Question on Exams Forum

[BlueDiamond]

0L.. didnt know where else to post this

I know it depends on professors, but in deciding how to apply law to the facts on an exam for, lets go with Torts:

There is the Second Restatement of Torts and then like multiple Third Restatements on areas of Torts or something.. none of which are binding authority unless actually used in a court holding?? So, again I know it can depend on the professor, but are the restatements generally accepted as a reliable source for exams?

Then as far as the black letter law... will the cases we use throughout the semester and their holdings be the rules I should use in applying the law on exam hypotheticals? Or, do some professors want you to go further and find outside case holdings that apply? Are cases not relevant at all once you understand the rule?

Also, depending on the answers, if both move your point forward should you use both on an exam to provide two reliable sources of information?

Yes, I also realize there is a decent chance that I'm "doing it wrong." Any kind of clarification would help.

[mikeytwoshoes]

0L.. didnt know where else to post this

I know it depends on professors, but in deciding how to apply law to the facts on an exam for, lets go with Torts:

There is the Second Restatement of Torts and then like multiple Third Restatements on areas of Torts or something.. none of which are binding authority unless actually used in a court holding?? So, again I know it can depend on the professor, but are the restatements generally accepted as a reliable source for exams?

Then as far as the black letter law... will the cases we use throughout the semester and their holdings be the rules I should use in applying the law on exam hypotheticals? Or, do some professors want you to go further and find outside case holdings that apply? Are cases not relevant at all once you understand the rule?

Also, depending on the answers, if both move your point forward should you use both on an exam to provide two reliable sources of information?

Yes, I also realize there is a decent chance that I'm "doing it wrong." Any kind of clarification would help.

We will answer questions like this when the number before "L" changes from "0" to "1." Before that you're doing it wrong.

[Modus Vivendi]

You're halfway to answering your own question when you say "I know it depends on professors." Every professor is different and will usually make it clear what approaches to the law they prefer. Not all states have adopted the Restatement views, so there may be certain classes where the professor rarely (if at all) references the Restatement for that area of law. On exams, the Restatements are only as useful as your professor references/relies on them in class. As for the case law, it will be fairly obvious what the general rule is as you move through each theory of law throughout the semester. The cases help to flesh out the concepts and to show different ways to interpret the law in light of the facts (or to interpret the facts in light of the law). I don't believe going to outside sources that weren't discussed in the class/reading would be very helpful on the exam. It might help for a summation to an answer or to include some policy, but that is not your first concern on the exam. If you have time at the end and want to hit on some kind of policy for/against the law as it is in the jurisdiction, then it might be ok. But that's if you have time, and very few people have the time to do that. The whole point of studying cases is to better understand the law and how varying circumstances may affect the outcome of an issue. In Torts, for example, once you know the elements of a tort, the important part is then to interpret how different facts fit together. Case law is mostly about cases that are borderline or "on the fringe." The idea is for you to learn how to argue for and against it by interpreting the particulars.

All in all, if you're a 0L, just take it easy, read Getting to Maybe and enjoy summer. Trust me. HTH

[lawloser22]

0L.. didnt know where else to post this

I know it depends on professors, but in deciding how to apply law to the facts on an exam for, lets go with Torts:

There is the Second Restatement of Torts and then like multiple Third Restatements on areas of Torts or something.. none of which are binding authority unless actually used in a court holding?? So, again I know it can depend on the professor, but are the restatements generally accepted as a reliable source for exams?

Then as far as the black letter law... will the cases we use throughout the semester and their holdings be the rules I should use in applying the law on exam hypotheticals? Or, do some professors want you to go further and find outside case holdings that apply? Are cases not relevant at all once you understand the rule?

Also, depending on the answers, if both move your point forward should you use both on an exam to provide two reliable sources of information?

Yes, I also realize there is a decent chance that I'm "doing it wrong." Any kind of clarification would help.

Restatements restate the common law -- the case holdings on the topic. Restatements are not binding authority, but are often used by courts and thus should be used on your exams. The case holdings/rules should be used on your exams to the fullest extent possible. Sometimes they will be the same as the restatement, sometimes they won't. If they don't, argue both sides.

The restatement says x so [apply]. In contrast, in [the chair-pulling case] the court held, so [apply]. Here, the court will likely go with x because [arg/policy (often can borrow these from the cases)]).

In either case, drawing analogies to cases is a great way to score extra points with professors (though the case name itself will likely never be necessary). Use only the cases your professors assigns/talks about in class.

[BlueDiamond]

Surprisngly got more helpful answers than I thought I would! Thanks!

It is beginning to sound like law school is mostly about "being one with the professor" haha. Should be a fun year.

[blsingindisguise]

Surprisngly got more helpful answers than I thought I would! Thanks!

It is beginning to sound like law school is mostly about "being one with the professor" haha. Should be a fun year.

I really think you're getting ahead of yourself and trying to teleport your mind into law school before you're there, which is not possible. Yes, you should focus on what the professor focuses on, but not because you have to 100% agree with or "be one with" the professor so much as because it greatly narrows down the potential universe of things you can be tested on (i.e., what the professor puts on the syllabus). As such, you may be wasting your time learning too much of this stuff in advance. Torts is actually a great example of where this can be treacherous -- even something as basic as the elements of an unintentional tort are often broken down different ways by different professors (for example, "proximate cause" vs. "legal cause" -- same element, very different ways of conceptualizing it). While you don't have to agree with your professor, your professor may dislike, say, the third restatement approach, or the second restatement approach so much that he doesn't spend much time on it.

But yes, you're correct that a restatement is never binding on a court. Even when a court "adopts" a restatement approach to something, remember that it's the court's decision that's the binding law, not the restatement itself, if that makes sense.

[BlueDiamond]

Surprisngly got more helpful answers than I thought I would! Thanks!

It is beginning to sound like law school is mostly about "being one with the professor" haha. Should be a fun year.

I really think you're getting ahead of yourself and trying to teleport your mind into law school before you're there, which is not possible. Yes, you should focus on what the professor focuses on, but not because you have to 100% agree with or "be one with" the professor so much as because it greatly narrows down the potential universe of things you can be tested on (i.e., what the professor puts on the syllabus). As such, you may be wasting your time learning too much of this stuff in advance. Torts is actually a great example of where this can be treacherous -- even something as basic as the elements of an unintentional tort are often broken down different ways by different professors (for example, "proximate cause" vs. "legal cause" -- same element, very different ways of conceptualizing it). While you don't have to agree with your professor, your professor may dislike, say, the third restatement approach, or the second restatement approach so much that he doesn't spend much time on it.

But yes, you're correct that a restatement is never binding on a court. Even when a court "adopts" a restatement approach to something, remember that it's the court's decision that's the binding law, not the restatement itself, if that makes sense.

makes sense.. kinda.. haha

And I'm really not trying to go above and beyond I promise haha. Literally all I did was read the first chapter of the torts E&E to see what it was all about.. Glannon uses the restatement definitions a few times in that chapter and i had no idea what the restatement was and decided to look it up and thats where the confusion set in.. it all seemed very clear until I found (via wikipedia haha) that the restatements aren't binding but that the BLL is.. then, i tried to figure that out and realized theres like millions of cases of battery (what the chapter was on) and most say something a little different in their rule/holding.. which is then where the question about caselaw came in and me wondering how Id ever go about finding the one or few rules that would work best for application in an exam... which will come from class, the casebook readings, and discussion with professors

basically it was one big slippery slope of worrying in about an hours time.. and that reasoning alone made me promise myself to read no further

[kswiss]

Profs test differently, but they usually either give you a jurisdiction or some clue as to what they expect.

For example, they might give you a set of facts and say: "Utopia follows the Rst 2d approach to abnormally dangerous activities."

But they might say, "this is an issue of first impression in Utopia."

For the first, they want to see how well you understand how to apply concrete elements to novel facts. In the second, they're testing your ability to argue for the type of rule that should apply. Your answers for these two questions would be quite different; one weighs the merits of the arguments of both parties, the other is about identifying which rule is most favorable to either party and why.

It's most important to listen to your prof and read the question carefully. For example, people practice writing crim exams by applying both the common law and the mpc, but if the prof explicitly asks for mpc analysis in the question stem, any discussion of the common law is just wasting time.

[quakeroats]

Here's one approach:

2008 Berkeley torts exam: http://www.law.berkeley.edu/library/dyn ... examID=490

Model answer I: http://www.law.berkeley.edu/library/dyn ... examID=491
Model answer II: http://www.law.berkeley.edu/library/dyn ... examID=492

[Grizz]

You are a miserable gunner who is doing it wrong.

[BlueDiamond]

Here's one approach:

2008 Berkeley torts exam: http://www.law.berkeley.edu/library/dyn ... examID=490

Model answer I: http://www.law.berkeley.edu/library/dyn ... examID=491
Model answer II: http://www.law.berkeley.edu/library/dyn ... examID=492

i appreciate that you posted this so I could look it over... and I despise you at the same time because this has shown me how badly I need to work on typing faster before I get to law school

[reverendt]

OP....why the hell do you care now????
Once you learn something about torts half your questions will be answered.
You're not gonna cite cases in your torts exam!!!

[beach_terror]

You are a miserable gunner who is doing it wrong.

[mikeytwoshoes]

You are a miserable gunner who is doing it wrong.

168

[Mickey Quicknumbers]

You're asking this question miserably ahead of schedule. Your teacher will teach you something, learn that, and go from there.

[Army2Law]

You should research the latest holdings for every single substantive issue you go over in class using Westlaw and Lexis and cite those using full Bluebook format on your finals. Guaranteed CALI.

[BlueDiamond]

I purposely haven't responded to this after the last like 6 posts because they stopped having any form of useful input.. I GET it.. the question is premature and I made that point that in my OP.. it was one simple line of questioning and I wanted to make sure it would be addressed when the time comes.. any chance we could let this thread die?

[beach_terror]

I purposely haven't responded to this after the last like 6 posts because they stopped having any form of useful input.. I GET it.. the question is premature and I made that point that in my OP.. it was one simple line of questioning and I wanted to make sure it would be addressed when the time comes.. any chance we could let this thread die?

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