Legal Commentary

The folks at the WSJ Law Blog have a terrific item asking a number of leading law professors what constitutes a good law school exam answer.  I'm in agreement with most of the answers, and find it interesting that they tend to break down into a few simple pieces of advice with relatively little contradiction -- but just enough to be interesting.

1) Give an answer.  Several of the profs made this point, and Heather Gerken is especially persuasive on the topic.  She is right that one sees many answers that give a nice, on-the-one-hand, on-the-other-hand examination of the opposing doctrines and currents that might lead to one answer or the other.  Of course, that's much of what we learn in the law school, and profs around exam time tend to emphasize that we don't want "conclusory" answers, answers that are so busy saying what the student thinks is the correct outcome that they don't show their work, as they say in math class.  But Gerken is also right that one of the things we're trying to teach is judgment, and that even if we care less about the "right" answer and in fact drafted our questions to allow for more than one reasonable answer, we want to see that you are capable of reaching a conclusion about which is the best answer and justifying it.  Now, Paul Secunda does suggest in the post that we also want to see "maybes."  I don't know whether Paul also looks for an answer, but I don't think there is necessarily a contradiction,  Of course I want to see that you are aware of every forking path in your answer, but that does not mean I don't want to see any effort to draw conclusions about which is the best path.

2) Write the answer today, not yesterday.  Richard Friedman and, implicitly I think, Adam Winkler make this suggestion.  I always tell my con law students that just because we spend time on Marbury v. Madison (I know, I know), that doesn't mean any question involving a constitutional question decided in court requires a canned paragraph on the nature and history of judicial review.  Your answer should be directed at the question in a fine analytical fashion rather than just rehearsing canned legal points.  Not to say there's no room for stating the rule, but you should be doing so for a reason.  Adam talks about rigorous analysis, and we could phrase this as a separate recommendation, but we could also see rigorous organization and analysis as part and parcel of addressing the question before you rather than what you assume must be on the exam.

3) Remain human.  A couple of the posters make this point, and it's a good one.  If your answer demands that you conclude that some seemingly innocuous or fundamental law be struck down root and branch, with enormous implications for every other statute on the books, then, hey, maybe that should make you pause for a moment.  (See "judgment, legal.")  You might well want to pursue that course of analysis, but perhaps you should recognize that there is another potential side to the answer.  Legal judgment is a specialized form of judgment, but even 1Ls (especially 1Ls!) should not forget the dollop of common sense they brought with them to law school, which continues to apply even on law school exams.  Note that at least one of the profs also suggests that he'd like to hear you express a "value judgment" about whether the result is "good or fair or just."  There I must disagree.  I certainly won't mark down for it if you've done the rest of your work, and it may well add something to the answer.  But I -- and, I venture, most profs -- are less interested in your "feelings" about a result than, perhaps, about your professional judgment about whether a result is legally good or fair or just.

4) Finally, write poetry.  Pam Karlan of Stanford writes this one, and I imagine that many law student readers of this post will gnash their teeth at it.  But what she means is a little different.  She argues that every word in the answer should be there "for a reason," and show the capacity to make "creative arguments in a conventional form."  That is excellent advice.  I might add that economy and precision don't preclude a sense of grace or style, even on law school exams, and that although you can't skate endlessly far on style alone, a certain verve in your writing won't hurt and may make the process more joyous for both of us.  

Let me add to this my standard recommendation for law school exams, which in its own way incorporates each of these pieces of advice.  Write a good legal research memo.  Legal research and writing is not one of those courses that you have to take and that has nothing to do with the rest of your legal education.  It has everything to do with it.  The more you have practiced and internalized the art (and it is an art, of sorts) of capturing your thoughts and analysis in a rigorous, concise, organized fashion, with headings, topic sentences, and all the rest of it, so that you can convey your views carefully and thoroughly but without excess verbiage, the better you will be able to use this format on law school exams, to your great advantage.  The better organized and clearer your answer is, the more time you will have for the actual analysis and the easier it will be for the groggy grader, who is in the middle of reading 80 exams, to see that you have indeed spotted and dealt with every issue.  Moreover, as with any writing genre, the more you have mastered the basic mechanics, the less you'll be struggling with them while you write, and thus the more you'll be able to focus on the task at hand and even bring a certain sense of both humanity and style into the mix.  Also, legal writing is what you'll be doing with a vast amount of your time once you're in practice, so it's best to get that skill comfortably under your belt now, and not when some partner leaves you a voice-mail on Friday afternoon about something that absolutely has to get written this weekend (and which she will actually read about ten days later).

Comments are welcome, of course.  Good luck!