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Bad Answers, Good Answers, and Terrific Answers:
Law students around the country recently received their fall semester grades. Students are often puzzled about what professors are looking for on exams, so I thought it might be helpful to offer some thoughts on what makes an answer bad, good, or terrific. Obviously different professors look for different things, but my guess is that what works for me is relatively close to what works for other professors. Abstract guidance on how to answer exam questions is easily found and usually pretty useless, so instead I'm going to conjure up an imaginary law school class with an imaginary exam. I'll then grade an imaginary set of five different answers and explain what makes the different answers better or worse.

  Welcome to the Imaginary Law School! Every 1L at ILS takes a mandatory class in "Park and Recreation Law." The class includes coverage of Section 1 of the Park Act, which states that "No vehicles are allowed in the park." The class covered two cases interpreting this section. The first case was State v. Jones, where the court concluded that roller skates were not vehicles. "Although the Park Act does not define the word 'vehicle," the court stated, "we follow the plain meaning of the term. The word 'vehicle' calls to mind a motorized mode of transportation, not a human-powered one." The second case was People v. Thomson, where the court held that a motor home was a vehicle. "We think it clear that Thomson's motor home is a vehicle," the court explained. "The classic example of a vehicle is a car or truck. A motor home is much like a truck in size and complexity, with a small living area connected to it. We can imagine close cases that would force us to draw difficult lines as to the scope of the Act. But this case is not one of them."

  Okay, now imagine being the professor who wants to test students on Section 1 of the Park Act as part of the final exam. Being a law professor, you'll create facts that are annoyingly in the middle of these precedents — this forces students to grapple with the facts and the law, and you can grade them on how skillfully they do that. Here is the question you write:
QUESTION X

  Betty is a law student at ILS who lives off-campus. She often rides to class in a gas-powered scooter, a two-wheeled motorized scooter that has a one-cylinder gasoline engine and a top speed of about 20 miles per hour. One day she decides to ride her scooter through a nearby park on her way to school.

  Analyze Betty's liability under the Park Act.
 Ok, now imagine that the students have taken the exam and it's time to do some grading. There are five students in the class and therefore five exams to grade. You pick up the first answer:
1. Betty may face liability under the Park Act. However, I think she is in the clear. I don't think her conduct violated the law. There are laws that regulate the park, but here Betty has not violated them. The government may disagree, and it's possible that there is a judge somewhere who would rule in favor of the government. But on the basis of the law, I think it is absolutely clear that Betty is not liable.
  Ack, this is a really terrible answer. Why? Well, it doesn't tell you anything. It tells you that there is an issue of park law in the question — which you would expect, this being an examination on park law — and that the student has a view that Betty is not liable. But it doesn't tell you what the legal issue is or how it applies to the facts. Even worse, the answer suggests that the answer to the legal question — whatever it is — is "absolutely clear." You intentionally wrote a question that has no clear answer; a student's announcement that the answer is clear suggests that the student is just missing the boat.

  Time to move on to the next exam. Here it is:
2. The issue is whether Betty is liable under Section 1 of the Park Act because she may have brought a "vehicle" into the park. This is a close question. On balance, though, I don't think the scooter was a "vehicle."
  This is still a below-average answer, although at least it's an improvement over the first student. On the plus side, the students clearly recognizes the legal issue: specifically, whether the scooter is a "vehicle." But the answer is still very weak; I need to know why the student thinks the issue is hard and why the scooter wasn't a vehicle. There are good reasons and bad reasons to reach that particular conclusion, and I need to hear the reasons so I can tell which are guiding the answer.

  Now you pick up answer number three:
3. The issue is whether Betty is liable under Section 1 of the Park Act because she may have brought a "vehicle" into the park. Vehicle is not defined, but under Jones we follow the "plain meaning" of the term. This is a close question; on one hand, a scooter is kind of like a car, but on the other hand, its also pretty different. Under the plain meaning approach, I don't think a scooter is a "vehicle."
  This answer is better than number two; it's roughly an average answer. Note that answer 3 did two things that answer 2 did not: first, it used a relevant case to focus the intepretive inquiry (plain meaning under Jones), and second, it suggested a reason why the case was hard (like a car in some ways, not like it in others). On the other hand, it didn't offer a very clear rationale for its conclusion; "pretty similar" and "pretty different" can mean lots of different things, and I need to know what the student means by that.

  Now you pick up the fourth exam:
4. Did Betty violate Section 1 of the Park Act because she brought a "vehicle" into the park? Vehicle is not defined, but under Jones we follow the "plain meaning" of the term. That advice is not very helpful here, though as whether a scooter is a vehicle does not seem plain one way or the other. I think the scooter is probably a "vehicle" because it has a motor, which seemed to be a very important factor in the Jones case. Roller skates don't have motors, but Betty's scooter had a one-cylinder gas-powered engine.
  This is a very good answer, definitely above-average. The student did everything that that the student did in #3 but added two important steps. First, the student offered a clear rationale as to why one case was distinguishable: in the roller skate case, Jones, the Court had pointed out that vehicle suggests the presence of a motor; in this case, by contrast, there was a motor. Second, the student had the presence to see that the "plain meaning" guidance isn't very helpful in this particular case; while it's a broad principle worth noting, the real answer to this particular question comes from the prior cases and their reasoning.

  Now you pick up the last answer. It reads:
5. Betty's liability hinges on whether her motorized scooter was a "vehicle" under Section 1 of the Park Act. The Act does not define vehicle, but Jones and Thomson provide guidance. The facts here are somewhere between those two cases. Unlike Jones's roller skates, Betty's scooter has a one-cylinder gas engine: It is "a motorized mode of transportation, not a human-powered one" under Jones. On the other hand, it is a very modest means of transportation that is far from the size and complexity of a car or truck under Thomson. This seems to be one of the "close cases" mentioned in Thomson, in part because Jones's focus on the powerplant points in one direction and Thomson's focus on size and complexity points in another direction. Scooters are powered but small and simple. It's unclear which matters more, and Betty's liability under Section 1 depends on it.
  This is an off-the-charts A+ answer. First, the student directly and accurately identified the precise legal question and exactly what makes it hard. Second, the student explained exactly why the two cases point in different directions without resolving the question. The student clearly gets it: she seems to know the relevant law perfectly and has mastered applying that law to the facts. The answer is so good it's like the student read your mind — this is exactly what you were thinking when you wrote the question. And the student did it all in the context of a high-pressure 3-hour in-class examination. Wow, that's incredible. As they would say on eBay, A++++++++.

  So what do these examples tell you? I think the basic advice is that precision and explanations are everything. To get a top grade, a student needs to identify the relevant legal question accurately, and then articulate exactly why applying the law to the facts leads to a particular outcome. Of course, when stated that way, the advice sounds pretty general. At bottom it just means that you need to show your professor that you are an excellent lawyer. Which of course is exactly the point.

  Anyway, I hope this is helpful. The hypothetical is of course highly stylized, as it involves only one part of exam-taking (rule application). But I hope it gives students a flavor of what their professors want on exams. And I'm particularly interested in hearing from other professors on whether they agree with my scale or would use a different approach.
David M. Nieporent (www):
A careful reader might note that your grading policy seems to correlate pretty strongly with answer length. :)
2.13.2007 8:29pm
OrinKerr:
OK note: Sorry, I had accidentally turned off comments. I just turned them on.
2.13.2007 8:32pm
Cornellian (mail):
I myself was thinking a while back about what constitutes a good exam answer. My thoughts were very close to the content of your post, and I had even thought up examples somewhat similar to yours, in the sense of a common situation, two cases with different fact patterns and some reasoning, and a exam fact pattern in between the two. It seems clear to me and maybe that's why I did well in law school, but what's not so clear to me is

1) why is this so hard to explain to new law students and

2) why do professors teaching 1L classes make virtually no effort (at least in my experience) to explain any of this?
2.13.2007 8:34pm
David M. Nieporent (www):
Maybe question #1 is the answer to your second question, Cornellian. It's not that they don't make an effort, but that it's one of those things you understand or it's hard to explain. It seemed obvious to me also, but I know a lot of classmates who had trouble with it.
2.13.2007 8:41pm
liberty (mail) (www):
1) why is this so hard to explain to new law students and

2) why do professors teaching 1L classes make virtually no effort (at least in my experience) to explain any of this?


In case an outsider's perspective is helpful (i.e. someone who has not been to law school), I must say that everything through answer #4 seemed like a response one could give without even going to law school. All you would have to do is read the case or cases that are relevant and be given the question and a piece of paper.

The difference with answer number 5 is that the student has learned how to think like a lawyer. This, in my (ignorant) opinion is probably what law school is modtly there to do. So, I would think that the job of the professor is not so much to explain to students how to answer the question well, but rather to teach the students how to think like a lawyer, which will result in them answering the questions well.
2.13.2007 8:46pm
NotALegalEagle:
Hmm. The A+ answer seems to fail to answer the question. Certainly it gives an assessment of how the situation relates to the two covered cases, but completely ignores Betty's liability. If I was Betty and #5 was the advice given to me by my attorney, I'd be pretty peeved. Not being versed in the art, Betty would be hard pressed to know if she should take the plea bargain or take it to trial. Half the point of taking on counsel is that you've got someone who knows how the system, so to speak, thinks. Someone who can tell you heads or tails.... edge just isn't an answer.

But that's just my take on it.

[OK Comments: NALE, the question did not ask what advice you would give to Betty if you were Betty's lawyer. Rather, the question asks the student to analyze Betty's liability. If the real answer is that it's 50/50, you don't get credit by pretending that an answer exists.]
2.13.2007 9:10pm
Dave Hardy (mail) (www):
I must say with 1-3 or 4 ... do students really give answers that fail to outline the logical justification for their position? Do they think they're being trained so they can tell a judge their personal conclusion and leave it at that?

Hmmm... maybe I better pipe down. These are the future adversaries I want to have. On second thought, answer 5 was much too long and boring. Answer 1 was nice and didn't waste words.

Does bring to mind a VERY funny book, Uncommon Law, by a British MP. A collection of fictional decisions, one of which was cited by the media as a real ruling. (It held that a person who shot a horse to put it out of its misery, after riding it with a feather pillow in place of a saddle, had violated the law against hunting birds out of season. A bird is defined as an two-legged animal with feathers. The horse had feathers. There is no requirement in the definition that the bird be *entirely* covered in feathers, and in fact other birds do not have feathers on beaks or legs. It also had two legs. Plus two more. The definition does not state that a bird must have two legs, and no more.
But, defendant's counsel asks rhetorically, would the ruling be the same if the animal had no pillow upon it? We must, in turn, ask rhetorically, is a bird any less a bird because it has no feathers?

Not to mention the case where the party supposedly paid internal revenue by writing a check on the side of a cow and delivering it. The fictional court reviews all the rulings that a check need not be upon a formal check form, etc. Full of great lines like "At this point, the check adopted a menacing posture toward the recipient." "Internal revenue conceded that it had not endorsed the cow, nor negotiated it with a bank."
A crowd gathers, and the attempted payor is cited for disorderly conduct. "We can only say that it will be a sad day when a person can be arrested for bearing a negotiable note in a commercial district."
2.13.2007 9:12pm
neilalice:
Orin, as an former and decidedly mediocre law student, I'm curious about the percentages of students that turn in answers corresponding to the hypothetical answers. Are most answers mediocre with only a small percentage of standouts?

And if won't get you in too much trouble (and if not too far off topic) how well do the grades match the quality of answer?
Are there too many great answers for the number of As, or, conversely, are there too many average answers for the number of Cs? Or maybe it varies? Does GW's curve give you enough room?
2.13.2007 9:23pm
Pendulum (mail):
Orin,

Would it be worse if I had analyzed the underlying legal issues much as #5 did, but indicated that I believed Betty to be liable, by making a case that the reduced size and complexity of the scooter is unable to outweigh the 'motor' aspect? For example, demonstrating that a scooter has a motor, a steering mechanism, gas and brake, exhaust system etc., and suggesting that this is still sufficiently "complex" despite it being reduced in size.

Wouldn't Student #5's answer be, maybe, an A- because it fails to use insight and intuition in determining which factors would probably be more important to a court?
2.13.2007 9:25pm
Jim H (mail):
I would be surprised if someone that answered in the manner of questions 1-3 was actually a 1L. It would seem to me that answer 4 would be the minimum acceptable answer, and that 5 would be an average answer. It would seem that an even better answer #6 would be likely to point out how the noise and fumes of a gasoline motor in a park setting would be likely to trigger a police officer to act as if it were a illegal motorized vehicle, but that a court might not impose liability on a personal transportation device that is not a vehicle (a.k.a. skates, scooter, Seqway?.) It might even be a bonus if the writer addressed the ethical question by forecasting the judge saying "get that damm noisemaker out of my park" :-)
2.13.2007 9:32pm
Guest44 (mail) (www):
Good summary. Law exams are so different from all other forms of writing students have ever done, and professors and schools give no warning before the first set of exams about the difference. I think it's pretty unfair not to give any warning. The only thing that saved me was that someone recommended "Getting to Maybe," and I read it over Thanksgiving of my 1L year.
2.13.2007 9:43pm
OrinKerr:
A few commenters wonder whether some of the worse answers are realistic examples. Keep in mind the time pressures of a 3-hour in-class exam. A typical exam might have 4 or 5 questions, each of which raises 7 or 8 issues to be identified and then applied. The example in this post is just one application of one issue in the exam, and one that would need to be read, outlined, and answered in a total of about 4 minutes.
2.13.2007 9:45pm
Gunner:
Here is the answer I would give:

Betty is likely to face liability under the Park Act. Section 1 of the Act prohibits "vehicles" in the park; however, the Act does not define vehicle. Betty's strongest argument is that Jones controls her case. Under Jones, the court would look to the "plain meaning" of vehicle. Betty would argue that a scooter is not "plainly" a vehicle and that it is more like roller skates than a car or truck, which the court stated the word "vehicle" brings to mind. Betty would support her argument by pointing to Thompson, in which the court held that a motor home is plainly a vehicle. Betty would argue that unlike a car, truck, or motorhome, a scooter is a light form of personal transportation, more akin to roller skates.

Betty's argument is likely to fail however. The Jones court stated that "vehicle" calls to mind a form of motorized transportation, and distinguished roller skates not because of their size or complexity, but because they are powered by a human. Betty's scooter is motorized, and the Jones decision therefore favors a finding that it is a vehicle under the Park Act. Moreover, the policy considerations behind no-vehicle park rules are often to maintain quiet parks that are safe for pedestrians. Betty's scooter is motorized and therefore noisy, and it goes up to 20 mph, posing a potential safety hazard.

(if you throw em a policy bone you always get an A)
2.13.2007 9:46pm
Sasha Volokh (mail) (www):
Wouldn't it be better to have some sort of vehicle that's partly motorized but also partly uses human power? I don't know much about different kinds of scooters, but possibly there are some where sometimes you just let the engine ride and sometimes you help along by pushing with your feet?

Here, one case says motors are important (in fact, virtually defines vehicles as having motors), and the second doesn't say anything to the contrary. It mentions size and complexity, but it's unclear what work those factors are doing in the case, and it really just seems like dictum. (The difficult part of the second case seems more related to other aspects of the motor home -- sure it has a motor, but does the addition of a living area give it enough of another function to prevent its being a vehicle? That's a set of considerations that's absent for the scooter.)

So while answer 5 is of course the best, it does seem a bit too clear to me that the scooter is a vehicle.
2.13.2007 10:01pm
Laura Heymann (mail):
[OK Comments: NALE, the question did not ask what advice you would give to Betty if you were Betty's lawyer. Rather, the question asks the student to analyze Betty's liability. If the real answer is that it's 50/50, you don't get credit by pretending that an answer exists.]



Orin, let me recast NALE's comment a bit. If what we are trying to teach our students is not only legal analysis but also advocacy, isn't one way of describing advocacy "[assuming] that an answer exists" and then persuading the decision maker that your answer is preferable? I think your initial post is extremely helpful, but your A+ answer would probably not be an A+ for me because it doesn't marshal its analytical thoughts toward a conclusion. (Indeed, you note later in your post, "To get a top grade, a student needs to identify the relevant legal question accurately, and then articulate exactly why applying the law to the facts leads to a particular outcome.") I tell my students that in an exam setting, I don't much care -- in all but the most obvious cases, which aren't likely to appear on an exam anyway -- what conclusion they ultimately draw, but I am interested in seeing if they can identify the issue, apply the law, recognize and analyze the ambiguities inherent in the question, and then persuasively convey why those ambiguities should be resolved in one direction or the other (even while noting that the facts present a close case, as they always will on an exam).

(Of course, all this may turn on your instruction "analyze Betty's liability," which your students may understand in precisely the way you've described and which is not how I phrase the call of my exam questions.)
2.13.2007 10:02pm
OrinKerr:
Thanks, Laura. I think it does depend at least in part on the call of the question. When I ask students to "analyze" liability, and an issue really is 50/50, I don't care whether students pick a side or leave the issue unanswered. It's fine either way; what matters is that they tell me all the same information in the answer.
2.13.2007 10:10pm
beckett (www):
Here's a 1L perspective: legal writing and fact/rule application are very different than any writing most students have done previously. Rhetoric scores points in english essays.

Further, a huge part of the exam for the students is simply remembering the rules to which they must refer. They often think the rules are all they need. Applying the correct rule to the correct issue and facts within severe time constraints when one's head is buzzing with 3 other semi-independent masses of law is very difficult. An average answer takes a lot of study and effort.

And for those without acquaintance with the essay-exam nightmare: the example in the post is a few lines long; my torts exam fact pattern was close to three pages and presented 20+ such issues to discuss within the allotted time.

As to why professors don't impart to students better exam-writing information: why bother? We are all on a forced curve, and no matter how absurd, imbalanced or unfair the test is, we will all be placed along the curve. Likewise, if we went to exams better armed, the overall quality of the exams would be raised, but there would be the exact same amount of A+s, As, etc. So, raising the students' level might make the professors' job slightly easier in grading, but is it worth wasting class time teaching substantive law when the exams will remain fundamentally unfair regardless?
2.13.2007 10:15pm
Mark Knights:
It strikes me that if Gunner's answer is correct (and I'm not endorsing it or saying that it's wrong), and a motor scooter is a "vehicle," then Betty has an argument that the statute didn't give her notice that her conduct was prohibited. I think if you were to ask a random sampling of people on the street if a motorized scooter's a vehicle, you'd probably get a near equal number of yes and no answers. In this respect, the statute's ambiguous, and the better thing to do might be to apply the rule of lenity to strike the balance in favor of the defendant. The reason the rule didn't come into play in the other two cases is that the popular understanding of "vehicle" usually excludes roller skates while including mobile homes. Of course, smart legislators include definitions in their statutes for this reason.

How many pluses do I get after my "A"?
2.13.2007 10:17pm
MarkO (mail):
Wow.

This is exactly the reason I never wanted to teach in a law school.

Does anyone who works as a lawyer think this is useful to anything? Oh, I love intellectual tripping as much as anyone, but this is no base on which to decide who gets drafted No.1.
2.13.2007 10:18pm
ben (mail):
How much of cases would the law students be expected to remember on their own? To me the weaker answers read like the student didn't remember the details of the material as well, not that they were having trouble expressing themselves.
2.13.2007 10:18pm
beckett (www):
In fact, in reference to my above post, the material contains an unacceptable inferential leap that would lead to definite point deduction on an exam. It is conclusory and lacks sufficient factual backing.

"Legal writing and fact/rule application are very different than any writing most students have done previously. Rhetoric scores points in english essays."
2.13.2007 10:20pm
marghlar:
Does anyone who works as a lawyer think this is useful to anything? Oh, I love intellectual tripping as much as anyone, but this is no base on which to decide who gets drafted No.1.

Actually, this is very much what the practice of law consists in (at least the parts that involve analyzing legal questions that are novel and depend on caselaw for their resolution).
2.13.2007 10:26pm
DK:
I'm just wondering how the analysis would change if Betty were in a carriage driving six white horses, or in a motorized wheelchair. surely, if the drafters meant "vehicle" to mean "something with a motor", then they would have written "motor vehicle", right?
2.13.2007 10:31pm
Dick Schweitzer (mail):
My guess is that I would not have done well with you.

Assuming my task is to defend Betty, or to convince the City Attorney not to proceed, the basic point of law is that the ordinance is "vague" and subject to mis-intertpretation (even by a gifted law student) and it is the duty of the ordinance writers (usually the city attorney) to say what was intended, which they could most simply do.

"Plain Meaning" is required perhaps, but I would present that source of the definition of (or meaning to be applied to) "vehicle" to which most parents would refer their children - the dictionary.

Many savy law students today would try to write the kind of "response" they felt the instructor was trying to evoke (grades y'know), which is quite different from an "answer." It is something like Keynes famous quote on making money in the stock markets being similar to betting on a beauty contest: You win not by deciding which one is most beautiful, but guessing which is the one the judges will decide is most beautiful.

However, my approach on exams as a student, almost 60 years ago, was the same as I gave here, and did not display sufficient grasp of the law that might be involved, nor that I "thought like a lawyer," but did grasp what a lawyer has to do.

The rest is history.
s24rrs@aol.com
2.13.2007 10:39pm
Dick Schweitzer (mail):
Sorry - I left a little something out, since you asked for analysis of "liability" under the ordinance.

There should be NO liability because ....
2.13.2007 10:44pm
OrinKerr:
Dick Schweitzer writes:
Many savy law students today would try to write the kind of "response" they felt the instructor was trying to evoke (grades y'know), which is quite different from an "answer." It is something like Keynes famous quote on making money in the stock markets being similar to betting on a beauty contest: You win not by deciding which one is most beautiful, but guessing which is the one the judges will decide is most beautiful.
But that's a lot like trying to persuade a judge, right? When arguing before a court, you win not by making arguments that you personally find persuasive, but rather by making arguments the judges find persuasive.
2.13.2007 10:53pm
Rick Wilcox (www):
OrinKerr writes:

But it's a lot like trying to persuade a judge, right? When arguing before a court, you win not by arguing what you personally find persuasive, but rather what you think the judges will find persuasive.

Which is precisely why I agree with you that the final answer seemed to have the most insight - it shows that the respondent has at least a rudimentary understanding of the politics of the law practice, and that they may in fact wind up in a court where the "size and complexity" argument is considered a required, not merely sufficient, test of whether or not the motor scooter counts as a "vehicle" under the Park Act. Or, on the other hand, where the precedent in Thomson is seen as establishing only a broadening of the term "vehicle" to include "things that can be lived in".

Whoever wrote the Park Act must have been a freshman legislator - not only did they not define what "vehicle" means, they forgot to define "park", "in", "no", and "the".
2.13.2007 11:05pm
amativus (mail):
Goodness me. As one hoping to attend law school in a few years, this post sure is uplifting. Keeping in mind your cautions about time limits etc., I would hope kids able to make their way into law school could whip out something better than "She might be guilty, but she might not be. It depends on her argument and the argument of the city." Thank you for the incentive!
2.13.2007 11:16pm
Tennessean (mail):
I want to add that it is important to remember that a vast number of first-year law students, perhaps the majority, are 22 or 23 years old and have had very little critical writing experience. The biggest lesson from first semester is not kernels of contracts, torts, and the others, but instead the basic lessons of critical writing.

(Critical is used here like it is used in the Critique of Pure Reason.)
2.13.2007 11:18pm
dom:
Obviously, an what constitutes an A answer will depend on the where that answer is handed in. Where I am a 2L, I'm pretty sure answer #5 would be a B+/A-. A true A answer would definitely have to engage in some policy analysis.
2.13.2007 11:18pm
OrinKerr:
Dom,

Do you go to Princeton Law? Seriously, you may have had professors who want you to insert policy analsis into doctrine issues. But that's a question of the professor's preference, not the school. For example, I ask policy questions separately; usually policy questions are 1/3 of the exam. So my students have to have mastered policy analysis; but they need to show that in the policy questions, not the doctrine questions.
2.13.2007 11:32pm
The River Temoc (mail):
I want to add that it is important to remember that a vast number of first-year law students, perhaps the majority, are 22 or 23 years old and have had very little critical writing experience.

Do you seriously say that the kind of "critical writing experience" one gains in the actual practice of law is superior to that in even an average term paper?
2.13.2007 11:35pm
lucia (mail) (www):
Orin,
I'm not an lawyer; I'm an engineer. But, why does it strike me that the "good to bad" ranking is qualitatively similar to what anyone teaching an engineering capstone course involving a fair amount of writing would consider good to bad?

In a engineering capstone course, the person teaching could generally write a "generic" rubric for grading, and then flesh it out for a "special case".

Anyway, it sure looks like your legal generic rubric for a test question is:

1 Examine specific questionable behavior involved.(Specicial case: Riding motor scooter.)

2 Identify specific law in question. (Special case: Park Act).

3 Find previous interpretations of law -- preferably from case law-- to the behavior in question. (Special cases: Jones and Thomson. Tip: On a timed test with lots of other questions, students probably need to learn to just go with the first few cases they think of or they'll never finish.)

4 Apply reasoning used in previous court cases previous cases to questionable behavior. (Special case: compare motor scooter to skates. Compare scooters to mobile homes. )

5 Give some sort of opinion about the legality of the questionable act. (Preferable a decent, supportable one based on 1-4. )

The "bad" answer just tries to skip straight to 5, passing right by 1-4. Who even knows what the questionable act might have been in that first bad answer?

The best answer did all steps 1-5 providing specifics.

Chances are, any student who actually does all five steps will automatically do a decent job. Though, theoretically, the student could screw up by naming wrong cases, or failing to remember what was said in those cases. Possibly, they will write badly and include annoying spelling errors, but the content is there. Wonderful lucid writing might buy a few extra points -- but only if points 1-5 are there.

Or is this totally wrong?

(Oh-- just so no one thinks I'm suggesting the exam or couse would be easy just because one could write a generic rubric, I'm not. I recognize an actual exam would be difficult because there are a whole bunch of specific laws, and a huge number of possible questionable acts and the poor students brain has to sift through all this stuff while taking the test. Still, when it comes down to it, the general rubric--or process for figuring out the "right" answer and communicating it-- will be similar from question to question. )
2.13.2007 11:39pm
Dave Hardy (mail) (www):
Not necessarily policy, but ... what purpose might the legislative body have had in mind in forbidding vehicles, but not non-vehicles? Possibilities: vehicles were too noisy, or could run people over, or were too fast and disturbing. How does this scooter fit into that?
2.13.2007 11:43pm
beckett (www):

Do you seriously say that the kind of "critical writing experience" one gains in the actual practice of law is superior to that in even an average term paper?

To impertinently answer for Tenn: he did not refer to the critical writing experience gained in the actual practice of law, but to the critical writing experience lacking in first year law students.

More to what I think your point is: the comparison of term papers to legal writing is not all that helpful. The writing styles of term papers and law exams and legal writing overall are different enough that it would be difficult to call one superior. They are different tools for different needs.


What many of us lack is the ability to build an argument fact by fact and idea by idea without leaving out important steps or simply stating our beliefs wothout supporting them.
2.13.2007 11:48pm
David M. Nieporent (www):
Thinking back to my law school days, IIRC my experience was that many 1Ls sometimes got caught up in trying to get the "answer" to the question -- is she liable? -- not realizing that they were supposed to be analyzing it.
2.13.2007 11:59pm
David M. Nieporent (www):
Lucia: basically. What they tell law students for taking law school exams is "IRAC" -- no relation to Saddam Hussein. It's an acronym for "Issue, Rule, Analysis, Conclusion." And "Analysis" does about 75% of the work in that foursome, with "Conclusion" being about 5%. (I'm making up numbers here, but the point is right.)
2.14.2007 12:03am
33yearprof (mail):
Issue
Rule
Analysis
Conclusion
The secret is to apply this approach not globally but in a focused manner. Repeat as often as necessary to cover all issues fairly raised by the question. Read the Q carefully because professors often take subsidiary issues "off the table" through the given facts or lack thereof.

I graduated at the top of my class and never wrote more than two blue books (the 8.5x11 style), often only one. I once answered a 3-credit single question exam with the word "No" and a citation to the dispositive IRS regulation. Precision (if complete) beats blather every day.
2.14.2007 12:06am
33yearprof (mail):
[quote]Are most answers mediocre with only a small percentage of standouts?[/quote]

Unfortunately, yes.

I was so despondent while grading my first set of exams that I called my law school mentor to cry on his shoulder. He responded, "Boy, you have never written a C answer. No wonder you can't recognize one." Then he had me read a few to him so he could "calibrate" my expectations (very much down from where they were). The great answers usually do stand out. So do the abysmal.
2.14.2007 12:18am
Eponymous Coward:
One thing that I learned from my first year results was not to try to give original legal analyses in exam questions. Trying to make and support some sort of novel argument in an exam setting is very hit or miss (I tend to think it correlates with the professors' intellectual engagement in teaching, but that could be retroactive judgment kicking in). Once I adjusted to where the bar of excellence was actually set I saw a marked improvement in results.

For those who are disappointed with the quality of the "excellent" answer Orin provides, remember that the "A++" only applies within the context of the 4 points (or so) that that issue counts for in a 150 point exam. The impressive thing about an A exam is that it:
1) Identifies every issue that matters, and ignores the ones that don't.
2) Cites the relevant cases/statutes for every issue.
3) Applies the relevant principles (and only the relevant principles) from the cases/statutes for every issue, and does so in a fairly coherent manner.

In fact, in most closed book exams, (2) is probably optional. In the closed book context, if answer 5 were modified to remove case citations but kept the motor v. size analysis, I think Orin still gives it full marks.

The key is to hit a bunch of singles, not to swing for the fences.
2.14.2007 12:54am
K Parker (mail):
Sasha,

The Moped is the thing you are looking for (at least in those areas where they are required to have pedals.)
2.14.2007 1:02am
Jinnmabe (mail):
It would have been nice to have my law school exams with questions so clearly worded, with specific goals in mind for the professor to look at. On my first ConLaw final, there was one question [roughly paraphrased]: In view of our reading of Ferdinand Tönnies's writings on Gemeinschaft and Gesellschaft, please discuss US constitutional law.

Most people's answer outline looked like this:
1. Mentally vomit everything I learned this semester onto the page.
2. Liberally sprinkle with B.S. and touchy-feely crap.
3. Finish with a condemnation of the evil Robber Barons who ruled the US in the last half of the 19th Century.

Hey, it got me an A.

The second ConLaw class (different teacher) had as the final question, I kid you not: "Please rank all 9 Supreme Court justices from most conservative to least conservative (none are really liberal)." Oh-kaaaaaaay.

How I longed for a question like the one in Prof. Kerr's example.
2.14.2007 1:26am
Bill Poser (mail) (www):
The thing that struck me as odd about the better answers is what they focussed on in trying to associate the scooter with one case and to differentiate it from the other, namely (a) size and complexity and (b) possession of a motor. These don't seem to me to be the most relevant features. If I ask myself what the likely purpose of the law is, I imagine that it has to do with interfering with typical intended uses of the park. I would therefore look at: (a) how noisy the conveyance is, since people often want to enjoy a park quietly; (b) the speed and mass of the conveyance, since a park is a place where people are likely to be strolling and playing and so are at risk of being run down by a rapidly moving vehicle. Mass is relevant since kinetic energy is proportional to mass and so a more massive conveyance is a greater risk. It still isn't entirely clear where to draw the line, but on this basis one might consider a quiet motorized bicycle to be acceptable, and similarly a motorized wheelchair (independently of accomodation for the handicapped), while excluding a noisy unmotorized bicycle (e.g. one with playing cards placed so as to be struck by the spokes of the wheels, as we used to do when I was a kid).
2.14.2007 1:33am
JB:
Noise and mass are subjective, while having a motor is much less so. The grey area in "noisy" is so much larger than that in "motorized" that if the law were read in that way it would become almost incomprehensible.
2.14.2007 2:43am
andy (mail) (www):
If I were a professor I would just make the statute complicated and ambiguous, rather than ask the students to jump to the cases. In reality there is often no "law on point," or, as in the hypothetical exam, "sorta on point" from which the student can make analogies.

But perhaps my approach would be too cruel, though at least they'd learn to think like a lawyer, rather than a 15th century british common law judge.
2.14.2007 2:47am
Bill Poser (mail) (www):
While I agree that "noisy" is not as clearcut as "having a motor", I don't think that the situation is as bad as JB suggests. It could be evaluated in terms of the community's noise by-laws. The acceptable noise level for a park might, for example, be equated with that in a residential area.

With speed and mass, exactly where to draw the line may not be easy, but one can certainly say, e.g., that a motorized skateboard with a maximum speed of 5 mph is not a hazard while a motorcycle capable of going 90 mph is.
2.14.2007 2:49am
Lev:

At bottom it just means that you need to show your professor that you are an excellent lawyer.


Nope. An excellent law student. Perhaps, an excellent law student with the potential to be an excellent lawyer.

I have heard that one of the problems that experienced lawyers tend to have when taking bar exams is that the further they are from law school, the more they go directly to the point instead of writing about the issues considered, used or discarded, and why used or discarded.
2.14.2007 3:07am
dearieme:
I'm appalled. How on earth has it become necessary to instruct students of age - what? - 22 or more on how to write an essay? Your instructions are much what I was taught at age 14. What on earth has been going on in schools and universities?
2.14.2007 6:40am
Bored Lawyer:
With respect to comparisons to real life legal practice, it might be worth injecting a bit of wisdom I learned from the head of the first firm where I worked out of law school. Hanging on his wall was his admission to practice before the Appellate Division in NY State. The boilerplate language stated that the person was licensed to practice as a "counselor at law and advocate before the bar" or something like that.

He used to tell clients: "I have two jobs. When I talk to you I'm your counselor. When I talk for you in court, I'm your advocate. As your counselor, I am going to tell it to you like it is -- no B.S. In court, I'll advocate your side of the dispute."

The analysis called for in the question is simply the first step a practicing lawyer must do. If he is advising Betty as a client -- i.e. speaking as her counselor -- then he has to tell her, "The law is not settled. It is debatable whether you will violate the statute if you ride the motor scooter in the park. Depends on how the DA and the courts see it at the time. So you are taking a risk doing it."

OTOH, if Betty has already done the deed and been issued a summons for a violation, then as her advocate I would take a definite position against, relying on the vagueness/rule of lenity as per prior posters.
2.14.2007 7:13am
Andrew Graham (mail):
Regarding the book Dave hardy referred to, I believe the author was Alan Herbert, who was an MP for the Universities of Oxford and Cambridge (yes, there was for a time a seat reserved just for them). He also wrote articles, mostly humorous, particularly for Punch magazine. To celebrate one occasion, the magazine actually wrote his check on a cow, and Herbert was able to find a bank which in good spirit cashed it. This was in the 60s, when banks returned cashed checks to the makers. Today, when the bank scans the check and retains it, the advantage would seem to be with the bank, which gets to keep the cow. A question for Prof Kerr - what is the bank's liability if it milks the cow for its tea?
2.14.2007 8:15am
lucia (mail) (www):
Thanks David and 33year old. Thanks!

I guess my 1 would be "issue", my 2 and 3 together are "rule", my 4 is "analysis" and my "5" is conclusion. I seem to have broken "rule" into the actual statute and previous interpretations of the statute when I backed my rubric out of the example.
2.14.2007 8:17am
DJR:
I would point out that the Prof's fact pattern, like so many law school exams, leaves out important facts: First, what sort of liability, if any, does the Park Act impose for violations of section 1? Second, was Betty stopped while she drove through the Park? Under the stated facts, one could add to answer 5 (or to Gunner's answer):

Because a scooter is likely a vehicle under the Park Act, Betty likely violated the Act by driving through the park. However, under the stated facts, it is unknown whether Betty was stopped by law enforcement. If she was not stopped, she would not face any liability under the Act. Moreover, the Act does not appear to provide any specific liability for its violation. Unless the Act contains some enforcement measure, Betty would not face any liability even though she likely violated the Act.
2.14.2007 8:20am
Mike BUSL07 (mail):
My Contracts professor was pretty enigmatic when it came to his exams. He said, "I will give you a check mark every time you make a lawyer-like noise, and then I will add up the check marks." Naturally, everyone asked what constitutes a lawyer-like noise, to which the response was, "the thing that causes my hand to make a check mark."
2.14.2007 8:40am
beckett (www):

My Contracts professor was pretty enigmatic when it came to his exams. He said, "I will give you a check mark every time you make a lawyer-like noise, and then I will add up the check marks." Naturally, everyone asked what constitutes a lawyer-like noise, to which the response was, "the thing that causes my hand to make a check mark."

I fervently hope there is a special ring of hell reserved for such professors. As bad as it is, the students neither need nor deserve a professor's outright contempt and deliberate obfuscation.

Orin: would you consider posting a real hypothetical from an exam, or perhaps the contents from an entire exam? I suppose to do so would take up a great deal of space, but would put the analyzed portion regarding vehicles in the park into context. (BTW, in my intro to law class at the start of the first semester, vehicles in a park was the first thing we discussed.)
2.14.2007 9:33am
Just an Observer:
Suppose the A+ law student who wrote Answer # 5 goes on to become an appellate judge. Do we not pity the hapless litigants, lawyers and courts lower who seek a clear answer to the question, and get "I can't decide" instead?

[OK Comments: I don't know why the author of #5 wouldn't be able to decide cases. Judges decide cases; they do not "analyze" in the abstract. In any event, law school exams are designed to test whether someone has the analytical skills of a good lawyer, not the decisionmaking skills of a good judge.]
2.14.2007 9:40am
Mike BUSL07 (mail):
beckett, I think many of my classmates would have shared your view, but to be fair, I loved that class, and that professor. He did intentionally up the stress ante for already stressed out 1L's, but there is something to be said for separating the men from the boys during 1L. In the end, he was tough, but very fair, notwithstanding the early 1950's HLS traditions he carried.
2.14.2007 9:51am
JRL:
Seriously?

Wow. I am dumbfounded by this.

I went to a state law school, and I can't imagine any of my peers, even the ones I know that didn't pass the bar exam, offering anything remotely similar to answers 1-4. And I also certainly would not classify answer 5 as an "off-the-charts A+ answer." My impression is that answer 5 would be somewhere in the ballpark of a 25th to 50th percentile answer.

Seriously?

/subtle homage to South Park?
2.14.2007 9:51am
exam grader (mail):
OK,

That was a great public service. I wonder if you might offer us an example of issue spot answers in ascending degrees of performance. I was surprised to learn that many students, including 2Ls, had no idea what an issue spot answer should look like.
2.14.2007 10:13am
Realist Liberal (mail):

I went to a state law school, and I can't imagine any of my peers, even the ones I know that didn't pass the bar exam, offering anything remotely similar to answers 1-4.


You would be suprised. I'm a TA for a year long class for the 1L's this year. I had several people come to me and ask why their grades were so low. When I read their essays I was shocked that people would think this was acceptable. I saw a ton of #3's and a fair number of 1's and 2's as well.
2.14.2007 10:17am
Mikeyes (mail):
I'm curious as to how a professor decides the Hypotheticals, do you use existing laws or just make them up?

In my state the answer lies in the iterpretation of the meaning of "vehicle" which is delineated in other laws - in our case a scooter with an engine that small would be considered a moped and treated the same as a bicycle as long as it cannot go more than 35 mph with an 150 pound person on it. As a result, mopeds are able to park in bike racks, don't need special licensing, and are never stopped by the police.

I suppose if I threw that in I would receive a poor grade as I did not stay within the bounds of the question.
2.14.2007 10:21am
Allan:
The reason that law students don't generally give the model answers is because law schools do not want them to. The answers are not intuitive. The technique must be taught.

Perhaps the answer is to have small group seminars (maybe 2 or 3 nights in the first few weeks) taught to 1Ls by 3Ls with good grades (on law review?) (who would be paid). This would give the 1Ls the opportunity to write answers and have them critiqued and give 3Ls the opportunity to review the work of others (a critical skill in the real world).

If you had the top 1/4 of the 3Ls lead the seminars, you could (in theory) ensure the best answerers are teaching and have a 1:4 teacher to student ratio, which would be outstanding.
2.14.2007 10:26am
dsn:
Orin: As a Princeton student, I must point out that we don't actually have a law department. What you might have been thinking of the the Woodrow Wilson school of Policy Studies (AKA Woody Woo)?
2.14.2007 10:28am
dsn:
Remove What you from the previous post.
2.14.2007 10:29am
frankcross (mail):
Well, I don't get 1s and 2s and get some answers better than the 5. But this may be due to giving 9 hour take home exams. I really wonder about the theory underlying the 3 hour exam
2.14.2007 10:33am
SeaDrive (mail):
As I scanned the long list of comments, I only noted one that suggested using the legislative intent as a guide to whether the scooter was a vehicle "for the purposes of the act."

Nor has there been much resort to the dictionary definition.

Main Entry: ve·hi·cle
Pronunciation: 'vE-&-k&l also 'vE-"hi-k&l
Function: noun
Etymology: French véhicule, from Latin vehiculum carriage, conveyance, from vehere to carry — more at WAY
1 a : an inert medium (as a syrup) in which a medicinally active agent is administered b : any of various media acting usually as solvents, carriers, or binders for active ingredients or pigments
2 : an agent of transmission : CARRIER
3 : a medium through which something is expressed, achieved, or displayed [an investment vehicle]; especially : a work created especially to display the talents of a particular performer
4 : a means of carrying or transporting something [planes, trains, and other vehicles]: as a : MOTOR VEHICLE b : a piece of mechanized equipment
2.14.2007 10:38am
Justin (mail):
To pile on, I really think I like 4 better than 5, although I don't think either is that great of an answer. The concept that a judge will answer the question dependant on the complexity of the motor on the scooter and not on the scooter's inherent nature defies common sense. Now, I realize law schools try to stay away from common sense (::sigh::), but the real question that will determine the answer is more like the question "what is chicken?" than the question ("is the scooter's motor sufficiently complex to attach liability?"). Jones is applicable in a limited way - Thomas, which involves a device that is BOTH a home and a car, seems like a red herring that at best should be quickly distinguished, if not ignored. Question 5 is the longest, the most complex, and the most analytical - but given that the analysis is wrong, why should we give credit?
2.14.2007 10:41am
Eli Rabett (www):
Since the first definition in the Oxford English Dictionary for vehicle is
I. 1. A substance, esp. a liquid, serving as a means for the readier application or use of another substance mixed with it or dissolved in it: a. Med. A medium of a suitable kind in which strong or unpalatable drugs or medicines are administered.

and since this test clearly falls under I.1.a in the legal context, if any of the test takers wrote their answer in the park, they are clearly in violation.

(the one you may want is #6.

A means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, or similar contrivance, which clearly means Betty was riding a vehicle, unless you are lawyers and want to quibble, but then I repeat myself)
2.14.2007 10:44am
Stephen C. Carlson (www):
When I was a 1LE at George Mason, Prof. William E. Kovacic, our contracts prof., gave a sample exam question around Thanksgiving time and critiqued the answers. I found the exercise and his comments very illuminating as to the expectations for the upcoming finals. Does this kind of thing still happen at Mason?
2.14.2007 10:44am
anonVCfan:
From the commenters, apparently "thinking like a lawyer" means fighting the hypo to the death, and filing lots of frivolous appeals after you've lost.
2.14.2007 10:56am
Opus:
Two points:

First, Orin’s post demonstrates a very helpful exam prep. technique (one that very few students do): take a sample exam, ask your professor to grade it, and then have the prof. tell you why it was not (or was) an A. The same can be done after the real exam. I can’t stress enough the importance of knowing exactly what your professors want, and most should be wiling to tell you if you ask.

Second (for all you philosophers), in reference to the above example, it is not a good idea - even if you have lots of extra time - to discuss the Platonic form of “vehicle.”
2.14.2007 11:09am
Dick Schweitzer (mail):
Professor Kerr,

My apologies for seeming so didactic. Still, I gathered the point of the original blog was not about teaching, but about getting people to learn. For learning in the law, it must still be to learn the functions of law (and the legal system) within the social order. To that end one must learn how to make "Law" function.

So, when you you write in response:

"But that's a lot like trying to persuade a judge, right? When arguing before a court, you win not by making arguments that you personally find persuasive, but rather by making arguments the judges find persuasive." - emphasis added

The meaning of the term "attorn," (the root of Attorney) has to be understood and accepted if "Law" is to function effectively. "You personally," has no role at that point.
Those intending to serve in the practice need to learn the functions of law, even if the preference of many in faculties may be to teach its esoterics.
2.14.2007 11:25am
SeaDrive (mail):
The precedents notwithstanding, I don't see that the complexity of the motor scooter is the point. The issue is liability and hence the danger from accidents and the injuries that might ensue. So the question is whether motor scooter accidents more closely resemble accidents with devices accepted as vehicles, or accidents with pedestrians.
2.14.2007 11:25am
Whadonna More:
OK - if you would have handed that out when I was a 1L, I'd have slipped you a nice tip at the end of class.


marghlar wrote:

Actually, this is very much what the practice of law consists in (at least the parts that involve analyzing legal questions that are novel and depend on caselaw for their resolution).



I've been practicing in the copyright arena for over a decade and have yet to have a client satisified with advice that their planned conduct is "50/50" fair use, despite that fact that it was often the "correct answer".
2.14.2007 11:31am
Mark Knights:

Orin: As a Princeton student, I must point out that we don't actually have a law department. What you might have been thinking of the the Woodrow Wilson school of Policy Studies (AKA Woody Woo)?

What do you mean there's no Princeton Law? Doesn't it regularly place in the top ten law schools in surveys?
2.14.2007 11:40am
Adam Scales:
From Orin: "Thanks, Laura. I think it does depend at least in part on the call of the question. When I ask students to "analyze" liability, and an issue really is 50/50, I don't care whether students pick a side or leave the issue unanswered. It's fine either way; what matters is that they tell me all the same information in the answer."

Orin,

Much of your post is quite useful. For non-profs out there, I can assure you that many people get into decent law school have no idea how to construct an argument - particularly if its constituent parts do not fall readily to hand. However...

Answer #5 is totally unacceptable, and I would encourage Orin, who clearly spends a lot of time thinking about teaching (I assign your guide to reading cases each year), to think a little bit harder about exactly what it is we do here at law school.

The idea that a professor should be satisfied merely by the eloquent recitation of the factors that will determine a case's outcome is depressing. Like Orin, I invariably write problems that lie in between the rules (and Sasha is correct; this problem is a bit too easy). Most legal questions have plausible answers on each side, but it is the failure to actually reach ANY answer that is the single most recurrent error I see. What is it does Orin suppose lawyers are paid for? Let's put aside the advocacy issue; what are JUDGES paid for? To resolve diverse, imperfect and somewhat conflicting threads of thought into an answer does tolerably advance (or does not unduly impede) the goals of the relevant body of law. After reading 75-100 cases over the course of a semester, a student should have developed an intuition about how Park Law is likely to resolve ambiguities such as this, or how the tort system subtly re-allocates causation burdens where moral fault is palpable. Or (take your pick).

Simply put, if it is Orin's contention that a student may acceptably have no idea what the correct answer will be, aside from the inadequately explicated observation that it is a "close case", then he has set the bar too low.
2.14.2007 11:45am
David M. Nieporent (www):
Orin: As a Princeton student, I must point out that we don't actually have a law department. What you might have been thinking of the the Woodrow Wilson school of Policy Studies (AKA Woody Woo)?
DSN: Since Orin was in my class as a P '93, I can assure you he knows that Princeton doesn't have a law department.
2.14.2007 11:53am
David M. Nieporent (www):
Orin: As a Princeton student, I must point out that we don't actually have a law department. What you might have been thinking of the the Woodrow Wilson school of Policy Studies (AKA Woody Woo)?
DSN: Since Orin was in my class as a P '93, I can assure you he knows that Princeton doesn't have a law department.
2.14.2007 11:53am
David M. Nieporent (www):
And I don't know why that appeared twice.

Whadonna: I have the same experience with my clients in copyright-related cases -- they want a yes or no answer. And I want a pony. Next time you find a client who has a question which is both (a) complex enough to induce him to pay your rates, but (b) simple enough to have a yes or no answer, do me a favor and send him along to me, okay?


As for Mr. Scales: shouldn't it matter what the question actually asked is? Orin didn't say (as some exam questions do), "Assume you're the judge [or more commonly, a clerk for the judge] handling Betty's case; write the opinion." He just asked for an analysis of Betty's liability.
2.14.2007 12:02pm
Adam Scales:
David,

Certainly one gets (and expects) somewhat different answers depending on the assigned role. However, the question wasn't "what factors will a judge consider", or "what criteria has Park Law identified as relevant", but "analyze" Betty's liability. I guess it is possible to analyze something (say, some DNA), and honestly answer, "Yes, I analyzed it alright. I just didn't come up with an answer not even an inconclusive answer, but any answer at all." But, who would find this satisfying?
2.14.2007 12:10pm
lucia (mail) (www):
Reading this from Thompson: "We can imagine close cases that would force us to draw difficult lines as to the scope of the Act. But this case is not one of them."

I'd say OK read Thompson used his imagination and actually came up with a close case that would force a judge to get close to the line.

Will next year's test ask students whether or not you can cut through the park riding a lawn mower or a golf cart?
2.14.2007 12:10pm
Jake (Guest):
Adam,

When the question is genuinely 50/50 (or can be reasonably considered to be genuinely 50/50), what does it add to have the student pick a winner at the end of the analysis? Answer 5 lays out the available law and identifies that the result depends on whether size or powerplant matters more.

Assuming that no relevant law exists pointing towards which matters more, does it really help to have the student speculate as to which will matter more? Do you give students more points when their speculation matches your own?
2.14.2007 12:22pm
KeithK (mail):
So is it fair to assume that a student who analyzed the problem in a manner similar to #5 (is a scooter a vehicle, motorized vs. size and complexity) but didn't cite any relevant cases would get a very poor grade? The hypothetical doesn't seem like a difficult problem to analyze, totally independant of whether the issues have been addressed previously. I guess that's why I should stay an engineer rather than going to law school - as much as I enjoy reading/following legal issues I always want to approach things from first principles.
2.14.2007 12:47pm
Adam Scales:
Adam,

When the question is genuinely 50/50 (or can be reasonably considered to be genuinely 50/50), what does it add to have the student pick a winner at the end of the analysis? Answer 5 lays out the available law and identifies that the result depends on whether size or powerplant matters more.

Assuming that no relevant law exists pointing towards which matters more, does it really help to have the student speculate as to which will matter more? Do you give students more points when their speculation matches your own?

Two very good questions. First, no - unless the student's speculation is misguided (not just wrong at the end, but ignorant upon approach - many students, lawprofs, lawyers, etc. tend to forget why questions are close, once they've settled upon an answer). So, in any problem, I might have 60% going one way and 40% another (at least for bits of the problem).

Unless a lawprof is deviously concocting a problem no one really cares about (e.g., Tushnet's fascinating artice, The Hardest Constitutional Question) for an exam, then the authorities are very rarely at equipoise. Even if there are 3 cases on one side and three on another...the careful professor has equipped his students with the tools to evaluate the relative persuasiveness of the arguments therein.

Yes, there are times when we can offer little more than a guess. However, your very reasonable question obscures the tendency among law students to recite every possible rule with a minimum of reflective evaluation. That is enormously frustrating, and will do no good once law school is behind them.
2.14.2007 12:51pm
Whadonna More:
Dear Sage Tiger Nierpoint -

I understand that OK's question merely called for analysis, and that's fine by me. Poster Marghlar seemed to say that mere analysis was a useful skill, and I disagreed with that.

If we change OK's hypo/test question to call for an answer, it's certainly to pay the fine since litigation will cost much more. The answers my clients with 50/50 problems need are usually arrived in a similar way.

As for ponies - keep working hard and you'll be able to afford one.
2.14.2007 1:17pm
Observer (mail):
Neilalice - In answer to your question about the distribution of student answers: most fall in the middle. The really perceptive answers - where the student identifies all the issues and makes the arguments on both sides - and the clueless answers - where the student fails to spot any issues and just gives his opinion - are rather rare. It's quite striking, really - if you sit down and read 100 exam papers, there will be a handful (at most) of obviously excellent ones, and a few pitiful lost causes, and the rest will be muddled. I think this is reason that law school grading has been so resistant to the grade inflation that has overtaken the liberal arts faculties - it's really hard to give As to students who miss lots of issues and arguments.


Note, too, that it is rather unimportant for the student to come to a conclusion. If the student can make all the arguments, then it really doesn't matter very much which arguments the student thinks ought to prevail. In close cases (as all law school exam questions are) that's usually just a matter of personal preference, and why should a student be graded for his personal preferences?
2.14.2007 1:34pm
JunkYardLawDog (mail):
A top tier law school would have students whose average answer was so poor? I am actually quite surprised at this. I would have thought those higher GPA's and LSAT scores would have resulted in a far better average answer than suggested for this rather easy question.

Says the "Dog"
2.14.2007 1:52pm
Bystander:
Uh-- I think the Princeton law thing was meant as sarcasm. Am I the only one who spotted that issue?
2.14.2007 1:58pm
Bystander:
Oops disregard last comment. Hadn't refreshed yet!!
2.14.2007 2:01pm
Adam Scales:
I tried to respond to Observer offline, but was unsuccessful. Here's what I wrote:

"Personal preferences" are not what I have in mind in exhorting students to come to an answer. What I want is a reasoned prediction of what a court is likely to do. Most students can identify rules readily enough - this is why they score so well on the objective exams that precede matriculation - but that is not enough...anywhere: in school, in practice, in court.

In fact, I'd probably be even more impressed with a student who said: "This is what a court is likely to do, but I think it is wrong for these reasons..." Now, those are the A+++ answers.
2.14.2007 2:19pm
lszabo (mail):
Too bad I don't have Orin as a law professor:-) Most of my "A"s seemed to have hinged on not only identifying the issues and noting the elements, etc. as he pointed out, but then making some policy argument at the end --one that the Prof. agreed with. I guess that's supposed to teach us to guess at the personality of the judge and anticipate what will work when going before them? If so, it kinda lacks the honest and rigorous intellectual exchange I was hoping law school would have. I realize that sounds kinda naive...maybe I should've stuck w/ philosophy;-)
2.14.2007 2:47pm
Kelvin McCabe (mail):
Five was good - but couldnt they have spiced it up by declaring that the possible violation of the park ordinance subjected Betty to be declared an enemy combatant by the executive branch of the U.S. government under legislation passed in secret and under seal based on an decidely broad interpretation of the Patriot Act provisions by the distinguished John Yoo and the "lawyers" at OLC who may have stated in the broadest terms possible that each and every law ever passed, anywhere, will be henceforth interpreted in a manner consistent with the unitary executive, and that Betty's alleged "rendering" to Syria for "harsh interrogation" resulted in a confession to a cellmate who was also "harshly interrogated", yet said confession is admissible against her in a trial at which she can't see the evidence or for that matter doesnt neeed to be present at under the Mililtary Commissions Act of 2006? Betty's liability: death of a constitution!

Sorry- was that off point? Wasn't Prof. John Yoo a good test taker? What type of lawyer did he turn out to be? :)
2.14.2007 3:35pm
RDixon:
I am almost fifty years at the bar and it struck me that professors are no different now than then. Lots of skin and meat, but shy of bone. In my first few cases, I realized my professors had ignored the last step in the process. Whether you represent the county or Betty, you must bring your analysis to an argument that she is in violation or that she is not. Judgment is the end of the process. Of course, the judge could say, "Great job on laying out the issues for me (I think, really, an A+ job), but since you haven't given me any guidance on the guilt or innocence of your client, don't be surprised at what comes next."
2.14.2007 4:18pm
Jens Fiederer (mail) (www):
> A careful reader might note that your grading policy seems
> to correlate pretty strongly with answer length. :)

I think the earlier answer could easily have been padded out to greater than or equal to the length of the winning answer...but having been subjected to that himself, the good professor decided to spare us.

On the question of whether the analysis is tainted by not taking a side, I think not. If you were to JUDGE, you might very well decide that this unsettled case should give the benefit of the doubt to the defendant (or maybe, if so inclined, to the State!). If you were giving legal advice, you'd probably tell Betty NOT to go there, she is taking a risk. The same analysis can lead to completely different conclusions depending on who uses it!

(IANAL, nor even INTERESTED in law any more than one has to be to read this blog for anything else than the Sunday lyrics)
2.14.2007 6:46pm
Jake (Guest):

I'm curious as to how a professor decides the Hypotheticals, do you use existing laws or just make them up?

I had one professor give us a question that was basically an entire case that we hadn't covered in class, with the names of the parties changed (eight densely typed pages of corporations facts, good times). I think this is rare, most professors will try to create "in between" hypotheticals on the major issues covered in class (most classes, especially 1L year, have two or three identifiable themes, each of which has two or three identifiable primary sub-themes; it's not too hard to hit most of them over the course of an exam).

On a separate note, one of my tests for how engaged a professor would be was to check whether past exams were available... if they were, it at least demonstrated a willingness to put in the work to come up with new questions every year.
2.14.2007 7:09pm
luagha:
I think that there should be an acknowledgement that the next question is clearly going to be:

Compare and contrast your analysis above with the case if Betty had been riding a bicycle? If Betty was riding a moped? If Betty was riding a moped with the engine disengaged or engaged?
2.14.2007 7:37pm
BruceM (mail) (www):
Wow, it absolutely BOGGLES MY MIND that someone with a college education would write anything less than answer 5, which I would consider very average, stating the bare minimum relevant guiding principles without any analysis. Anyone who actually turned in answers 1, 2, or 3 should be flunked out immediately. Answer 4 should be a D+ or C- at best. Answer 5 is a B, and that's generous. We're not talking about first graders here. All 1L's have college degrees, and are supposed to be well-read and well-educated. A semi-retarded 6th grader with a .35 blood alcohol content and ten buzzing cellphones in his pants pockets would write something better than answer 1. Jeezus.
2.14.2007 7:40pm
Viscus (mail) (www):
Orin,

Excellent post. It was very interesting to see different answers laid out together, so that they can be compared.

I think that if professor's actually did this, using their own standards, law school would be too easy though.

Abstractions do not communicate as well as specific examples.
2.14.2007 9:32pm
On The Way...:
I have just completed the review of my first semester exams, and I have to say that answer number 5 would only rate a "B+" at my school. To get that top score you have to include all the elements found in the model answer as well as a conclusion and some policy arguments with counter-analysis. There is some variation among my professors regarding the weight allocated to the policy arguments, but they seem to all agree that relevant policy discussions are necessary to earn a place at the head of the class.
2.14.2007 10:57pm
Cornellian (mail):
When I was a 3L a friend and classmate of mine was working as a TA for a 1L class. My friend was shocked to review the work of the 1L's because so many of them lacked even a solid grasp of English grammar, let alone the ability to engage in subtle legal analysis.
2.15.2007 1:43am
Pendulum (mail):
Cornellian,

I assume this is at Cornell?

As someone who would probably be rejected there, I find this highly amusing.
2.15.2007 1:46am
dmm9999 (mail):
I'm a recent graduate of Princeton myself and I took Professor Kerr's comment as a sarcastic critique of Professor George's style of teaching Constitutional Interpretation (a class which I myself took). Perhaps I was imputing additional sarcasm to Prof Kerr than he intended but I certainly didn't get the impression that he mistakenly thought that Princeton has or ever had a law school. Simply that any classes Princeton offers that pertain to law in any way are unlike what the typical law school offers.
2.15.2007 12:51pm
A.C.:
A lot of the people I knew in law school spoke English as a second or third language. That may account for part of the problem. Time pressure accounts for a lot more -- most exams seem to be designed so that anyone could do an excellent job with 25% more time. Without that extra time, the question is who can write good answers to the most questions under time pressure.

Even so, I'm surprised at the emphasis here on policy. I always avoided policy arguments on principle because I considered them the last refuge of people who didn't think very clearly. Unsurprisingly, I also loathed squishy classes liked con law and gravitated to the rule-based classes where there was (somewhat) coherent material to work with. Do professors in all legal specialties like policy answers, or does it vary by subject?
2.15.2007 2:33pm
Toby:
I found the example good and clear, however far abstracted from the actual law question. I also felt as did many others, that answers 1-3 were apropriate for middle schoolers...

But, as they say, you have to love modern educational reform. From Latin in Middle School and Greek in High School to Remdial English in College in a mere 50 years...
2.15.2007 2:42pm
lucia (mail) (www):
Remdial English in College in a mere 50 years

What's type of English is that?

As a non-lawyer, I'm mystified why the lawyers here think someone with no legal training whatsoever could do better than answer 1. I'm even more mystified that one person thinks a typical 14 year old, entirely untrained in law, could give an answer as thorough as #5.

Sure, a non-lawer can recognize why #1 is a truly bad answer. That doesn't mean they can write a better answer during a timed test. I could never give a better answer because I have no idea what's in the Park Act and I have no idea how the Park Act has been applied.

(Well, maybe I could write a "better" answer, if Orin was willing to accept the answer: "Help! A terrorist has taken my family hostage and is threatening to kill them if I don't take this law school exam. Please inform the authorities!" )
2.15.2007 6:08pm
David M. Nieporent (www):
Even so, I'm surprised at the emphasis here on policy. I always avoided policy arguments on principle because I considered them the last refuge of people who didn't think very clearly.
I don't think a policy argument betrays a lack of clear thinking (although they may correlate); I always considered them the last refuge of people who didn't really know the details of the subject material, and needed to pad their answers because of the length-of-response test that graders use.


And Dmmm, is Professor George teaching it now? He was my preceptor, but Professor Murphy was teaching it when Orin and I were there. George was one of my favorites, even though I was much further left than he at the time.
2.15.2007 7:35pm
Dan Weber:
How much of an answer is too much?

As I answered this question in my head, I came up with the following outline:

1. Jones clearly says that a vehicle requires a motor, so Betty would be in violation.
2. Thomson says that a vehicle is like "a car or truck." A scooter is not, so Betty would be clear.
3. However, the state could argue that Thomson was not seeking to generate a required definition for a vehicle; rather, one that was merely sufficient to show that a motor home was clearly against the intent of the original law. State may use this to challenge the application of Thomson to Betty's case.

From the comments, I know that the professor clearly wanted the student to realize that this was a 50/50 case, in which case points 1 and 2 are enough. Would point 3 cause my grade to suffer by not being as elegant? How much should we be guessing at "what the professor wants to see" in an answer?
2.15.2007 8:02pm
NickM (mail) (www):
Give me 5 minutes on Wikipedia and Princeton will have the top-ranked law school in the country. :-D

Nick
2.15.2007 8:46pm
PSP (mail):
Since all my lawschool exams were time limited, you have once again shown that fast handwriting (or typing) is the most important factor in law school grading.
2.16.2007 1:18pm
Orin Kerr's Future Husband:
Only problem is when you're at a good enough school that #5 comprises something as good as at least 40-50% of the answers, many professors resort to the staircase method to resolve the grading curve.
2.17.2007 7:52pm
dmm9999 (mail):
It's interesting you should ask that Mr. Nieporent as I believe he may have ceased teaching Con Interp as of last semester (though it may have simply been a function of his taking a sabbatical), but had been teaching it for a decade or so before then. He still teaches his Civil Liberties course though I believe, along with the occasional seminar on legal philosophy for grad students.

I'm not a fan of his personally, but many people enjoy his class, and some even enjoy his views :) His class is "different," though I found it more self-indulgent than anything.
2.17.2007 8:56pm
dmm9999 (mail):
It's interesting you should ask that Mr. Nieporent as I believe he may have ceased teaching Con Interp as of last semester (though it may have simply been a function of his taking a sabbatical), but had been teaching it for a decade or so before then. He still teaches his Civil Liberties course though I believe, along with the occasional seminar on legal philosophy for grad students.

I'm not a fan of his personally, but many people enjoy his class, and some even enjoy his views :) His class is certainly "different" (both than the average Princeton lecture course and law school, from what I understand) though I found it more self-indulgent than anything.
2.17.2007 8:56pm
Amy (mail):
I think people who are deriding answers 1-3 are forgetting some facts. These first years:

a) have been frantically studying for 4 or 5 exams for the last 2-4 weeks
b) some of them (stupidly) stayed up all night the night before the test studying
c) this is a long, timed, exam where you can't get bogged down on one portion; if you don't know it, you must write something, ANYTHING, and move on;
d) the environment is extemely high pressure because you KNOW that there is strict curve on only a few people are getting an A;
d) if you don't get A's, you don't get the good job; you can't pay back your monstrous loans, etc, etc.

So, while the bad answers are definitely bad, don't confuse them with the best a typical law student could produce with all the above pressures removed.

Personally, I thrived on three hour open book exam environment (which was almost all my law school exams). I am very good at memorizing case names and holdings, and I am fast typist, so I had an advantage. That exam type favors obsessive studying of everything presented in the class and good outline-making so you can find the cases/concepts you don't have memorized quickly during the exam. I turned out to be good at it, so I avoided take homes like the plague. :) I also read Getting to Maybe, and the most important factor, DID PRACTICE TESTS. They are invaluable prep, especially if you make yourself take one in exam conditions and then see how you did. I don't understand why more people don't do it.
2.18.2007 5:45pm
GMU 1L:
Grades do not correspond to answers in quite this way at Mason. Several 1L profs told us that due to the strict curve (every class must have a mean grade between 2.85 and 2.95) they had to give many B or B- grades that would be a B+ or A- without the mandatory mean (or would be higher grades at other DC area schools). I wonder if this strict curve hurts or helps Mason students? For instance, I have 3.25 GPA, but believe it or not, I am in the top 20% of the class.
2.20.2007 12:59pm