How much time do you spend laying out losing arguments?

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Garden District
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How much time do you spend laying out losing arguments?

Postby Garden District » Sat May 02, 2015 7:12 pm

So on exams, how much time is worth spending laying out and killing pretty obviously losing arguments?

So like,

Defendant might argue that under section 24(seventh) of the bank act operating a real estate agency is incidental to the powers granted to national banks. However, we know from Arnold Tours that a travel agency was held to not be incidental to the powers granted. So, because real estate agency is pretty similar to a travel agency with respect to being incidental to the banking powers, it's unlikely that a court would permit the bank to operate it.

Is pretty much setting up a weak argument to knock it down. Is that a waste of time?

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swampman
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Re: How much time do you spend laying out losing arguments?

Postby swampman » Sat May 02, 2015 7:27 pm

Really depends how much time pressure you're under, if you have the time absolutely flesh out losing arguments. In your example, you could spend another sentence on how real estate agencies and travel agencies are similar and dissimilar. Banks often are closely involved in real estate, does this matter? What was the court considering in deciding what's incidental? etc.

If it's not just losing but totally frivolous then I would mention it and dismiss it in one sentence - still could be points there.

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pancakes3
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Re: How much time do you spend laying out losing arguments?

Postby pancakes3 » Sat May 02, 2015 7:48 pm

I think about this when it's an exam for a prof who lays out model answers as "rule of law, argue both sides" and the fact patter in question makes it pretty clear that the law favors one side or another. I know the profs do their best to make it arguable but sometimes they do a shitty job writing, and/or I do a shitty job spotting.

Do I waste time turning a null argument to just a shitty argument, or just wear it? I usually beat that deat horse because I default to me being shitty vs the prof.

Fwiw, I think your answer is fine. You've got to end the analysis at some time or another.

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star fox
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Re: How much time do you spend laying out losing arguments?

Postby star fox » Sat May 02, 2015 9:37 pm

Sometimes in the middle of writing my losing counter-argument I decide I like my arguments there better and it becomes my winning argument.

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TFALAWL
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Re: How much time do you spend laying out losing arguments?

Postby TFALAWL » Sun May 03, 2015 12:13 am

So I'll usually say "as a threshold matter, this argument is a non-starter, but I'm just mentioning it, b/c you told us that you can't give points for what we don't write down." then i summarize it in one sentence.

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chuckbass
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Re: How much time do you spend laying out losing arguments?

Postby chuckbass » Sun May 03, 2015 12:54 am

star fox wrote:Sometimes in the middle of writing my losing counter-argument I decide I like my arguments there better and it becomes my winning argument.

Yup, definitely happened a lot with me this semester on my civ pro exam.

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lawhopeful10
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Re: How much time do you spend laying out losing arguments?

Postby lawhopeful10 » Sun May 03, 2015 2:27 am

For me it just depends how shitty the argument is. If it is a no shame argument then only like 2-3 sentences and then the more legit I think it is the more time generally I would spend.

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Avian
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Re: How much time do you spend laying out losing arguments?

Postby Avian » Sun May 03, 2015 5:26 pm

I agree with what others have said. I'd only add that I've had exams where there are facts included in the question that are nods in the direction of a certain losing argument. In those cases I assume that the professor was looking for you to catch it and so I would spend more time on those than on losing arguments that were just things we touched on in class that could apply generally to that type of issue.

whats an updog
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Re: How much time do you spend laying out losing arguments?

Postby whats an updog » Mon May 04, 2015 9:13 pm

If I think the argument would actually be raised (even if it's a losing one), then I spend a reasonable amount of time. If it's an absolute clear loser but I haven't had any other opportunity to talk about the issue and it seems to hover close enough that the Prof. was looking to make people think it could have been an issue, I will give those points a couple sentences like "ISSUE1 won't be a problem because XYZ. Neither will ISSUE2 because ABC."




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