Law School Strategies Lecture

Scoring the Most Points on Law School Exams

Where the Points Are and How to Earn Them

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

TEST QUESTIONJoey, a high school student, writes a poem for an “underground” student paper that has been published every year by the school’s students since the late 1960’s. Throughout paper’s 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 student’s 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 Joey’s 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 poem’s 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.

True Threata. 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

MediocreA 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.

BetterLying in wait to stab an ex-girlfriend “a thousand times” is an expression of an intent to do harm to another.

Better StillLying 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 poet’s 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 Joey’s intent to harm Julie.

Effective Application of a Rule to a Fact

Characteristics of a Strong Application of Rule to Fact

True Threata. 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 poet’s 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 Joey’s 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 fact’s 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, Julie’s 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.

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 fact’s 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

How a Professor Might Create a Test Question

1. Determine the rules to be put in tension2. Create facts implicating each of those rules3. 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

True Threata. “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 anotherb. 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 Standarda. The school may censor expression that could reasonably be perceived to bear the

imprimatur of the school.b. The school’s actions must be reasonably related to legitimate pedagogical concerns

Tinker Standarda. May discipline student for speech which materially and substantially interferes with the

requirements of appropriate discipline in the operation of the schoolb. Punishment must be rationally related to the offense and, therefore, may not be grossly

disproportionate to the offense

Three Rules to Put into Play

True Threata. “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

FactsStudent 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.

Hazelwood Standarda. The school may censor expression that could reasonably be perceived to

bear the imprimatur of the school.b. The school’s actions must be reasonably related to legitimate

pedagogical concerns

New FactsHigh 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 student’s 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 poem’s 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.

Tinker Standarda. 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 FactsJoey, a high school student, writes a poem for an “underground” student paper that has been published every year by the school’s students since the late 1960’s. Throughout paper’s 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 student’s 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 Joey’s 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 poem’s 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.

School:True threat existed

Student:No true threat existed

Conclusion: School would likely prevail because . . . .

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 student’s lawyer won’t simply roll over. She’ll contest the expulsion itself. Therefore, you have a correlative issue: Was expulsion a reasonable response to the threat?

True Threata. “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 anotherb. Punishment for a true threat must be reasonable discipline which is appropriate and proper under the circumstances to protect the safety of the school

ResultSchool wins: no violation of student’s right to free expression

Done?No. What if the court were to rule the other way on threat or punishment?

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

Student

Must apply Tinker test

School

Not sofast. HazelwoodTest 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 anotherb. Punishment for a true threat must be reasonable discipline which is appropriate and proper under the circumstances to protect the safety of the

school

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 student’s 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

Creating a Transition to Issues Springing from Alternative Conclusions

If the court were to conclude instead that no true threat existed, the school’s 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.

Linear OutlineFirst Issue: Was the poem a “true threat”?

A. School’s Position (poem was a true threat)• named target• “stab 1K” = intent to injure• heartbroken = serious,

unstable• same school = intent to

threaten target

B. Student’s 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. School’s position (expulsion was reasonable)

• Argument 1• Argument 2• Argument 3• Argument 4

C2. Student’s 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 Joey’s 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 school’s control.

Linear Outline (planning outline before writing answer)

Concl: Punish approp & proper: no violation

Trans: If threat, school arg Hazelwood

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 . . . .

SchoolExpulsion 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 Standarda. The school may censor expression that could reasonably be perceived to bear the imprimatur of the school.b. The school’s actions must be reasonably related to legitimate pedagogical concerns

School:Material, substantial disruption

StudentNo 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?

ResultStudent wins

Tinker Standarda. Speech which materially and substantially interferes with the requirements of appropriate discipline in the operation of the schoolb. Punishment must be rationally related to the offense and, therefore, may not be grossly disproportionate to the offense

Linear Outline (preliminary outline of answer)First Issue: Was the poem a “true threat”?

A. School’s Position (poem was a true threat)• named target• “stab 1K” = intent to injure• heartbroken = serious,

unstable• same school = intent to

threaten target

B. Student’s 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. School’s position (expulsion was reasonable)

• Argument 1• Argument 2• Argument 3• Argument 4

C2. Student’s 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 Joey’s right to free speech.

Linear View (brief outline of answer) (cont’d)

Second Issue: Was the poem a “school-sponsored” expression?

School’s Position (If the poem was not a true threat, it was nevertheless a school-sponsored expression unsuited to its audience.)• • • •

Student’s 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?

School’s position (If the poem was school-sponsored expression, expulsion was reasonable)• • •

Student’s 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 Joey’s right to free speech.

Linear View (brief outline of answer) (cont’d)

Third Issue: Was the poem a materially and substantially disruptive expression?

School’s Position (Material, substantial disruption; interfered with rights of others)• • • •

Student’s 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?

School’s position (Expulsion was rationally related to offense)

• • •

Student’s position (Even if the expression were deemed school-sponsored, expulsion was an unreasonable response.)• • •

Conclusion: Expulsion was grossly disproportionate to offense and therefore unreasonable

School sponsored

No

Material disruption

Yes

Expulsionrational(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 ThreatYes

True ThreatSchool’s Position• • •

Student’s Position• • •

Your Conclusion

PunishmentSchool’s Position• • •

Student’s Position• • •

Your Conclusion

Transition

School-sponsoredSchool’s Position• • •

Student’s Position• • •

Your Conclusion

PunishmentSchool’s Position• • •

Student’s Position• • •

Your Conclusion

Transition

Material DisruptionSchool’s Position• • •

Student’s Position• • •

Your Conclusion

PunishmentSchool’s Position• • •

Student’s Position• • •

Your Conclusion

Overall ConclusionBecause the court is likely to consider the poem a true threat and the punishment a reasonable response to the threat, Joey’s claim will fail . . . .

Outline of Answer