• Understanding the Rule Against Perpetuities (RAP)

    Whether one is studying for their property law exam in 1L or studying for the bar exam, the Rule Against Perpetuities (RAP) has frustrated many law students. The truth is that RAP it’s complex. Let us help to break it down for you for the bar exam.

    • The Rule: No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.
    • Context: RAP was created by courts at common law to prevent landowners from controlling their estates from the grave for centuries. Prior to the creation of the RAP, a curmudgeon landowner could create elaborate conditions through a will causing contingent ownership based on uncertain events, effectively tying up land infinitely. RAP voids vague and uncertain transfers of interest and promotes certainty in land ownership.
    • Why RAP is hard: RAP requires a four-dimensional brain to calculate the creation of an interest, determining whose life is to be measured, and whether the interest has vested by the end of that life + 21 years. One must evaluate every possible scenario at the moment the interest is created to determine if it’s void or not.

    Breaking Down the Rule Against Perpetuities

    To break down RAP, let’s understand it in a simpler language.

    RAP prevents remote vesting of property interests by requiring that (1) any future contingent interest must vest no later than (2) 21 years after the death of (3) a measuring life (some life in being) which existed at the creation of the interest.

    • Step 1: Identify the future interest. RAP only applies to contingent remainders, executory interests, and vested remainders subject to open (class gifts). It does not apply to vested remainders, reversions, or possibilities of reverter.
      • Note: A remainder can go to either an ascertainable person (vested) or an unascertainable person (contingent).
    • Step 2: Find the measuring life. Look for a “life in being” at the time the interest was created, someone whose life or death affects when the interest will vest. This is often the grantor, a beneficiary, or someone named in the condition.
    • Step 3: Speculate death of the measuring life, and add 21 years. RAP does not require the interest to vest within someone’s lifetime + 21 years after death. It only requires certainty that either the interest will vest or fail within this period. If there is any possible scenario, no matter how remote, that the interest might fail to vest 21 years after the death of the measuring life then the interest is void from the start.
    • Apply the “what if” test ruthlessly. Courts assume absurd possibilities: a 60-year-old woman could have more children, a person could marry someone not yet born, etc. These hypotheticals often fail otherwise reasonable transfers of interest in land.
    • Consequences: When RAP is violated the offending language is deleted.

    Examples of RAP

    Compare (1) “To A for life, then to A’s children who reach age 18”, and (2) “To A for life, then to A’s children who reach age 25”.

    Step 1: Here, the future interest is a contingent remainder. We don’t know if A has children who would meet the condition precedent (reaching age 18 or 25) to get the estate. If A has at least one child then we have a vested remainder subject to open.

    Step 2: Here, A is the measuring life.

    Step 3:

    • In Scenario 1 (Age 18): The interest is valid. Let’s say A has a child one day before dying. 21 years after A dies, A’s child will have reached age 18. If the child dies before age 18, the interest fails but within the timeframe of RAP.
    • In Scenario 2 (Age 25): The interest is void. Let’s say A has a child one day before dying. RAP requires measuring life + 21 years. A’s child cannot turn 25 within 21 years of A’s death. Therefore, the condition violates RAP and the interest is void.

    Consequences: When RAP is violated the offending language is deleted. Here, in scenario 2, the grant will become, “To A for life”. A holds a life estate, and because the remainder fails, the grantor retains a reversion in fee simple absolute upon A’s death.

  • Study Plan for the Bar Exam For The Last Month

    The month before the bar exam is often the most stressful, but also the most defining period of your study journey. Remember that memory kicks into high gear before a significant event, and we recall information better under pressure. Therefore, this one month period matters. At this stage, your study plan should focus on three core activities:

    a) Daily Memorization of Black Letter Law,

    b) Practice MBE Questions (approx. 25-35), and

    c) Timed Essay Writing (one to two).

    1. The Morning Warm-Up: 25–35 MBE Questions

    Begin each morning with 25–35 MBE questions.

    • Switch Between Focused and Mixed: Some days, target a specific MBE subject or topic; other days, mix them up. Your brain needs to get used to “context switching” rapidly between different areas of law, just like on exam day. But it’s still early enough that you want to do a deep dive within each MBE subject.
    • The Strategy: Use these questions as a planning tool for your daily memorization of black letter law. Always track the legal topics that you missed.
    • The Rule: Don’t go down the rabbit hole of spending hours researching case law on topics you missed, or every single distractor answer choice. Note what you got wrong, find the rule, and move on.

    2. Daily Memorization of Black Letter Law

    Dedicate at least two hours each day to memorize black letter law.

    • The 50/50 Split: Devote half of your memorization time on the topics you missed during your morning MBE session. This creates a feedback loop between practice and review. Spend the other half on your known weak areas.
    • Revision is Critical: Review the law that you got right last week or last month. Revision keeps the black letter law at the front of your mind. Confidence in familiar topics fades quickly without reinforcement.

    3. Timed Essay Writing

    Put it to the test.

    • Integrate Daily Memorization of the Law with Essays: Pick essay topics that align with black letter law you just memorized. This lets your revise what you learned, and builds confidence in your ability to apply the law under pressure.
    • IRAC: Graders are looking for the IRAC methodology: Issue, Rule, Analysis, and Conclusion. Their primary focus is on your knowledge of the R (Rule) and A (Analysis).
    • Analysis Over Conclusion: You earn points by spotting issues, stating accurate rules, and applying them to the facts. Even if your conclusion differs from the model answer, a strong rule and analysis can still carry you to a passing score.
    • The Review: After you finish writing your essays, review the model answer to confirm that you spotted all the issues, wrote down the rules and definitions accurately using the keywords graders look for, and analyzed facts sufficiently.

    For daily memorization of black letter law, try BarTaker.com. We organize our content by MBE subjects and topics and provide you with a personalized dashboard to help you target your weak spots. Don’t let financial inability prevent you from using BarTaker. Email us to inquire how we can help.

  • What’s the NextGen UBE Bar Exam?

    The NCBE administers the Uniform Bar Exam (UBE) that includes the MBE, the MEE, and the MPT. Last year the NCBE announced that it is updating its bar exam testing format and replacing the current UBE with the NextGen UBE exam. The NextGen UBE would test what the NCBE terms ‘foundational lawyering skills’ that are expected of a newly licensed lawyer.

    Beginning July 2028, the current UBE will be completely replaced by the NextGen UBE.

    However, the NCBE is debuting the NextGen UBE in a few states beginning in July 2026. This is probably to assess the testing format, performance and grading before rolling it out broadly to all the UBE states.

    Foundational Lawyering Skills

    NextGen, the new bar exam format, is designed to test law students’ readiness to practice as litigators, and as transactional attorneys who are capable of conducting client interviews, investigating pertinent facts and legal issues, conducting legal research, drafting briefs, memos, discovery documents etc., negotiating settlements utilizing legal and ADR principles, and managing client relationships.

    All of these, certainly, are foundational skills that lawyers must possess from day one of their practice.

    New Subjects Introduced in the NextGen UBE

    NextGen UBE is adding two new subjects to the existing content:

    • Business Associations and
    • Family Law

    Additionally, it seems NextGen UBE is also adding core principles of ADR since that’s a foundational skill being tested. While NCBE does not explicitly state learning ADR rules, a strong understanding of ADR concepts would definitely be helpful in passing the NextGen UBE.

    Shorter Testing Time under the NextGen UBE

    The NextGen UBE is shorter than the UBE. Whereas the current UBE is administered over two days, the NextGen will test bar takers for only 1.5 days. There will be no afternoon session on the second day of the bar exam.

    Currently, the UBE tests bar examinees over 4 sessions of 3-hours each. Under the NextGen UBE, bar takers will be finished in 3 sessions of 3-hours each. The bar will continue to be administered on the last Tuesday and Wednesday of February and July. Under the NextGen UBE, the exam will be completed after the Wednesday morning session that ends at 12 noon. See more about the exam changes here.

    Frankly, the current 2 full days structure is brutal and testing conditions alone have caused many people to fail an exam for which they are likely adequately prepared. So a shorter exam is definitely a much needed relief!

    NextGen UBE for the July 2026 Bar Exam

    The following states are administering the NextGen UBE for the July 2026 bar exam.

    • Connecticut
    • Idaho
    • Maryland
    • Missouri
    • Oregon
    • Washington

    As of now, the larger states of Florida, New York and Texas are planning to switch to NextGen in July 2028.

    It is possible that California might join the list. After California’s failed experiment of the fully remote February 2024 bar exam, the State Bar has returned to administering the previous CA bar exam model. However, with no change in bar exam funding, the state continues to explore other viable alternatives. Recently, the State Bar of California has emailed surveys to current bar exam takers on joining the NextGen UBE.

    Studying for the NextGen UBE

    The NCBE is selling official study aids for the NextGen bar exam here.

    As a bar exam taker, whether you are studying for the legacy UBE or the NextGen UBE, you are still required to know fundamental legal rules in all the current seven MBE subjects. BarTaker’s quizzes and SmartCards are particularly designed to help you learn, recall, and retain the law needed to pass the bar exam.

  • Real Covenants, Equitable Servitudes, and Implied Reciprocal Schemes

    Real covenants overlap with equitable servitudes and its related concept of implied reciprocal schemes, often causing a lot of confusion for bar exam takers.

    We created the tables below to help clarify rules around these concepts.

    REAL COVENANTS

    Definition: Real covenants are written promises that impose restrictions on the use of land and run with the land.

    Common law requirements for real covenants:

    Burdened LandBenefitted Land
    Writing
    – Between original parties    		Writing
    – Between original parties
    Intent 
    – To bind successors     		Intent 
    – To benefit successors 
    Touch & Concern
    – Burden the land
    – Restrict use or enjoyment of land    		Touch & Concern
    – Benefit the land
    – Increase use or enjoyment of land
    Vertical privity
    – Relationship between the previous and current owners    		Vertical privity
    – Relationship between the previous and current owners
    Horizontal privity
    – Relationship between the original parties of the burdened and benefited land
    Notice
    – Actual, inquiry, or record (constructive)
    Remedy: Legal DamagesRemedy: Legal Damages

    Modernly, real covenants have fewer requirements.

    • Burdened Land: Writing, Intent and Notice only.
      • Touch & Concern, and Privity (Horizontal and Vertical) are no longer required.
    • Benefited Land: Writing and Intent only.
      • Touch & Concern, and Privity are no longer required.

    EQUITABLE SERVITUDE

    Definition: Equitable servitudes are restrictions on how land may be used. Servitudes run with the land. Equitable servitudes were developed in the courts of equity. Remedies for breach are injunctions only.-

    IMPLIED RECIPROCAL SERVITUDE / SCHEME

    Definition: A common plan or development that creates an implied reciprocal servitude or scheme among multiple lots where each lot is bound by the restrictions and can enforce them against others, even if the restrictions are not stated in every deed.

    Equitable ServitudeImplied Reciprocal Scheme
    Writing requiredNo Writing Required
    – SOF does not apply
    Intent to bind successors Intent to bind/benefit successors
    (original owner’s common plan)
    Touch & Concern Land
    – Benefit dominant land
    – Burden servient land    		Touch & Concern Land
    – oral words
    – evidence, or
    – recorded notice
    Noticed RequiredNotice Required
    Privity Not RequiredPrivity Not equired

    Remedy: Injunction (Equity)

    Remedy: Injunction (Equity)

    Did you know that writing down answers from memory doubles retention compared to passive reading?

    Using our SmartCards, you can write down your answers from memory and test yourself in real time on real covenants, equitable servitudes and other legal rules tested on the bar. No more looking at flashcards and thinking, “I knew that”. Don’t leave memorization to chance. Try our free content at BarTaker.com to see if it fits your learning style.

  • Private Nuisance in Tort Law

    Nuisance is a frequently tested topic on the MBE and essay portions of the bar exam. Nuisance can be public or private. This blog post covers private nuisance.

    Private Nuisance

    Definition: Private nuisance is a substantial and unreasonable interference with another person’s use and enjoyment of their land.

    Substantial interference is something that is annoying, offensive, or inconvenient to an average person. Unreasonable interference is when the harm caused by the activity is greater than the benefit from the activity. For private nuisance claims, the plaintiff must have a possessory interest in the land. Ownership of land is not required.

    Note that private nuisance is analyzed using an objective standard.

    Consider an example: A landlord rents their home to a tenant. The home across the street plays extremely loud music at night. The tenant is deaf and cannot hear the music. However, on one occasion the landlord is visiting the tenant and hears the loud music. The landlord wants to bring an injunction to stop the nuisance. The homeowner argues that since the tenant is deaf and the landlord does not live there, the music is not a nuisance to the landowner. Therefore, they should be allowed to play it at the desired volume.

    Here, the landlord would prevail. Subjectively speaking, the tenant is not experiencing the nuisance from the loud music because they are deaf. However, private nuisance claims are evaluated using an objective standard. Loud music at night is annoying, offensive and inconvenient to an average person. It is unreasonable interference in the use and enjoyment of one’s land. The landlord has a possessory interest in land as owner of the property.

    Remedies for private nuisance included damages and injunctive relief. Here, the landlord can obtain an injunction.

  • Useful Habits to Study for the February 2026 Bar Exam

    The February 2026 bar exam is just three months away. February typically has many retakers and attorney applicants, and sometimes it’s difficult to motivate oneself and get back to studying. The holiday season is coming up and distractions are everywhere. Remember that the best approach to studying is the one that works for you. However, below are general strategies that have helped many people pass the bar exam on their first attempt.

    1. Plan for uninterrupted study blocks: Your schedule won’t clear itself. You need to own your time and actively protect your study blocks.

      Tip: If distractions are a challenge, physically isolate yourself.

      – Consider using quiet areas in a library where phones must be silenced. Don’t connect to the internet there.
      – Go to a cafe without Wi-Fi. Download your notes or write timed essays that don’t require connectivity.

    2. Focus and re-focus: Distraction is normal. The important thing is to bring your attention back to your studies. Don’t give up. Each time you refocus, you’re training your brain to focus for extended periods of time. 

      Tip: Focus comes easier when you stick to one topic and go deep. For example, if you’re studying Civil Procedure, dedicate one session to jurisdiction (personal jurisdiction, subject matter jurisdiction, supplemental jurisdiction, removal and remand).

      Then immediately:
      – Take a timed essay on Civil Procedure jurisdiction.
      – Issue-spot two essays on the same topic.
      – Complete 20-25 MBE questions on jurisdiction.

    3. Prioritize solo studying: The bar exam is a solo endeavor.

      Your individual study time helps you:
      – Plan your schedule
      – Identify what you need to learn
      – Focus on your weak areas

    4. Commitment: Study at least five days a week, ideally six. The bar exam is broad and deep. It covers extensive material across many subjects and depth within each topic. To memorize, retain, and recall all the rules and definitions for two days, despite the anxiety of the exam, you have to put in significant time investment. This level of time commitment impacts your lifestyle and relationships. Some of you might be working while studying. Talk to your loved ones about your needs and be willing to postpone some pleasures temporarily. 

      Remember: passing on your first attempt means more time with family later, since you won’t need to retake the exam.

    5. Test your knowledge regularly: Test your ability to apply the law. 
      • Essays: Practice issue spotting and write full essays
      • MBE: Complete 25-50 questions regularly

    Tip: Try interactive quizzes on black letter law at BarTaker.com to test your knowledge. We offer Civil Procedure for free.


    A Final Thought: Make it enjoyable

    If you enjoy the content, it is easier to learn and retain. When you work through essays or MBE questions, imagine yourself as the attorney, the judge, or even the client in the case. Step into the world of each question. This kind of engagement can make studying more interesting and effective.

  • Retaking the February 2026 Bar Exam Using Deep Work

    July 2025 bar exam results are out, and if you’re reading this, you may be among those who didn’t pass. You’re probably looking ahead to the February 2026 bar exam, and feeling anxious about retaking it. Your confidence took a hit, the statistics about lower February pass rates aren’t encouraging, and you’re wondering what went wrong. You’re also thinking you already know some subjects well but others need additional work. 

     Before you start studying with that uneven, patchwork approach, take a step back. Remember that February 2026 is a new start. Approach the next bar exam with renewed optimism and the commitment to give it your absolute best effort. Don’t let July’s results predict your February outcome. And remind yourself that you’re in good company. Many successful attorneys passed on their second attempt.

    One highly effective study method is deep work, a technique popularized by Cal Newport in his book Deep Work. It’s about immersing yourself completely in the material for focused bursts of time, resulting in long-lasting recall.

    • Find a quiet place (mine was the study room at my public library)
    • Block of uninterrupted time where you’re totally absorbed (I preferred afternoons)
    • Eliminate all distractions: no phone notifications, no internet, no background music
    • Start with one-hour sessions and gradually build to 2-3 hour blocks, followed by 15-minute breaks

    Initially, even an hour of pure, undistracted focus is a huge win, but your goal should be to build up to three hours. The bar exam demands sustained concentration. You need to be able to focus 3 hours, twice a day, 2 consecutive days in a row. 

    Newport shares a lot of research showing that this kind of focused work helps the brain hold onto information for a long time. As you develop this practice, you’ll notice improved concentration that helps you memorize fundamental law faster, sharpen your issue-spotting and essay-writing skills, and strengthen your analytical abilities for MBE questions.

    BarTaker is built for deep work. Our focused quizzes let you dive into one topic at a time, concentrating on learning fundamental legal rules and definitions. By combining deep work methodology with targeted active recall practice, BarTaker helps you master the black letter law you need to pass the February 2026 bar exam.

  • Interpreting MBE Scores for the July 2025 Bar Exam

    Update:

    • NYS BOLE released the July 2025 bar exam results on October 23, 2025. See the results here.
    • Texas Board of Law Examiners have released the results of the July 2025 bar exam here.
    • The Supreme Court of Florida has posted the results from the July 2025 bar exam here. The results are listed by each applicant’s anonymous Bar Applicant File Number. No names are released.

    The July 2025 bar exam results will be coming out soon. Most states release the July exam results around October to November. However, some states release them earlier. In Florida, the July bar results are scheduled to be released on Monday, September 22, 2025. The New York State Board of Law Examiners (NY BOLE) releases their July bar exam results around late October to early November. An email is sent out to candidates with specific date and time announcements. Texas Bar Exam results for July are also released in mid-October. California Bar Exam results for the July 2025 bar exam will be released on November 7, 2025 at 6:00 p.m. 

    For candidates who do not pass the bar, interpreting the results to improve for next time can be challenging. The MBE scores can be confusing because one has to interpret the meaning of raw and scaled scores and the percentages for each subject. Here’s how to decode your MBE score report and use it to focus your preparation.

    Raw Score

    The MBE has 200 questions but only 175 questions are graded. The remaining 25 questions are experimental questions that the NCBE analyzes to determine which ones to use for future exams. The scores for those 25 questions are not counted in your total score. The raw score is simply the number of questions you answered correctly out of the 175 graded questions. Do not confuse your raw score to be out of 200.

    Note that you cannot determine in advance of the exam how many questions you must answer correctly to achieve a specific scaled score. This is due to the process of equating explained below. 

    Scaled Score

    The NCBE converts your raw score into a scaled score using a statistical process called equating. Equating exists to ensure that the scores from one exam are comparable to another exam. For example, if the July 2025 exam was more difficult than the July 2024 MBE, the equating process would adjust raw scores upward to compensate for the increased difficulty. This is done so that the scaled scores represent the same level of competence regardless of which exam one takes. 

    The scaled scores for the MBE range from 40 to 200.

    Subject Area Percentages and Passing Scores

    When you receive your MBE scores, you will notice something that reads like, ‘MBE Percent Below’. Each of the seven MBE subjects are listed below: Civil Procedure, Constitutional Law, Contracts, Criminal Law and Procedure, Evidence, Real Property, and Torts. There is a corresponding number next to each subject. That is the percentage of people who are below you in that specific subject for that particular bar exam. For example, if you see “Torts: 60.2,” it means that in Torts you scored more than 60.2% of the candidates who took the bar exam with you. Remember that your MBE scores reflect your performance as relative to other test takers who sat for the same exam with you.

    This breakdown is important because it allows you to see your subject areas of strengths and weaknesses and plan your future study schedule accordingly.

    The MBE is only one part of the bar exam. Your final score is a combined score of the MBE, essays (MEE or other state-specific essays) and the MPT. The MBE score you need to pass varies by state, depending on how much weight is given to the MBE. 

    In California, the bar exam is graded on a 2000-point scale. The passing score is 1390. The MBE and written portion are each weighted 50%. This means that you need a scaled MBE score of roughly 139 to pass if your written score is also 139.

    In Florida, the MBE and the Florida-specific essay portion are each weighted 50%. An average scaled score of 136 is required to pass the exam.

    In New York, which is a Uniform Bar Exam (UBE) jurisdiction, the passing score is 266 out of a possible 400. The MBE counts for 50% of the total UBE score. A scaled MBE score of 133 is considered a passing score if the written portion is also 133.

    In Texas, which is also a UBE jurisdiction, the passing score is 270 out of 400. The MBE is weighted at 50% of the total score, so you would need a scaled MBE score of 135 to pass if your written score is also 135.

    Most states do not require a minimum MBE score to pass. A high score on the written portion can often compensate for a lower MBE score but the specifics vary from state to state. Always check with your state’s bar for the most current guidelines on scores as these may change from year to year.

  • A Guide to Subject Matter Jurisdiction (SMJ) and Personal Jurisdiction (PJ) for the Bar Exam

    Jurisdiction is a core concept for Civil Procedure on the bar exam. The two frequently tested concepts to know are: Subject Matter Jurisdiction and Personal Jurisdiction.

    The Fundamental Distinction: What vs. Who

    • Subject Matter Jurisdiction (SMJ) is about whether the court havs proper jurisdiction over the subject matter of the case.
    • Personal Jurisdiction (PJ) is about whether the court has proper jurisdiction over the parties to the action, especially the defendant.

    Constitutional Limits

    • Subject Matter Jurisdiction: Federal courts have limited jurisdiction under the constitution. They can only hear cases that clearly meet constitutional requirements.
    • Personal Jurisdiction: Before a forum state can exercise jurisdiction over non-resident individuals, it must meet the constitutional requirement of sufficient minimum contacts. This protects individuals from being hauled into courts where they have no meaningful connection.

    Two Ways to Subject Matter Jurisdiction

    A federal court can only exercise SMJ if the case falls into one of two categories:

    1. Federal Question: If the plaintiff’s claim “arises under” any one of the below federal law, the federal court has SMJ.

    • US Constitution
    • Federal Statutes
    • Executive Actions
    • Treaties

    2. Diversity of Citizenship: The case must meet both of the below two requirements:

    • Complete Diversity: No plaintiff can be from the same state as any defendant,
      AND,
    • Amount in Controversy: The amount of damages must exceed $75,000, not including interests or costs.

    Personal Jurisdiction: State Residents vs. Non-Residents

    For State Residents: Jurisdiction can be established through any one of the three traditional bases:

    1. Consent (Express or Implied), OR
    2. Presence and Service: Defendant present and served within the forum state, OR
    3. Domicile: Defendant is domiciled in the forum state

    For Non-Residents: The Two-Step Analysis

    1. Long-Arm Statute: The state must have a law allowing jurisdiction over the non-resident.
    2. Sufficient Minimum Contacts: This is a constitutional test. The defendant must have sufficient minimum contact with the forum state such that asserting PJ over him does not offend traditional notions of fair play and substantial justice. This constitutional test includes four key elements:
      • Purposeful Availment: The defendant deliberately availed benefits and protections of forum state
      • Foreseeability: It was reasonably foreseeable that the defendant’s activities in the forum state could subject the defendant to being haled into court there.
      • Relatedness of Claim: The claim arises from the defendant’s conduct or contact with the forum state.
        • General Jurisdiction: Systematic and continuous contacts with the forum state such that the defendant is essentially “at home” there.
        • Specific Jurisdiction: The claim arises from the defendant’s specific activity in the forum state.
      • Fairness Factors Even if the above elements are met, the court must consider whether exercising jurisdiction is fair and does not offend “traditional notions of fair play and substantial justice”.
        • Convenience of forum to parties
        • State’s interest in adjudicating the dispute
        • Other interests including interstate efficiency and plaintiff’s interest in the forum.

    Conclusion

    • SMJ focuses on the case; PJ focuses on the parties.
    • Both have constitutional limits protecting different interests.
    • SMJ requires either federal question OR diversity + amount to exceed 75K
    • PJ uses traditional bases for state residents. For non-residents, PJ requires long-arm statute + “sufficient minimum contacts” test.

  • Should Bar Exam takers apply the Lemon test or Historical Practices and Understandings standard for Freedom of Religion’s Establishment Clause?

    The First Amendment’s Establishment Clause prohibits the government from making any law that respects the establishment of religion. The Establishment Clause applies to the states through the Fourteenth Amendment.

    In Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court created a three-part analysis to determine whether a law violated the Establishment Clause.

    Under the Lemon test, the Court held that for a government action to be constitutional:

    1. It must have a secular purpose
    2. Its principal or primary effect must be one that neither advances nor inhibits religion, and
    3. It must not foster an excessive government entanglement with religion.

    The Historical Practices and Understandings Test

    In Kennedy v. Bremerton School District, 597 U.S. 507 (2022), the Supreme Court stated it had “long ago abandoned” the Lemon test which had “invited chaos” in lower courts and led to “differing results” in materially identical cases. Id. The Court said that in place of Lemon and the endorsement test, it has instructed lower courts to interpret the Establishment Clause by reference to historical practices and understandings based on the founders’ understanding. Id. The Court also said that the Establishment Clause analysis should focus on “original meaning and history”. Id. However, the Court did not expand on the application of this analysis, nor provide a substitute test that could be easily applicable to a factual situation.

    In Kennedy , the thrust of the Court’s focus lied in evaluating whether there was any kind of coercion in joining a religious activity.

    Whereas the Lemon test focused on the secular purpose/effect of a law, the new test focuses on the historical acceptance of a practice.

    Bar Exam Implications

    Generally, Establishment Clause would be more relevant for essay questions that require showcasing one’s knowledge of the rule and the application of it. On bar exam essay questions, explicitly acknowledge the decision in Kennedy v. Bremerton . Explain that the Court has moved away from the Lemon test and towards an analysis of “historical practices and understanding” which has a focus on the founders’ understanding, and on original meaning and history. When you are analyzing the fact pattern, evaluate whether there is any kind of coercion in joining a religious activity, or refraining from it. Finally, consider applying the Lemon test to show your understanding of it, and the doctrinal shift and philosophical differences between the two approaches. In conclusion, prioritize explaining the new standard developed by the Court in Kennedy, but acknowledge the older Lemon test.

    Our Constitutional Law flashcards offer a concise summary of the doctrinal shift and the new three-part Historical Practices Test.