Fine Lines

I think the thing I have grown to hate the most about the bar is the fine line distinctions we are supposed to draw on the MBE portion of the exam. For example, I know criminal law like the back of my hand. I can easily recall the difference between the elements of involuntary manslaughter based on a negligence standard and depraved heart murder which is based on a wanton or willful conduct standard. It is aggravating that, rather than testing me on this, they use subjective fine line distinctions to trick you.

For example, how would you classify a husband's conduct who left his wife as she went into insulin shock, solely so he could attend a playoff basketball game? Is this negligent conduct, or wanton and willful conduct if the facts say that he knew she would go into a coma in a matter of hours? In truth, I think you could effectively argue this either way. I personally went with wanton and willful conduct, but the authors of my textbook disagreed and characterized this as mere negligence without further review. Never mind that the facts went on to say the game went into three overtimes and by the time he returned, she had died.

Take another of my favorite fine line tests. Arson is the burning of the dwelling place of another with malice. Forget for a second the elements of malice and just assume that this element is present in this question. If I told you a guy set fire to the curtains of another's dwelling place and that the fire spread to and charred the walls and ceilings, would you say that an arson had taken place? What if under the same facts as above, I said that the walls and ceilings had been seared instead? What if they had been scorched? The correct answer is that under the charred facts, an arson is said to have taken place, but not under the seared or scorched facts. Problem is, they will try to trick you and say the curtains or carpet were charred, but hold on a second, that's not an arson. The charring must happen on the walls or ceiling for arson to exist, but mere searing or scorching of the walls is not enough.

My point is, give me five minutes and a captive audience, and I can pretty much guarantee you that I can make a compelling argument that goes either way. This is essentially what lawyers do. The fact that one can be wrong simply for choosing the wrong adjective, or misapplying what is essentially a subjective test, seems silly to me.