My Non-Guide to Doing Extremely Well in Law School

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My Non-Guide to Doing Extremely Well in Law School

Postby traydeuce » Fri Aug 26, 2011 4:30 am

Dear 1Ls,

I'm a rising 3L somewhere among the top 1% of a t14 school. My methods for doing well are highly unorthodox; they essentially involve not taking notes, not studying until 2 weeks before an exam, and then composing a 10-page outline that reads like a series of legal fortune cookie sayings. Then I take the exams and strive mightily to finish before everyone else out of a misplaced sense of bravado. I do not suggest that you do any of that. Indeed, I regret that I do it that way; it's probably cost me, among other things, being first in the class outright. That's just my personality, and I am, fortunately, a very hard worker in the legal workplace, so it doesn't carry over. But I do, obviously, do some more general things right when it comes to reading cases, preparing for and writing exams, and I would like to share those with you because on a lot of crucial points I disagree violently with much of what's said on TLS, and much of what your 2L classmates will be telling you.

Let me first say that, for those of you simply aiming for the median of your class, or a little above it, the conventional wisdom about (a) supplements, (b) not getting excessively bogged down in the cases, and (c) absorbing the all-important, so-called "black letter law" is totally fine. Super-competent application of "rules" will get you B+'s and A-'s. The following is mostly applicable to people trying to get A after A after A. With that proviso, here is where the conventional wisdom goes woefully wrong. In law school, as you're discovering, you largely study, esp. in the first year, judge-made law. And not just any judge-made law, but judge-made law made in the context of concrete disputes between parties. Because this is the case, judge-made law differs dramatically from, say, traffic law. Superficially, they seem similar - cases, like the traffic code, contain rules of general application. Judges use disputes as occasions to make rules that affect similarly situated parties, not just the parties before them. But, because judges are not legislators, but adjudicators, they're not, really, all that interested in announcing clear rules. Rather, they'll often state a "rule," meaningless in its generality, that only takes on meaning if you see how it is applied to the parties in the case. They'll state a rule with six parts, but virtually ignore 3 or 4 of them when they actually apply the rule in the case, signaling to future courts that they should ignore those parts too. They'll make vague reservations and carve-outs, and say that maybe if certain facts were different, you'd see a different rule - but that's not this case so we're not telling. And crucially, unlike Congress, you always know, from reading a court's opinion, why it chose to adopt a given rule - and knowing that can help you know how broadly the rule really extends, if there are certain situations where, once the purposes served by a rule cease to be served, the rule ceases to hold - or arguably should. (Or situations where the rule should get imported to analogous contexts.) In short, judge-made law is fact-specific law. It grows out of the facts of a case and often cannot be understood without a nuanced understanding of those facts.

Supplements, unfortunately, tend to ignore this kind of crucial detail. They state the black letter law of the cases, but don't spend much time on how the court got there or how the court applied it. (The bad supplements, the emanuels and so forth, are little better than Wikipedia.) The better the supplement, the less this is so, but even the best supplement is no substitute for engaging with the cases themselves. Erwin Chemerinsky, a brilliant Con Law professor and an author of a great Con Law supplement, can give you his thoughtful reading of Wickard v. Filburn in his supplement, and even give a nod to other professors' contrary readings, but even that's no substitute for coming up with your own reading of Wickard. For after all, that's what your Con Law professor really wants to see - that you can read the case and say something interesting and smart about it, not that you and twenty other students who bring their copy of Chemerinsky to class can spout the Chemerinsky view. Because how you read that case will hugely impact the inevitable question you'll get about the constitutionality of Obamacare. A supplement is just a parasite off the cases you read; its only use is if you don't already get the material, because that's all it does, explain and usually oversimplify the material. There is, in the last analysis, no blackletter law that exists in the cases that a supplement can aptly summarize for you. (Though there are exceptions - Crim as taught by many professors, and parts of the common law classes.) There are just "rules," shot through with infinite caveats and defined by the court's application, and you know what those caveats are and what the rules' real meaning is from the cases.

So if you want to do really, really well, you need to read cases carefully and either produce outlines that heavily center around the cases, or be prepared to dip heavily into your casebook during the exam. (I often do the latter, and most of the best exam answers I've written have been on account of it.) Just as lawyers spend their time, before courts, not talking about some mysterious black letter law that exists somewhere in the interstices of Westlaw headnotes, but cases and what they mean, that's what you should be prepared to do on many of your exams. In Contracts, Torts, and Crim especially, this is much less the case, because a lot of what you're doing there is applying a sort of fiction about what the common law is, that the Restatements, or the Model Penal Code, state, rather than talking about how murder or negligence is really defined in California or Wyoming. (However, here too, you want the kind of nuance that having thought long and hard about how this common law is being applied in cases will provide.) But this is absolutely the case in any kind of course about federal law, whether it's Con Law, Civil Procedure, Legislation, Admin Law, or Criminal Procedure. With most of Evidence and parts of Civil Procedure, you want to talk about the Federal Rules of Evidence, the Federal Rules of Civil Procedure, but you don't, again, want to be talking about some vague black letter law of evidence; you refer to specific rules.

So here's a classic example where your only chance of writing an A exam is to throw out the blackletter law of the supplements - indeed, throw out what the Supreme Court itself claimed was the rule it was announcing - and dig into the case. As you'll find out in Admin Law or Con Law, the Court reads Article II of the Constitution to mean that the President can fire the people who work for him. Generally speaking. When Congress has attempted to have a veto power over firing choices, it's been slapped down. But there are two big exceptions, and both are great instances of why cases, not just case law, are what matter on an exam.

Exception Number One: In the 30s, the Court suggested Congress could put limitations on the President's firing powers if the official in question was "quasi-legislative" or "quasi-judicial," rather than purely executive. What in the world does this mean? You can ONLY know if you define the term for yourself, because the Court sure didn't, and you can only do that if you read the cases and see who the Court thought was quasi-legislative or quasi-judicial. Now, the average student is hopefully bright enough to realize that and not just scribble "okay if quasi-legislative" in his outline. But what does he do about it? He (a) relies on what a supplement said it means, or (b) takes down tons of notes when his professor says the phrase is meaningless and dumps them into his outline. Then he starts spewing that in his exam - "oh, whether you're quasi-legislative is all about legislative functions. You know, the legislative ones, making rules and stuff!" (Now, that, if taken far enough, could be a B+, A- answer, because a whole lot does come down to whether they make rules. But there's a ton of gray that that kind of answer doesn't acknowledge, because if your professor's any good he'll write a question about an officer who does a lot of executive functions and occasionally makes some rules that a few people follow; what does that make him? If you really know the case, you'll have a better notion of how much rulemaking, specifically, makes an officer quasi-legislative.) Or, "this rule is essentially meaningless, like you told us in one of your "I'm so much smarter than the Court moments," and it's just really up for grabs." Your professor may think that, may think the case is nonsense, but he knows that it contains some hints of legal reasoning, and he wants you to talk about them. The correct approach, the only approach, is to take the guy you've got in your fact pattern, and compare him to an FTC Commissioner (the officer at issue in the quasi-legislative case), and match him up to the stuff the Court SAID made him quasi-legislative. Odds are great he has some of the FTC Commissioner's features but not others. Then you acknowledge the doctrine's ambiguities, say why it could go either way, and you've got an A answer. Especially if you read the case in a thoughtful way that doesn't completely mimic your professor's reading. Basically, you try to do, in 40 minutes, a very condensed, sketchy version of what a lawyer would do if given several months to write a brief arguing that an officer was or wasn't quasi-legislative.

Exception Number Two: Firing restrictions that don't "unduly trammel on executive authority." Ha! (No really, one sad day deep into your law school career you'll begin to find this sort of thing funny.) So in the 80s, the Court decided it wasn't enough to have an exception for quasi-legislative officials; we needed an exception for firing restrictions on "purely executive" officials, when those restrictions don't unduly trammel on executive authority. As you can see, those words, in isolation, are meaningless. Now, to be sure, some courts will take this as an invitation to entertain their own crazy views about how much trammeling is undue, but that doesn't mean you should say, "well, I really don't care for executive power, so no amount of trammeling is undue in my view," or something of that kind. Of course, what you have to do is see just what amount of trammeling in the case the Court decided wasn't undue. And when you look, you find that, in their opinion, they essentially point to the fact that an independent counsel is an inferior officer (a term of art the meaning of which is besides the point for the moment), which in turn depends on a lot of factors. Of course, it's all so mushy that none of these factors ever rise to the level of a rule, nor is it even a rule that restrictions on firing inferior officers categorically fly. But basically the idea is that, if the office isn't terribly important, it doesn't matter if the President can't fire him easily; however, the Court has very peculiar and counterintuitive views of what makes an office unimportant. (In this case, they decided that independent counsels aren't that big a deal, which is to say that Ken Starr wasn't that big a deal.) So even if you were to say, "aha, importance!", you still really need to see how the Court applies its standard for importance. You also need to be very aware of the specific kind of firing restriction the Court said was okay. In this case, they upheld a statute that required the President to show good cause to fire an official. Something more stringent than that may well not fly; remarks in the Court's opinion suggest it wouldn't, but there's certainly no black-letter rule that you'll find in a supplement to that effect, because no such rule exists. All we know is that crazy stuff, like Congress giving itself a veto, isn't okay. If you make intelligent comparisons between independent counsels and the officer in the question you get, and intelligent comparisons between the restriction in the question you get and good cause restrictions, and be careful to acknowledge reasons (if they exist) why the analysis could go the other way, you can't help but write an A answer.

Finally, let's say that "unduly trammel" really breaks down into a sliding scale between (a) a complex multi-factor test for the importance of an officer's role and (b) the severity of the restriction on the President's firing power. And suppose you do this analysis and the result is that the restriction's okay. Do you stop there? Not necessarily. Because remember, the Court's ultimate concern is whether executive authority is unduly trammeled on. So it may have been one thing, in the late 80s, before Ken Starr, to say independent counsels weren't a big deal because they performed discrete tasks, had limited powers, etc. But what happens when Ken Starr does come along and a whole administration nearly falls victim to an overzealous independent counsel? That is, what should you say if your professor asks you how a similar case should come out today? In this situation, simply knowing blackletter law is useless - and just treating the question as a matter of policy ("I hate independent counsels!") is equally useless, because the correct move is to ask whether the Court's rule makes sense, applied in a particular circumstance, given the reasons the Court made the rule in the first place. That is, does the analysis still hold water - are the concerns the Court has in this area still being correctly addressed by the rule? Or should there be an exception to the exception when the discrete tasks an officer performs are such a big deal, politically, that rendering the President unable to fire the guy has a huge effect on executive authority? It may seem odd to say that the President needs the power to fire his own prosecutor (and you should definitely point out this oddity if your professor asks you to reconsider the validity of the Court's holding), but what if the official in question is a top economist, whose responsibilities, stated formally, are limited, and yet quite vital to the formation of domestic policy? So you must always keep in mind the purposes that were driving the Court to adopt a certain rule. In the 1980s, independent counsels were seen as this wonderful thing we created to save us from future Watergates, and the Court was all too happy to declare their validity; in the 90s, they came to be seen as a dangerous, unchecked force in American political life. Stuff like that - and remember, it's a 3-hour law school exam, so the least bit of superficial insight can go a long way - gets you an A. But running around and making policy like you're God on the one hand, or assuming you're entirely bound by the "black letter law" on the other, will not. A good exam often reads like the work of an astute Court-watcher; you're trying to predict what the Court would do in a new set of facts given the stuff they really care about.

That said, this kind of thing can go too far; you have to distinguish cases in a way that logically coheres and that pays some respect to what the Court actually says. The line between distinctions that are coherent and ones that aren't can be hard to draw. I've worked for Court of Appeals judges and seen brilliant clerks, members of CCN law reviews, distinguish cases on policy grounds that make no sense in terms of the legal doctrine that's actually in those cases. But you don't want to fall on the wrong side of the line. If the Court, for example, says that kids can demonstrate in school unless their demonstrations cause an intolerably huge ruckus, you can't say, "well, in that case the kids were protesting the Vietnam War, and that's political, not to mention quite a sympathetic cause, so a protest about the quality of cafeteria food is different even though the Court never said a word suggesting their rule was limited to political speech." And you can't say that even though there's a really good chance the Court would've ruled differently in a case with less valuable speech interests at stake. Not just because the Court didn't talk about it, but because it doesn't at all jive with the theory on which the Court decided the case. The Court's theory there could be summed up as, "kids' speech is owed some measure of protection - but not that much compared to adult speech, order in the schools is necessary in order to teach kids stuff - so it's protected so long as it doesn't cause a big disturbance." Nothing in their overall theory about kinds of speech, even if what prompted them in reality to suddenly decide that kids in school had speech rights was the transcendent value of demonstrations against the Vietnam War - stuff that's about as core First Amendment speech as you can get. But in the independent counsel case, the Court's "rule" - limited powers, discrete functions, for cause limitations, etc. - is bound up with this broader theory and explicitly stated concern about executive authority, such that, if that rule stops working to serve executive authority in certain circumstances, the rule may no longer make sense. To abruptly conclude, these are the sorts of things you need to think about when you read cases, go to class, and write exams.

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby Blessedassurance » Fri Aug 26, 2011 4:58 am


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Re: My Non-Guide to Doing Extremely Well in Law School

Postby Bronx Bum » Fri Aug 26, 2011 7:21 am


Hideous flame

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby Heartford » Fri Aug 26, 2011 8:22 am

If your exams have as many run-on sentences and comma splices as are in your first paragraph, I'm impressed that your professors are able to get all the way through them without giving up! I threw in the towel after your fourth sentence or so.

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby Kilpatrick » Fri Aug 26, 2011 8:49 am

"The conventional wisdom goes woefully wrong" :roll:

You mean except for all the people it's worked for? If one thing can be gleaned from the people on TLS who have been at the top of their class it's that different things work for different people. I don't know why you are constantly insisting that your way is the right way. I used supplements, ignored facts of cases and still got As.

It's nice that you made a guide, but just say that these are the methods that worked for you. There's no need to say you "disagree violently" with the conventional wisdom on TLS that has helped numerous people and worked just fine for them.

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby helfer snooterbagon » Fri Aug 26, 2011 9:07 am

Kilpatrick wrote:"The conventional wisdom goes woefully wrong" :roll:

You mean except for all the people it's worked for? If one thing can be gleaned from the people on TLS who have been at the top of their class it's that different things work for different people. I don't know why you are constantly insisting that your way is the right way. I used supplements, ignored facts of cases and still got As.

It's nice that you made a guide, but just say that these are the methods that worked for you. There's no need to say you "disagree violently" with the conventional wisdom on TLS that has helped numerous people and worked just fine for them.

Well said. The whole post reeked of a brag rather than a guide.

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby IAFG » Fri Aug 26, 2011 9:13 am

This post has some good advice for some of the things you should keep in mind as you read as a 1L.

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby Borhas » Fri Aug 26, 2011 9:58 am

TL:DR all of it, but first couple paragraphs show that this guy understands legal reasoning

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby denardisgod » Fri Aug 26, 2011 11:13 am

Last edited by denardisgod on Sun Jul 08, 2012 6:32 pm, edited 1 time in total.

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby Transferthrowaway » Fri Aug 26, 2011 11:24 am

Bronx Bum wrote:TL;DR

Hideous flame

You obviously haven't been here long enough to know the legendary Traydeuce

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby SilverE2 » Fri Aug 26, 2011 6:00 pm

dude how bored are you

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby TheFactor » Sat Aug 27, 2011 12:05 pm


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Re: My Non-Guide to Doing Extremely Well in Law School

Postby TatteredDignity » Sat Aug 27, 2011 5:04 pm

Loved all of it. Probably not the best thing to read my first week of 1L, where I'm already prone to over think stuff.

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Re: My Non-Guide to Doing Extremely Well in Law School

Postby target » Sat Aug 27, 2011 6:19 pm

SilverE2 wrote:dude how bored nerdy are you

Your part about details of cases is definitely true. Case law is beautiful in its nuances.

However, there exist a theoretical and a practical approach to success in law school. Your advice is probably good for those at top tier schools where the professors are more of legal "scholar" (see how put quotation marks there). At some lower tier schools, prof only care about the application of black letter law, and some are lazy enough to test students cases they go over in class with little details changed.

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