elements review session: order of proceeding general info on preparation & my exam exam...

ELEMENTS REVIEW SESSION:

ORDER OF PROCEEDING• General Info on Preparation & My

Exam • Exam Technique

– Generally– QI: Issue-Spotter– QII: Strength of Analogy– QIII: Opinion/Dissent

• Logistics• Questions MUSICMUSIC

General Info on

Preparation& My Exam

General Preparation Advice

• Two Thoughts on Curves & Class Rank Two Thoughts on Curves & Class Rank – Long RunLong Run– Short RunShort Run

• Pace Yourself for Three Week Pace Yourself for Three Week AdventureAdventure– Leave “Gas in Tank” for Last Exams Leave “Gas in Tank” for Last Exams – Do Some Advance Work on TortsDo Some Advance Work on Torts– Immediately Before Each Test, at Least 48 Immediately Before Each Test, at Least 48

Hours Exclusive Attention to that SubjectHours Exclusive Attention to that Subject– Can’t Do Useful Work for 4-5 Hours After Can’t Do Useful Work for 4-5 Hours After

Tests (Good Option: Unchallenging Movies)Tests (Good Option: Unchallenging Movies)

Elements Preparation:Best Prep is Old Exam Qs

• Do some of each Q under exam Do some of each Q under exam conditions.conditions.

• Review in groups if possible.Review in groups if possible.• Read comments even for ones you don’t Read comments even for ones you don’t

dodo• Model answers neither complete nor Model answers neither complete nor

perfect perfect • Use to see organization/style I like Use to see organization/style I like • Use to see some possible ways to analyzeUse to see some possible ways to analyze

• More recent Qs/Comments/Models better More recent Qs/Comments/Models better indicators of what I’m looking forindicators of what I’m looking for

Structure of Exam

• Three Questions– One of Each Type I’ve Shown You– Must Do All

• Three Hours and a Half– One hour to read Qs, take notes, outline (no

computers or bluebooks)– 2.5 hours to write answers (50 Minutes per Q)

• Closed book with condensed syllabus attached. – I’ll post this version of syllabus on Course Page – Try working with it when you do Practice Qs

Using Your Reading Period

• 1st 15 Minutes– Read test – Hyperventilate– Choose what order in which to write Qs (I/II v. III)

• Next 45 Minutes (I’d Recommend…)– Use about 15 minutes on each Q– Read it again carefully– List major points you’d like to discuss– Choose order to make rough outline– Do last in reading period Q you want to write first

Exam Instructions• I’ll post instructions page of exam on Course

Page to read in advance

• Important instruction for students doing exam on computers:– Between each Question, put in a hard page break

(hit Control + Enter), so that each Question begins at top of a new page.

– Saves my assistant much time and stress!!!– No need to start new page between…

• Parts of Question I

• Opinion & Dissent in Question III

Exam Technique: Generally

• My Exam Technique Lectures:– Podcasts on Academic Achievement

Website– Slides on Course Page

• Some Repetition Here, But Focused on Problems Commonly Arising on Old Exams

Testing Ability to Use Tools, Not Testing Ability to Use Tools, Not Just Whether You “Know” Just Whether You “Know”

MaterialMaterial

• Only provide info that you are using to make arguments. E.g., – Don’t simply recite legal tests; apply them – Provide details of facts of cases only if

using those facts to make specific arguments

• Show me all necessary steps of arguments.

Testing Ability to Use Tools, Not Testing Ability to Use Tools, Not Just Whether You “Know” MaterialJust Whether You “Know” Material

• Wizard of Oz (Because, Because, Because)– Provide support for key assertions– E.g., why a particular fact helps one party– E.g., why a particular factual similarity or

difference matters

• Must use authorities/rules correctly– E.g., Second Part of Test from Shaw– E.g., Mullett & Abandonment

Draft, Not Final Product Draft, Not Final Product • Getting lots of ideas on paper much

more important than style• Be concise (paid by the idea, not by

the word)– Can use telegraph English– Can use bulleted lists (e.g., of

evidence supporting one side of an argument)

Draft, Not Final Product Draft, Not Final Product • No formal introductions & conclusions• Use headings & sub-headings to

replace topic sentences & transitional phrases

• Use abbreviations – Party names 1st Initial– Recurring phrases NL DIBE

• Use single party name to refer to cases (e.g., Pierson, Shaw, Taber, Mahon, Penn Central)

Reality TV Challenges • Use pre-selected components to

complete assignment in unrealistic time frame

• Qs are hard to resolve; don’t try to make them easier than they are

• Do the challenges– Specific Task Given (Different Q = Different

Task)– Specific “Ingredients” Given (Read

Carefully)– Time Frame Given (Adhere Compulsively)

Exam Technique: Question I Issue-Spotter Using Animals

Cases (ACs)

Question I: 2014 Special Instructions

Based on the Fact Pattern Below, (a)Discuss whether, in resolving the dispute between Julian and Kayla, the custom of [xxx] should be treated as legally binding?(b)Assuming the custom of [xxx] is not legally binding, discuss whether, under the First Possession Animals Cases, Julian or Kayla owns MLE-2D?(c)Discuss whether, under the Escaping Animals Cases, Nick or Stephanie owns ZAC-3B?

•Write the response to each sub-question separately from the others. Clearly indicate in your answer where your response to each sub-question begins

•The three sub-questions will be weighted roughly equally; allot your time accordingly.

– [Means about 18 minutes each]– [Meaning of “Roughly”]

Cons of Sub-QuestionsCons of Sub-Questions

Question I: Use of Authority

Primary AuthoritiesFirst Possession ACs: Pierson, Liesner, Shaw, ~Swift, ~GhenEscaping ACs: Manning, Mullett, Albers, Kesler, Taber, Bartlett, ~Ghen

Apply individually or collectively to specific facts from Fact Pattern to

make arguments about which party should get Property Rights.

Primary Authorities

Use of Custom: Swift, Ghen, ~Bartlett, ~Pierson

Apply individually or collectively to specific facts from Fact Pattern to make arguments about whether

custom should be binding as law.

Other Authorities (NOT “ACs”)

Demsetz & Rose: Can use to support policy arguments or particular interpretations of ACs, but don’t use as primary authorities.

Oil & Gas Cases: Can use as examples of how you might apply ACs, but don’t use as primary authorities.

Question I: What I’m Looking For

For Each Sub-Question:1. Identify the Most Important Issues

2. Quality of Analysis

3. Clear Presentation

4. Quantity of Relevant Points Made

1. Identify the Most Important Issues• Not enough time to discuss everything

• Need to choose among topics

• Focus on most contested issues – Serious arguments on both sides– Look for topics with a lot of facts– If lawyers wouldn’t fight about it, address it

quickly or not at all.

2. Quality of Analysis• Arguments for both sides of contested

issues (assume 2 sides on each sub-Q)

• Try to use all the facts in the problem

• You can note missing facts/evidence that could help determine outcome (if not inconsistent with facts you do have)

2. Quality of Analysis• Work with/compare relevant authority

• Defend key positions thoroughly

• Push toward resolutions (Limit)

3. Clear Presentation• Discuss one issue at a time

• Use headings to indicate transitions

• Make logic of arguments apparent

4. Quantity of Relevant Points Made• Used primarily as tie-breaker if answers

otherwise similar

• A little bit of credit for quick citations to relevant authority, but thorough analysis of contested issues yields the most points

• To save time, use abbreviations, headings, bullets

• Outline at end if more to say

Question I: Common Problems

• Use of Analogy– Try to Go Beyond Literal for Factors Like

Mortal Wounding or Natural Liberty– Explain How Your Analogies Work (Why does

being called on class = “mortal wounding”

• Specific Customs adopted in Swift & Ghen are not precedent for anything.

Question I: Preparation

• Be very solid on authorities.

• Review– Pre-Midterm Exam Tips in Info Memo #2– Comments on Assmt#1 & Assmt #2

• Look at comments/models for XQ1s.

• Do some under exam conditions

Exam Technique: Question II

Assess Application of ACs by Analogy

Question II: TaskDiscuss whether the Animals Cases constitute a good set of tools for

resolving disputes like the one in the Fact Pattern.

•Not “Who Wins?,” but “What Rules Should We Use to Decide?”

•May help to view as report to Legislature.

•Infomercial Analogy: “Beverly, how did you like using ACs instead of your regular products?”

Question II: 2014 Special Instructions

I will give you ONE of the following:I will give you ONE of the following:

•Assuming the custom of [xxx] is not legally binding, discuss whether the First Possession Animals Cases constitute a good set of tools for resolving disputes [like the one between Julian and Kayla over XXX].

•Discuss whether the Escaping Animals Cases constitute a good set of tools for resolving disputes [like the one between Nick and Stephanie over XXX].

Question II: Use of Authority

First Possession ACs: Pierson, Liesner, Shaw, ~Swift, ~GhenEscaping ACs: Manning, Mullett, Albers, Kesler, Taber, Bartlett, ~Ghen

•Discuss whether, collectively, these cases make up a good set of tools for addressing problems like the one in the Fact Pattern. •You can refer to individual cases as examples of how the tools operate, but don’t apply them to make arguments about which party should win.

Question II: Use of Authority

Use of Custom: Discuss in Question I Only

Demsetz & Rose: Can use to make arguments about how best to address problems like the one in the Fact Pattern

Oil & Gas Cases: Can use as examples of how you might apply ACs and the strengths and weaknesses of doing so, but don’t treat as part of the ACs.

Question II: When Grading, I Reward …

• Identification of Key Factual Similarities & (Especially) Differences (Especially) Differences and Thoughtful Discussion of Why and Thoughtful Discussion of Why They Might Matter. They Might Matter. – Sunken TreasureSunken Treasure: Historic Significance : Historic Significance

& Interest of Third Party (Aztecs)& Interest of Third Party (Aztecs)– Fern RootsFern Roots: Cancer Cure: Cancer Cure– Computer ProgramsComputer Programs: Useful/Necessary : Useful/Necessary

Labor from Both PartiesLabor from Both Parties– Human GesturesHuman Gestures: Maybe : Maybe No No Useful Useful

LaborLabor

Question II: When Grading, I Reward …

• Identification of Key Factual Similarities & (Especially) Differences (Especially) Differences and Thoughtful Discussion of Why and Thoughtful Discussion of Why They Might MatterThey Might Matter

•Thoughtful Discussion of Pros & Cons of Applying ACs’ Factors (Sometimes Two Sides on Particular Factor)

• Identification of One or More Plausible Alternatives and and Thoughtful Discussion of Pros & Cons Thoughtful Discussion of Pros & Cons as Against ACsas Against ACs

Question II: Common Problems & General Advice

Drift Back Into Q1•Warning Signs:

– References to Specific Facts of Fact Pattern

– References to Specific Parties (X would argue…)

– Details re Facts of ACs– Arguments re Who Gets Property

Rights

Drift Back Into Q1•Warning Signs (Try to Fix By….):

– References to Specific Facts of Fact Pattern Talk About, e.g., Treasure Cases Generally

– References to Specific Parties Talk About, e.g., Colonial Powers & Modern Treasure Hunters

– Details re Facts of ACs Talk About ACs as a Group

– Arguments re Who Gets Property Rights Talk to Legislature, Not Court

Could v. Should•Not Enough to Argue that Factor from ACs Could Apply to the New Situation

– Good lawyer could use almost any test to some extent

– Possible to open a wine bottle with a hand grenade, but not great idea

Could v. Should•Not Enough to Argue that Factor from ACs Could Apply to the New Situation•Discuss Whether It Should Apply

– Does it address some concern that’s important in the new situation?

– Is it easy to use?– Does it tend to lead to results we like?

Could [Not] v. Should [Not]•Be Careful Arguing that Factor from ACs Couldn’t Possibly Apply to the New Situation

– Even if it doesn’t work literally, it might work in a metaphoric way.

– Try out a metaphor and see what happens

– Then discuss whether that approach should be used.

Could [Not] v. Should [Not]•Be Careful Arguing that Factor from ACs Couldn’t Possibly Apply to the New Situation•Common [Problematic] Argument: “Property in Q is Not Alive, So Can’tCan’t Have NL.”

– Not Thoughtful: Hammonds: Natural Gas has NL

– I argued NL for dead whales different than for livev whales

– Maybe NL for sunken treasure different from regular treasure (being on ocean bottom)

Addressing Alternatives

•Choose Alternatives that seem Plausible– Some Real Pros Compared to ACs. – Not Lotta Credit for Telling me that a Really

Stupid Alternative is, well, “Really Stupid.”•Compare Alternatives to ACs as a Group, Not to Single Factor or Case

– OK to say a “Con” of an Alternative is It Doesn’t Address a Key Concern Covered by an AC Factor

– BUT if 1-2 ACs Factors Don’t Work Well, Doesn’t Mean Alternative is Better (Swiss Army Knife)

Question II: Preparation

• Be Solid on Operation of ACs Tests & Factors Their Underlying Purposes

• Practice Working with Common Alternatives

• Review Comments & Best Answers on Assmt #3 (& Ask Qs if Unsure)

• Look at comments/models for XQ2s.

Music:

The Miseducation of The Miseducation of Lauryn Hill (1998)Lauryn Hill (1998)

My Anagram of Title:

Flirtation Healed Unholy Flirtation Healed Unholy MusicMusic

Can You Do Better?Can You Do Better?

Exam Technique: Question III

TakingsOpinion/Dissent

Instructions for QIII:Compose drafts of the analysis

sections of a majority opinion for the U.S. Supreme Court and of a shorter dissent, deciding whether

[xxx] was an unconstitutional Taking of Ashley’s property.

Question III

Compose drafts …• As with issue-spotter, can include

headings, bullet points, abbr., etc.

• Present concise versions of arguments, not rhetoric (don’t get carried away with role)

• Don’t need fancy language, transitions, etc.

Question III

… of the analysis sections …• No need for – Introduction– Statement of facts– Procedural history – Separate history of the legal issue– Conclusion

• Do make clear which side would win. – Good way to start: “Affirmed” or “Reversed”

Question III

… of a majority opinion … and of a shorter dissent …

• Articulate arguments on both sides of key disputed questions.

• Can disagree as to what rule should be or as to application or both

• Each opinion needs to justify the particular positions it takes.

• Each opinion should try to deal w other side’s best arguments.

Question III… of a majority opinion … and of a

shorter dissent …• Must be 2 separate opinions• Some flexibility in arranging arguments– Can put pro arguments in majority & con in

dissent– Can do back and forth in long majority, then do

very short dissent explaining different conclusion.

• May be helpful to write simultaneously.• I don’t care who wins

Question III

… for the U.S. Supreme Court …• Awareness that deciding law for whole

country, not just case in front of you

• Can adopt or modify existing rules, but must defend either decision.

• Can use “Counsel” for Parties to Raise Arguments You Don’t Feel Very Sure of

Question III

… deciding whether [xxx] was an unconstitutional Taking ….”

• Treat my facts as given (don’t argue with Question)

• Think about why particular facts are there

• Can use particular case you’re given as example or as counterexample– “The case before us demonstrates why …”– “We think this case is not typical because …”

Question III

… deciding whether [xxx] was an unconstitutional Taking ….”

• Address arguments made by lower courts– Guiding you to some available arguments– At least have side that rejects say why

• Don’t make cute legal or procedural arguments to allow you to avoid addressing the hard Qs

Question III: Organization

•Almost always will need –some discussion of harm to claimant’s property rights (loss of use or value)

–some discussion of strength of state purpose

•Might think about how different arguments can be combined under one of these categories for efficiency.

Question III: Organization

•Try to set up answer so that you end up with 2-sided discussion of all important contested issues.

•Example: 2001 & Parking Garages– Big Denominator Q– If Looking Separately, Does Purpose Justify Interference w DIBE?

Question III: Organization (2001)

One Opinion•View as Separate•If Separate, Intf w DIBE

Other Opinion•View Together•If Together, No Loss

One Opinion•View as Separate•If Separate, Intf w DIBE•Gov’t Purpose Insufficient to Justify

Other Opinion•View Together•If Together, No Loss•Because No Loss, No Need to Address Purpose???

One Opinion•View as Separate•If Separate, Intf w DIBE•Gov’t Purpose Insufficient to Justify

Other Opinion•View Together•If Together, No Loss•If Separate …

– Could Concede re DIBE

– OR Enough Left so OK?

One Opinion•View as Separate• If Together,

Concede No Loss = OK

•If Separate, Intf w DIBE

•Gov’t Purpose Insufficient to Justify

Other Opinion•View Together•If Together, No Loss: OK

•If Separate …– Could Concede re

DIBE– OR Enough Left so

•Gov’t Purpose Sufficient to Justify

Question III: Use of Authority

Major Cases: Hadacheck, Mahon, Miller , Penn Central

Other Cases: Kelso, Euclid, Nectow, Causby

Theorists: Sax, Epstein, Michelman, Ackerman

Apply to specific facts of “case” described in Q, showing that you recognize how any points you make fit into the line of cases

viewed together.You then can choose, in one opinion or the other, to adopt or reject what the SCt had

Question III: Use of AuthorityApply authority to specific facts of “case”

described in Q, showing that you recognize how any points you make fit into the line

of cases viewed together. EXAMPLE:•Brandeis dissent in Mahon says look at whole parcel top to bottom regardless of who owns pieces.•Penn Central seems to reject this position by reading Mahon to as resting on destruction of “rights reserved” by coal cos. (without considering surface rights).

You then can choose, in one opinion or the other, to adopt Brandeis dissent instead.

Question III: Use of AuthorityApply authority to specific facts of

“case” described in Q, showing that you recognize how any points you make fit into the line of cases viewed together.

EXAMPLE: Airspace Solution

•Denominator Q: Kelso Mahon PCentral

•Purpose: Hadacheck Miller PCentral

•Physical Invasion: Penn Central (Causby)

Question III: Preparation

• Be very solid on what authorities say invidually and together.

• Look at old comments/models.

• And finally ….

Question III

If you choose to give names to your judges (you don’t have to) …

Majority (Sophocles, J.):Dissent (Homer, J.)

Question III

Don’t use your name as the name of one of the judges!!

D’oh!

Majority (Sophocles, J.)Dissent (Homer, J.)

Logistics:

Before

& After

Logistics: BeforeMy Availability

•I will respond to E-mail Qs sent before 6pm on Tue 12/2 IFIF

– Reasonable NumberReasonable Number– Manageable (Manageable (NOT NOT “Please Explain Demsetz”)“Please Explain Demsetz”)

•Remaining Office Hours (on Course Page):– Saturday 11/29 @ 1-5 pm– Sunday 11/30 @ 1-5 pm– Monday 12/1 @ 10 am-2pm; 4-8 pm– Tuesday 12/2 @ 9 am-1pm; 2-6 pm 2-6 pm (recheck)(recheck)

Logistics: Before

To Be Posted on Course Page•Before Thanksgiving @ NoonBefore Thanksgiving @ Noon

– Exam Instructions & Condensed Exam Instructions & Condensed SyllabusSyllabus

– These SlidesThese Slides– Sample Briefs for Whaling CasesSample Briefs for Whaling Cases– Comments & Models re Assignment #3 Comments & Models re Assignment #3

from 2012from 2012– 11stst Installment of Feedback on Your Installment of Feedback on Your

Assmt #3Assmt #3

Logistics: Before

To Be Posted on Course Page•Any Updates on Office Hours for Any Updates on Office Hours for Tues 12/2Tues 12/2

•Before Tuesday 12/2 @ 6pmBefore Tuesday 12/2 @ 6pm– Info Memo with Write-Ups of Some DQsInfo Memo with Write-Ups of Some DQs– More Feedback on Assmt #1 & Assmt More Feedback on Assmt #1 & Assmt

#3#3– Responses to Individual Student Qs (if Responses to Individual Student Qs (if

needed)needed)

Logistics: After

Generally•By tradition, I’ll be on the bricks at the end of the scheduled exam time•I’ll post grading progress on Course Page (more regularly than I have been )

Logistics: After

Assignments/Briefs•Once you’ve taken test, I’ll no longer post comments on course page. •Starting after your last after your last examexam, as I complete assignments/briefs, we’ll e-mail comments & scores to you.

Logistics: After

Exam Feedback•Once grades are posted, I’ll put together a packet for you to pick up with:

– Copy of your test– Exam Qs, My Comments & Best Answers– Explanation of Grading & Your

Individualized Scores (& stickers where applicable!)

•I’ll set a schedule of times to meet with you to review your work if you wish.

Very Last Slide!

Qs on Exam Structure or Logistics?

Qs on Technique for Particular XQs?

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