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Introduction, background, the law school mass-delusion
OK, here it goes: When you are in law school, you have to learn how to take a law school exam. To take a law school exam, you must apply law to fact.
That’s it. Simple. Easy money. If you do it, you will put your peers to shame.
What WON’T help you learn how to take a good law school exam? Having that special hornbook, that special outline from last year’s class, being the last person to leave the library, taking notes in a special way, or any other study method. In order to do well you must learn how to take a better exam. Law school is a skills test, and the key to achieving success is to learn what the skill of taking a law school exam is and then learn how to properly prepare that skill. Studying as most are familiar with it is just one piece. It is not enough to just know the material well - which is one reason why every year people who know the law backwards and forwards wind up disappointed with their results.
Pick up your copy of getting to maybe (you don’t own a copy of getting to maybe? You probably should) and turn to page 3.
Getting to Maybe, Page 3, wrote:Chapter 1
You’re Not in Kansas Anymore
A Place Where “Knowing the Material” Is Not Enough
That’s the first of many pieces of golden advice in that book. When approaching law school, people's questions are invariably the same – how do you study? How do you outline? Which hornbooks do you use, and how do you use them?
The problem is that it all plays into the major law school mass-delusion: That if you somehow study harder/better/faster/stronger than your peers, you will get better grades.
Put another way: At the end of the semester, everybody has a handful of grades within a very narrow spectrum, and nothing else to show for their work. As a result, people turn to the things they did or saw others doing more overtly - the studying of the law. But those grades are the result of two distinct elements: The first prong, how well you know the law. The second, how well you apply it to a novel fact pattern.
A constant problem is that a lot of advice out there focuses on detailed descriptions of individual studying: The time spent doing it, methods of briefing, methods of note taking, which hornbooks were or were not found useful, etc. All of that is important to a degree, but it doesn’t even border on sufficient. How any individual person studied for law school is, to be trite, only half the battle. It’s all the first prong, knowing the law. To their credit, that advice also talks to a degree about how to approach taking exams, and what aids (LEEWS, GtM, etc.) to use to hone exam taking skills. But the most overt pieces of information, especially to somebody new to law school, are study methods.
That first prong – learning the law - requires reading cases, taking notes, going to class, taking notes, consulting hornbooks, making outlines, and studying. Guess what? It’s not much different than anything else you’ve ever tried to learn. If you’re going to law school in the U.S., you’ve gone to class, taken notes, and studied that information for at least a decade and a half before getting the chance to try it at law school.
Nothing has changed.
The case method is a little weird, but judicious (note I did not say overwhelming, furious, or comprehensive) use of hornbooks and old outlines will help you pick out what information you actually need to be learning, and help you better extract info from cases down the line.
That's prong one - the law intake part. Some people mistake prong two, exam taking, for raw academic horsepower. Some people think the LSAT predicts it. Many nervous 1Ls think you can obtain success at it by doing prong one until your eyes bleed and they drag you out of the library an hour after closing on a Tuesday night. A growing number of people realize that they need to figure prong two out, then take a pass at getting to maybe, but never really get there.
Hopefully this post will serve as a guide to the non-obvious task you face in law school: deciphering the concept of the law school exam.
Prong 1: Learning the law, or getting to ‘getting to maybe’
Law School Confidential, Page 128, wrote:Imagine that Law School is a horse race. On the first day of classes, the professors pass out the syllabi, the gates spring open, and the horses (that’s you) burst forth from the cages. In a real hose race, however, the thoroughbreds charge forward on a beeline course down the track toward the finish line. In law school, however, when the gates open, the first-year students charge out of their cages and spray out in any number of directions in a zealous but aimless charge. Not surprisingly, after fourteen weeks barreling off in the wrong direction, many of these hapless 1Ls cross the finish line exhausted, frustrated, and completely confused. Worse yet, many of them end up bombing their first-semester exams-and their dismal results hang on their necks like albatrosses for the rest of their law school careers.
Prong one has been done to death, so I’m going to keep it short. Read your cases, try to decipher rules from them. Write down SOME notes as you read them, but there’s no need to brief fully. Watch out for highlighters, they can make you think you’re learning when really you just highlight what you don’t understand. Pen or typed notes work better, they engage your brain more fully. At some point (early or late) create your own outline. Consult hornbooks when lost, confused, or new. Never read about topics that were not covered in class. Learn well the fact that every professor (and by extension, every hornbook author) has a different take on exactly what the law is and how it applies.
Feel free to try flashcards, don’t worry about the length of your outlines. Memorize your shit whether it’s open or closed book. Done.
Hopefully that cursory treatment hits home my main point: It’s the least interesting and least important part of law school. Pro tip: once you get good at exams, you realize that 1Ls work way too hard for their grades (good or bad). That’s fine, there’s something to be said for over-preparing / covering all of your bases. But the kids who grade on to law review stay at the top of the class even while spending dozens of hours per week cite checking, flying around the country doing interviews, and participating in other ECs. How? They realize that learning a body of law doesn’t require memorizing 3 treatises and constructing a 4,000 page outline. They’ve learned how to properly take a law school exam, they understand how much law they need to learn, and they do it quickly and efficiently. Their grades do not suffer.
Joseph Glannon, The Law of Torts 3rd Edition, page 575, wrote: It’s a dirty little secret that you really don’t have to know an awful lot of law to do well on a first year exam. Sure, you need to study the material and have a good grasp of the basic doctrines you studied. But most of the issues – even those much more difficult than the [issue discussed in a prior paragraph] – involve sophisticated application of basic doctrine rather than encyclopedic knowledge of the farthest reaches of the torts landscape. Most students spend inordinate amounts of time learning more and more rules, and very little time practicing the skill of applying the fundamental rules to new facts. You would be wiser to spend less time memorizing rules and more time applying them.
To emphasize: The name of the game is sophisticated application of basic doctrine.
Prong 2: Learning how to take a law school exam
This is the prong that’s important. And it’s taken me hundreds of words to get here… oops. Ah well, y’all have to get used to the fact that law school involves a lot of reading sooner or later.
Note that the title of this section is not ‘taking a law school exam’. I want to talk about the process of teaching yourself the skill, rather than laying down precisely what I think the skill should be.
(Spoiler: the skill is 'apply law to fact')
Prong 2A: Foundation – how a law school exam is graded
Professors have many different ways to grade exams. Some do it holistically and apply a letter at the end. Others sort into piles. Some use checklists, some just add points when they see proper analysis.
Most professors grade exams by awarding points for correct application of law to fact.
The significance of this should not escape you. There’s a way to get points on a law school exam, and your job is to figure out how to GET POINTS on a law school exam. Not learn as many rules as possible, but learn how your application of those rules will turn into check marks, ticks, pluses, smiley faces, and large numbers scrawled all over your exam in red ink.
42 Vand. L. Rev 433, 449, wrote: The contemporary discourse among law faculty about law students and Blue Book exams provides additional evidence of the shift to an objective method of grading Blue Book essays. Law faculty today do not talk much about “A exams,” “B exams,” and “C exams,” or “A students,” “B students,” and “C students,” as they apparently once did. Instead, our discourse is about the theological niceties of point scales for grading essay answers; about “score sheets,” “answer keys,” and “model answers”; about “high and low C grades” or “near As and near Bs” (distinctions within distinctions); and about “excellent,” “average,” and “weak” students, whom we tend to characterize exclusively by examination scores and class ranks rather than by statements about their professional promise.
You’re going to encounter (written on TLS, discussed in the halls of your law school) a lot of pushback with respect to law school exams and how arbitrary they are. When you encounter this pushback, remember that just because you don’t see the grading process and aren’t taught well how to handle it doesn’t mean there isn't method to the madness behind the black box of exam grading. Approach the process as rational, put in the work, and enjoy rational results.
Here’s a quick example of how ‘points’ might be awarded on a law school exam for a particular ‘issue’:
2004 Mich. St. L. Rev. 1 wrote:5 - precisely identified issue, argued from facts, precedent and policy as appropriate, examined BOTH SIDES of arguments, evaluated relative strength of argument, noted relationship of issue to other issues and overall outcome
4 - clearly identified issue, noted arguments for BOTH SIDES but presented well developed argument for one side only, drew conclusion with some relationship to overall outcome
3 - clearly identified issue, argued one side only, drew summary conclusion
2 - identified issue, articulated but did not apply legal standards for resolution of the issue, drew summary conclusion
1 - identified issue and drew summary conclusion
0 - missed issue, stated rules without identifying issue
Nothing scary there. And even if that’s just one rubric from one exam, I guarantee you that it strongly resembles the methods that will get you points in other contexts. Law school exams, for all of their many pedagogical flaws, do have a lot to do with the fundamental work of lawyers. Analyzing, arguing, showing the strength of BOTH SIDES, and the evaluating the strengths of those sides – eventually favoring one over the other. Having a lot of “Plaintiff will argue __________. Defendant will respond ____________.” On your exam is a good way to ensure you’re racking up points.
Prong 2B: Learning how to get points
Practice exams are a good way, and I’ll discuss those shortly.
In general you need to think about some mechanical things: If your professor is going to grade with a checklist of some kind, you should approach your exam in a checklist friendly manner. Use LOTS of headings and subheadings. In fact, put them down before any of your analysis to help guide your answer. Make sure you cover issues from every angle, and consider bringing in an ‘issue checklist’ to make sure you’re not missing any big premises in the fact pattern.
Beyond that, you need to read, read, and re-read information about law school exams. Don’t skim Getting to Maybe the week before class and call it a semester. It's just not enough - you've got to think about, learn, and practice the process of taking a law school exam over and over and over again. I read Getting to Maybe 3 times – once before law school, once a week into law school, and once just before exams. I wish I’d done it more. Read it with a pen just like you’d read your cases, and engage it. Put thoughts on the paper. Circle concepts that will give you points. Marvel at the insight on the top of page 191, and imagine how you too can approach an exam playfully.
The key isn’t necessarily just reading the words over and over. What's important is to read the concepts over again as you gain experience reading cases, taking practice exams, and putting together an entire area of law. You'll get more out of it each time, the advice will become more concrete.
Other strong sources are out there. You certainly don’t need every perspective on the matter, but the more the merrier.
Another absolutely critical aspect is getting inside your professors head. I can tell you how most law professors do things (in no small part due to the level of inbreeding in the legal academy) but I can’t tell you how YOUR law professor will do things. Pay attention to his/her favorite topics, consult recent on-point law review articles (not always useful) to see what they think is important, and religiously study released practice exams and model answers. The more you know what to expect from YOUR professor walking into the exam, the better you will do.
While I recommend many ‘out of class’ sources such as law review articles and practice exams, the most important source by far is just what your professor covers in class. Sure, an issue they only talked about for one day may be a highlight on the exam – you’re on notice, go to class and learn the material. But you’ll never see obscure info from the ‘notes’ section of your casebook play a big part on the exam if it was never covered in class.
Still, the best way to get points is to APPLY LAW TO FACTS. I’ll let a law professor sum it up for me:
Eric E. Johnson, on PrawfsBlawg, wrote:Here’s my boiled-down counsel to law-exam newbies:
Unsurprisingly, it’s mostly variations on a familiar theme: apply the law to the facts.
In fact, to save everyone time and annoyance, I will omit repeating myself by adopting this convention: Everywhere you see " * ", insert this phrase: "You’ve got to apply the law to the facts."
(1) Do not make moral arguments. Don’t argue what’s fair. *
(2) Do not write at length about the law without referencing the facts. * Merely regurgitating the law does not show your mastery of the subject or demonstrate your analytical abilities; it therefore earns you no points.
(3) The reciprocal is just as important: Do not write at length about the facts without referencing the law. * Merely rehashing the facts does not show your mastery of the subject or demonstrate your analytical abilities; it therefore earns you no points.
(4) No matter how nervous, anxious, or pressured you feel during the exam, do not rely on a crutch to keep writing to the exclusion of doing the hard work of legal analysis. Making moral arguments, regurgitating law, and rehashing facts (see 1, 2, and 3, above) are all dangerous temptations – they offer a way to keep writing, and thus provide the illusion that you are making progress. They are a Sirens' song. Resist.
(5) IRAC is not the Holy Grail. If you can write a good exam without IRAC, then you should absolutely forget about it. On the other hand, if some kind of structural aid is essential to get you to perform legal analysis in writing, then IRAC might help you.
Prong 2C: Taking practice exams
Here’s something key. Just like I know a lot of people who read getting to maybe only to find it was far from a panacea, I know many people who took a pile of practice exams and didn’t get a lot out of them.
Whatever, a TLS poster, wrote: Yeah this is entirely true. I probably worked harder than most people my first semester and was still bottom 10%. It's not a function of what you know, it's how you apply it, and if you're not thinking about how you apply the knowledge during the semester, you're in trouble. You can only do your best first time around, and if you succeed, awesome, and if you don't, you'll have to do what I did last year - meet with your professors, figure out what you did wrong and go from there.
I can guarantee you that there will be people you think are kinda bozos that end up on law review, and there will be people you think are total geniuses who will not end up on law review. The person who studies the most won't get the best grades, either. Practice tests are great but I found them useless my first semester since I was taking the exams “wrong” anyway. I could have taken a million exams and done terribly anyway. Taking practice exams only helps if you know how to take a law school exam.
I read all the books and understood what I was *supposed* to do beforehand - I don't know. I just needed that sample set of grades and I needed to talk it through with my professors before I knew what was going on.
When you take your practice exams, keep the mindset of doing all of the ‘right’ things. Apply law to fact, apply law to fact, apply law to fact. Then apply some more law to fact. Don’t worry about conclusions, and don’t worry about ‘solving’ the legal problem before you start writing about how to solve it.
The moment you finish writing the exam your work has just begun. I cannot stress this enough – find a likeminded law student or two and dissect the shit out of your exams. For bonus points, actually try to grade them. How would you do it if you were a professor?
Focus on specific issues. If you’re doing a contracts hypo, take the issue of fraud and compare everyone’s treatment of it. How could it be better? How often were people restating legal rules without analysis (which won’t get you points), how often were people re-typing facts without applying legal rules (Which won’t get you points), how often are the rules and facts combined to come up with a conclusion in an overly conclusory manner (which not only won’t get points, but many law students will mentally feel counts as ‘spotting’ the issue)?
This exam post-mortem, with a focus on points, is the most important thing you can do. I don’t mean to fetishize check marks or rubrics, but I strongly believe that if you can take two exam answers written ‘live’ by earnest law students and figure out why one got more points than the other, you will gain a powerful advantage over your peers. First, law school exams will stop being quite so scary – you’ll be the bearer of the secret knowledge that even if at first blush exams seem similar, it is quite possible to figure out which is ‘better’. Second, you’ll be able to use that knowledge to focus your keystrokes come exam time on those sentences and thought processes that you know GET YOU POINTS in advance.
Hint: It will be those sentences and thoughts in which you apply law to fact.
Good luck, try to have fun. It’s way too much work and stress to do this if you’re not loving it. Hardly every second of every day, but in the end if you can’t look yourself in the mirror and say “I’m happy to be at law school” then no amount of advice can motivate you to get the As/Hs and the opportunities that they lead to.
Oh, apply law to fact. It'll get you good grades.