Sabatini Law School Exam Guides Complete Review

Book Reviews and Comparisons by Frank Sabatini, Harvard Law 2012. Published July 2009, last updated March 2011.

Final exams, particularly during the first year of law school, determine a student's grades completely (or close to completely). For this reason, the market offers a wealth of books suggesting ways to succeed on law school exams. Constraints on time and money, of course, limit the quantity of books an incoming law student can reasonably read before law school, so the task of selecting appropriate books can be overwhelming. Worse still, it can often be difficult to assess the quality of any given law school exam guide. Consequently, analysis of an author's objective authority on the subject serves as the best way to measure a book's relative value. To illustrate this point, I will contrast, on the one hand, both Getting to Maybe: How to Excel on Law School Exams by Richard Michael Fischl and Jeremy Paul (0890897603) and Introduction to the Study and Practice of Law in a Nutshell, Fifth Edition by Kenney F. Hegland (0314194150) with, on the other hand, The Complete Law School Companion: How to Excel at America's Most Demanding Post-Graduate Curriculum, Second Edition by Jeff Deaver (047155491X). Although Deaver has found great success both in law school and as a writer of crime fiction, his book does not (and cannot) compare in value to the work of Fischl, Paul, and Hegland, law professors who have designed and graded the very tests students seek to conquer.

Getting to Maybe's title implies the book's principal argument: a strong law school exam essay resists conclusiveness and, in Fischl and Paul's own words, “celebrate[s] every ambiguity” (xvi). Of course, as Fischl and Paul make clear, these “ambiguities” are rarely obvious, and actually developing nuanced arguments from them provides an even greater challenge. Hence Fischl and Paul guide their readers through the process of “issue-spotting” and then through the process of analyzing the issues for all that they are worth.

After an engaging introduction in which Fischl and Paul lay out how and why misconceptions permeate the law student community as well as why law school works the way it does and why the Socratic method, in actuality, is an excellent method of teaching students the ambiguous nature of the law), the authors jump right into explaining the various types of ambiguity. Fischl and Paul identify two general categories of ambiguity: legal ambiguities and factual ambiguities. Legal ambiguities can occur either between rules that would result in contradictory results when applied to the situation at hand, or they can occur within a single rule that could have multiple interpretations. Fischl and Paul then examine the different kinds of rules that might contradict one another. Although the multiplicity of examples in this section may help the reader develop a mindset of seeking such contradictions, it seems unnecessary to try to memorize the different types of contradicting rules (such as “traditional versus modern”) because, as long as the student recognizes the contradiction, the type of contradiction matters very little. On the other hand, the details of different interpretations of single rules may be more important because, as Fischl and Paul expertly demonstrate, the sources of ambiguity of interpretation differ between statutes and case law. For example, the idea of “precedent” means nothing when dealing with statutes while “legislative intent” is inapplicable to case law.

Factual ambiguities refer to “how the law actually applies to a particular case” (Fischl and Paul 67). Here, too, Fischl and Paul break factual ambiguities down into different subcategories. While their analysis of the usual uncertainty that surrounds application of the law to a given set of circumstances is excellent, the use of such subcategories may mislead the reader into thinking that he or she must commit each type of factual ambiguity to memory. The real point, however, is to understand that, in class, the professor will often, through the Socratic method, subtly draw attention to factual ambiguities. By recognizing these ambiguities when they come up in class, the student will be able to apply them naturally when they appear on the test without worrying about whether the ambiguity is a “Differing Time-Frames” ambiguity or a “Differing Standpoints” ambiguity. Suffice it to say, the reason the Socratic Method works so well is that no set of facts lends itself to a perfectly straightforward legal interpretation.

In Part II of Getting to Maybe, Fischl and Paul begin discussion of how to actually apply recognition of the law's ambiguities to exams. Fischl and Paul suggest that “You want to study what you don't know as much as what you do” (120). In other words, law professors will not likely ask students to regurgitate information on exams but to tackle difficult solutions with no definitive solution. Why, Fischl and Paul ask, should students, therefore, focus on resolved issues? Fischl and Paul suggest that studying the gaps in one's knowledge will help the student “spot issues” on the exam. Other excellent advice Fischl and Paul offer includes looking for issues that relate to the “big themes” of the course. For instance, the authors suggest that a Property question might engage a classic “investment vs. competition” debate (Fischl and Paul 123). Knowing this makes finding ambiguities in a question much easier. Similarly, the authors recommend that a student who thinks that a question is rather straightforward force himself or herself look at the problem from the angle of the so-called “obvious” loser. This often facilitates the identification of ambiguities that were not apparent before. One point that Fischl and Paul mention is the fact that the student cannot add “potential” facts to the scenario.

The next section of the book is probably the most important: how to use ambiguities to construct an analysis on the exam. After finding issues, students should discuss the interrelation among the issues in a problem, explain the importance of each ambiguity (ambiguities that could not change the end result are not very important), explain the reason for the ambiguity, and, finally (and perhaps counter-intuitively, given Fischl and Paul's focus so far on the ambiguous nature of the law), discuss why the court should resolve the ambiguity one way or another. According to the authors, professors often make arguments in class that can be used to argue for one resolution or another. Fischl and Paul strongly recommend using these arguments on exams. The student does not, by any means, have to come to the same conclusion as the professor, but recognizing and addressing the arguments used in class will always impress the professor. As a general point, Fischl and Paul note that issues on which the professor focuses should be issues on which the student focuses during the exam. Ideally, convey your arguments using the same type of language as your professor. This is one reason why Fischl and Paul decry commercial outlines.

Chapter 10 of Getting to Maybe examines policy issues and how to use them on exams. Fischl and Paul identify five types of policy debate: “shaping” (how a decision might impact future policy), “administering,” “fairness,” “institutional role,” and “non-interference” (168). Learning to identify how any given decision impacts these five issues is invaluable. Additionally, Fischl and Paul suggest seeking “paradoxes” (181). In other words, if one decision seems to further a specific policy, arguments that suggest that the opposite decision bolsters the policy even more can do wonders for one's grade. Once more, the specific subcategories within “paradox” matter little; the student should simply concern himself or herself with identifying paradoxes in general, not specific kinds.

In sum, Getting to Maybe provides its readers with an excellent overview of how law school exams work and how to crack them. Fischl and Paul's prose is quite enjoyable and easy to read. Despite the use of specific examples that might still seem like a foreign language to readers who have not yet begun their legal studies, the book is easy to follow. Only organizational problems hinder Getting to Maybe's effectiveness. Fischl and Paul weave an unnecessarily complex web of chapters and subchapters in a questionable order and thus obscure their relatively straightforward but invaluable advice.

Introduction to the Study and Practice of Law in a Nutshell by Kenney F. Hegland serves a more general purpose than Getting to Maybe in that it attempts to show its readers how to successfully learn the law rather than how to receive high grades in law school. The distinction is subtle but important because, although Hegland covers much of the same ground as Fischl and Paul, Hegland emphasizes learning to do the kind of analysis expected on law exams at all points of one's legal education and career, not just on the exams themselves. For this reason, Introduction actually helps students develop excellent study skills even more than Getting to Maybe.

According to Introduction's first chapter, a student's analysis of a case must, first and foremost, consider how and why the case is similar to or different from precedent. Such advice seems perhaps too simplistic, but it complements to a remarkable degree the advice in Getting to Maybe. After all, law school exams ask students to perform this very task. Hegland, however, teaches his readers how to think like a law-exam expert while reading new cases. Hegland portrays cases as battles between plaintiffs and defendants over which statutes, precedents, and the like should or should not be followed. Students should read cases carefully to determine why one side asks the judge to consider one line of argument or another (Hegland 29). Some students may complain that their courses fail to prepare them for exams, but Hegland believes that “[y]ou learn the law by struggling with it, not by closing your eyes and memorizing it” (34). Thus students who learn the material well will simultaneously learn how to succeed on tests.

While Fischl and Paul do not really discuss “case synthesis” (presumably it does not provide convenient fodder for ambiguity), Hegland convincingly argues for its importance. In short, Hegland defines case synthesis as an explanation of an underlying legal principle that adequately explains multiple rulings (39). A single ruling may suggest a number of plausible rationales, but a second ruling may indicate that some of those rationales are, at the very least, unlikely. Law students may find great, but rewarding, challenges in trying simultaneously to synthesize cases and to seek out ambiguities. Even if one decision does not strictly need to be reconciled with another's (if, for example, they occurred in separate jurisdictions), synthesis can still be a powerful argument—especially on exams—for deciding a case one way or the other (see Hegland 48-49).

If a case does not have precedent, Hegland points to “policy arguments” as the principal means of coming to a decision (55). Hegland indicates that arguments against certain rulings are often based on the rulings' long-term policy implications. These arguments, however, have three policy-related rebuttals: a case can be “pre-distinguish[ed]” from future cases (Hegland 57), the policy's logical endpoint actually benefits society (Hegland 58), and the opposite ruling would actually create a worse policy situation (Hegland 58). Hegland's inclusion of policy arguments among the most essential components of legal analysis confirms the impression that one gets after reading Fischl and Paul that emphasizing policy matters on exams helps in achieving a top grade.

Of course, Hegland does not forget statutes. Like Fischl and Paul, Hegland discusses legislative intent, exact language, and policy matters as sources of ambiguity surrounding law governed by statute (60-66). In general, Hegland's discussion of statutes is very similar to that of Fischl and Paul. Hegland's summary of statutes is less detailed but it also easier to follow and absorb. After this chapter, Hegland discusses the governing philosophies behind our legal system, which may not directly help law students with their exams but nonetheless may give students confidence that a predilection for ambiguity will not only serve them on tests but also throughout their legal careers.

In Part Two, “Study Skills,” Hegland explains how to put the principles explained in Part One to practical use. Hegland advises his readers to endeavor not to “know” or “memorize” law but to “do” law (94-95). Echoing Fischl and Paul with somewhat eerie similarities of language, Hegland instructs law students to “[r]elish ambiguities and ask difficult questions” (96). The three professorial authors all agree that, in Fischl and Paul's words, “exam questions test...not your recollection of the rules but what you can do with them” while also maintaining that “you will need to have a pretty good idea of 'what the rules are' in order to apply them” (Fischl and Paul 204). Hegland, however, notes an important and interesting point that Fischl and Paul ignore: that “having practiced” the “appli[cation]” of law will lead to better knowledge of the law by test time than attempts to memorize rules by rote (96-97). This piece of advice exemplifies Hegland's strength: he shows how the work students do (or should do) all semester logically culminates in essay exams.

Chapters 9 and 10 discuss how to successfully read and brief cases respectively. According to Hegland, students should, after identifying the issue, observe the arguments made on both sides (particularly with regard to precedent), and, finally, understand the “relationship between arguments” (109), which really means knowing how the court's ruling on various arguments impacts the ultimate outcome of the case and similar future cases. Successful briefs distill the important information about the case: “facts, issue, and rationale” (Hegland 113). Hegland refers to this succession of data as the “traditional format” (113). The process of determining what information is important greatly benefits the student. Hegland strongly discourages students from treating the reading and briefing of cases as a passive experience; in his view, arguing for and against different rulings or understandings of the facts—including those that directly contradict the court's real decisions—facilitates the intellectual growth of all law students. Hegland recognizes that students will make mistakes, but he also recognizes that the function of the classroom (and of the Socratic Method) is to learn from those mistakes.

Many readers can probably infer Hegland's advice in Chapter 12, “Study Aids, Study Groups, Outlining and Messy Casebooks” from what he has written already: the best way to study is to practice making legal arguments in the same ways as the courts. Specifically, writing (not merely highlighting, etc.) accomplishes this goal (Hegland 138). Fun legal arguments with friends also qualify as practice (Hegland 141). Finally, Hegland suggests keeping a journal (145). By and large, the advice in this chapter, although solid, seems obvious in the context of the rest of the book: the only good learning is active learning.

In the third part of the book, Hegland discusses exams themselves. Through straightforward and engaging language, Hegland's advice reads like a much more compact and digestible version of Getting to Maybe. Hegland gets right to the bottom line: law school exams are not about “show[ing] how much I have learned” but about “application, application, application” (164). Hegland successfully warns against thinking in terms of resolution (165), and, with his own explicit reference to Getting to Maybe, he concurs with Fischl and Paul's dissatisfaction with the IRAC (Issue, Rule, Application, Conclusion) method (Hegland 169-172). Hegland's argument against IRAC is much clearer than Fischl and Paul's (which is why their discussion of IRAC was not included in my review of Getting to Maybe). For Hegland, IRAC properly reminds students to discuss issues, rules, and the application of rules to the given facts, but it improperly suggests both that a strict answer format is expected (a slavish listing of issues, rules, and applications one by one) and that the conclusion is important. Hegland's approach is superior because Fischl and Paul's wholesale rejection of IRAC might lead some students to believe, quite erroneously, that statements of issues and rules are somehow problematic. Like Fischl and Paul, Hegland goes on to provide some sample questions and answers. Hegland, as usual, is not as detailed as Fischl and Paul, but his straightforward presentation distills Fischl and Paul's most useful advice. Some of Hegland's best advice includes identifying issues as specifically as possible (184), only writing that which furthers analysis (184), avoiding inference of facts (185), “neutrality” (185), and identifying connections among facts and issues (188-89). Hegland's sample answers also give a concrete example of the dangers of IRAC: the issue in his sample question is not clearly governed by an identifiable rule (196). Finally, Hegland discusses multiple-choice exams. Hegland warns that professors load their multiple-choice questions with traps, such as inviting a bias toward one side of the argument (201) or having multiple answers that are only partially correct (202). As with essay exams, older exams provide an outstanding study source (Hegland 198).

Although Hegland's book continues on for another three parts, the remainder of the book does not relate to success on law school exams and therefore falls outside the scope of this review. Given this fact, we can now take a look at Jeff Deaver's The Complete Law School Companion. Deaver's position as a fellow “survivor” of law school exams—rather than as a creator of such exams—allows him to offer some solutions to problems that the three professors may have missed from their ivory-tower vantage points: how to effectively read cases so that they can be understood (52), when to study (60-61), and how to organize notes (60). This strength, however, might also be a fault: Deaver's painstaking walk-through might be too pedantic for some. Indeed, unlike Hegland, Deaver emphasizes how to take notes, not how to learn the material. Certainly, the two are related, but note-taking is only valuable to the extent that it promotes excellent learning.

Deaver writes with the best intentions and his experience as a law student certainly adds value to his book. Nonetheless, the truth is that he cannot claim the same sort of authority on his subject as Fischl, Paul, and Hegland. As such, readers cannot rely on some of his advice that does not quite match advice given by the other authors. For instance, he implies that “dicta” have no value because they do not directly impact the case being studied (Deaver 73). This is certainly true, but Hegland specifically tells his readers to take note of dicta because “[m]uch of the law you will learn will come from judicial asides” (124). In fact, Hegland advises his readers not to brief cases using systems like Deaver's for this very reason (124). Deaver also tells us that policy issues only count for “extra credit” (102), but, of course, Fischl, Paul, and Hegland all agree that such details can be crucial in composing successful essays for questions on law exams. Deaver suggests that the structure of study group meetings be casual (63), which is the opposite of the advice of Fischl, Paul, and Hegland. When studying old tests, Deaver recommends only practicing issue-spotting (134) whereas the three professors recommend taking the tests as if they were really being graded. Finally, Deaver's discussion of how to “synthesize” cases (77-79) also lacks the nuance of the discussions by the three professors on how to move from understanding a single case to applying multiple cases to new legal challenges.

In the book's eleventh chapter, “Taking Exams,” Deaver provides his readers with a short sample question. The answer Deaver provides to the question seems to address the question fairly well, but the question itself seems too simplistic when compared with the samples provided by Fischl, Paul, and Hegland. In other words, it does not lend itself to the same kind of thorough, nuanced analysis as real law school exam questions, so, as an example, it is fairly misleading. In the sample answer, Deaver also refers to “public policy issues” as “extra credit” (144), echoing some of his earlier advice (121) that completely contradicts Fischl, Paul, and Hegland, who all agree that sometimes policy dictates virtually the entirety of one's decision. The next chapter, “Sample Exams,” contains an additional short question as well as a longer one. Even though the short question does involve a fairly complex web of rules and issues, everything still resolves so neatly that it still does not seem like a realistic question. The answer to the longer question includes words like “obviously” (Deaver 164) that violate the spirit of ambiguity that pervades law exams and, in general, seems to oversimplify issues. For instance, Fischl and Paul discuss the importance of “categories” (188-90). In the answer to Deaver's longer sample exam, Deaver does not discuss whether Hank's categorization as a hitchhiker might impact the judgment of whether or not Hank “assume[d] a risk” (164-65).

All in all, rising law students eager to prepare for law exams even before meeting their classmates at orientation should start with Getting to Maybe and then move on to Introduction to the Study and Practice of Law in a Nutshell. The former title provides its readers with a thoroughly detailed (some might say excessively detailed) survey of testing in law school. Even if, after reading Getting to Maybe, the reader cannot possibly process all the information contained in the book, Hegland's book will reinforce the major points of Fischl and Paul's dense treatise. Readers who can spare some extra time may consider reading The Complete Law School Companion as a supplement, but they should be very wary of the book's limitations, especially its misleading sample exams and answers.