Understanding Torts for the U.S. Bar Exam – Tips for Foreign Students
One of the key areas tested on the bar exam is Tort Law. Torts are civil wrongs that cause harm or loss to individuals, leading to legal liability. Unlike criminal law, which deals with offenses against the State, Tort Law focuses on compensating victims for their injuries. The primary goal of Tort Law is to provide relief to the injured party and deter others from committing similar harms.
There are three main categories of Torts: Intentional Torts, Negligence, and Strict Liability.
1. INTENTIONAL TORTS: These occur when a person deliberately causes harm to another. They include Assault, Battery, False Imprisonment, Intentional Infliction of Emotional Distress (IIED), Trespass to Land, Trespass to Chattel, and Conversion.
Note: Foreign legal systems may not differentiate between Assault (which does not require offensive contact) and Battery (which requires offensive contact). So, memorizing every single element for each Tort is crucial.
2. NEGLIGENCE: This is the most common type of Tort and arises when a person fails to exercise reasonable care, resulting in harm to another.
To establish negligence, the Plaintiff must prove four elements: Duty, Breach, Causation, and Damages.
Remember: Mental illness and voluntary intoxication are not defenses!
3. STRICT LIABILITY: In these cases, a Defendant can be held liable for harm without proof of negligence or intent. So, the Plaintiff only needs to prove Duty, Causation, and Harm. This often applies in cases involving abnormally dangerous activities, wild animals, and defective products.
In addition to these three main categories, you may encounter a fourth one: STATUTORY Torts. The latter are not established by common law principles (based on customs and judicial decisions) but by laws enacted by legislature, such as those defined and governed by the Federal Tort Claims Act (FTCA), State Tort Claims Acts, or Federal Employers' Liability Act (FELA).
Under “Other Torts”, the UBE tests: Nuisance, Defamation, Invasion of Privacy, Misrepresentation, and Intentional Interference With Business Relations.
Common Mistakes to Avoid
- Confusing Tort Law with criminal law. Remember that Torts are civil matters focused on compensation; whereas crimes are prosecuted by the State.
- Overlooking the importance of each element in every category. The bar exam tests basic concepts but with their main nuances and exceptions. So, understanding the different concepts involved is important but then memorizing them is indispensable to correctly answer MBE questions and gain precious points in the essays.
Our outlines can help you focus on what really matters to master Tort Law and increase your chances of success on the bar exam.