ELEMENTS REVIEW SESSION: ORDER OF PROCEEDING General Info on Preparation & My Exam Exam Technique –Generally –QI: Issue-Spotter –QII: Strength of Analogy.

ELEMENTS REVIEW SESSION: ORDER OF PROCEEDING General Info on Preparation & My Exam Exam Technique –Generally –QI: Issue-Spotter –QII: Strength of Analogy –QIII: Opinion/Dissent Logistics Questions MUSIC

General Info on Preparation & My Exam

General Preparation Advice Two Thoughts on Curves & Class RankTwo Thoughts on Curves & Class Rank –Long Run –Short Run Pace Yourself for Three Week AdventurePace Yourself for Three Week Adventure –Leave “Gas in Tank” for Last Exams –Do Some Advance Work on Torts –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)

Elements Preparation: Best Prep is Old Exam Qs Do some of each Q under exam conditions.Do some of each Q under exam conditions. Review in groups if possible.Review in groups if possible. Read comments even for ones you don’t doRead comments even for ones you don’t do Model answers neither complete nor perfectModel answers neither complete nor perfect Use to see organization/style I likeUse to see organization/style I like Use to see some possible ways to analyzeUse to see some possible ways to analyze More recent Qs/Comments/Models better indicators of what I’m looking forMore recent Qs/Comments/Models better indicators of what I’m looking for

Structure of Exam Three Questions –One of Each Type I’ve Shown You –Must Do All Three Hours and a Half –One hour to read Qs, take notes, outline (no computers or bluebooks) –2.5 hours to write answers (50 Minutes per Q) Closed book with condensed syllabus attached. –I’ll post this version of syllabus on Course Page –Try working with it when you do Practice Qs

Using Your Reading Period 1st 15 Minutes –Read test –Hyperventilate –Choose what order in which to write Qs (I/II v. III) Next 45 Minutes (I’d Recommend…) –Use about 15 minutes on each Q –Read it again carefully –List major points you’d like to discuss –Choose order to make rough outline –Do last in reading period Q you want to write first

Exam Instructions I’ll post instructions page of exam on Course Page to read in advance Important instruction for students doing exam on computers: –Between each Question, put in a hard page break (hit Control + Enter), so that each Question begins at top of a new page. –Saves my assistant much time and stress!!! –No need to start new page between… Parts of Question I Opinion & Dissent in Question III

Exam Technique: Generally

My Exam Technique Lectures: –Podcasts on Academic Achievement Website –Slides on Course Page Some Repetition Here, But Focused on Problems Commonly Arising on Old Exa ms

Exam Technique: Generally 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 Show me all necessary steps of arguments.

Exam Technique: Generally 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 Must use authorities/rules correctly –E.g., Second Part of Test from Shaw –E.g., Mullett & Abandonment

Exam Technique: Generally 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) –Can use telegraph English –Can use bulleted lists (e.g., of evidence supporting one side of an argument)

Exam Technique: Generally Draft, Not Final Product No formal introductions & conclusions Use headings & sub-headings to replace topic sentences & transitional phrases Use abbreviations –Party names  1 st Initial –Recurring phrases  NL DIBE Use single party name to refer to cases (e.g., Pierson, Shaw, Taber, Mahon, Penn Central)

Exam Technique: Generally 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)

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

Question I: 2014 Special Instructions Based on the Fact Pattern Below, (a)Discuss whether, in resolving the dispute between Julian and Kayla, the custom of [xxx] should be treated as legally binding? (b)Assuming the custom of [xxx] is not legally binding, discuss whether, under the First Possession Animals Cases, Julian or Kayla owns MLE-2D? (c)Discuss whether, under the Escaping Animals Cases, Nick or Stephanie owns ZAC-3B?

Question I: 2014 Special Instructions Based on the Fact Pattern Below, (a)Discuss whether, in resolving the dispute between Julian and Kayla, the custom of [xxx] should be treated as legally binding? (b)Assuming the custom of [xxx] is not legally binding, discuss whether, under the First Possession Animals Cases, Julian or Kayla owns MLE-2D? (c)Discuss whether, under the Escaping Animals Cases, Nick or Stephanie owns ZAC-3B? Write the response to each sub-question separately from the others. Clearly indicate in your answer where your response to each sub-question begins

Question I: 2014 Special Instructions Based on the Fact Pattern Below, (a)Discuss whether, in resolving the dispute between Julian and Kayla, the custom of [xxx] should be treated as legally binding? (b)Assuming the custom of [xxx] is not legally binding, discuss whether, under the First Possession Animals Cases, Julian or Kayla owns MLE-2D? (c)Discuss whether, under the Escaping Animals Cases, Nick or Stephanie owns ZAC-3B? The three sub-questions will be weighted roughly equally; allot your time accordingly. –[Means about 18 minutes each] –[Meaning of “Roughly”]

Question I: 2014 Special Instructions Based on the Fact Pattern Below, (a)Discuss whether, in resolving the dispute between Julian and Kayla, the custom of [xxx] should be treated as legally binding? (b)Assuming the custom of [xxx] is not legally binding, discuss whether, under the First Possession Animals Cases, Julian or Kayla owns MLE-2D? (c)Discuss whether, under the Escaping Animals Cases, Nick or Stephanie owns ZAC-3B? Cons of Sub-Questions

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.

Question I: Use of Authority 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.

Question I: Use of Authority 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.

Question I: What I’m Looking For For Each Sub-Question: 1.Identify the Most Important Issues 2.Quality of Analysis 3.Clear Presentation 4.Quantity of Relevant Points Made

Question I: What I’m Looking For 1.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.

Question I: What I’m Looking For 2. Quality of Analysis Arguments for both sides of contested issues (assume 2 sides on each sub-Q) Try to use all the facts in the problem You can note missing facts/evidence that could help determine outcome (if not inconsistent with facts you do have)

Question I: What I’m Looking For 2. Quality of Analysis Work with/compare relevant authority Defend key positions thoroughly Push toward resolutions (Limit)

Question I: What I’m Looking For 3. Clear Presentation Discuss one issue at a time Use headings to indicate transitions Make logic of arguments apparent

Question I: What I’m Looking For 4. 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 class = “mortal wounding” Specific Customs adopted in Swift & Ghen are not precedent for anything.

Question I: Preparation Be very solid on authorities. Review –Pre-Midterm Exam Tips in Info Memo #2 –Comments on Assmt#1 & Assmt #2 Look at comments/models for XQ1s. Do some under exam conditions

Exam Technique: Question II Assess Application of ACs by Analogy

Question II: Task Discuss whether the Animals Cases constitute a good set of tools for resolving disputes like the one in the Fact Pattern. 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: 2014 Special Instructions I will give you ONE of the following: Assuming the custom of [xxx] is not legally binding, discuss whether the First Possession Animals Cases constitute a good set of tools for resolving disputes [like the one between Julian and Kayla over XXX]. Discuss whether the Escaping Animals Cases constitute a good set of tools for resolving disputes [like the one between Nick and Stephanie over XXX].

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. 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.

Question II: Use of Authority 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 … (Especially) Differences and Thoughtful Discussion of Why They Might Matter.Identification of Key Factual Similarities & (Especially) Differences and Thoughtful Discussion of Why They Might Matter. –Sunken Treasure: Historic Significance & Interest of Third Party (Aztecs) –Fern Roots: Cancer Cure –Computer Programs: Useful/Necessary Labor from Both Parties –Human Gestures: Maybe No Useful Labor

Question II: When Grading, I Reward … (Especially) Differences and Thoughtful Discussion of Why They Might MatterIdentification of Key Factual Similarities & (Especially) Differences and Thoughtful Discussion of Why They Might Matter Thoughtful Discussion of Pros & Cons of Applying ACs’ Factors (Sometimes Two Sides on Particular Factor) and Thoughtful Discussion of Pros & Cons as Against ACsIdentification of One or More Plausible Alternatives and Thoughtful Discussion of Pros & Cons as Against ACs

Question II: Common Problems & General Advice Drift Back Into Q1 Warning Signs: –References to Specific Facts of Fact Pattern –References to Specific Parties (X would argue…) –Details re Facts of ACs –Arguments re Who Gets Property Rights

Question II: Common Problems & General Advice 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: Common Problems & General Advice Could v. Should 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, but not great idea

Question II: Common Problems & General Advice Could v. Should 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?

Question II: Common Problems & General Advice 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.

Question II: Common Problems & General Advice Could [Not] v. Should [Not] Be Careful Arguing that Factor from ACs Couldn’t Possibly Apply to the New Situation Can’tCommon [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 livev whales –Maybe NL for sunken treasure different from regular treasure (being on ocean bottom)

Question II: Common Problems & General Advice 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.” 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)

Question II: Preparation Be Solid on Operation of ACs Tests & Factors Their Underlying Purposes Practice Working with Common Alternatives Review Comments & Best Answers on Assmt #3 (& Ask Qs if Unsure) Look at comments/models for XQ2s. Do some under exam conditions

BREAK Music: The Miseducation of Lauryn Hill (1998) My Anagram of Title: Flirtation Healed Unholy Music Can You Do Better?

Exam Technique: Question III Takings Opinion/Dissent

Instructions for QIII: Compose drafts of the analysis sections of a majority opinion for the U.S. Supreme Court and of a shorter dissent, deciding whether [xxx] was an unconstitutional Taking of Ashley’s property.

Question III Compose drafts … As with issue-spotter, can include headings, bullet points, abbr., etc. Present concise versions of arguments, not rhetoric (don’t get carried away with role) Don’t need fancy language, transitions, etc.

Question III … of the analysis sections … No need for –Introduction –Statement of facts –Procedural history –Separate history of the legal issue –Conclusion Do make clear which side would win. –Good way to start: “Affirmed” or “Reversed”

Question III … of a majority opinion … and of a shorter dissent … Articulate arguments on both sides of key disputed questions. Can disagree as to what rule should be or as to application or both Each opinion needs to justify the particular positions it takes. Each opinion should try to deal w other side’s best arguments.

Question III … of a majority opinion … and of a shorter dissent … Must be 2 separate opinions Some flexibility in arranging arguments –Can put pro arguments in majority & con in dissent –Can do back and forth in long majority, then do very short dissent explaining different conclusion. May be helpful to write simultaneously. I don’t care who wins

Question III … for the U.S. Supreme Court … Awareness that deciding law for whole country, not just case in front of you Can adopt or modify existing rules, but must defend either decision. Can use “Counsel” for Parties to Raise Arguments You Don’t Feel Very Sure of

Question III … deciding whether [xxx] was an unconstitutional Taking ….” Treat my facts as given (don’t argue with Question) Think about why particular facts are there Can use particular case you’re given as example or as counterexample –“The case before us demonstrates why …” –“We think this case is not typical because …”

Question III … deciding whether [xxx] was an unconstitutional Taking ….” Address arguments made by lower courts –Guiding you to some available arguments –At least have side that rejects say why Don’t make cute legal or procedural arguments to allow you to avoid addressing the hard Qs

Question III: Organization Almost always will need –some discussion of harm to claimant’s property rights (loss of use or value) –some discussion of strength of state purpose Might think about how different arguments can be combined under one of these categories for efficiency.

Question III: Organization Try to set up answer so that you end up with 2-sided discussion of all important contested issues. Example: 2001 & Parking Garages – Big Denominator Q –If Looking Separately, Does Purpose Justify Interference w DIBE?

Question III: Organization (2001) One Opinion View as Separate If Separate, Intf w DIBE Other Opinion View Together If Together, No Loss

Question III: Organization (2001) One Opinion View as Separate If Separate, Intf w DIBE Gov’t Purpose Insufficient to Justify Other Opinion View Together If Together, No Loss Because No Loss, No Need to Address Purpose???

Question III: Organization (2001) One Opinion View as Separate If Separate, Intf w DIBE Gov’t Purpose Insufficient to Justify Other Opinion View Together If Together, No Loss If Separate … –Could Concede re DIBE –OR Enough Left so OK?

Question III: Organization (2001) One Opinion View as Separate If Together, Concede No Loss = OK If Separate, Intf w DIBE Gov’t Purpose Insufficient to Justify Other Opinion View Together If Together, No Loss: OK If Separate … –Could Concede re DIBE –OR Enough Left so OK? Gov’t Purpose Sufficient to Justify

Question III: Use of Authority Major Cases: Hadacheck, Mahon, Miller, Penn Central Other Cases: Kelso, Euclid, Nectow, Causby Theorists: Sax, Epstein, Michelman, Ackerman Apply to specific facts of “case” described in Q, showing that you recognize how any points you make fit into the line of cases viewed together. You then can choose, in one opinion or the other, to adopt or reject what the SCt had done.

Question III: Use of Authority Apply authority to specific facts of “case” described in Q, showing that you recognize how any points you make fit into the line of cases viewed together. EXAMPLE: Brandeis dissent in Mahon says look at whole parcel top to bottom regardless of who owns pieces. Penn Central seems to reject this position by reading Mahon to as resting on destruction of “rights reserved” by coal cos. (without considering surface rights). You then can choose, in one opinion or the other, to adopt Brandeis dissent instead.

Question III: Use of Authority Apply authority to specific facts of “case” described in Q, showing that you recognize how any points you make fit into the line of cases viewed together. EXAMPLE: Airspace Solution Denominator Q: Kelso  Mahon  PCentral Purpose: Hadacheck  Miller  PCentral Physical Invasion: Penn Central (Causby)

Question III: Preparation Be very solid on what authorities say invidually and together. Look at old comments/models. Do some under exam conditions And finally ….

Question III If you choose to give names to your judges (you don’t have to) … Majority (Sophocles, J.): Dissent (Homer, J.)

Question III Don’t use your name as the name of one of the judges!! D’oh! Majority (Sophocles, J.) Dissent (Homer, J.)

Logistics: Before & After

Logistics: Before My Availability IFI will respond to E-mail Qs sent before 6pm on Tue 12/2 IF –Reasonable Number –Manageable (NOT “Please Explain Demsetz”) Remaining Office Hours (on Course Page): –Saturday 11/29 @ 1-5 pm –Sunday 11/30 @ 1-5 pm –Monday 12/1 @ 10 am-2pm; 4-8 pm 2-6 pm (recheck) –Tuesday 12/2 @ 9 am-1pm; 2-6 pm (recheck)

Logistics: Before To Be Posted on Course Page Before Thanksgiving @ NoonBefore Thanksgiving @ Noon –Exam Instructions & Condensed Syllabus –These Slides –Sample Briefs for Whaling Cases –Comments & Models re Assignment #3 from 2012 –1 st Installment of Feedback on Your Assmt #3

Logistics: Before To Be Posted on Course Page Any Updates on Office Hours for Tues 12/2Any Updates on Office Hours for Tues 12/2 Before Tuesday 12/2 @ 6pmBefore Tuesday 12/2 @ 6pm –Info Memo with Write-Ups of Some DQs –More Feedback on Assmt #1 & Assmt #3 –Responses to Individual Student Qs (if needed)

Logistics: After Generally By tradition, I’ll be on the bricks at the end of the scheduled exam time I’ll post grading progress on Course Page (more regularly than I have been )

Logistics: After Assignments/Briefs Once you’ve taken test, I’ll no longer post comments on course page. after your last examStarting after your last exam, as I complete assignments/briefs, we’ll e- mail comments & scores to you.

Logistics: After Exam Feedback Once grades are posted, I’ll put together a packet for you to pick up with: –Copy of your test –Exam Qs, My Comments & Best Answers –Explanation of Grading & Your Individualized Scores (& stickers where applicable!) I’ll set a schedule of times to meet with you to review your work if you wish.

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

ELEMENTS REVIEW SESSION: ORDER OF PROCEEDING General Info on Preparation & My Exam Exam Technique –Generally –QI: Issue-Spotter –QII: Strength of Analogy.

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ELEMENTS REVIEW SESSION: ORDER OF PROCEEDING General Info on Preparation & My Exam Exam Technique –Generally –QI: Issue-Spotter –QII: Strength of Analogy.

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