1. ELEMENTS B POWER POINT SLIDES Review Session: Monday, November 30, 2015 National Mousse Day

2. 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

3. General Info on Preparation & My Exam

4. General Advice Pace Yourself for Two Week AdventurePace 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 DoneTry 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.

5. Elements Preparation: Best Prep is Old Exam Qs Do at least one of each type of Q under exam conditions.Do at least one of each type of 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

6. 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’ve posted this version of syllabus on Course Page –Try working with it when you do Practice Qs

7. 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

8. Exam Instructions I’ve posted instructions page of exam on Course Page so you can 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

9. Exam Theme Problems Caused by Melting Ice & Rising Ocean Levels

10. Exam Theme GOOD THEME FOR FIRST LAW SCHOOL EXAM

11. Exam Theme GOOD THEME FOR FIRST LAW SCHOOL EXAM: STAYING ABOVE C-Level

12. Exam Technique: Generally

13. My Exam Technique Lectures: Links to Video & Slides on Course Page Some Repetition Here, But Focused on Problems Commonly Arising on Old Elements Exams

14. 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 –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.

15. 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

16. 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)

17. 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  MW NL DIBE Use single party name to refer to cases (e.g., Pierson, Shaw, Taber, Mahon, Penn Central)

18. 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)

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

20. Question I Special Instructions: 2014 v. 2015 2014 Q1 Divided into Three Sub-Questions: One each for Custom, 1 st Possession, Escape 2015 Q1 Divided into Two Sub-Questions: Two of the Three ACs Topics

21. Question I Special Instructions: 2015 2015 Q1 Divided into Two Sub-Questions: Two of the Three ACs Topics The two sub-questions will be weighted roughly equally; allot your time accordingly. –Roughly here means I might adjust balance a bit depending on what I see in your answers. –Last year I weighted escape sub-question 20% more than other two because students on avg spent much more time on it.

22. 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.

23. 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 applies to facts and whether it should be binding as law.

24. 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. Pierson Dissent: Can only use in ways that aren’t inconsistent with majority and other cases.

25. 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

26. 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.

27. 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)

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

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

30. 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

31. 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.

32. Question I: Preparation Be very solid on authorities. Review –Pre-Midterm Exam Tips –Posted Comments on Written Assignments Look at comments/models for XQ1s. Do at least one under exam conditions

33. Exam Technique: Question II Assess Application of ACs by Analogy

34. 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?”

35. Question II: 2015 Special Instructions You will need to address either 1 st Possession ACs or Escape ACs In language of Q2, I will specify which. Even if Q1 includes both topics, you will only need to address one of them for Q2

36. 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.

37. 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.

38. 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

39. 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

40. 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…) –Details re Facts of ACs –Arguments re Who Gets Property Rights

41. Question II: Common Problems & General Advice (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

42. Question II: Common Problems & General Advice 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, but not great idea

43. Question II: Common Problems & General Advice 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?

44. 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.

45. 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 live whales –Maybe NL for sunken treasure different from regular treasure (being on ocean bottom)

46. 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.”

47. Question II: Common Problems & General Advice 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)

48. Question II: Preparation andBe Solid on Operation of ACs Tests & Factors and 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 at least 1 under exam conditions

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

50. Exam Technique: Question III Takings Opinion/Dissent

51. Question III: Maryland

52. Instructions for QIII: Compose drafts of the analysis sections of a majority opinion for the U.S. Supreme Court and of a separate dissent, deciding whether there was an unconstitutional Taking of Lauren’s property.

53. 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.

54. 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”

55. Question III … of a majority opinion … and of a separate 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.

56. Question III … of a majority opinion … and of a shorter dissent … Must be 2 separate opinions or big penalty 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

57. 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

58. Question III … deciding whether there 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 …”

59. Question III … deciding whether there 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

60. 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.

61. 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?

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

63. 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???

64. 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?

65. 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

66. Question III: Organization & Issues (2014) Organization very similar to 2001 See Posted Comments for List of Hard Qs Covered See Models (especially first one) for examples of doing 2 sides on hard Qs and reasonable organization.

67. 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.

68. 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 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.

69. 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)

70. Question III: Common Problems Conclusory Application of Tests/Arguments BECAUSE … –Case here is just like Hadacheck BECAUSE … BECAUSE … –Gov’t here is acting as arbiter BECAUSE … Arguing w Property Values in Findings of Fact –If Property still worth $250,000, not zero value –Fair Market Value should include all foreseeable uses of parcel; don’t tell me it could be higher –2015: Distinction Between Value of Parcel & Value of Business Goodwill

71. Question III: Common Problems Arbitrariness Arguments (Don’t !!)Arbitrariness Arguments (Don’t !!) –Means completely without any rational basis or decisions left to chance or random people (Result: gov’t can’t do even if compensating) –Line-drawing or regulations you hate unlikely to be arbitrary. –2014: Finding that state chose best available site for Quarantine Center (still some arbitrary claims) Ackerman Bad Joke:Ackerman Bad Joke: –Refers to idea that claimant still has Property –Big loss in value is not if viable parcel (Hadacheck) –Doesn’t refer to public response to govt act

72. Question III: Preparation Be very solid on what authorities say invidually and together. Look at old comments/models. Do at least 1 under exam conditions And finally ….

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

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

75. Logistics: Before & After

76. Logistics: Before My Availability IFI will respond to E-mail Qs sent before 6pm on Tue 12/1 IF –Reasonable Number –Manageable (NOT “Please Explain Demsetz”) Remaining Office Hours (on Course Page): –Tomorrow @ 9 am-1pm; 2-6 pm

77. 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 )

78. Logistics: After Assignments/Briefs Status Report on Assmt #2Status Report on Assmt #2 You’ll get Comments/Scores for Assmt #3 and 2d Brief and Scores for Assmt #2 Back in Packet after Grades Released.

79. 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.

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