Torts is the subject most candidates are quietly confident about, and the confidence is half-earned. You know what negligence is. You can recite duty-breach-causation-damages the way you can recite a phone number. The trouble is that the exam never asks whether you know the four elements — it asks whether a statute's protected class includes this plaintiff, whether an inference is permitted or a burden shifted, and which of two causation tests governs when both defendants would have caused the harm alone.
On the NextGen bar exam that precision demand didn't relax. What changed is where it applies — and three of the topics your outline drills hardest are no longer on the recall list at all.
The starred map: nine of twelve
NCBE's Content Scope Outline marks every topic starred or unstarred, and the mark decides what the exam may demand. Starred means no resources and full recall. Unstarred means one of two lighter things: recognise the issue without reciting the rule, or read the governing law from a provided excerpt and apply it accurately.
In our scope-aligned breakdown Torts comes out 9 of 12 starred — recall-heavy, with a provided-resource fringe. What's striking is the shape of the split.
Starred — the negligence machine, entire:
| Topic | What full recall means here |
|---|---|
| Duty & special relationships | Foreseeable plaintiffs, affirmative duties, land occupiers, NIED, economic loss |
| Standard of care & negligence per se | Reasonable person, children, professionals, emergencies, statutory standards, custom |
| Res ipsa & proof | The conditions for the inference, circumstantial proof of fault |
| Causation | But-for, substantial factor, multiple causes, scope of the risk, superseding causes |
| Comparative fault & others' acts | Pure vs modified comparative, assumption of risk, nondelegable duties |
Five of the twelve topics are negligence's internal machinery, and every one is starred. Add intentional torts and defences, strict liability, products liability, and nuisance — also starred — and the message is that the working core of the subject is memorisation territory.
Unstarred — and this is the surprise:
- Defamation & privacy — including the constitutional overlay and all four privacy torts
- Damages — joint and several liability, compensatory and punitive categories, thin-skull, mitigation
- Misrepresentation — fraudulent and negligent
Read that list against any legacy torts outline and the mismatch is obvious. Defamation with its constitutional layer is a classic essay set-piece. Damages apportionment is drilled relentlessly. Both are off the full-recall list. Confirm the precise mode for each against NCBE's own scope outline — but do not spend February grinding punitive-damages standards into flashcards on the assumption that the legacy emphasis carried over. It didn't.
Why the negligence chain earns the time
There's a structural reason the starring falls this way, and it's worth understanding rather than just memorising.
Prep-industry breakdowns of the legacy MBE put negligence at roughly half of all Torts questions — NCBE doesn't publish a NextGen equivalent, so treat that as era context rather than a promise. But the new formats push in the same direction. An integrated question set built around an accident, a workplace injury, or a defective product needs you to run duty → breach → causation → apportionment across several items on a shared fact pattern, at speed. That is exactly the chain the exam starred.
Defamation, by contrast, is the kind of doctrine a provided-resources design handles gracefully: hand the examinee the constitutional standard, test whether they can apply it. The starring isn't arbitrary. It tracks which law the exam wants in your head versus on the page in front of you.
The practical consequence: your flashcard time in Torts belongs to the negligence chain and the strict-liability pair, not to the tort-by-tort catalogue.
Five traps the exam sets on repeat
- Duty is a threshold question, not a fairness question. There is no general duty to act. Affirmative duties come from somewhere specific — a special relationship, a voluntary undertaking already begun, a duty to control a third party, or the status of a land occupier. Distractors are written to sound decent: "a reasonable person would have called for help." Decency isn't duty, and the answer that supplies a source beats the answer that supplies sympathy. Negligent infliction of emotional distress splits the same way — zone of danger versus bystander recovery are different tests with different requirements.
- Negligence per se only works if the statute fits twice. The plaintiff must be in the class the statute protects and the harm must be the type the statute was meant to prevent. Miss either and the violation isn't negligence per se — it may still be evidence bearing on the standard of care, which is a different answer choice. Excuses (incapacity, greater risk of compliance) are the second layer, and the trap is treating any statutory breach as automatic liability.
- Two causation tests, and knowing when the second one takes over. But-for is the default. When two causes would each independently have produced the harm, but-for fails on its own terms and the substantial-factor test governs. Then proximate cause is a separate enquiry — scope of the risk — where an intervening cause that is foreseeable leaves liability intact and a genuinely superseding one cuts it off. Answer choices routinely offer a correct statement of the wrong test.
- Res ipsa permits an inference. It does not shift the burden. The conditions are narrow: an accident of a type that does not ordinarily happen without negligence, and an instrumentality under the defendant's exclusive control. What it buys the plaintiff is that the case may go to the jury. The distractor — "the burden of proof shifts to the defendant to disprove negligence" — is a nearly-right sentence, and nearly-right is the entire game on select-two items.
- The strict-liability pair, where the defect and the defendant both matter. For abnormally dangerous activities, the harm must arise from the risk that made the activity dangerous — the dynamite truck that causes an ordinary collision by ordinary bad driving is a negligence case, not a strict-liability one. For products, the theory follows the defect type (manufacturing, design, failure to warn), and the defendant has to be a commercial seller in the distribution chain. The neighbour who sells you a lawnmower at a yard sale is not.
If four of those five read as review, Torts is a maintenance subject for you. If two or more read as news, you've found real points — and they're in the starred half, which is where points are cheapest to buy.
How to drill it for this exam
Cards for element chains, volume for classification. Duty sources, the negligence-per-se fit test, the causation tests, res ipsa's two conditions, the three defect types — these are element chains with high distractor value, which is exactly what spaced repetition is for. But choosing between two plausible causation answers under a clock is a different skill, and it only comes from mixed reps at the real 1.8-minute pace.
Drill the chain as a chain, not as topics. Torts is the subject where the exam most naturally strings issues together, so practise it that way: sets where duty, comparative fault and apportionment arrive inside one fact pattern rather than in tidy single-issue stems.
Give the unstarred three one honest pass. Not flashcards — shape. You cannot issue-spot a privacy tort you've never met, and if the governing standard arrives as provided text, the skill being tested is reading it fast and applying it accurately. That's a performance-task muscle, not a memorisation one.
The materials, honestly
NCBE's content scope outline (free). The authoritative topic list, with the stars that decide your flashcard deck. Your syllabus and your final checklist.
A law-school supplement (~$40–60). Worth it if negligence never really clicked — course-depth doctrine, slow and thorough, no exam formats.
Our Torts volume ($9.99). Volume 8 of the series is the largest in it: 12 topics across 788 pages, 386 practice questions in the real NextGen formats with full explanations, and a 521-card flashcard appendix keyed to the starred topics — intentional torts through damages, mapped to the NCBE scope with nothing outside it. The sample chapter is free, EPUB and PDF, no account needed, and worth reading first since ebook sales are final.
Drilling on the platform ($99 lifetime). The same content as a live question bank with analytics by topic — which is how you find out whether "torts" is your problem or whether causation is quietly bleeding the points while everything else holds.
The bottom line
Torts on the NextGen exam is a negligence exam with satellites. Nine of twelve topics are starred and five of those nine are the negligence chain itself, so that chain — duty through apportionment — is where your recall time earns the most. The three unstarred topics are the ones a legacy outline over-serves: defamation and privacy, damages, misrepresentation. One honest pass each, no grinding.
Start with the free evidence about yourself rather than another outline: the free sample chapter, or ten diagnostic questions at the real pace, which will tell you in ten minutes whether this subject is your maintenance round or your project.
Frequently asked questions
- How many Torts topics are starred on the NextGen bar exam?
- Nine of twelve in our NCBE-scope-aligned breakdown, which makes Torts recall-heavy with a provided-resource fringe. The starred nine include the whole negligence chain — duty and special relationships, standard of care and negligence per se, res ipsa and proof, causation, and comparative fault — plus intentional torts and defences, strict liability, products liability, and nuisance. Starred means no resources are provided and full recall is expected.
- Which Torts topics are unstarred, and can I skip them?
- Defamation and privacy, damages, and misrepresentation are unstarred — which is surprising, because a legacy outline drills all three hard. Unstarred does not mean skippable, though: the exam may test whether you recognise the issue, or hand you the governing law as a provided excerpt and grade whether you apply it accurately. The right treatment is one honest pass for shape and no flashcard grinding, with the reading-under-a-clock skill practised on question sets and performance tasks instead.
- Is negligence still the most tested part of Torts?
- Prep-industry breakdowns of the legacy MBE put negligence at roughly half of all Torts questions, and NCBE does not publish a NextGen equivalent, so treat that figure as era context rather than a guarantee. The structural signal points the same way: five of the twelve Torts topics are negligence machinery and all five are starred, and the exam’s integrated question sets naturally run duty, breach, causation and apportionment across one shared fact pattern.
- What does res ipsa loquitur actually do on an exam question?
- It permits an inference of negligence, letting the case reach the jury — it does not shift the burden of proof to the defendant. The conditions are narrow: the accident must be of a type that does not ordinarily occur without negligence, and the instrumentality must have been under the defendant’s exclusive control. The common distractor states that the burden shifts to the defendant to disprove negligence, which is a nearly-right sentence of exactly the kind select-two items are built from.
- When does the substantial-factor test replace but-for causation?
- When two or more causes would each independently have produced the same harm, but-for causation fails on its own terms because neither is strictly necessary, and the substantial-factor test governs instead. Actual causation is only half the question: proximate cause is a separate enquiry into whether the harm fell within the scope of the risk, where a foreseeable intervening cause leaves liability intact and a genuinely superseding one cuts it off.