How to “make up” a rule on the bar exam. 

As a threshold matter, making up law in real practice is bad (see ethics provisions requiring candor to tribunals), but on the bar exam, it is acceptable as a stop gap measure for one or two things that are just eluding recall when you’ve got an essay to write to get your license. 

Also, on the bar exam, “making up” a rule isn’t a fabrication from thin air. It’s a purposeful extension of already known policies, preferences, and legal culture to fill in a temporary gap. 

With the caveating done, let’s dive into a process for doing so. 

Process

When confronted with a fact pattern that has issues, but you can’t recall the law precisely, the first step is to identify which area of law is being tested and the dominant policies that are represented in what you do know about that area of law. 

The second step is to answer the following three questions: 

1. Who has to act 
2. What do they have to do 
3. How must they do it 

Some students will answer those questions based upon the actors in the fact pattern prompting this exercise. Which is fine, but then generalize the answers so that they can transform into a rule that applies to multiple situations rather than a rule-as-applied explanation. 

The next step is to select a rule structure that allows you to put the information from those three answers into a single sentence and makes sense based upon the area of law and the facts you have been given to work with. Different structures are more prevalent in different subject matters. For example, in Constitutional Law and Criminal Procedure, you will see balancing tests (also in the constitutionally constrained portions of Evidence). In the essay subjects, family law and estates and trusts, you will see more factors tests than in other subjects. General rules with exceptions as well as rules composed of conjunctive elements are well represented throughout all the subjects. 

Then, using the format you’ve selected, shoehorn “who” has to act, “what” that act is, and “how” or “under what circumstances” into a prescriptive statement that act creates legal consequences. 

Demonstration

For example, let’s say you’re confronted with the following hypo on an essay: 

Sam validly executed a will and bequeathed the house to the spouse, the bank accounts to the elder child, the lake lot to the younger child, and then any residuary was to establish a trust for the ASPCA. After executing the will, Sam leased the lake lot and used the proceeds of the lease to begin collecting valuable artwork. What, if anything, will the ASPCA receive upon Sam’s death? 

Step 1: Area of law & dominant policies 

— Estates and trusts; real property 

-Priority is given to testator’s intent 

-Property needs to transfer expeditiously out of a dead man’s hands into a “living” entities hands 

Step 2: Answer the basic questions 

1. Sam (aka testator) had to have intent to give property away upon death 
2. To implement that intent, must prepare a document detailing the specifics of gifts causa mortis. 
3. The written document has to observe certain formalities.
   • Wills have one set of formalities  
   • Trusts have a different set of formalities. 
   • Need: signatures, description of property to gift/devise, identification of the recipient, name trustee to manage trust corpus 

Step 3: Select rule structure

–Conjunctive elements

Step 4: Shoehorn answers into prescriptive statement in the selected structure

To validly create a trust via one’s will, a testator must have charitable intent and identify a suitable portion of the estate to become the corpus of the trust as well as identify the beneficiary of the trust and designate a trustee to manage the trust on behalf of the beneficiary.  

Step 5: Apply and move on to next essay/issue

Based on the facts given, the testator’s charitable intent is evident by the inclusion of the ASPCA in their will. Moreover, the potential trust corpus is everything in the residuary of Sam’s estate which looks to be a collection of valuable artwork as well as any personal property not accounted for in the will or facts. It is unclear on these facts whether the ASPCA is the intended beneficiary or the intended trustee. Since a trustee and beneficiary cannot be the same person, the trust would fail. However, a court could reform the will and recognize the testator’s intent to gift the residuary of Sam’s estate to the ASPCA. Thus, the ASPCA will get the residuary of Sam’s estate which includes the artwork purchased after execution of the will. 

Concluding thoughts

For those of you who did well in trusts, you probably can identify several flaws with the rule above as well as the application. While it has flaws, it is going to score better than a blank page or a single sentence outcome answer. The best strategy for bar success is to know as much as you can, and it is okay to have this technique in your back pocket for an issue or two, just in case.