The MBE tests a lot of law but it’s all basic. The toughest MBE questions resolve around picking the least incorrect answer of four wrong answers. The next toughest questions resolve around picking the more correct answer of two correct answers.
The essay section is relatively easier and simply requires understanding IRAC and good legal writing. I expect students pass or fail based on their MBE and that the essay questions merely confirm that. A weak MBE and a weak essay section is a fail. Strong MBE and weak essays are still a pass, in my opinion.
Tricky topics are: privileges and immunities clause (always gets one or two questions is about never the right choice), dominant/servient easements and subdivisions (does that covenant run with the land?), political question doctrine, hearsay. These topics especially must be drilled repeatedly. Another somewhat tricky topic is the contract for sales of goods with a service component: does the UCC govern the entire contract, only part of it, or not at all?
The bar is passed with a heuristic namely: making your best guess quickly and moving on, and doing so by process of elimination. Most students will be able to eliminate one or two answers as clearly wrong. Passing students pick the answer they think likeliest to be correct among the remaining two, or, worst case: the least incorrect of four wrong answers (these may be experimental questions).. A correct answer isn’t necessarily the most correct answer! Tricky and in my opinion two correct answers or no correct answer is a bad selector, but I can point out released bar questions which do exactly that, test either for the more correct of two correct answers or the least incorrect of four incorrect answers.
I think criminal law and torts are actually the easiest MBE sections, but causation in tort is obviously the trickiest part of torts. As to crimes they don’t test the tricky parts (complicity; due to an absence of common law doctrinal unity and codification thereafter). NCBEx testing of attempt is, at least in the released questions, not particularly difficult, though students may find attempt’s logic confusing without repeated exposure thereto.
The MBE questions are the “cake”, the “meat and potatos” and the essays as “icing”, the “desert”. I don’t think brilliant essay answers and terrible MBE questions results in a pass, at least not in NY.
The NY bar does have some issues (namely divorce, CPLR 78) which if incorrectly answered will likely reflect a fail. I haven’t studied the California bar enough to identify which questions there will result in the student failing.