ELEMENTS%20REVIEW%20SESSION:%20ORDER%20OF%20PROCEEDING

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ELEMENTS REVIEW SESSIONORDER OF PROCEEDING

• General Info on Preparation My Exam
• Exam Technique
• Generally
• QI Issue-Spotter
• QII Strength of Analogy
• QIII Opinion/Dissent
• Logistics
• Questions

MUSIC
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General Info on Preparation My Exam
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General Preparation Advice

• Two Thoughts on Curves Class Rank
• Long Run
• Short Run
• Pace 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
• Cant Do Useful Work for 4-5 Hours After Tests
  (Good Option Unchallenging Movies)

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Elements PreparationBest Prep is Old Exam Qs

• Do some of each Q under exam conditions.
• Review in groups if possible.
• Read comments even for ones you dont do
• Model answers neither complete nor perfect
• Use to see organization/style I like
• Use to see some possible ways to analyze
• More recent Qs/Comments/Models better indicators
  of what Im looking for

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Structure of Exam

• Three Questions
• One of Each Type Ive 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.
• Ill post this version of syllabus on Course Page
  
• Try working with it when you do Practice Qs

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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 (Id Recommend)
• Use about 15 minutes on each Q
• Read it again carefully
• List major points youd like to discuss
• Choose order to make rough outline
• Do last in reading period Q you want to write
  first

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Exam Instructions

• Ill 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

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Exam Technique Generally
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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 Exams

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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.,
• Dont 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.

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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

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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)

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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 ? 1st Initial
• Recurring phrases ? NL DIBE
• Use single party name to refer to cases (e.g.,
  Pierson, Shaw, Taber, Mahon, Penn Central)

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Exam Technique Generally

• Reality TV Challenges
• Use pre-selected components to complete
  assignment in unrealistic time frame
• Qs are hard to resolve dont 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)

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Exam Technique Question I Issue-Spotter Using
Animals Cases (ACs)
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Question I 2014 Special Instructions

• Based on the Fact Pattern Below,
• Discuss whether, in resolving the dispute between
  Julian and Kayla, the custom of xxx should be
  treated as legally binding?
• Assuming the custom of xxx is not legally
  binding, discuss whether, under the First
  Possession Animals Cases, Julian or Kayla owns
  MLE-2D?
• Discuss whether, under the Escaping Animals
  Cases, Nick or Stephanie owns ZAC-3B?

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Question I 2014 Special Instructions

• Based on the Fact Pattern Below,
• Discuss whether, in resolving the dispute between
  Julian and Kayla, the custom of xxx should be
  treated as legally binding?
• Assuming the custom of xxx is not legally
  binding, discuss whether, under the First
  Possession Animals Cases, Julian or Kayla owns
  MLE-2D?
• 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

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Question I 2014 Special Instructions

• Based on the Fact Pattern Below,
• Discuss whether, in resolving the dispute between
  Julian and Kayla, the custom of xxx should be
  treated as legally binding?
• Assuming the custom of xxx is not legally
  binding, discuss whether, under the First
  Possession Animals Cases, Julian or Kayla owns
  MLE-2D?
• 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

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Question I 2014 Special Instructions

• Based on the Fact Pattern Below,
• Discuss whether, in resolving the dispute between
  Julian and Kayla, the custom of xxx should be
  treated as legally binding?
• Assuming the custom of xxx is not legally
  binding, discuss whether, under the First
  Possession Animals Cases, Julian or Kayla owns
  MLE-2D?
• Discuss whether, under the Escaping Animals
  Cases, Nick or Stephanie owns ZAC-3B?
• Cons of Sub-Questions

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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.

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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.

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Question I Use of Authority

• Other Authorities (NOT ACs)
• Demsetz Rose Can use to support policy
  arguments or particular interpretations of ACs,
  but dont use as primary authorities.
• Oil Gas Cases Can use as examples of how you
  might apply ACs, but dont use as primary
  authorities.

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Question I What Im Looking For

• For Each Sub-Question
• Identify the Most Important Issues
• Quality of Analysis
• Clear Presentation
• Quantity of Relevant Points Made

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Question I What Im Looking For

• 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 wouldnt fight about it, address it
  quickly or not at all.

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Question I What Im 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)

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Question I What Im Looking For

• 2. Quality of Analysis
• Work with/compare relevant authority
• Defend key positions thoroughly
• Push toward resolutions (Limit)

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Question I What Im Looking For

• 3. Clear Presentation
• Discuss one issue at a time
• Use headings to indicate transitions
• Make logic of arguments apparent

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Question I What Im 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

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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.

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Question I Preparation

• Be very solid on authorities.
• Review
• Pre-Midterm Exam Tips in Info Memo 2
• Comments on Assmt1 Assmt 2
• Look at comments/models for XQ1s.
• Do some under exam conditions

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Exam Technique Question IIAssess Application
of ACs by Analogy
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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?

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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.

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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 dont apply them to
  make arguments about which party should win.

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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 dont treat as part of the ACs.

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Question II When Grading, I Reward

• 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

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Question II When Grading, I Reward

• Identification 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)
• Identification of One or More Plausible
  Alternatives and Thoughtful Discussion of Pros
  Cons as Against ACs

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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

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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

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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

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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 thats important in
  the new situation?
• Is it easy to use?
• Does it tend to lead to results we like?

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Question II Common Problems General Advice

• Could Not v. Should Not
• Be Careful Arguing that Factor from ACs Couldnt
  Possibly Apply to the New Situation
• Even if it doesnt 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.

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Question II Common Problems General Advice

• Could Not v. Should Not
• Be Careful Arguing that Factor from ACs Couldnt
  Possibly Apply to the New Situation
• Common Problematic Argument Property in Q is
  Not Alive, So Cant 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)

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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 Doesnt
  Address a Key Concern Covered by an AC Factor
• BUT if 1-2 ACs Factors Dont Work Well, Doesnt
  Mean Alternative is Better (Swiss Army Knife)

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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

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BREAK

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

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Exam Technique Question IIITakingsOpinion/Diss
ent
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Instructions for QIIICompose 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 Ashleys property.
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Question III

• Compose drafts
• As with issue-spotter, can include headings,
  bullet points, abbr., etc.
• Present concise versions of arguments, not
  rhetoric (dont get carried away with role)
• Dont need fancy language, transitions, etc.

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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

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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 sides
  best arguments.

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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 dont care who wins

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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 Dont Feel Very Sure of

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Question III

• deciding whether xxx was an unconstitutional
  Taking .
• Treat my facts as given (dont argue with
  Question)
• Think about why particular facts are there
• Can use particular case youre given as example
  or as counterexample
• The case before us demonstrates why
• We think this case is not typical because

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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
• Dont make cute legal or procedural arguments to
  allow you to avoid addressing the hard Qs

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Question III Organization

• Almost always will need
• some discussion of harm to claimants 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.

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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?

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Question III Organization (2001)

• One Opinion
• View as Separate
• If Separate, Intf w DIBE

• Other Opinion
• View Together
• If Together, No Loss

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Question III Organization (2001)

• One Opinion
• View as Separate
• If Separate, Intf w DIBE
• Govt Purpose Insufficient to Justify

• Other Opinion
• View Together
• If Together, No Loss
• Because No Loss, No Need to Address Purpose???

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Question III Organization (2001)

• One Opinion
• View as Separate
• If Separate, Intf w DIBE
• Govt Purpose Insufficient to Justify

• Other Opinion
• View Together
• If Together, No Loss
• If Separate
• Could Concede re DIBE
• OR Enough Left so OK?

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Question III Organization (2001)

• One Opinion
• View as Separate
• If Together, Concede No Loss OK
• If Separate, Intf w DIBE
• Govt Purpose Insufficient to Justify

• Other Opinion
• View Together
• If Together, No Loss OK
• If Separate
• Could Concede re DIBE
• OR Enough Left so OK?
• Govt Purpose Sufficient to Justify

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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.

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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.

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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)

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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 .

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Question III

• If you choose to give names to your judges (you
  dont have to)
• Majority (Sophocles, J.)
• Dissent (Homer, J.)

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Question III

• Dont use your name as the name of one of the
  judges!!
• Doh!
• Majority (Sophocles, J.)
• Dissent (Homer, J.)

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LogisticsBefore After
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Logistics Before

• My Availability
• I 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 _at_ 1-5 pm
• Sunday 11/30 _at_ 1-5 pm
• Monday 12/1 _at_ 10 am-2pm 4-8 pm
• Tuesday 12/2 _at_ 9 am-1pm 2-6 pm (recheck)

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Logistics Before

• To Be Posted on Course Page
• Before Thanksgiving _at_ Noon
• Exam Instructions Condensed Syllabus
• These Slides
• Sample Briefs for Whaling Cases
• Comments Models re Assignment 3 from 2012
• 1st Installment of Feedback on Your Assmt 3

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Logistics Before

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

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Logistics After

• Generally
• By tradition, Ill be on the bricks at the end of
  the scheduled exam time
• Ill post grading progress on Course Page (more
  regularly than I have been ?)

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Logistics After

• Assignments/Briefs
• Once youve taken test, Ill no longer post
  comments on course page.
• Starting after your last exam, as I complete
  assignments/briefs, well e-mail comments
  scores to you.

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Logistics After

• Exam Feedback
• Once grades are posted, Ill 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!)
• Ill set a schedule of times to meet with you to
  review your work if you wish.

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Very Last Slide!

• Qs on Exam Structure or Logistics?
• Qs on Technique for Particular XQs?