order of proceeding

ORDER OF PROCEEDING• Logistics & Exam Structure• Exam Technique

– Generally– QI: Opinion/Dissent– QII: Statutory Amendment– QIII:Issue-Spotter

• Questions from You– Exam Technique & Logistics– Substantive

Logistics & Exam

Structure

General Logistics• On Course Page:

– Exam Instructions Page posted now– These slides posted tonight

• Office Hours Tomorrow 10-2, 3-7• I will respond to E-mail Qs (within

reason) sent before 7pm tomorrow

General Logistics• Written Assignments & Other Write-Ups

Not Available ( Very Messy Semester)– For Assignments: Compare work to posted

comments & models; ask Qs that don’t give your work away.

– For Group Discussions: Just Ask Qs.

Exam Coverage• Test can’t cover every issue in the course• Major issues from all across course• Major issues should be familiar from

questions and/or hypotheticals raised & discussed in class or from written assignments.

• Trying to reward attendance, careful prep of DQs & careful work on written assignments

Exam Coverage• Testing This Year’s Course; Issues from

Prior Years in Old Tests Outside Scope:– Standing– Statutory Defenses (exc. 3604(f)(9))– Steering & Blockbusting

Exam Coverage• Mostly FHA & §1982

Exam Coverage• Mostly FHA & §1982• Constitutional Law: Very Limited

– Not asked for substantive Constitutional analysis

– Can use avoidance of Constitutional issues as a policy argument

Exam Coverage• Mostly FHA & §1982• Constitutional Law: Very Limited

• State Law: – Marina Point & Marital Status definition could be

major issues– Can use other provisions we looked at to make

arguments about good or bad ways to handle problems or about possible language.

Structure of Exam• Write three equally weighted Qs

– Choose either IA or IB– Write both II and III

• Three-and-a-half hours– One hour to read Qs, take notes, outline (no

computers or bluebooks)– Two-and-one-half hours to write answers (50

minutes per Q)– Stick VERY CLOSELY to allotted times

• Completely Open Book

Open Book Tests: Virtues• Checklists• Blow-ups of Selected Statutes• Security Blanket

Open Book Tests: Dangers• You can’t access hard drive so print out what

you want/need (I often refer to specific cases)• Avoid Copying (v. Reading & Responding)

– cf. Computerized Telephone Answering Menu– From Outline– From Old Model Answers– Long Passages from Cases or Statutes

Using Your Reading Period

• 1st 15 Minutes– Read test; Hyperventilate– Choose Which QI to Write – Choose Order You’ll Write: Be thoughtful about

order given your own strengths• Will you be more focused at beginning or end?• Which format do you expect to be most difficult?• If for last Q you end up short of time, Q1 probably

easiest; Q3 probably worst

Using Your Reading Period

• 1st 15 Minutes: Read Test; Choose QI & Order• Next 45 Minutes (I’d Recommend…)

– Use about 15 minutes to prep each Q you are doing– Read it again carefully– Make rough outline by

• Listing major points you’d like to discuss• Choose order in which you’ll discuss them

– Do last in reading period Q you want to write first

Aftermath• By tradition, I’ll be on the bricks at the

end of the scheduled exam time• I’ll post grading progress on Course Page• I’ll post when assignments are ready to

be picked up.

Aftermath• Once grades are posted, I’ll make available a

packet for you to pick up with:– Copy of your test– Exam Questions, My Comments & Best Answers– Explanation of Grading & Your Individualized

Scores– Assignments not yet picked up

• I’ll set times to meet to review with you if you choose (both in Summer and in Fall)

Qs on Structure or Logistics?

Exam Technique: Generally

Exam Technique: Generally

• My Exam Techniques Lectures Available on Academic Achievement Website

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

Exam Technique: Generally

(1) Follow Directions• Read Very Carefully• My Exams: Different Qs = Different Tasks

– Kinds of arguments/authority useful for each is different– Important to see differences between Issue-Spotter and

other two kinds (I’ll do in more detail below)

Exam Technique: Generally

(2) Best Prep is Old Exam Qs • Do under exam conditions (esp. Q1/Q2)• Review in groups if possible• Read my comments• Use model answers

– to see organization/style I like – to see some possible ways to analyze– neither complete nor perfect

Exam Technique: Generally

(3) Testing Ability to Use Tools, Not Knowledge of Them

• Don’t Simply Recite Legal Tests; Apply Them (as Soon as You Mention Them)

• Helpful (but not Crucial) to Refer to Relevant Authority (see old best answers)

• Make your reasoning explicit: Wizard of Oz (Because, Because, Because)

Exam Technique: Generally

(4) Draft, Not Final Product • No need for formal introductions &

conclusions• Use abbreviations (names; recurring phrases)• Can use telegraph English• Use headings, not topic sentences• Can use bulleted lists (e.g., of evidence

supporting one side of an argument)

Exam Technique: Generally

(5) Be ConciseRegarding the recurring problem of wordiness, almost all of the

thirty-three otherwise diligent and competent students who last year took the time to submit a practice exam answer in Property IJ pursuant to the rules posted on the course page for doing so thoroughly demonstrated the fact that that they had a tendency to that problem as well as showing redundancy and continued difficulties writing in a concise, brief and to the point way.

Exam Technique: Sample (Disc. Intent)McD-Dgs Bdn Shift (see Asbury)• PF Case

– P.Class: Sex/Fem– Applied? Filled out appl.– Qualif? Hi credit score; OK TNT– Denied: On wait list, but last apt and min. 1 yr lease so probly

equivalent– Left Open/Non-Class Member: Sat on for 3 days w no alt; then

went to man• D Easy Bdn to i.d. Legit Reason: Mac + TNT +

Compatability• P Bdn to Show Pretext: …

Exam Technique: Sample (Disc. Intent)

Notes re McD-Dgs Bdn Shift1.Direct Proof Analysis Mostly = Pretext Step of

McD-Dgs (X-Reference; Don’t Repeat)2.When Not to Use

– If seems like won’t add much (quick version or 0)– Gov’t defendant doing zoning/legislation– Intent element of §3617

Qs on Exam Technique

Generally

Exam Technique: Question I

Opinion/Dissent

Question I: Purposes• Force you to articulate arguments both ways• Force you to give policy/theory rationales

– Good housing policy– Statutory interpretation materials/arguments

• Best place for Blatt/Speluncean Explorers;/Legisl History• BUT: Use tools, don’t just show them off

• Demonstrate you understand Judge’s role: – This case and others– Judiciary & statutes

INSTRUCTIONS:Compose drafts of the analysis

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

dissent, deciding these questions in the context of the facts of this case.

Question I

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 I

… 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

Question I… of a majority opinion … and of a

shorter dissent …• Articulate best arguments for two different

positions (doctrinal & policy). (I really don’t care who wins.)

• Each opinion needs to justify the particular approach it endorses (v. alternatives)

Question I… of a majority opinion … and of a

shorter dissent …• Do 2 separate opinions (or big penalty)• 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.

Question I… of a majority opinion … and of a

shorter dissent …

• Increasing Degree of Difficulty: Each opinion should try to deal w other side’s best arguments (“Four Tasks”)

Question I… for the U.S. Supreme Court …

• Lower court cases aren’t binding• Awareness that deciding law for whole country,

not just case in front of you– Must defend positions taken even if consistent with

other cases in course– Consideration of incentives re similar situations in

future– Consideration of effects on future cases & legal system

Question I

… deciding this question … • Qs are very specific; read carefully

– Stay within any boundaries set by Qs– Both IA & IB up on pleadings; not asked to do

application of law to facts• Don’t avoid addressing my Qs by making

cute legal or procedural arguments.

Question I

… deciding this question … • Address arguments made by lower courts

– Guiding you to some available arguments– At least have side that rejects say why

Question I

…in the context of the facts of this case. • Again read carefully• Think about why particular facts &

allegations are there• Treat my facts/allegations as given (don’t

argue with Question)

Question I

…in the context of the facts of this case. • Can use facts/allegations from 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 I: Best Answers

• Show good understanding of relevant authority: caselaw & policy

• Show familiarity w statutory materials • Provide strong arguments both ways• Respond in each opinion to best arguments

of other side

Question I: Preparing

• Be aware of policies supporting particular rules or relevant to particular areas of law

• Look at old comments/models.• Do at least one under exam

conditions• And finally ….

Question I: Final Point…

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

Majority (Trump, C.J.)… Simpson, J., Dissenting: …

Question I: Final Point…

… don’t use your name as the name of one of the judges!!Simpson, J., Dissenting:

Doh!

Questions on Question I

Exam Technique: Question II

Statutory Amendment

Question II

Two Skills: Statutory Drafting &

Policy Discussion

Question II: Statutory Drafting

Compose a draft of a memo for your boss assessing the proposed amendment. The memo should include:

•Technical Critique including identification of technical drafting problems with the amendment as written and identification and explanation of possible changes to address these problems (if Rep. Waffle decides to support the substance of the amendment) …

Question II: Statutory Drafting

Technical Critique • Do each section of amendment separately then

problems with the whole thing together (if any)• It’s a type of Issue-Spotting (can use bullets)

– X is bad because– This change would make it better because …

• Be specific; not helpful to simply say text is “vague” or “confusing”

• Keep technical critique distinct from substantive

Question II: Policy Discussion

Compose a draft of a memo for your boss assessing the proposed amendment. The memo should include:•Technical Critique …; and •Substantive Critique including discussion of the pros and cons of the substance of the amendment and identification and explanation of possible substantive changes to improve the amendment.

Question II: Policy Discussion

Substantive Critique • Do pros & cons for each section separately then

for the whole thing together (if relevant)• Provide ideas to make substance better (& why)• Can Refer to Range of Possible Concerns:

– Housing & social policy– Administrative costs & judicial efficiency– Potential Constitutional problems– Political concerns (Can it pass?, Voters like…)

Question II: Common Problems

1. You Are Amending a Federal Statute– The amendment can’t violate the statute– You can’t say it’s bad b/c inconsistent w statute – You can’t say its bad b/c inconsistent w cases

or doctrine– You can say: I don’t like policy behind …b/c …

Question II: Common Problems1. You Are Amending a Federal Statute2. Work at Understanding the Drafter’s

Intent– Read wording carefully (badly drafted)– Read description of context (esp. cases)– If you are unsure: indicate asumption(s)

Question II: Common Problems1. You Are Amending a Federal Statute2. Work at Understanding Drafter’s Intent3. Organize Your Answer

– Topical may be helpful (v. tech then policy)– Break into clear sections either way– Leave room for discussion of interaction betw

sections or amdt as a whole

Question II: Common Problems

1. You Are Amending a Federal Statute2. Work at Understanding Drafter’s Intent3. Organize Your Answer4. Redraft Without Explanation is Risky

Question II: Preparation

1. Work with Old Qs– Do at least one under exam conditions– Go through others to issue-spot (useful in groups)– Compare to Comments/Models

2. Prepare Policy Arguments – Try to anticipate places in course I might test (Q1)– Include Policy arguments in Checklists/Outlines

3. Reread Statutory Drafting Materials

Questions on Question II?

Exam Technique: Question III Traditional

Issue-Spotter

Question III: InstructionsBased on the facts below, P brought an action in U.S.

District Court alleging that D1 and D2 had violated the FHA. Discuss the following legal questions in the context of the facts, noting the strengths and weaknesses of each party’s position. The time indicated after each question provides a rough indication of the relative weight I will assign to it when grading.

(A) … (10 minutes)(B) … (20 minutes)(C) … (20 minutes)

Question III: General Points• Read Carefully • Stick to Qs Asked & Time Guidelines• Try to Show Off Your Ability to …

– Work with Facts– See Two Sides on Each Major Issue

Question III

Traditional Issue-Spotter: What I’m Looking For

1. Identification of the Most Important Issues

2. Quality of Analysis3. Clear Presentation4. Quantity of Relevant Points Made

Question III

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.

Question III

1. Identify the Most Important Issues• Not enough time to discuss everything• Need to choose among topics • Focus on most contested issues

– Human Models (Fam.Stat./Race v. Handicap)– §1982 Def. of Race (Asian-Am. v. Canadian)

Question III

2. Quality of Analysis• Arguments for both sides of issues. • Work with/compare relevant authority• 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)

Question III

2. Quality of Analysis• Defend key positions thoroughly• Increasing Degree of Difficulty: Keep

pushing toward resolution; don’t have to reach one.

– Doctrine, Stat. Language, Cases, Policy– Which side seems stronger & why

Question III

3. Clear Presentation• Discuss one issue at a time & thoroughly• Use headings to indicate transitions• Make logic of arguments apparent• Deal with overlap through cross-reference,

not repetition

Question III

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

otherwise similar• To save time, use abbreviations,

headings, bullets• Outline at end if more to say

Question III

4. Quantity of Relevant Points Made• A little bit of credit for quick citations to

relevant authority, but thorough analysis of contested issues yields the most points

– Use any authority you mention– Use shortest form of citation that will make

reference clear (Starrett, So-Sub, Bangert)

Questions on Question III

Penultimate Slide

Qs on Exam Technique or

Logistics

Very Last Slide!

Substantive Qs?