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Monday, February 04, 2008

Weighing in on Law School Exams: Two Cents from a 1L Professor

Thoughts at the VC and this blog have turned to law school exams early this year. Here are the two cents of a 1L constitutional law professor:

1. Exams are all about answering the Next Question. In law, lawyers are often hired to figure out how to solve a problem that hasn’t been solved before. A key aspect of “thinking like a lawyer” is learning how to use established authority to answer questions that fall within the cracks of prior legal rules and their underlying rationales. What most law school exams ask is that the student construct an analysis of how to answer a previously unanswered question using the tools provided by the course material. In my 1L Constitutional Law class, I try to focus the students’ attention on the importance of "answering the Next Question" by having 5-6 class sessions spaced out through the semester devoted entirely to answering an open, currently brewing legal controversy. For students preparing for exams, one helpful way to focus your attention on applying old cases to decide new questions is to look up recent cases in a given area of law, read the facts, and use the facts as a basis for a practice exam.

2. irAAAAAAAAAAAAAAAAAAc. As Paul notes, the “irac” or “trac” model of legal writing is usually a good idea. Identify the Issue or Topic, clearly state the Rule or standard, Apply the rule to the issue, and articulate a concise Conclusion. While this style of writing properly focuses both the reader and the writer on the right questions, the presentation of this model as consisting of four equal parts improperly downplays the significance of part 3: applying the rule to the issue. This is the meat of the analysis a professor, or partner, is expecting. The other three parts can often be handled in a sentence or two each, but the application is often a paragraph or more of argumentation. It is here that you must address precisely how the facts fit the legal rules, how the rationales of the legal rules fit (or don’t) with the current controversy, draw analogies and distinctions from prior decisions, address the best counterarguments (and make a strong case for each one to show you could argue both ways), and otherwise analyze the question at hand. This can’t usually be done in only a sentence or two. So while generally wise, “trac” and “irac” need a lot more “a”s to maximize delivery.

3. Eat a good pre-exam meal. Studies show that eating complex carbohydrates improves mental performance.

Okay, so that was three cents. Sorry. Law professor’s habit.

Posted by Adam Winkler on February 4, 2008 at 11:44 PM in Teaching Law | Permalink

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Howard -- my example could be made just a little longer, and I think it would state what you're looking for: Because smoking is a lawful activity, Jack's promise not to smoke was valid consideration under the rule in Hamer. From that, you should be able to figure out that the student knows what the rule is, etc.

I do agree with subject/issue headings. Thus, rather than saying, "The first issue is whether the contract has sufficient consideration to be enforceable," just write "Enforceability/consideration," underlined. I did this kind of thing plenty of times in law school, but never wrote anything like the first sentence. It does flag that you've spotted an issue, and provides a way of organizing the answer, but uses many fewer words (both saving time and making it easier to engage in more analysis w/in the word limit).

How about CRA, as a compromise? Start with the conclusion (as in any good legal writing); state the rule briefly; and then explain why. Thus, for example, "Enforceability. The first problem is that the contract lacks sufficient consideration to be enforceable, because it fails to meet the rule announced in X. Although one could argue that blah-blah-blah suffices to meet that standard, the later case of Z held that such . . . ." And so forth. If you state the conclusion first, you've obviously identified the issue; no reason to waste a separate sentence on that.

Posted by: Stuart Buck | Feb 7, 2008 12:30:37 PM

I second Paul's point and would describe IRAC as providing a "framework" for the student's discussion. It keeps her grounded to the particular sub-issue and lets her organize the facts and the discussion of facts around the particular legal rule in play.

If IRAC is somewhat artificial, remember that there is something uniquely artificial about exam writing that is not present in any other legal writing: The writer is trying to tell/show the professor what the writer knows. Stuart's second example, while elegantly written, does not show me that the writer knows what the rule of Hamer is or why the consideration was valid under it. Some discussion (however brief, as Paul suggests) is necessary for exam purposes.

Posted by: Howard Wasserman | Feb 6, 2008 12:38:10 AM

Stuart, I agree with you both as a matter of good writing -- I believe I wrote in my own post that IRAC can be a mechanical form of writing -- and in theory. In practice, however, I think there are several reasons why a student might still want to favor the IRAC approach and laboriously set down the "rule," however much she focuses on the "A." First, it serves a function similar to the use of subject headings (which are also mechanical, and which I also favor): it alerts the professor who is grading the exam, and who is a mere fallible human reading dozens of exams one after another, that the student has moved on to a new issue. Second, it serves to constrain students, by reminding them that they are focusing on one particular issue and one particular rule at a time, and thus discouraging them from mixing up doctrine or just going on a frolic. Third, if they blow the analysis but get the rule right, at least they salvage a few points from most professors.

None of which is to say that your second example wasn't more elegant and to-the-point; I just think there are still good countervailing reasons to accustom oneself to IRAC. And even if one does use IRAC and thus tends to set down every "rule," that doesn't mean one can't and shouldn't move over an easy issue lightly in order to get to the more important issues, as you suggest: "The elements of [X] are [A, B, and C.] In this case, [A and B] are obviously met, because [short explanation]. The more difficult question involves [C]....."

Posted by: Paul Horwitz | Feb 5, 2008 6:25:57 PM

I saw quite a few exams at HLS that got really good grades. I don't think any of them used "IRAC" expressly; rather, the best exams focus almost entirely on "A," and the rest is implied. After all, if you're analyzing an issue correctly, you've obviously spotted the issue and know the rule.

The thing about focusing on A is that it's so much shorter. Good exams are able to pack in a lot more by not wasting a whole sentence laboriously pointing out that such-and-such is the "rule," etc.
For example, compare a (very simple) issue as analyzed by a student who is using "IRAC" vs. one who is focusing entirely on A:

The first issue is whether the contract was supported by valid consideration. The rule under Hamer v. Sidway is that promises not to engage in a lawful activity can be such consideration. In this case, Jack made Jill a promise not to smoke, and since smoking is lawful, that promise constituted lawful consideration under Hamer. Thus, the contract is enforceable.

But a top student would have dealt with that very summarily and moved on to something else:

Jack's promise not to smoke was valid consideration under Hamer; the more difficult question is how to measure expectation damages . . . .

By writing the analysis (here, not very much is needed), you've identified the issue; you've demonstrated knowledge of the rule; you've stated a conclusion, but in many fewer words.

Posted by: Stuart Buck | Feb 5, 2008 6:08:54 PM

Yep: It's the "A" in IRAC that gets you the "A." Students who focus on the "C" end up with, well, . . .

Posted by: Orin Kerr | Feb 5, 2008 2:40:21 PM

"[Application] is the meat of the analysis a professor, or partner, is expecting."

As I told my students last year, anyone can look up the law, and write an introduction and conclusion; application of the law to the client's facts is what lawyers get paid for.

Posted by: Bruce Boyden | Feb 5, 2008 12:48:04 PM

Since you're a constitutional law professor, let me ask you a hypothetical. It's designed to test whether racial classifications, in and of themselves, are injuries sufficient for standing. A state wants to make sure it has a good racial mix in its first grade classes - it doesn't want all-white classes or all-black ones. Of course, in some schools that won't be possible, and it doesn't want to run afoul of Parents Involved and start moving students from school to school, but in its elementary schools that are diverse, it will try and make sure that each class has a good balance. So, for example, at Thurgood Marshall Elementary School, there are 48 first graders - 24 white, 24 black - and two first grade teachers. They're both fine teachers, but to make sure no one's unhappy with their assignment, the school takes requests from parents who have a preference in advance. You don't have to submit a request, but it's widely made known that if you want to, you may. They also take requests from kids who want to be placed in the same class with their friends. They place all the kids who have a preference in the class they asked to be in. Then, making sure no friends are split, they assign the rest, making sure that both classes have a 50/50 white/black mix. After the assignment, a parent sues and says that this is racial balancing and violates equal protection. He doesn't mind WHO his kid got assigned to; he thinks she's a great teacher. He just minds that his child was assigned to that great teacher on the basis of race, that a racial classification's been made. The relief he seeks is a race-blind reassignment; it doesn't matter to him if after that reassignment his daughter has the same teacher. Does he have standing and does strict scrutiny apply? I would say of course not; there's no injury. However, some defenders of Shaw v. Reno, which I'm doing my undergrad thesis on, argued from the very beginning that the standing concerns people raised with Shaw were misplaced, because all racial classifications, whether they cause any additional harm or not, give rise to standing. Of course, Shaw itself spoke of other harms besides racial classification itself - stigmatic harms, 'representative' harms - but later cases (Miller, Hays) largely dropped the Shaw rationale, and Scalia's recently written that "a Shaw I claim focuses instead on the state's purposeful classification of individuals by their race, regardless of whether they are helped or hurt." Such may be the rationale behind Shaw, but does it make any sense? If racial classification by itself is a cognizable harm, it logically follows that a black beneficiary of a race-conscious admissions policy at a state university has standing to challenge that policy. After all, he's been racially classified. But to me that seems absurd.

Posted by: Asher | Feb 5, 2008 2:21:14 AM

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