pageok

pageok [Orin

pageok
Kerr, February 13, 2007 at 5:34pm] Trackbacks
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 Joneswe
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" underJones. 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 underThomson. 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.
(link)
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
(link)
OrinKerr:
OK note: Sorry, I had accidentally turned off comments. I just turned
them on.
2.13.2007 8:32pm
(link)
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
(link)
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
(link)
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
(link)

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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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 novehicle 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
(link)
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
(link)

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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
anactual 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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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 Tnnies'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)." Ohkaaaaaaay.
How I longed for a question like the one in Prof. Kerr's example.
2.14.2007 1:26am
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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

(link)
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
(link)
dsn:
Remove What you from the previous post.
2.14.2007 10:29am
(link)
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
(link)
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: vehicle
Pronunciation: 'vE-&-k&l also 'vE-"hi-k&l
Function: noun
Etymology: French vhicule, 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
(link)

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
(link)
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
(link)
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
(link)
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
(link)
Opus:
Two points:
First, Orins 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 cant 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
(link)
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
(link)
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
(link)
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
(link)
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

(link)
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

(link)
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
(link)
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
(link)
David M. Nieporent (www):
And I don't know why that appeared twice.
Whadonna: I have the same experience with my clients in copyrightrelated 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
(link)
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
(link)
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
(link)
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
(link)
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

(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
Bystander:
Oops disregard last comment. Hadn't refreshed yet!!
2.14.2007 2:01pm
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
(link)
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
merelysufficient to show that a motor home was clearly against the
intent of the original law. State may use this to challenge the
application of Thomsonto 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
(link)
NickM (mail) (www):
Give me 5 minutes on Wikipedia and Princeton will have the topranked law school in the country. :-D
Nick
2.15.2007 8:46pm
(link)
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
(link)
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
(link)

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
(link)
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
(link)
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
(link)
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
pageok