Scoring answers to fact-pattern essay questions: examples based on the Flower (adultery) exercise
LL&V §§FGH1 & H2IJ // Prof. Garet // Fall, 2011
Example 1: This essay states and analyzes issues. Each sentence adds credit for work performed.
Can some “continuing affair between persons of the same sex” [X] count as “adultery” [Y1] within
the meaning of RS 100?
If the answer to that question is no, then you should grant Blanche’s motion to dismiss. If the answer
is yes, you may need to further specify what acts between persons of the same sex constitute such
adultery (question of law), before you can decide the corresponding question of fact (did Blanche
engage in those acts).
The best justification for considering the adultery of one spouse when dividing the marital assets in a
½ fault-based divorce is that the adulterous spouse’s fault has injured the innocent spouse. The spouse at
fault doesn’t deserve what would otherwise be his or her full share of the marital assets, and the
innocent spouse deserves some compensation for the injury wrongfully done him or her by the
adulterous spouse.
This moral purpose, reflected in the words “fault” and “innocent” in RS 100, would be served by
treating X as an instance of Y.
Thus David argues that a purposive and textualist analysis of RS 100 reinforce one another and reach
the same result.
Example 2: An essay that reflects misunderstandings of the point of law school fact-pattern essay questions.
You have asked for my advice on the issues in the Flower case. David seeks a fault-based divorce
from Blanche under RS 100. RS 100 provides for fault-based divorce in the event of adultery.
Delaware also has a criminal divorce statute, RS 600. Blanche would rather have a no-fault divorce
under RS 200.
½ The issue is whether David should get a bigger share than Blanche of the marital assets once they’re
divorced.
½ David deserves a bigger share because Blanche is the one at fault.
There are three methods of statutory interpretation: textualism, intentionalism, and purposivism.
Intentionalism would make the outcome depend on facts about legislative intent. Purposivism would
make the outcome depend on claims about the statute’s purpose or best justification.
Scalia would want us to analyze the statute’s text.
Point: States issue (question of law).
Point: Positions issue (question of law)
within a logical sequence geared to the
ultimate question(s) presented.
Point: Offers a persuasive reason
responsive to the question of law. Halfpoint: Begins to offer an authorizing
reason to lay a foundation for the
persuasive reason.
Point: Offers further support for the
claim about RS 100’s purpose.
Point: Situates the persuasive and
authorizing reasons in methods of
statutory interpretation.
Some sentences do no work.
No points: Restates information
supplied in the fact pattern
Half-point: This is the ultimate issue,
but the question of law has not been
identified.
Half-point: This reason should be
stated more specifically and related to
the language, intention or purpose of
the statute, and/or precedent.
No points: The observation is correct
but it does not advance the analysis.
Essay is summarizing course, not
applying or analyzing.
No points: Go ahead and analyze the
statute’s text!