an action that indicated abandonment). If you would like practice, check out Question #9 of the July 2017 exam. We see a lot of students answer this question incorrectly when it comes up. So you don’t want to be one of them!
Issue 2: The Dispensing Power in a Wills question
On the last four Michigan bar exams the Board of Law Examiners’ tested Wills. And they tested whether wills were valid. So this is clearly one of the favorite Michigan bar exam essay issues of the Michigan Board of Law Examiners. If you see a will validity question you should discuss:
- (1) whether there was a valid will (writing, signed by testator, witnessed by two witnesses);
- (2) If there was no valid will, discuss if there was a valid holographic will (dated, signed, material portions of the will in the testator’s handwriting); and
- (3) if the will is nonetheless valid under the dispensing power (thus, even if it does not meet the requirements of a valid will or valid holographic will it may still be valid under the dispensing power if the proponent can show by clear and convincing evidence that the testator intended for the document to be her will). This is a favorite Michigan bar exam essay issue that many students miss.
For practice on this issue, you can check out the Wills questions in any of the last four exams!
Issue 3: Negotiable Instruments
We are not saying that Negotiable Instruments is definitely coming up, because we have as much information as anyone else about what is coming up!
However, the Board of Law Examiners has tried to be “tricky” the last few years and test unusual subjects. In fact, for the past few years, they have tested about three “unusual” or less-tested subjects per exam. (These are subjects like Agency, Partnership, Conflicts, No-Fault, Creditors’ Rights, etc.) One that they have not tested so far is negotiable instruments. And it would not surprise us at all if it was tested on a February exam. So I would make sure to know the basics of Negotiable Instruments on the exam. Check out #9 on the February 2010 exam to review some of this highly tested law.
Issue #4: Search and Seizure
On the July 2017 Michigan bar exam, the Riley case was tested (which we, nor our students, were surprised to see!). However, what we noticed while we were writing appeals for that exam is that a lot of students mix up the search that can be conducted incident to arrest with a terry stop search.
- Remember, in a search incident to arrest, an officer can search anything on the person–they can search for weapons, drugs, etc. They can open pockets. (They cannot, however, search cell phones). They can also search the arrestee’s “grabable space” (though there are nuances if the arrestee is in a vehicle).
- For a terry frisk, an officer can only search for weapons if they reasonably believe the suspect is armed and dangerous.
Search incident to arrest is tested more often than a terry frisk on the essays, but I would make sure to know the difference! For practice on this issue, see question #4 from July 2017.
Issue #5: Ostensible Agency
Agency was tested twice in 2016. Both exams contained an “apparent authority” (or as Michigan calls it, “ostensible agency”) question. There are three elements to apparent authority:
- (1) The person dealing with the agent must do so with a reasonable belief in the agent’s authority;
- (2) The belief must be generated by some act or neglect on the part of the principal sought to be charged; and,
- (3) The person relying on the agent’s authority must not himself be guilty of negligence.
Also review ratification while you’re at it. See either exam in 2016.
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