ELEMENTS D1/D2 REVIEW SESSION (11/28/17): ORDER OF PROCEEDING

ELEMENTS D1/D2 REVIEW SESSION (11/28/17): ORDER OF PROCEEDING
General Info on Preparation & My Exam Exam Technique Generally QI: Issue-Spotter Generally QI: Specific Concerns re Each Sub-Q QII: Usefulness of Analogy Questions

General Info on Preparation & My Exam

General Advice Pace Yourself for Two Week Adventure
Try to Leave “Gas in Tank” for Last Exams Immediately Before Each Test, at Least 48 Hours Exclusive Attention to that Subject Can’t Do Useful Work for 4-5 Hours After Tests (Good Option: Unchallenging Movies) Try to Let Go of Each Exam When Done How you feel is not good indicator of grade Nobody hits everything; you are in a world of infinite partial credit.

Structure of Exam Closed book with condensed syllabus attached.
I’ll post condensed syllabus on Course Page Today Try working with it when you do Practice Qs Questions (Must Do All) Three-Part Question I (20% of Points per Part) Question II (40% of Points) Three Hours and a Half One hour to read Qs, take notes, outline (no computers or bluebooks) 2.5 hours to write answers. Suggested times are 30 minutes for each part of QI & 60 minutes for QII.

Structure of Exam Coverage of Questions Question IA = First Possession
Question IB = Custom Question IC = Escape Question II = Analogy Note: Question 1B and Question II Will Each Tell You to Focus on Only One of 1st Possession or Escape (Focus Different for Each of Them)

Structure of Exam OK to Take Exam Apart
. Detach Syllabus to Work with It, Especially During Reading Period Actual Qs are First Pages After Cover (Genl Instructions). Can Detach Qs so You Can Look at Them & Relevant Facts at Same Time.

Using Your Reading Period
1st 15 Minutes Read test & Hyperventilate Choose what order in which to write Qs I Don’t Care About Order of Your Answer Might Qegregate 1st Poss Qs from Eascape Qs Next 45 Minutes (I’d Recommend…) ~10 minutes for each Part of Q1; 15 minutes for Q2 Read it again carefully List major points you’d like to discuss Choose order to make rough outline Do last in reading period Qs you want to write first

Exam Instructions I’ll posted instructions page of exam on Course Page later today so you can read in advance Key Instructions (b/c I grade Qs Separately) If using a laptop: Between each [Sub-]Question, put in a hard page break: On a Mac, use “Insert Page Break.” On a PC, use Control-Enter. If using bluebooks No need to use different bluebooks for each Sub-Question of Q1 Write Q2 is a completely eparate bluebook.

Elements Preparation: Best Prep is Old Exam Qs
Do at least one of each type of Q under exam conditions. For Complete Q1 or Q2: 20 minute Reading Period & 60 Minutes to Write To Create Sub-Qs, Split Off Issues and (for Each) Spend 15 minute Reading Period & 30 Minutes to Write Review in groups if possible.

Elements Preparation: Best Prep is Old Exam Qs
Use of PostedComments & Models Review Before Coming to Me with Qs Read comments even for Qs you don’t do Model answers neither complete nor perfect Use to see organization/style I like Use to see some possible ways to analyze 2016 Less Edited than Normal) More recent Qs/Comments/Models better indicators of what I’m looking for

Exam Technique: Generally

My Exam Technique Lectures: Link to Slides on Course Page Some Repetition Here, But Today Focused on Problems Commonly Arising on Old Elements Exams

Testing Ability to Use Tools, Not Just Whether You “Know” Material Only provide info that you are using to make arguments. E.g., Don’t simply recite legal tests; apply them Provide details of facts of cases only if using those facts to make specific arguments On QII, don’t need to provide detailed case support for uncontroversial assertions re rules/factors Common Issue re Wolverine Assmts: Provide multiple tests at beginning of argument, but only explicitly apply one of them. Show me all necessary steps of arguments.

Testing Ability to Use Tools, Not Just Whether You “Know” Material Wizard of Oz (Because, Because, Because) Provide support for key assertions E.g., why a particular fact helps one party E.g., why a particular factual similarity or difference matters Why a court might consider one side’s arguments stronger (Midterm Issue) Must use authorities correctly (Midterm Issue) E.g., Second Part of Test from Shaw E.g., Mullett & Abandonment

Draft, Not Final Product Getting lots of ideas on paper much more important than style Be concise (paid by the idea, not by the word) (Midterm Issue) Can use telegraph English Can use bulleted lists (e.g., of evidence supporting one side of an argument)

Draft, Not Final Product No formal introductions & conclusions Use headings & sub-headings to replace topic sentences & transitional phrases Use abbreviations Party names  1st Initial Recurring phrases  MW NL ALTS Use single party name to refer to cases (e.g., Pierson, Shaw, Taber)

Reality TV Challenges Use pre-selected components to complete assignment in unrealistic time frame Qs are hard to resolve; don’t try to make them easier than they are Do the challenges Specific Task Given (Different Q = Different Task) Specific “Ingredients” Given (Read Carefully) Time Frame Given (Adhere Compulsively)

Use Common Sense Assume there is a court with jurisdiction and power to enforce a decision (e.g., grant property rights inconsistent with custom) If crucial facts are missing or ambiguous, discuss (“IF” preferable to “Assuming” ) What does mark in midterm look like Can Gs switch members of their ring & still make Ws OK to make reasonable assumptions (just state them) : If all land on planet is owned, extremely likely they have rules against trespass

Exam Technique: Question I Issue-Spotter Using Animals Cases (ACs)

Question I: Use of Authority
Primary Authorities First Possession ACs: Pierson, Liesner, Shaw, ~Swift, ~Ghen Escaping ACs: Manning, Mullett, Albers, Kesler, Taber, Bartlett, ~Ghen Apply individually or collectively to specific facts from Fact Pattern to make arguments about which party should get Property Rights.

Primary Authorities Use of Custom: Swift, Ghen, ~Bartlett, ~Pierson Apply individually or collectively to specific facts from Fact Pattern to make arguments about whether custom should be binding as law. [Problem says to assume it applies to both disputes.]

Other Authorities (NOT “ACs”) Demsetz & Rose: Can use to support policy arguments or particular interpretations of ACs, but don’t use as primary authorities. Oil & Gas Cases: Can use as examples of how you might apply ACs, but don’t use as primary authorities and no need to use at all if you don’t see a clear fit. Pierson Dissent: Can only use in ways that aren’t inconsistent with majority and other cases.

Question I: What I’m Looking For
For Each Sub-Question: Do My Question (Careful Reading) Identify the Most Important Issues Quality of Analysis Clear Presentation Quantity of Relevant Points Made

Do My Question (Careful Reading) Follow Specific Directions in Q Carefully 2016: First Possession & Relevant Time 2016: Assume custom does not apply to 1st possession, then essentially use asdecision rule under ACs (Assume custom & ACs have different results, Read Carefully Custom & Limiting Harm to Treyhorns Which Treyhorns were on A’s Land

2. Identify the Most Important Issues Not enough time to discuss everything Need to choose among topics Focus on most contested issues Serious arguments on both sides Look for topics with a lot of facts If lawyers wouldn’t fight about it, address it quickly or not at all. “Look for fights, not winners”

3 Quality of Analysis Arguments for both sides of contested issues (assume 2 sides on each topic) Try to use all the facts in the problem Again: You can note missing facts or evidence that could help determine outcome (if not inconsistent with facts you do have)

3. Quality of Analysis Work with/compare relevant authority Defend key positions thoroughly Improve by adding arguments that might help court reach a decision though you don’t have to actually reach a specific conclusion. Tie-breakers & Midterms

4. Clear Presentation Discuss one issue or legal test at a time Use headings to indicate transitions Make logic of arguments apparent

5. Quantity of Relevant Points Made Used primarily as tie-breaker if answers otherwise similar A little bit of credit for quick citations to relevant authority, but thorough analysis of contested issues yields the most points To save time, use abbreviations, headings, bullets Outline at end if more to say

Question I: Common Problems
Use of Analogy Try to Go Beyond Literal for Factors Like Mortal Wounding or Natural Liberty Explain How Your Analogies Work (Why does being called on in class = “mortal wounding”) 2016: Gollums & MW Specific Customs adopted in Swift & Ghen are not precedent for anything.

QI: Concerns for Each Sub-Q
Custom (featuring 2016 Exam) 1st Possession (featuring 2016 Exam & Wolverines) Escape (featuring Midterms & Wolverines)

QIA: Concerns re 1st Poss
Generally How far along does 1st “hunter” have rto be to create property rights? Not looking at 2d hunter unless possible they met the test first Wolverine: No reason to apply legal tests to shooter 2016: Bryan in Dispute B (maybe owned) Use legal tests from cases to measure Don’t Have to Use All (2016 & Mortal Wound)

Generally How far along does 1st “hunter” have rto be to create property rights? 2016 & 2017: Timing & Instructions Whether, at the time Campo-Conde enticed the Gollum across the property line, Alex already had acquired property rights to the Woodweb the Treyhorns were about to create by virtue of his agreement with the Gollum. Whether, at the time Brian invoked the custom, Campo-Conde already had acquired property rights to the Woodweb the Treyhorns were about to create by virtue of his possession of all but one of the Treyhorns in the Ring.

2016 & Wolverine Common Problems Not comparing the two parties (e.g., labor) Acronym Pursuit only matters after MW Abandonment only matters in 2d Prong of Shaw Certainty is a test of possible rules, not of litigants Don’t discuss custom except in Q1B

QIB: Concerns re Custom
Won’t be Equal Amount to Discuss for Each Factor (Hard Qs, Easy Qs) 2016: Unintended Trap & Reading Period Similar Concern re Custom Reasonableness Encompasses Anything Not Addressed by Other Factors : Rewarding Labor; Furthering Industry Treatment of Ts (Fraud/Deceit) Notice Better than What Was There Before

QIC: Concerns re Escape
Two Disputes like A & B in 2016 Can Arrange by Legal Test (Doing both disputes under each) Can do one dispute completely then the other Be clear which dispute you refer to Cross-Reference rather than Repeat Difference between What Escape Cases Say & What we Said About Them Applying Factors from Other Cases Finder’s Labor is Problematic

Question I: Preparation
Be very solid on authorities. Review Pre-Midterm Exam Tips & Post Midterm Comments & Models Posted Comments on Written Assignments All three posted toolboxes Old XQ1s Do at least one under exam conditions Look at comments/models for XQ1s.

Exam Technique: Question II Assess Application of ACs by Analogy

Question II Last Year: Assuming the “Dig and Done” Custom is not legally binding, discuss whether the [First Possession] Animals Cases constitute a good set of tools for resolving disputes like those [between Campo-Conde and Alex and Brian over ownership of Treyhorns in their Woodweb form].

Question II: Task Assuming the “Dig and Done” Custom is not legally binding, discuss whether the [First Possession] Animals Cases constitute a good set of tools for resolving disputes like those [between Campo-Conde and Alex and Brian over ownership of Treyhorns in their Woodweb form]. Not “Who Wins?,” but “What Rules Should We Use to Decide?” May help to view as report to Legislature. Infomercial Analogy: “Beverly, how did you like using ACs instead of your regular products?”

Question II: Common Problems & General Advice
(Don’t) Drift Back Into Q1 Warning Signs: References to Specific Facts of Fact Pattern References to Specific Parties (X would argue…) Don’t think of QI parties as clients any more Drafting rules forall similar disputes Maybe class of possible litigants: “Colonial Powers like Spain might argue…” Details re Facts of ACs Arguments re Who Gets Property Rights

(Don’t) Drift Back Into Q1 Warning Signs (Try to Fix By….): References to Specific Facts of Fact Pattern  Talk About, e.g., Treasure Cases Generally References to Specific Parties  Talk About, e.g., Colonial Powers & Modern Treasure Hunters Details re Facts of ACs  Talk About ACs as a Group Arguments re Who Gets Property Rights  Talk to Legislature, Not Court

Question II: 2017 Special Instructions
Again: You will need to address either 1st Possession ACs or Escape ACs In language of Q2, I will specify which.

Question II: Use of Authority
First Possession ACs: Pierson, Liesner, Shaw, ~Swift, ~Ghen Escaping ACs: Manning, Mullett, Albers, Kesler, Taber, Bartlett, ~Ghen Discuss whether, collectively, these cases make up a good set of tools for addressing problems like the one in the Fact Pattern.

First Possession ACs: Pierson, Liesner, Shaw, ~Swift, ~Ghen Escaping ACs: Manning, Mullett, Albers, Kesler, Taber, Bartlett, ~Ghen You can refer to individual cases as examples of how the tools operate, BUT Don’t apply them to make arguments about which party should win. Don’t need to provide citations to non-controversial descriptions of how cases operate.

Use of Custom: Discuss in Question I Only Demsetz & Rose: Can use to make arguments about how best to address problems like the one in the Fact Pattern Oil & Gas Cases: Can use as examples of how you might apply ACs and the strengths and weaknesses of doing so, but don’t treat as part of the ACs.

Question II: When Grading, I Reward …
Identification of Key Factual Similarities & (Especially) Differences and Thoughtful Discussion of Why They Might Matter. Looking at ACs as a group and new situation generally. Remember that ACs are not uniform (whale, fox, canary sea lion) Include any you see if you see a reason why the comparison (by itself or combined with others) makes the ACs seem more or less useful in new situation Don’t have to be Qs directly raised by ACs or earlier XQs

Identification of Key Factual Similarities & (Especially) Differences and Thoughtful Discussion of Why They Might Matter. Sunken Treasure: Historic Significance & Interest of Third Party (Aztecs) Unionhabited Island: Parties Simultaneously Can Be “Capturing” Different Parts Computer Programs: Useful/Necessary Labor from Both Parties Human Gestures: Maybe No Useful Labor; Maybe Don’t Want Property Rights at All

Identification of Key Factual Similarities & (Especially) Differences and Thoughtful Discussion of Why They Might Matter. 2016: Can capture/Trap/Entice like animals fn Valuable Property Right with Short Period to Handle (like Whales) Gollums more intelligent/can communicate better Need a specific group with 2 types to be valuable No Value if Dead

Identification of Key Factual Similarities & (Especially) Differences and Thoughtful Discussion of Why They Might Matter Thoughtful Discussion of Pros & Cons of Applying ACs Factors (OftenTwo Sides on One or More Particular Factors)

Factors: Should rather than Could Not Enough to Argue that Factor from ACs Could Apply to the New Situation Good lawyer could use almost any test to some extent Possible to open a wine bottle with a hand grenade, or to open a window with a corkscrew, but not great ideas

Should rather than Could Not Enough to Argue that Factor from ACs Could Apply to the New Situation Discuss Whether It Should Apply Does it address some concern that’s important in the new situation? Is it easy to use? Does it tend to lead to results we like?

Could [Not] v. Should [Not] Be Careful Arguing that Factor from ACs Couldn’t Possibly Apply to the New Situation Even if it doesn’t work literally, it might work in a metaphoric way. Try out a metaphor and see what happens Then discuss whether that approach should be used.

Could [Not] v. Should [Not] Be Careful Arguing that Factor from ACs Couldn’t Possibly Apply to the New Situation Common [Problematic] Argument: “Property in Q is Not Alive, So Can’t Have NL.” Not Thoughtful: Hammonds: Natural Gas has NL I argued NL for dead whales different than for live whales Maybe NL for sunken treasure different from regular treasure (being on ocean bottom)

Could [Not] v. Should [Not] Be Careful Arguing that Factor from ACs Couldn’t Possibly Apply to the New Situation Common [Problematic] Argument: “Factor shouldn’t apply because too many ways to Interpret in new situation But court could pick one definition and solve the problem You could try multiple interpretations and discuss which might work best (Gollum Contract and Power/Control or Deprive of NL)

Identification of Key Factual Similarities & (Especially) Differences and Thoughtful Discussion of Why They Might Matter Thoughtful Discussion of Pros & Cons of Applying ACs Factors (OftenTwo Sides on One or More Particular Factors) Thoughtful Discussion of Pros & Cons of Using One or More Plausible Alternatives Compared to Applying ACs)

Addressing Alternatives Choose Alternatives that seem Plausible Some Real Pros Compared to ACs. (Not Lotta Credit for Telling me that a Really Stupid Alternative is, well, “Really Stupid.”) Don’t Choose Custom (already done pros & cons) , but Can do Variations on custom Choose Decision Rules for Property Rights (as oposed to decision-makers) (Theo is sensible; let him decide)

Addressing Alternatives Choose Alternatives that seem Plausible Compare Alternatives to ACs as a Group, Not to Single Factor or Case OK to say a “Con” of an Alternative is It Doesn’t Address a Key Concern Covered by an AC Factor BUT if 1-2 ACs Factors Don’t Work Well, Doesn’t Mean Alternative is Better (Swiss Army Knife)

Addressing Alternatives: 2016 Gollum’s Choice of Location (Colonists Allowed to Bribe or Contract) Gollum’s Choice of Location (Coolonists Not Allowed to Bribe or Contract) Owner of Land Where G begins to dig with strong regulations about how colonists can treat Treyhorns. Give G’s Property Rights (BUT They Don’t Want & How do this since they are in treeform when fruit arrives) Centralized Distribution of Rights Complex (Don’t Know if G’s will follow rules & High Administrative Costs

Question II: Preparation
Be Solid on Operation of ACs Tests & Factors and Underlying Purposes Be aware of differences in approach of 1st Poss Cases v. Esc Cases Practice Working with Common Alternatives Review Comments & Best Answers on Assmt #3 (& Ask Qs if Unsure) Look at comments/models for XQ2s Both First Possession and Escape Do at least 1 under exam conditions

Qs on Exam Structure or Logistics? Qs on Technique for Particular XQs?
Very Last Slide! Qs on Exam Structure or Logistics? Qs on Technique for Particular XQs? Substantive Qs

ELEMENTS D1/D2 REVIEW SESSION (11/28/17): ORDER OF PROCEEDING

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