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Law School Strategies Lecture Scoring the Most Points on Law School Exams Where the Points Are and How to Earn Them.

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Presentation on theme: "Law School Strategies Lecture Scoring the Most Points on Law School Exams Where the Points Are and How to Earn Them."— Presentation transcript:

1 Law School Strategies Lecture Scoring the Most Points on Law School Exams Where the Points Are and How to Earn Them

2 What skills are law school exams testing? Knowledge of the law Specific rules Connections among rules Overarching themes within a body of law How the rules apply – their limits, ambiguity, and uncertainties Ability to state and apply the law accurately to state the relevant rules accurately to make clear how the facts do or do not satisfy the rules to form reasonable conclusions about likely results, given the law and facts Ability to think about factual situations the way lawyers do to see that issues are often a collision between more than one right answer to articulate the reasonable arguments on all sides of an issue to evaluate the quality of those arguments and explain why one set should prevail over another

3 TEST QUESTION Joey, a high school student, writes a poem for an underground student paper that has been published every year by the schools students since the late 1960s. Throughout papers existence, the school has allowed it to be distributed, and it has long been a point of pride among students that they publish it on their own, apart from the school. They have voluntarily solicited advice from teachers and administrators on several occasions when they have been concerned that a particular article or piece of art might be too inappropriate for publication. The poem, about a rejected lover who cannot get over his girlfriend, Julie, contains a verse that says, Last night I dreamed I lay under your bed/ Waiting to stab you a thousand times. The students ex- girlfriend, over whom he has been famously heartbroken at school, is also named Julie and attends the same school. The publication of the poem has caused several students and teachers to voice fears that Joey may not be entirely stable and may be capable of doing something terrible at school. In addition, several boys have been rumored to have said they were going to catch Joey alone and beat him up. Those rumors have inspired some of Joeys friends to vow to mess up anyone who is thinking of going after Joey. Julie complained to the principal and said that she did not feel safe around Joey, given the poems contents. The principal agreed and recommended expulsion to the school board. Joey has never been in any serious trouble at school before, although he has been reprimanded for talking tough to other students and does hang out with a rough group of boys who have been involved in fights at school events, such as basketball and football games. The board held formal hearings comporting with all due process procedural requirements and expelled Joey. Joey has filed suit, claiming violation of his free speech rights and his substantive due process rights. Discuss.

4 True Threat a. A true threat is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another Mediocre A true threat must contain an expression of an intent to harm another. The poem said that the narrator dreamed about stabbing his ex-girlfriend a thousand times. Therefore, the poem contained an expression of intent to harm another. Better Lying in wait to stab an ex-girlfriend a thousand times is an expression of an intent to do harm to another. Better Still Lying in wait to stab an ex-girlfriend a thousand times can quite reasonably be interpreted as an expression of an intent to do harm to another. That it was a dream does not detract from the violence inherent in the image, and a reasonable person would be hard pressed to suggest the image itself is not one of harming or causing injury to another. When that image is combined with the facts that the fictional ex-girlfriend has the same name as the poets ex-girlfriend and that the poet is still famously heartbroken, much like the narrator, the real Julie and school officials reached a reasonable conclusion that the dream was a serious, not-so-subtle threat expressing Joeys intent to harm Julie. Effective Application of a Rule to a Fact

5 Characteristics of a Strong Application of Rule to Fact True Threat a. A true threat is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another Lying in wait to stab an ex-girlfriend a thousand times can quite reasonably be interpreted as an expression of an intent to do harm to another. That it was a dream does not detract from the violence inherent in the image, and a reasonable person would be hard pressed to suggest the image itself is not one of harming or causing injury to another. When that image is combined with the facts that the fictional ex-girlfriend has the same name as the poets ex-girlfriend and that the poet is still famously heartbroken, much like the narrator, the real Julie and school officials reached a reasonable conclusion that the dream was a serious, not-so-subtle threat expressing Joeys intent to harm Julie. The focus of each sentence containing a fact is what that fact means. how it should be interpreted how it does or does not satisfy a portion of the rule what specific language from the rule the fact does or does not satisfy why, precisely, the fact does or does not satisfy the rule A fact never exists in a stand-alone sentence that merely states the existence of the fact The explanation of that facts meaning utilizes other facts where appropriate to support that interpretation The explanation of what the fact means is connected to the application of the rule to other relevant facts In addition, Julies attendance at the same school in which the paper was distributed makes it even more reasonable for the school officials to have concluded that Joey intended Julie to read the threat and take it as directed toward her.

6 Characteristics of a Strong Application of Rule to Fact The focus of each sentence containing a fact is what that fact means. how it should be interpreted how it does or does not satisfy a portion of the rule what specific language from the rule the fact does or does not satisfy why, precisely, the fact does or does not satisfy the rule A fact never exists in a stand-alone sentence that merely states the existence of the fact The explanation of that facts meaning utilizes other facts where appropriate to support that interpretation The explanation of what the fact means is connected to the application of the rule to other relevant facts

7 How a Professor Might Create a Test Question 1.Determine the rules to be put in tension 2.Create facts implicating each of those rules 3.Revise the facts to create ambiguity and multiple reasonable positions and outcomes on which rules apply and how the facts do or do not satisfy those rules

8 True Threat a.True threat is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another b.Punishment for a true threat must be reasonable discipline which is appropriate and proper under the circumstances to protect the safety of the school Hazelwood Standard a.The school may censor expression that could reasonably be perceived to bear the imprimatur of the school. b.The schools actions must be reasonably related to legitimate pedagogical concerns Tinker Standard a.May discipline student for speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school b.Punishment must be rationally related to the offense and, therefore, may not be grossly disproportionate to the offense Three Rules to Put into Play

9 True Threat a.True threat is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another b.Punishment for a true threat must be reasonable discipline which is appropriate and proper under the circumstances to protect the safety of the school Facts Student leaves a note on the desk of a former girlfriend, stating that he would love to wait under her bed some night until she is asleep and then stab her a thousand times. The note is turned in to the principal, who recommends expulsion to the school board. The board holds formal hearings comporting with all due process procedural requirements and expels the student. The student sues, claiming violation of his free speech rights and his substantive due process rights. Discuss.

10 Hazelwood Standard a.The school may censor expression that could reasonably be perceived to bear the imprimatur of the school. b.The schools actions must be reasonably related to legitimate pedagogical concerns New Facts High school student, who is an editor for the school newspaper, writes a poem for the paper and includes it after the paper has been reviewed by the principal prior to publication. The poem, about a rejected lover who cannot get over his girlfriend, Julie, contains a verse that says, Last night I dreamed I lay under your bed/ Waiting to stab you a thousand times. The students ex-girlfriend, over whom he has been famously heartbroken at school, is also named Julie and attends the same school. Julie complains to the principal and says that she does not feel safe around the student, given the poems contents. The principal agrees and recommends expulsion to the school board. The board holds formal hearings comporting with all due process procedural requirements and expels the student. The student files suit, claiming violation of his free speech rights and his substantive due process rights. Discuss.

11 Tinker Standard a.May discipline student for speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school b.Punishment must be rationally related to the offense and, therefore, may not be grossly disproportionate to the offense New Facts Joey, a high school student, writes a poem for an underground student paper that has been published every year by the schools students since the late 1960s. Throughout papers existence, the school has allowed it to be distributed, and it has long been a point of pride among students that they publish it on their own, apart from the school. They have voluntarily solicited advice from teachers and administrators on several occasions when they have been concerned that a particular article or piece of art might be too inappropriate for publication. The poem, about a rejected lover who cannot get over his girlfriend, Julie, contains a verse that says, Last night I dreamed I lay under your bed/ Waiting to stab you a thousand times. The students ex-girlfriend, over whom he has been famously heartbroken at school, is also named Julie and attends the same school. The publication of the poem has caused several students and teachers to voice fears that Joey may not be entirely stable and may be capable of doing something terrible at school. In addition, several boys have been rumored to have said they were going to catch Joey alone and beat him up. Those rumors have inspired some of Joeys friends to vow to mess up anyone who is thinking of going after Joey. Julie complained to the principal and said that she did not feel safe around Joey, given the poems contents. The principal agreed and recommended expulsion to the school board. Joey has never been in any serious trouble at school before, although he has been reprimanded for talking tough to other students and does hang out with a rough group of boys who have been involved in fights at school events, such as basketball and football games. The board held formal hearings comporting with all due process procedural requirements and expelled Joey. Joey has filed suit, claiming violation of his free speech rights and his substantive due process rights. Discuss.

12 School: True threat existed Student: No true threat existed Conclusion: School would likely prevail because.... School: Expulsion was reasonable Student: Expulsion was unreasonable Issue: Was the poem a true threat? Julie = real target stab 1K times = intent to cause injury famously heartbroken = could reasonably be considered serious Same school = intent to convey threat to recipient Poem = art (fiction), thus not serious expression of intent I dreamed = not real, only an unconscious image; not real desire (not serious expression of intent) No history of violence to suggest propensity for carrying out threat, so not reasonable to believe he would truly intend to carry out talking tough does not suggest willingness to stab anyone a thousand times; no basis for reasonable interpretation of line as serious expression of intent to harm Finished? No. The students lawyer wont simply roll over. Shell contest the expulsion itself. Therefore, you have a correlative issue: Was expulsion a reasonable response to the threat? True Threat a.True threat is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another b.Punishment for a true threat must be reasonable discipline which is appropriate and proper under the circumstances to protect the safety of the school Result School wins: no violation of students right to free expression Done?No. What if the court were to rule the other way on threat or punishment?

13 School: True threat existed Student: No true threat existed Conclusion: Student would likely prevail because.... Conclusion: School would likely prevail because.... School: Expulsion was reasonable Student: Expulsion was unreasonable S t u d e n t Must apply Tinker test S c h o o l Not so fast. Hazelwood Test applies. Issue: Was the poem a true threat? No. First address the issue that would spring from the opposite conclusion. Move on? Result School wins a.True threat is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another b.Punishment for a true threat must be reasonable discipline which is appropriate and proper under the circumstances to protect the safety of the school

14 Creating a Strong Conclusion The school is likely to prevail on this issue because, in the era of Columbine and Virginia Tech, a court will be strongly inclined to defer to the judgment of the principal who was in the school and knew the students. Courts normally are reluctant to second guess school officials who are in the trenches and charged with making daily decisions concerning the discipline and safety of students because those officials need to be able to use their best judgment without the fear of liability imposed with 20/20 hindsight. A court would consider it especially unwise to second guess this principal, given the reasonableness of an interpretation that the poem contained a threat. Although the students argument has the virtue of protecting the right of expression, a virtue especially suited to the public school, whose main purpose is to prepare to students to participate meaningfully in our constitutional democracy, when that purpose is balanced against the duty to protect the physical safety of the students, doubt should probably be resolved in favor of protecting the students from what could reasonably be interpreted as a deadly threat. Something is lost, of course, when a piece of art is treated as if it were more real than fictional; but right of free expression in school need not trump the right of students to be secure from deadly attacks from fellow students. Characteristics Evaluates both arguments in explicit terms States a clear result Roots the result in policies that drive the courts when they consider school officials decisions Focuses on why the school wins

15 Creating a Transition to Issues Springing from Alternative Conclusions If the court were to conclude instead that no true threat existed, the schools fallback position would be that the poem bore the imprimatur of the school and was therefore fall under the Hazelwood standard, giving the school great leeway in dealing with the expression.

16 Linear Outline First Issue: Was the poem a true threat? A. Schools Position (poem was a true threat) named target stab 1K = intent to injure heartbroken = serious, unstable same school = intent to threaten target B. Students Position (poem was not a true threat) fiction not exp of intent dream not exp of real intent no history of violence = no reasonable belief talking tough not stab 1K, not reasonable interp Conclusion: The school would likely prevail because.... Correlative Issue: If poem was a true threat, was expulsion reasonable? C 1. Schools position (expulsion was reasonable) Argument 1 Argument 2 Argument 3 Argument 4 C2. Students position (expulsion was unreasonable) Argument 1 Argument 2 Argument 3 Argument 4 Conclusion: Punishment was appropriate and proper to protect safety of school because.... Therefore, the school did not violate Joeys right to free speech. Transition: If, however, the court concluded that the poem was not a true threat, the school would then argue that it bore the imprimatur of the school and was therefore subject to the schools control. Linear Outline (planning outline before writing answer) Concl: Punish approp & proper: no violation Trans: If threat, school arg Hazelwood

17 School: School-sponsored student expression Student: Not school- sponsored Conclusion: The student has the stronger argument because.... Conclusion: Court would probably conclude that expulsion was unreasonable because.... School Expulsion reasonably related to legitimate pedagogical concern Student Expulsion not related to legitimate pedagogical concern Issue: Was the poem school-sponsored student expression? Student Must apply Tinker test School Fine. We still win under the Tinker test Result Student would win, even if school-sponsored expression Move on? Of course not. Address the other conclusion. Argument 1 Argument 2 Argument 3 Argument 4 Argument 5 Argument 1 Argument 2 Argument 3 If not school- sponsored expression, does school automatically lose? No. School argues that, under Tinker, it still wins. Hazelwood Standard a.The school may censor expression that could reasonably be perceived to bear the imprimatur of the school. b.The schools actions must be reasonably related to legitimate pedagogical concerns

18 School: Material, substantial disruption Student No material or substantial disruption Conclusion: Was a material and substantial disruption because Conclusion: Expulsion was unreasonable response because.... School: Expulsion was rationally related to offense Student: Expulsion was grossly disproportionate to offense Issue: Did the poem constitute a material and substantial disruption? Result Student wins Tinker Standard a.Speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the school b.Punishment must be rationally related to the offense and, therefore, may not be grossly disproportionate to the offense

19 Linear Outline (preliminary outline of answer) First Issue: Was the poem a true threat? A. Schools Position (poem was a true threat) named target stab 1K = intent to injure heartbroken = serious, unstable same school = intent to threaten target B. Students Position (poem was not a true threat) fiction not exp of intent dream not exp of real intent no history of violence = no reasonable belief talking tough not stab 1K, not reasonable interp Conclusion: The school would likely prevail because..... Correlative Issue: If poem was a true threat, was expulsion reasonable? C 1. Schools position (expulsion was reasonable) Argument 1 Argument 2 Argument 3 Argument 4 C2. Students position (expulsion was unreasonable) Argument 1 Argument 2 Argument 3 Argument 4 Conclusion: Punishment was appropriate and proper to protect safety of school because.... Therefore, the school did not violate Joeys right to free speech.

20 Linear View (brief outline of answer) (contd) Second Issue: Was the poem a school-sponsored expression? Schools Position (If the poem was not a true threat, it was nevertheless a school-sponsored expression unsuited to its audience.) Students Position (poem was not school-sponsored expression) Conclusion: The student has the stronger argument because.... Correlative Issue: If the poem was a school-sponsored expression, was expulsion a reasonable response? Schools position (If the poem was school- sponsored expression, expulsion was reasonable) Students position (Even if the expression were deemed school-sponsored, expulsion was an unreasonable response.) Conclusion: Expulsion was an unreasonable response because.... Under such a formulation, the expulsion violated Joeys right to free speech.

21 Linear View (brief outline of answer) (contd) Third Issue: Was the poem a materially and substantially disruptive expression? Schools Position (Material, substantial disruption; interfered with rights of others) Students Position (No material or substantial disruption or interference with rights of others) Conclusion: Expulsion was unreasonable response because.... Correlative Issue: If the poem was a school-sponsored expression, was expulsion a reasonable response? Schools position (Expulsion was rationally related to offense) Students position (Even if the expression were deemed school-sponsored, expulsion was an unreasonable response.) Conclusion: Expulsion was grossly disproportionate to offense and therefore unreasonable

22 School sponsored No Material disruption Yes Expulsion rational (school wins) Not related to legit concern (student wins ) Grossly dispropor- tionate (student wins) First Issue Second Issue Third Issue Over-all conclusion: Because true threat and reasonable discipline, school prevails Overview of Answer OVER-ALL CONCLUSION True Threat Yes

23 True Threat Schools Position Students Position Your Conclusion Punishment Schools Position Students Position Your Conclusion Transition School-sponsored Schools Position Students Position Your Conclusion Punishment Schools Position Students Position Your Conclusion Transition Material Disruption Schools Position Students Position Your Conclusion Punishment Schools Position Students Position Your Conclusion Overall Conclusion Because the court is likely to consider the poem a true threat and the punishment a reasonable response to the threat, Joeys claim will fail.... Outline of Answer


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