Legal Commentary

While grading exams ? what I?m doing now ? I worry that I am giving grades that largely indicate how well people can write law exams, rather than a purer measure of how well they?ve mastered the material in the course. Especially for 1Ls.

It seems inconsistent with basic notions of fairness that some students, tipped off by a mentor on how to write a great exam, get glowing report cards, while other students, who may have had similar great potential, get mediocre marks for lack of knowing what to do with their bluebooks.

There are two ways I try to remedy this inequity. One is to include multiple choice and class participation in the grade. But the main palliative, as far as I am concerned, is helping students to learn how to write better exams. Yet that is a daunting task.

This summer, I am going to put together a very slim guide ? or a long memo with exhibits ? for my 1Ls on how to get good grades on law-school exams.

Will you help me? Tell me: What wisdom do you pass on to your students? What quick-and-dirty fix-it tips do you have to offer? Is there a book someone sells (maybe yours?) that you would recommend?

I would be very grateful. Maybe this post and its comments will be a document itself I can refer students to. Here?s my boiled-down counsel to law-exam newbies:

Unsurprisingly, its mostly variations on a familiar theme: apply the law to the facts.

In fact, to save everyone time and annoyance, I will omit repeating myself by adopting this convention: Everywhere you see " * ", insert this phrase: "You?ve got to apply the law to the facts."

(1) Do not make moral arguments. Don?t argue what?s fair. *

(2) Do not write at length about the law without referencing the facts. * Merely regurgitating the law does not show your mastery of the subject or demonstrate your analytical abilities; it therefore earns you no points.

(3) The reciprocal is just as important: Do not write at length about the facts without referencing the law. * Merely rehashing the facts does not show your mastery of the subject or demonstrate your analytical abilities; it therefore earns you no points.

(4) No matter how nervous, anxious, or pressured you feel during the exam, do not rely on a crutch to keep writing to the exclusion of doing the hard work of legal analysis. Making moral arguments, regurgitating law, and rehashing facts (see 1, 2, and 3, above) are all dangerous temptations ? they offer a way to keep writing, and thus provide the illusion that you are making progress. They are a Sirens' song. Resist.

(5) IRAC is not the Holy Grail. If you can write a good exam without IRAC, then you should absolutely forget about it. On the other hand, if some kind of structural aid is essential to get you to perform legal analysis in writing, then IRAC might help you.

(6) Consider employing these mechanical aids to force yourself to write better exams:

(a) Strive to mention the facts and the law within the same sentence, where reasonable. This may force you to do legal analysis and allow you to write in a more compact and effective manner.

(b) When you state a conclusion, write the word ?because? afterward to force yourself to state reasons, supporting evidence, etc.

(c) When you make a relevant point relating law to facts, write the word ?therefore? afterward to force yourself to carry your reasoning all the way through to its conclusion (for example, that a certain person has a certain cause of action or can successfully interpose a certain defense).

Now, convincing new 1Ls of the importance of learning how to effectively write an exam is another matter entirely. But maybe that should be a matter for another post ?

[Note: Split infinitives and trailing prepositions herein are used with pride. See my prior declaration of grammatical freedom.]