MEMORANDUM 1
To:
Property, Section A
From:
Professor Ira L. Shafiroff
Subject:
Property Final Exam, Fall, 2008
Date:
January 11, 2009
I have prepared this memorandum to assist you in better understanding your
performance on the Property final examination. The memo contains six parts. The first
part is a general overview of the exam. The second part details common mistakes that
students made on the Property final examination. The third part is an annotated model
answer. The fourth part is a self-diagnostic that will enable you, in conjunction with the
grading sheet enclosed with your essay answers, to review your work through active
learning. The fifth part of this memo is miscellaneous observations about your exam
performance. The sixth and final part of this memo is my concluding remarks on the
Property examination.
GENERAL OVERVIEW
This examination was four hours in duration. There were four essay questions.
Each essay had approximately seven issues. 2
First Essay Question
The first essay was a standard regulatory takings question. The initial issue was
whether the denial of the building permit triggered a Lucas total wipeout. Assuming it did
not, the question was whether there was a partial wipeout based on Mahon’s conceptual
severance of a distinct part (and whether that doctrine is even viable in light of Penn
Central, Bituminous Coal, and Tahoe). If there was a wipeout, was it nevertheless not a
taking on the ground that what was involved was controlling a “common law” nuisance,
per Lucas. If there was no per se taking, no wipeout under Lucas or Mahon, was there
still a taking based on the Penn Central ad-hoc analysis? Most students saw these
issues—but many students also wrote on exactions. There was no issue of exactions. I
state here exactly what I stated last semester: Writing on exactions made me wonder if all
that students did was memorize some elements and not really understand the law and its
1
Copyright © 2009 by Ira L. Shafiroff. All rights reserved.
No part of this material may be copied, stored, printed, reproduced, transmitted, or distributed in any
manner or format without the express written consent of the author.
2
For a complete breakdown of the issues, see the grading sheet accompanying the exam on the
Southwestern exam website.
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application. I address this in greater depth in the section, “Writing on Non-Issues,”
below.
Second Essay Question
The second essay question dealt with easements. Initially, the question was
whether there was an express easement: whether the description of the property and
signature requirements of the Statute of Frauds was satisfied. Assuming that there was a
Statute of Frauds barrier to finding an express easement, was there an easement implied
by prior use: quasi-easement, necessity (reasonable), and apparent/continuous. In any
event, was there an easement by necessity and, failing that, an irrevocable license based
on equitable estoppel?
Third Essay Question
The third essay question was a relatively easy landlord-tenant problem. The
principal issues were breach of the covenant of quiet enjoyment and the concomitant
constructive eviction; breach of the implied warranty of habitability (whether the noise
from the lawn mower made the unit unfit for human habitation and whether the structure
was a single family house); frustration of purpose; illegal lease; and unintentional private
nuisance. Note that the breach of the covenant of quiet enjoyment was a simple one based
on the landlord’s affirmative acts. Reference to the expanded view of quiet enjoyment as
per Reste Realty was not relevant. In fact, discussion of that case demonstrated a lack of
understanding of the case. For further elucidation, see the Model Answer.
Fourth Essay Question
The fourth and final essay question dealt with whether the developer could force
Abel to buy bottled water from the developer. The initial issue was whether an implied
reciprocal negative easement was applicable. The vast majority of students simply stated
that this was an IRNE but failed to see the slight twist that I gave: the typical IRNE
involves a restriction but this hypothetical involved an affirmative act (buying water). As
we discussed in class, however, any affirmative act can be made into a negative
restriction: the grantee will not refrain from buying water from the developer. With that
stated, it was easy to proceed to an IRNE. The alternative theory was the burden of the
covenant running with the land at law.
COMMON MISTAKES
The following are some of the more common mistakes made on the exam. 3
Failure to Use Headings
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Many of these mistakes are the same mistakes that I have discussed in prior years. I do not know why
students continue to make these mistakes.
2
I stated in class and on my “Exam Directives” (see my TWEN page) that headings
are useful for you and me. It gives both of us a focus. I, therefore, stated in those
directions that I am now requiring headings. That said, some students did not use
headings. I do not know why they did not. Those who did not use headings typically
rambled. Failure to use a heading deprived you of focus—and it showed in what followed
in your essay. The moral is, in the future, on all your exams, use headings!
Failure to Write any Issue Statement
I was pleased to see that this was not the same problem that it was in prior years.
Still, some students did not write any issue statement for some of the issues. These
students simply wrote a rule of law, omitting any issue statement. Obviously, such
students needlessly forfeited two points. 4
Failure to Write an Original Issue Statement
As in prior years, some students failed to write an original issue statement. For
example in the first essay question, some students wrote, “If Oscar files suit against the
planning commission, under what theories can he proceed?” This was merely copying. Of
course, I cannot award credit for copying; I can award credit for only originality.
Failure to Write an Intelligible Issue Statement
I state here what I have stated in past exams: Notwithstanding my admonitions in
class and prior memos, there still were a few students—not many, thankfully—who wrote
in the third essay question, “Did Tina constructively evict herself when she moved out
after three months?” Constructively evict herself? I have mentioned this in past years’
memos and I state it here again and in the Model Answer: Stop this! Stop this! Please,
stop this! I do not know where this comes from or how it started. This is not lawyer-like.
To the contrary, it is nothing if not the utmost in foolishness. For further elucidation, see
the Model Answer.
Elsewhere, some students wrote, “Did Lance have the power to not mow the lawn
and disturb Tina’s quiet enjoyment?” These students were citing Reste Realty. The
problem was that that case dealt with a landlord’s failure to act to control third persons or
acts of outside forces (flooding)—but not himself. Of course, Lance has the power to stop
mowing the lawn when he is the actor! In short, this was a demonstration of lack of
knowledge. For further elucidation, see the Model Answer.
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As I stated in class several times and as you were able to see from my past exams and grading sheets, I
generally award a maximum of 2 points for the issue statement; 2 points for the rule of law; and 6 points for
the analysis (3 points for plaintiff and 3 points for defendant). For several issues on this exam, I awarded 1
point for the issue; 1 point for the rule of law; and 3 points for the application (there was no analysis for
these issues; this is what I call a rule/counter-rule issue). The common thread was that there was no true
“analysis” (that is, creative argument) in any of these cases. On the fourth essay question, you had three of
these issues: horizontal privity; deed out from a common grantor imparts notice in some jurisdictions; and,
in some jurisdictions, if the benefit is in gross, the burden will not run. For further elucidation, see the
Model Answer.
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On the fourth essay question, most students discussed the Implied Reciprocal
Negative Easement (IRNE) without even bothering to deal with the fact that here we have
an affirmative covenant. See the Model Answer for further elucidation.
Failure to Write a Specific or Complete Issue Statement
As in prior years, some students wrote an issue statement, but it was not specific
enough. For example, in the first essay question, some students wrote, “Was there a
taking?” This is just too broad. See my Model Answer as to the proper framing of issues.
Similarly, in the second essay question, a number of students wrote only, “Can Ed
get an injunction because he had an easement across Westacre?” This, also, is too broad
because there are many different types of easements. One needs to be specific.
Likewise, in the third essay question, a few students wrote, “Can Tina avoid
paying rent to Lance?” or “Did Lance breach any of his duties owed to Tina?” These are
too broad for issue statements. There are many reasons why Tina might not have to pay
rent. The better answers were detailed in coverage. For example, “Did Lance breach the
covenant of quiet enjoyment by mowing the lawn and disturbing Tina’s sleep?” would be
a valid issue statement. Again, see my Model Answer.
In the fourth essay question, a good number of students wrote, “Does the
covenant run with the land?” Writing this made me have to guess: do you mean burden or
benefit; law or equity. Failure to be specific meant only one thing: that the student did not
know. As such, I could not grant full credit.
A good number of students wrote the proper legal issue, but failed to state the key
facts. For example, in the first essay question, some students wrote, “Was there a total
economic wipeout, per Lucas?” but did not state the key facts that arguably triggered a
Lucas-type wipeout. Without stating the key facts, I could not award full credit for the
issue statement. Similarly, in the third essay question, a number of students wrote, “Did
Lance breach the implied warrant of habitability?” but failed to include the key facts that
arguably would trigger a breach.
Combining Issues
As my past memos state, analysis issues 5 should never be combined. If you
combine issues (especially analysis issues) you run the risk of having one big “jumble”
for your analysis which, inevitably, will neither be clear nor complete.
For example, in the first essay question, dealing with a taking, some students
wrote, “Was there a Lucas wipeout, a partial wipeout per Mahon, or was this a case of
nuisance control?” Other students combined all of the Penn Central factors into one big
issue. All these students did poorly. Their essay was a hodgepodge of thought.
Similarly, in the third essay question, some students combined breach of the
covenant of quiet enjoyment with constructive eviction. Again, the results were a
rambling-like answer with poor results.
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An “analysis issue” is my own terminology to mean an element of a rule in dispute that is “grey,”
meaning it can go either way, depending on the arguments you make for plaintiff and defendant,
respectively. There is no “right” conclusion for an analysis issue. All but a few issues on this exam were
analysis issues. See Model Answer for further elucidation.
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Writing on Non-Issues: First Essay Question
Many students wrote on many non-issues in this exam. I generally do not take
points off for writing on non-issues, but students who did this wasted precious time by
writing on these non-issues. The more common non-issues in the first essay question
were:
TDR. Many students wrote on Transferable Development Rights. The problem
was that there were absolutely no facts to trigger such a discussion. One could just as
easily have discussed the Rule Against Perpetuities. Students who wrote on this left me
with the impression that they memorized some elements but did not truly know which
ones to use.
Zoning. This was not an issue. The city simply refused to grant a permit. Zoning
in the manner of Village of Euclid (R-1, R-2, etc. for an entire city or part of a city) was
fully absent.
Exactions. Quite a few students discussed exactions and the Nollan and Dolan
tests. The problem is that this was not an issue because the city did not state that the
developer could build but only if he did such-and-such (impose a condition, such as
granting a public easement). Here, the city simply denied the permit. Hence, this was not
an exaction problem.
Physical takings. A number of students discussed physical takings and Loretto.
This was not an issue, however, because the government did not invade the land nor
authorize someone to invade the land. The issue was regulatory takings.
Due Process. Some students discussed Fourteenth Amendment Substantive Due
Process. While there was an issue of nuisance control, denial of a building permit alone
does not trigger a substantive due process problem. Thus, while the issue of improper
nuisance control did arise on this exam (see Model Answer), it only was in the context of
common law nuisance. Without a discussion of whether the city, via the police power,
was abating a common law nuisance, any discussion of substantive due process was fully
irrelevant.
Public use. The issue of public use and public purpose applies only when the state
exercises its eminent domain power to take private property in a physical sense. The state
(or city) did not so act here. Thus, the public use requirement was not an issue.
Minimal Scrutiny Test. While exercising its police power, the state need satisfy
only the minimal scrutiny or rational relationship test to comport with substantive due
process. Nonetheless, in determining whether it did so comport, we are back to discussing
whether the city is abating a common law nuisance. Thus, yet again, without a discussion
of common law nuisance and the concomitant police power, any discussion of minimal
scrutiny was irrelevant at best.
Public nuisance. The key, yet again, is not whether the truck stop is a public
nuisance, but whether it is not part of the owner’s title, i.e. whether it is a common law
nuisance. A discussion of public nuisance without more is irrelevant to resolving the
problem at hand.
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Writing on Non-Issues: Second Essay Question
Many students wrote on a number of non-issues in the second essay question. The
more common non-issues in the second essay question were:
Part performance. Part performance is a substitute for the Statute of Frauds, but
the doctrine of part performance requires possession plus making improvements or
possession and payment. Ed did not make improvements, nor did he make any payment.
Further, and this is critical, one who has an easement does not have possession of the
servient estate. Rather, such a person can make only “limited use” of the servient estate.
Easement by prescription. An easement by prescription must satisfy the local
period of limitations. As it is for adverse possession, that period is anywhere from 5 to 30
years. Thus, 5 years is the minimum period. On the exam, however, Ed made use of
Westacre for only 2 years. In no event could he satisfy the statutory period of limitations.
Hence, in no event could Ed have acquired an easement by prescription.
Laches. Laches is an affirmative defense. Had Oprah allowed Ed to use her land
for a significant number of years (similar to the period of limitations for an easement by
prescription), she could be barred from enjoining Ed’s use. Again, however, laches
requires that the actor “sit on his rights” for a long period (by way of analogy, equal to
the statute of limitations). In no way can it be said that Oprah waited too long to assert
her rights. See also discussion above regarding easement by prescription.
Abandonment. Ed simply did not abandon the claimed easement. Further, Oprah
did not adversely possess the servient estate to terminate Ed’s use. Again, the period of
limitations could not have been satisfied under any standard. Hence, abandonment was
not an issue.
Easement appurtenant versus in gross. The easement that Ed had, if at all, was an
easement appurtenant. Being (almost) landlocked, it benefited not him personally but his
estate. He could not have had an easement in gross. Period. There is no more to say. That
Ed had an easement appurtenant was so obvious I could not see granting any points.
Indeed, if one was compelled to address the issue, it was in a sentence or two, as I have
addressed in the beginning of this paragraph. In any event, even if one concluded
(however bizarrely) that Ed had an easement in gross—so what? Such a conclusion does
not resolve the problem of whether Oprah can shut Ed out with her fence.
Writing on Non-Issues: Third Essay Question
Many students wrote on a number of non-issues in the third essay question. The
more common non-issues in the third essay question were:
Quite Enjoyment: Reste Realty. Many students wrote on this issue. However,
Reste Realty deals with a situation where the landlord fails to act to control a third
persons or outside forces (flooding). Involved in your exam was a standard (and common
law) breach of the covenant of quiet enjoyment: the landlord himself is affirmatively
creating the noise. This is no different from the landlord playing a trombone at 2 AM
outside the tenant’s window (something we discussed in class). In short, Reste Realty and
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the expansive view that it gave to quiet enjoyment was not necessary in the least to
resolve the problem at hand.
Quiet Enjoyment: latent defect. Latent defects typically go to a defect in the
structure itself. One is hard-pressed to find that mowing a lawn is a latent defect,
especially when the problem did not exist at the beginning of the lease. (Remember that
the key is “latent,” meaning hidden.)
Quiet Enjoyment: maintaining common areas. This, too, was not an issue because
while the landlord has such a duty, the issue arises only when he fails to maintain the
common area. Here, Lance is maintaining the lawn, just doing it noisily. Hence, we get
back to the old common law: that a landlord breaches the covenant of quiet enjoyment by
affirmative acts that interfere with the tenant’s peaceful enjoyment of the property.
Type of tenancy. A number of students wrote on the type of tenancy that was
involved: a term for years, periodic, etc. The facts stated however that it was a term for
years for three years and the lease complied with the Statute of Frauds. Hence, the type of
tenancy was not an issue.
Intentional nuisance (Jost approach versus the Restatement approach). Quite a
few students discussed the “unreasonable” element for nuisance. However, as per the
facts, the parties stipulated that “Lance’s conduct was not intentional.” Thus, a discussion
of intentional nuisance, unreasonable conduct, and Jost versus the Restatement view was
not appropriate. (The issue of unintentional nuisance should have been discussed. See the
Model Answer.)
Writing on Non-Issues: Fourth Essay Question
Many students wrote on various non-issues in the fourth essay question. The more
common non-issues in the fourth essay question were:
Running of the benefit. Otto was an original party and Otto sought to enforce the
promise. Hence, there could not have been an issue of the running of the benefit. Students
who discussed the running of the benefit and the running of the burden did not get the
same points as for students who wrote solely on the running of the burden. It would not
have been proper for me to do so. Students who wrote on the burden and benefit clearly
did not understand the subject. It would have been wrong to award the same points to
these students as to the students who recognized that this is only an issue of running of
the burden. It is one thing to write on latent defects (question 3), but when the non-issue
infects the entire essay, it would have been unconscionable for me to give the same grade
to students who knew what they were doing and to students who did not. Indeed, it really
is not hard to distinguish the burden from the benefit. A student who cannot make the
distinction has a major gap in knowledge—a gap that cannot be filled by “hedging” and
discussing both benefit and burden. Exam taking strategies (“I’ll cover both sides, just to
be safe because I am not sure if it is the burden or the benefit in issue”) can only go so
far.
Equitable servitudes. Because Otto sought money damages, the applicable body
of law is the law of real covenants. Students who discussed equitable servitudes received
substantially reduced credit. What I stated above for the running of the benefit applies as
well to equitable servitudes.
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Profits. Some students discussed profits, something that is not applicable. No one
is going onto Otto’s land to remove the water. Rather, Otto merely is selling water to the
grantees.
Minimal Scrutiny Test. This simply was not an issue. There is no government
involvement here.
Failure to State a Correct Rule of Law
The majority of students who wrote on the appropriate issues (not on non-issues)
correctly stated the applicable rules of law. Still, there were deficiencies.
In the first essay question, a number of students did not state the rule of Lucas
properly. For example, one student wrote, “A taking under Lucas arises when the
landowner cannot use his property as desired.” This is plainly wrong, as is, “A wipeout
means the landlord [sic] sees the land value reduced.” Regarding the Penn Central
analysis, quite a few students did not properly define the character of the government’s
action properly. One student wrote, “We have to balance the harm to the public with the
benefit to the government.” As to average reciprocity of advantage, several students
wrote something akin to, “The landowner gets burdened because he is singled out by the
government.” For a DIBE, quite a few students simply stated, “The Supreme Court has
never defined this term,” or “This is a factor to determine if there is a taking,” and let it
go at that. See the Model Answer for elucidation.
In the second essay question, a number of students wrote, for the quasi-easement
issue, “Ed made use of the quasi-easement by his using it regularly.” This is wrong
because the quasi-easement relates to Oprah’s use—not the grantee’s use. Similarly, for
the apparent or continuous elements, a good number of students wrote about Ed’s use
was continuous or apparent when the proper rule goes to the common grantor’s usage.
In the third essay question, many students wrote something akin to the following
for the common law view of quiet enjoyment: “A landlord breaches the covenant of quiet
enjoyment when he does not act.” This is wrong because under the common law view of
quiet enjoyment (what was involved in this exam), the landlord breaches the covenant of
quiet enjoyment by affirmative acts that (substantially) interfere with the tenant’s
peaceful enjoyment of the premises.
For the fourth essay question, many students did not define what an IRNE is.
Others stated something like this: “An IRNE allows a developer to bind all grantees” or
“An IRNE allows a covenant to be enforced.” These statements are at best only partially
true but so far off base that the student demonstrates no understanding as to what an
IRNE is. See Model Answer for further elucidation.
Failure to Cite to the Proper Case
When you make reference to a United States Supreme Court test (Lucas, Penn
Central, etc.) I think you must cite to the case. As I stated in class, Lucas is not just a
case, but a doctrine. Thus, citation is appropriate, if not necessary. That said, if you do
cite to a case, you must cite to the proper case. I had a number of students this year citing
to the wrong case. For example, some students cited to Loretto when they meant Lucas
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(economic wipeout). Other students cited Tahoe when they meant Mahon (conceptual
severance). When you cite to a case, you must cite to it correctly.
Failure to State Any Rule
Some students failed to state any rule of law. For example, in the first essay
question, some students did not define the elements in the Penn Central analysis.
In the second essay question, some students did not define an easement by prior
use or an irrevocable license.
In the third essay question, quite a few students did not define frustration of
purpose or the illegal lease theory.
In the fourth essay question, more than a few students did not define IRNE or the
elements of a real covenant.
I state here what I have stated in prior years: If there is no rule given, the chances
are excellent that the analysis will be totally off—and this was typically the case. The
moral is that if an element is in dispute (and, hence, will be analyzed), and if that element
is a term of art, you must define that element—and do so correctly.
Stating All the Rules Together (Failure to IRAC)
I state here largely what I stated in past years: Although this was not a major
problem this year, it still was a problem for some. It bears repeating, therefore, for those
who did not read past years’ memos: As in prior years (hopefully this will be the end of
it), some students did not IRAC (or IRRAC, my version of IRAC; see Model Answer) all
issues on their exam. While the number of students this year who failed to IRAC all
issues was smaller than in previous years, I find it astonishing that any student would not
use the IRAC method throughout. This failure was most prominent for several issues and
happened most frequently when there were multiple issues of a rule of law in dispute, as
in the first question (ad hoc Penn Central factors) and the fourth essay question (elements
for a real covenant). What a number of students did was to give the rule and all the
definitions for each element up front in one paragraph, followed by one massive analysis.
Such an answer is difficult to read and almost impossible to grade. The key here is to
IRAC each element of the rule, element by element.
When multiple elements of a rule of law are not tackled element by element, with
the IRAC method used for each element, the result is a jumble that is, again, difficult for
me to read and harder yet to grade.
Always, always, always you need to IRAC your exams.
Weak Analysis
Overall, I was pleased that a significant number of students used the facts
correctly—as a foundation for their creative arguments. Nonetheless, as in prior years,
there is much room for improvement. The following were the major problems:
Lack of policy considerations in analysis. I state here what I have stated in prior
years: Policy considerations could have been used for many of the issues in all four
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questions. Far too many students, however, did not seize upon the opportunity. Greater
numbers than in prior years did use policy considerations in their arguments (especially
for the first question), and I was pleased to see that. Still, it is important that we strive for
greater appreciation of underlying policy considerations in law school exams that include
“analysis issues” (much as we discussed in class during case discussion).
Emotions substituting for analysis. For the last essay question, a few students
wrote, “It is morally wrong to make someone buy water.” Fine, but why is this so? What
are your reasons for this declaration? Merely prefacing a conclusion with words of
outrage or disgust is not analysis and is actually nothing. Remember, analysis requires
creative argument. A word of outrage on your part is something that a layperson does—
not a lawyer.
Repletion of facts as a substitute for argument. Again, I state here what I have
stated in past years: While many students understood that analysis issues require students
to build creative arguments onto the facts to prove/disprove the element in dispute, some
students simply repeated the facts. For example, in the third essay question, some
students stated that Lance breached the implied warranty of habitability by mowing the
lawn and disturbing Tina’s sleep. But why is this so? What are your reasons (logic,
policy, etc.) for this? Without more, all that we have here is a repetition of facts plus a
conclusion—what law professors call, “conclusory.” Of course, I could not award any
analysis credit for this. Similarly, in the first essay question, with respect to the ad hoc
Penn Central analysis, some students wrote that the decision of the planning commission
frustrated Oscar’s distinct investment backed expectations. But why is this so? Again,
without reasons provided, I could not award any credit.
Repetition of facts as an introduction. A number of students gave me an
“introduction” by repeating the facts. This has no place on law school exams. It is a waste
of time to state, for example: “Oscar inherited Greenacre from his father. Oscar divides
Greenacre into two segments: Northacre and Southacre . . . .” I know the facts. I wrote
them. The only time you should repeat facts is when the facts are the key facts that are
part of your issue statement and, later, when the facts become the foundation for your
analysis.
The legal history of the problem. Some students gave me the historical
background to takings law (essay 1) and the covenant of quiet enjoyment (essay 3) I want
the problems answered: I do not want a history of the law and how it evolved.
Asking questions. This was not as bad as the past few years, but I do not know
why it happens at all: asking questions as a substitute for creative argument in analysis.
For example, in the first essay question, some students wrote something like this: “Why
shouldn’t Oscar be allowed to have his dreams fulfilled? Why should government
frustrate businesses?” Never, ever, ever ask questions in your analysis. In your analysis,
you argue why the element in dispute is satisfied/not satisfied—and you do not argue by
asking questions. You cannot be persuasive by asking questions. The only time—I repeat,
the only time—you should ever ask a question is in your issue statement.
Not explaining your reasons fully. Some students gave a most brief analysis: a
short sentence for one side and a short sentence for the other. While I do not seek
verbosity (see below), you need to explain your answers fully.
Not using words of transition. I state here exactly what I stated in last year’s
memo: This has been a recurring problem through the years. This year, the problem was
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not as bad as prior years, and that is good. Still, quite a few students did not use words of
transition when switching sides in the analysis. I did not take off points for this, but I
must state in all frankness that when you do not use words of transition (“on the other
hand,” “nevertheless,” etc.) your essay reads oddly and sounds outright infantile and silly.
There, I have said it. Please, please, please use words of transition.
The facts state that. So many of you wrote, “The facts state that Oscar acquired
the property from his grandfather. The facts further state that he wants to build a truck
stop on the northern part and a shopping center on the southern part. We are also told that
. . . .” Finally, at some point, the student gets to argument. Stop, please, with this, “The
facts state” stuff. It is annoying, superfluous, and child-like. It adds nothing to your
paper. Simply tell me the argument without the prologue. See my Model Answer for
illustration.
Oscar will argue that. This is also quite common and just a variation of the
preceding paragraph. Eliminate it. It is not necessary. Just tell me the argument. I will
figure out who is making it. Again, when you write, “Oscar will argue that . . . .” it
sounds so non-lawyer-like. To make matters worse, I often see, “The city will counter
this by arguing . . . .” Stop it! Please!
Ping-pong. This was much less of a problem this year than in past years, but a
problem nonetheless. Some students gave me ping-pong: For example, in the third essay
question, some students wrote: “Lance breached the covenant of quiet enjoyment because
. . . . On the other hand, Lance did not breach the covenant because . . . . Nonetheless,
Lance did breach the covenant because . . . .” While I want both sides, never, ever give
your teacher ping-pong. Just give me all the reasons why Lance breached the covenant of
quiet enjoyment, and then in the next paragraph tell me why he did not—and be done
with it. Stop the back-and-forth, back-and-forth, back and forth. It reads terribly and is
just very difficult to grade.
Cute and vulgar language. For the last few years, in light of my admonitions,
students have ceased being cute and vulgar. This year, however, a few of you got “cute”
and one used vulgar language. Save it for after the exam. It is not becoming of anyone on
an exam.
Verbosity. I state here in essence what I have stated in previous years: This is
something that keeps coming up year after year. Most of you—yes, most of you—are just
plain verbose. If you can state something in 20 words, do not use 40. I suggest that each
of you re-read your answer and, if nothing more, try to eliminate the excess words. As
stated earlier in this memo, some of you gave me an “introduction” into the history of the
law. Assuming that you did an IRAC of each of these issues, why was it necessary to
give me this “introduction” or “preview”? Obviously, you are wasting your own precious
time.
This could go either way. A few students stated this or words to that effect in their
conclusions. This is a pure waste of time because the very nature of an analysis issue
means that it can go either way. This is yet another example of verbosity. See above.
Failing to Even Attempt Any Analysis
Again, what I state here is essentially the same as what I have written in prior
years: You will recall that I admonished you in class (and posted it in the “Exam
11
Directives” on my TWEN page) that merely writing issues and rules without any analysis
on your exam will gain you few points. Lawyers are not paid to spot issues and state
rules. They are paid to analyze problems. Notwithstanding this admonition and the
written instructions for your exam, a few students—and they were only a few, and that
was good—wrote issues and corresponding rules without any analysis whatsoever. (As I
stated in class, if you run out of time for the last issue, that is not a problem and I am not
discussing that here.) These students apparently hoped that stating the issue and the rule
would get them four points on my ten point scale. As I told you in class, stated in my
written exam directives, and as is stated in the instructions to your exam: failing to even
attempt an analysis will result in receiving very little credit. This is the same standard for
the California bar exam. Issue-rule; issue-rule; issue-rule will not get many points on the
bar exam, and it did not get many points on my exam.
Failure to IRAC Answers
I state here what I stated in last year’s memo: As I stated in class, IRAC (or
IRRAC or any other acronym) is just an organizational tool. But every good answer must
be organized in some manner. You must state what the legal problem is, state the doctrine
that can be used to solve the problem, solve the problem, and conclude. IRAC by any
other name is still IRAC. Most of you had a good organization. But there were some—
not many, I am pleased to say—who just rambled. Lawyers write in an organized
manner. Your essays must be organized, too.
Failure to Use Paragraphs for Each Part of the IRAC Formula
Some students used IRAC for their organization, but failed to paragraph within
IRAC, thus giving me one big paragraph for each issue. This was hard to read. I have no
idea why someone would do this, but please stop doing it. Give me a separate paragraph
for each part of the IRAC equation. Further, for the analysis, give me one paragraph for
one side and a separate paragraph for the other side. See my Model Answer for
illustration.
Writing “Issue,” “Rule,” “Analysis,” and “Conclusion”
A few students labeled their answers. While I want IRAC, do not label the parts
of the answer. Trust me, I can figure it out. While I do not take offense at use of these
labels, some teachers do. It simply is not necessary.
Convention and Handwriting
Two students who typed did not use convention. They did not capitalize proper
nouns and often did not use upper case to begin a sentence. They did not follow other
conventions, too. This is so outrageous. Suffice to say that I am not your friend to whom
you are sending an e-mail. It is time to grow up and take this seriously.
For those who handwrote the exam (there were only 4 out of a total of 85 exams),
2 had very good handwriting, but 2 had quite poor handwriting. I cannot understand why
12
any student would submit a handwritten exam with poor penmanship. It is more than
selfish and even beyond narcissistic. I trust that these students will understand that they
need to type in the future.
MODEL ANSWER 6
Question 1 7
Regulatory Taking: Economic Wipeout 8
Was the planning commission’s refusal to grant a building permit to Oscar for the
southern part of Greenacre (Southacre) an economic wipeout that would be considered a
regulatory taking per se?
Under Lucas, a regulatory taking per se includes an economic wipeout, that is,
when the landowner is denied all productive or beneficial use. 9
6
I state here what I stated in previous model answers: Although I have labeled this as “Model Answer,” the
student should be aware that it is not my choice of words. I use it merely to conform to convention. The
term model connotes perfection, and nothing done by human hands—and certainly nothing done by me—is
perfect. Clearly, this answer is not perfect. Nonetheless, this is a good answer and you should compare it to
your own. In this way, you may better understand what is expected of you and why your received the grade
that you did. Of course, this answer is probably more complete than your answer. Remember four
important points as you read this material, however: First, I did not write this model answer under the stress
of exam conditions. Second, I created the exam. Third, I have been teaching this subject since 1986. Fourth,
I did not have to be concerned about a time factor. As in everything in life, perspective is important. Still, a
good essay exam will share common characteristics with this answer. To facilitate your learning, I have
added a commentary to the answer. This commentary is found in the footnotes to the answer. Although I
generally have answered the question in the “IRRAC” format (which I discussed in the essay writing class
and in past memos), the point you must always keep in mind is that all good answers must do three things:
(1) identify the legal problem, (2) state the doctrine that may be used to solve the problem, (3) and solve the
problem with the doctrine stated. IRRAC (Issue, Rule1, Rule2, Analysis or Application and Conclusion) or
PDAC (Problem, Doctrine, Analysis, Conclusion) or IRAC or any other acronym is just an organizational
tool, and ultimately, is itself quite secondary to substance. One last, but important, point: When it comes to
the analysis, many of you undoubtedly will feel that other reasons could have been given (especially when
you are thinking about this in your home, and not under the stressful conditions of an exam). Remember,
ten people can come up with ten different reasons why there was a breach of the implied warranty of
habitability, and all ten can be correct. The point is that every good answer has analysis.
7
I label the question. Do not make the teacher guess what question you are writing about. This is especially
important if you do not answer the questions in sequence (something that you rarely, if ever, should
do).The point is that your whole essay should be an easy read for your professor. Always make life easy for
your teacher, and labeling the question you are about to write about facilitates making life easy.
8
Here is the heading of the first issue. You must use headings in my class. One reason why I require it is
because it gives me and you focus. The other reason I require headings is that you will have to use them for
the California Bar Exam. Consequently, it is good to get into the habit now. That said, here is the first issue
that I will cover—a wipeout as per Lucas. Note that what follows is an IRRAC organization. Remember
that IRRAC (my version of IRAC) is not some mystical force. Neither is it a substitute for thinking. Rather,
it is just an organizational tool—albeit a good one.
9
Here is the rule of law of my IRRAC formulation. Again, note that I cite to Lucas because Lucas is not
just a case, but also an entire doctrine. Note also that there is no second rule here, no “R2.” Of course, I
could have broken down this sentence into two sentences to have an “R1” and an “R2.” Nonetheless, I
repeat here what I have stated earlier: I do not have to force matters. IRRAC is a tool, and only a tool. More
than “IRAC” or “IRRAC,” never lose sight of logic and common sense.
13
By reducing the value of the land by 99 ½% from what it would have been if the
permit had been granted, 10 the city rendered the land valueless because 11 to find no
taking here would allow government by “slight of hand” to leave just a slight “sliver” in
any property and thereby avoid the Constitution’s just compensation clause. 12 To allow
government to do this would be immoral because 13 it would legalize confiscation of
property by ignoring economic realities. 14 Indeed, if a layperson were to lose 99 ½% of
an investment, he would say, “I was wiped out.” 15 We do not have to abandon common
sense in determining a constitutional issue.
On the other hand, 16 a total economic wipeout is highly unusual because, 17 as was
made clear in Lucas, it might well be that that here, as in Lucas, Oscar can still use the
land for some other purpose: camping, nature preserve, etc. Further,18 unless we have a
bright line test of a total—and literal—economic wipeout, then we go down the
proverbial slippery slope: a 99.5 loss is a wipeout, then a 99.3 is, then a 98.6 is, all with
the end result of government’s hands being tied in protecting the community.
Thus, there was no Lucas wipeout. 19
Regulatory Taking: Conceptual Severance 20
Assuming that there is no Lucas wipeout of Greenacre, 21 is the total economic
wipeout of a part of Greenacre, Southacre, a partial wipeout for which the city must
compensate Oscar under Mahon’s conceptual severance approach? 22
10
Recall that analysis is the creative argument to prove that the element is satisfied and is not satisfied.
First, I will prove that the element is satisfied. Here is the beginning of my analysis. Note that so far, all
that I have is my key facts.
11
If you use the magical word “because,” you will almost certainly do an analysis, that is, give a creative
argument. Here I will first argue why the city’s action was a wipeout.
12
Here is the heart of my argument: if a 99 ½% economic wipeout is not a legal wipeout, then we are in the
realm of fantasy. Note that this argument is based on an economical/logical basis. Most importantly, it is a
creative argument (the heart of analysis) because the words that I write are not found anywhere on the
question sheet. This is to be contrasted with what some students wrote: “Because the land is worth 99 ½ %
less than what it would have been worth if the city had granted the permit, this was a wipeout.” But why?
Without your reasons, this is a mere conclusionary statement. My answer, on the other hand, is not a mere
conclusion; rather, it is creative argument.
13
My argument (analysis) continues. Note, again, I use the word, “because.” This will force me to give my
reasons (analysis).
14
My argument continues on the economic realities angle. Note, too, that I work in a moral argument here.
15
In this sentence and the next, my economics/logical argument continues.
16
I use words of transition to let the professor know that I am changing sides. Some students did not use
words of transition. In such case, the essay sounded “odd” at best and infantile at worst. Always use words
of transition.
17
Note, yet again, I use the word, “because.” What follows is my creative argument based on logic: that the
land can be used for other purposes.
18
I make another argument based on public policy: that unless we adhere to a literal economic wipeout
definition, government’s hands will be tied.
19
Here is my conclusion, short and to the point. Remember that reasons do not go in your conclusion. Your
reasons go in your analysis.
20
Here is the next issue that I will write on: conceptual severance.
21
Never conclude yourself out of points. If I had concluded that there was a total wipeout, then a discussion
of conceptual severance would not be needed. However, you never conclude yourself out of points. Hence,
I begin with the clause, “Assuming that there is no Lucas wipeout . . . .”
22
Here is my issue statement. The issue statement includes the key facts (total economic wipeout of a part
of Greenacre) and the legal issue that is triggered by those facts (conceptual severance under Mahon). Note,
14
In Mahon, the Supreme Court held that a wipeout of a distinct and separate part of
an estate itself could be the “denominator.” 23 What is a separate and distinct part is
questionable and not fully clear. 24
By dividing Greenacre into Northacre and Southacre,25 we have 2 separate and
distinct part because 26 the city itself recognized these two discrete parts by giving
approval to build for one part (Northacre) but not for another (Southacre). 27 If the city
recognizes Greenacre as two separate parcels for building purposes, it (and any court)
should also recognize it for takings purposes. Not recognizing it for takings purposes
would be intellectually inconsistent in light of the city’s actions.
On the other hand, 28 even if we concede that Greenacre is now two separate and
distinct parts, conceptual severance is not available because the theory’s vitality has been
severely questioned. 29 Although the Supreme Court has never expressly overruled
Mahon, 30 it has apparently abrogated the doctrine of conceptual severance. In Bituminous
Coal, on facts similar to Mahon, and where a support estate in land was expressly
recognized in Pennsylvania, the court did not apply Mahon. Rather, the court stated that
the “denominator” is not the part wiped out but the entire estate. Thus, here, the entire
estate would be Greenacre—not Southacre. Further, in Penn Central the court refused to
recognize conceptual severance for air rights, stating that takings law looks at the whole
of the property (Greenacre in this case), not a part of the property. Similarly, in Tahoe,
the court stated again that takings law is inapplicable to a part of a whole from a temporal
perspective. Finally, 31 as a matter of policy, apart from these recent Supreme Court cases,
conceptual severance could hamstring government planning for its citizens because any
developer could easily edge his way into the conceptual severance sphere merely by
subdividing his property. If one part is not approved the 5th Amendment would be
triggered. That would be too great a burden on government’s need to protect its citizens
under the police power.
Thus, there was no taking based on conceptual severance. 32
Improper Nuisance Control 33
again, that I cite case law here because the case cited is not just a case. Rather, it is a doctrine. Remember,
however, that when you cite to cases, you must cite properly. A number of students cited to the wrong case
in this takings problem.
23
Here is the “R1” of my IRRAC formulation. Note that the issue deals with conceptual severance; hence,
my rule of law deals with conceptual severance.
24
Here is the “R2” of my IRRAC formulation.
25
Here are the key facts upon which I will now build my creative argument.
26
Here, again, is that important word, “because.” Use this word and you will virtually guarantee yourself
that you will be making a creative argument, that is, giving your reasons (analysis).
27
In this sentence and the next two sentences, I make a logical argument for recognizing the two parts: the
city itself looked at the two parts as separate and distinct. To be consistent, the city should continue to look
at the two parcels as distinct for takings purposes.
28
I let the teacher know that I am switching sides.
29
I now make an argument based on legal precedents why conceptual severance is no longer applicable.
30
My arguments are based on doctrines, hence citation to United States Supreme Court cases is critical.
31
With this sentence, I make a logical/policy argument against conceptual severance.
32
Here is my conclusion. Remember, my conclusion is short. There are no reasons given here. Reasons
belong in the analysis section. Notice also that I have a separate paragraph for each part of the IRRAC
(with separate paragraphs for the analysis for each side).
33
This is the next issue, also stemming from Lucas.
15
Whether or not there is a wipeout under Lucas or Mahon, 34 can Oscar attack the
city’s denial of the building permit on the grounds that the city’s fear of traffic increase is
improper nuisance control?
As stated in Lucas, 35 while the state can use its police power to enact laws and
regulations for the health and safety of its citizens and, in this regard, eliminate nuisance,
which is never a taking, the nuisance must be a “common law nuisance.” 36 Although the
Supreme Court has never defined what a common law nuisance is, Lucas stated that the
state could proscribe a use of property that was not part of the landowner’s title. 37 Under
Lucas, 38 using one’s property to emit toxic fumes as in Hadacheck 39 is never part of a
landowner’s title, while building a house is part of title and, thus, never a common law
nuisance.
Building a shopping center is not a common law nuisance because 40 we are
dealing with a structure with plumbing and wiring; as such, it is more akin to building a
house, never a nuisance per Lucas. 41 Similarly, 42 traffic is not a common law nuisance
because traffic was never a problem under the ancient and developing common law;
traffic control is only a modern development.
Nonetheless, 43 with added traffic comes exhaust fumes, which causes disease and
sickness. In this regard, 44 the problem is not like Lucas and building a house, but more
like Hadacheck and poisonous fumes—the control of which is valid nuisance control and
never a taking.
Therefore, the city engaged in proper nuisance control.
Regulatory Taking: Penn Central Ad Hoc Analysis 45
Does the planning commission’s denial of a building permit for Oscar go “too
far” and constitute a regulatory taking in light of the Penn Central ad hoc analysis? 46
34
The point that I get to here is that even if there is a wipeout, is it non-compensable because this is
nuisance control
35
Again, I cite to Lucas because the case is not just a case; rather it is an entire doctrine. Note that the text
and footnotes in this paragraph are a cut and paste from the spring, 2007 memo.
36
Here is my rule of law, the “R1” of my IRRAC formulation. (This is a long rule to be sure. I could have
broken it down further. But in light of the number of rules that I had in this paragraph, I chose not to do so.
Would it have been wrong if I had so broken it down? Absolutely not. IRRAC, you will recall, is just a
tool—no more and no less.
37
“R1” is common law nuisance. But what means a “common law nuisance”? “R2,” the second rule of my
IRRAC formulation defines the term, at least as best as possible.
38
What is this—an “R3”? This is not the first time I have varied from my IRRAC formulation. I have
stated it before and I state it again here: IRRAC is simply an organizational tool and not something to
replace thinking. In this regard, I think it is helpful to explain “part of landowner’s title” for purposes of
clarity.
39
I mention the Hadacheck case because, again, it is not just a case, but also a doctrine.
40
Again, I point out my use of the word, “because.”
41
In this sentence, I argue by analogy (a form of logical argument) why a shopping center is more like a
house and, therefore, not a nuisance per Lucas.
42
I now make a logical argument why traffic is not a common law nuisance.
43
I use a word of transition to let the professor know that I am switching sides. Note also, I do not preface
my arguments with “Oscar will argue . . . .” or “The city will argue . . . .” Many students do this. It is, quite
frankly, infantile. It adds nothing and consumes words and time,
44
In this sentence is argue why the facts of the problem are more like Hadacheck and not like Lucas.
45
This is my next issue, which really becomes four separate issues.
16
The Penn Central factors are: interference with distinct investment backed
expectations (DIBE); average reciprocity of advantage; character of the government’s
action; and diminution in value. 47
DIBE 48
Did the planning commission interfere with Oscar’s distinct investment backed
expectations when he inherited the land and the planning commission denied him a
permit to build a shopping center on Southacre? 49
While the Supreme Court has never defined this term (DIBE), it probably relates
to his reasonable expectations, recouping his initial capital investment, or a reasonable
return on his capital. 50
To the extent DIBE refers to reasonable expectations, 51 it was reasonable for
Oscar to want to develop his property and make money on it because52 that is the nature
of the free enterprise system. 53 As to recouping his capital investment or a reasonable
return on his capital, although Oscar did not pay for it, that should be of no consequence
because 54 to distinguish between those who pay for land and those who do not pay for
land would create two classes of citizens, something that the Supreme Court found
abhorrent in Palazzolo. Under a free market economy, Oscar should be allowed to get a
reasonable return on property, however that property was acquired.
46
Here is my overall issue. Because multiple issues are in dispute—a complex analysis problem—the key
facts are stated in each separate IRRAC indicated below.
47
All of these elements are in dispute. I, therefore, will IRRAC each of these elements separately. Each
element is an IRRAC all unto itself. In this paragraph, I stated the rule of law, the “R1” of my IRRAC
formulation. When I define each element, that definition will be the “R2” of the formulation. Several points
are in order here. I repeat here what I stated in a prior exam.
First, some students came this far and essentially stopped. They did not IRRAC each of these
elements. Why they did this, I do not know. Maybe it was because they memorized these terms but not
their definitions. I am not sure, but I do know that it was not because of time because these students
typically went on to write on non-issues. Nevertheless, I gave no credit for merely writing term without
defining these terms and without any analysis. In any event, when you have multiple elements of a rule of
law you need to define each element and then do an analysis for each element. That is, you must IRRAC.
Second, some students gave me all of the definitions of these terms up front and then proceeded to
give me one big analysis. This was hard for you to write and hard for me to read and grade. Yet again the
moral is: when you have multiple elements of a rule of law in dispute, IRRAC each element, element by
element. After you finish doing a full IRRAC of one element, then and only then you proceed to the next
element and do likewise.
48
This is the first issue that I will discuss. Notice how I indent to make it clear that DIBE is all part of the
Penn Central analysis.
49
Here is my issue statement, including the legal issue (DIBE) and the key facts that are triggering that
issue (when he inherited the land and the planning commission denied him a permit to build a shopping
center on Southacre).
50
Here is the “R2” of my IRRAC formulation.
51
I now pull out each definition and explain why, based on that definition, the city interfered with his
DIBE. Should I have done a separate IRRAC for each definition? I could have, but there are limits to time,
etc.
52
Here, again, is the word, “because.”
53
I make an economic policy based argument here.
54
Again, note the word, “because.” What follows is a logical argument based on Supreme Court precedent.
17
On the other hand, 55 however, we define DIBE, 56 one always has to be prepared
for adverse government action. That, too, is the nature of the free enterprise system. To
hold that every building permit that is denied is a taking would virtually guarantee the
developer a profit at taxpayer expense: If the government denies a project, the developer
makes money via a takings claim on the theory of dashed expectations. In this regard, it
could become more lucrative to have a permit denied, thereby taking out the risk of a
failed business. This would be intolerable for society as a whole. One has to be prepared
to risk denial of a permit.
Thus, the city did not interfere with any DIBE.
Character of the Government Action
Was the planning commission’s decision to deny Oscar a permit decided
improperly when examined in light of the Penn Central factor of considering the
character of the government’s action? 57
What constitutes character of the governmental action is not totally clear,
although it apparently may be analyzed in the context of balancing the harm to the
landowner with the benefit to the public. 58
The harm to Oscar is that his plan for Southacre is dashed, rendering the entire
project foiled. The benefit to the public, however is less traffic and cleaner air, something
that city planners are constantly trying to improve.
On the other hand, 59 the harm is not just to Oscar, but also to the public: no
shopping center means no additional jobs and no additional tax revenues for public
projects and expenditures. Jobs also mean additional money in the economy. Against this
we have to balance harm from exhaust, but the person who is unemployed would gladly
adjust driving time and accept pollution to feed his family.
Thus, the character of the government action favors Oscar.
Average Reciprocity of Advantage 60
When the planning commission denied the permit because of traffic concerns, did
Oscar receive an average reciprocity of advantage?
Although it is not fully clear what the Supreme Court means by the term,
apparently the term means that either (1) the landowner was not singled out for harsh
treatment, or (2) that even while the landowner cannot develop his land as he chooses, he
or she nonetheless has received a benefit from the governmental restriction, or (3) both. 61
55
I switch sides here.
However we define DIBE, I will now make a policy based argument against finding any interference by
the planning commission.
57
Here is my issue statement.
58
Here is the “R2” of IRRAC. See Penn Central.
59
I switch sides here. Note that my argument is based on economic considerations: denying the project
hurts not just Oscar but society by way of job creation and tax revenues.
60
As in prior years, some students could not get the term correct. I had “average advantage,” “distinct
reciprocity of advantage,” “advantage of reciprocity,” etc. It was the same improper use as in prior years.
Amazing! These were not slips of the finger because the mistakes kept reappearing in the student’s essay.
You have to know the basic terms. It is that simple.
61
Here is my rule of law. Of course, it could have been broken down into two rules or even three rules.
Again, and I cannot state this too often: IRAC (and any variation thereof) is simply an organizational tool.
Substance and logical presentation are the keys to success, not mere form.
56
18
Oscar was singled out because each piece of real property is distinct; he,
therefore, is the only one affected by the planning commission’s decision. 62
Additionally, 63 Oscar did not receive a benefit: With the denial of the permit, he cannot
build and is left with mere vacant land.
Alternatively, 64 the “unique parcel” theory cannot be used to say that Oscar was
singled out because using that theory means that everyone is singled out each time a
permit is denied. If everyone is singled out, then no one can be singled out. Further,
Oscar did receive a benefit: With no building comes no additional traffic. As a citizen,
Oscar benefits from better traffic conditions and clearer air.
Thus, the average reciprocity of advantage favors the planning commission.
Economic Impact: Diminution in Value
Does the denial of a building permit, causing Greenacre to be worth only $1,000
instead of $200,000, result in a diminution in value so great that it should be a factor in
determining that there was a regulatory taking?
As stated in Penn Central, in determining whether governmental action went “too
far,” we examine the extent of the diminution in value caused by the government’s
action. 65 The greater the diminution in value, the greater the chance the court will find a
taking. 66
With Southacre worth nothing and Northacre worth $1,000, the diminution in
value relative to what it could be worth is so great that the economic impact is nothing if
not overwhelming. 67
On the other hand, the denominator here should not be what it could be worth but
what it was worth. From this perspective, it was worth the same before Oscar submitted
his plans. In this regard, there is no diminution in value at all.
Thus, the economic impact favors the city. Overall, there is no taking.
Question 2 68
Express Easement 69
Did Oprah execute an express easement across Westacre for Ed’s benefit? 70
An express easement is an interest in land that must satisfy the Statute of Frauds
by way of description of the property and signature. 71
62
Here is an argument based on policy, logic, and legal principles.
I make one more argument.
64
I now switch sides to prove why Oscar was not singled out and why he did receive a benefit.
65
This is the rule of law, the “R2” of the IRRAC formulation. See the commentary above for a discussion
as to why this is the second rule of law—at least based on my IRRAC formulation.
66
The third rule of law. Is this IRRRAC? Again, see the discussion in above commentary. In short, IRRAC
or IRRRAC is just an organizational tool.
67
My argument is based on comparative values. What are we comparing the $1,000 to? If it is the
anticipated value, there is a great diminution in value. However, as the next paragraph makes clear, the
comparison should be based on what the value is—not what it could be.
68
I now begin my second essay question and label it accordingly.
69
This is the first issue I address.
70
Here is the issue statement. Note that there are few key facts. That is because 2 elements of the rule are in
dispute. I will, therefore, IRRAC each of the 2 elements.
63
19
Statute of Frauds: Description of the Property 72
Was the description of the property requirement of the Statute of Frauds satisfied
when Ed sent Oprah a note stating, “Thanks for letting me use your land”?
The Statute of Frauds requires the property in question to be described with
sufficient specificity. 73
The note fails to meet the Statute of Frauds requirement because 74 it fails to
describe not just the land in question (e.g. 100 Main Street), but also where the easement
is located on Westacre. 75 To not require the specificity contemplated by the Statute of
Frauds would allow Ed to walk across any part of Westacre, essentially devouring
Oprah’s fee. 76 At worst, to not require a specific writing would set bad policy and allow
someone to circumvent the Statute of Frauds and even perpetrate a fraud—something the
Statute of Frauds was designed to prevent.
Nevertheless, 77 although Ed’s writing is not clear, 78 it does make reference to
“your land,” which parol evidence can demonstrate was Oprah’s land. Additionally,
although the note does not describe the easement by metes and bounds, yet again parol
evidence can come in to show the easement is the road that Ed uses and, thus, resolve the
ambiguity in the writing and maintain the integrity of Oprah’s fee. Finally, 79 while we
want to ensure that fraud is not committed, that is not the case here: Ed is not perpetrating
a fraud and, further, courts should address problems at hand, not problems that might
come up in the future.
Thus, the description of the property complies with the Statute of Frauds.
Statute of Frauds: Signature of Oprah 80
Is the signature requirement of the Statute of Frauds satisfied when Oprah did not
sign any document but responded, “You are most welcome” in her own handwriting?
The Statute of Frauds requires that the writing be signed by the party to be
charged (the person resisting the easement). 81
Because Oprah did not sign anything, on its face, the Statute of Frauds was not
satisfied. 82 Further, 83 we should not go out of our way to find compliance with the
Statute of Frauds because to do so vitiates an important ritualistic and evidentiary
71
Here is the “R1” of my IRRAC formulation.
Here is the first element that I discuss. Note that I indent slightly to make it clear that this is part of the
express easement issue.
73
Here is the “R2” of my IRRAC formulation.
74
Again, note the word, “because.”
75
I make a logical argument here.
76
In this sentence and the next, I make a policy argument.
77
I switch sides here.
78
Here and in the next few sentences, I argue why the writing (with parol evidence) satisfies the Statute of
Frauds.
79
In this sentence, I make a policy argument in favor of Ed.
80
Here is the next issue I address.
81
Here is the rule of law, the “R2” of my IRRAC formulation.
82
In this sentence, I simply apply the law to the facts and find that the statute was not satisfied.
83
In this sentence and the next, I make a policy argument in favor of Oprah.
72
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purpose. If the statute were found to be satisfied on these facts, any unsigned rough draft
could end up satisfying the Statute of Frauds.
On the other hand, 84 the purpose of the signature requirement is to ensure there is
no fraud. In this regard, we can take Oprah’s handwritten note—which does not deny
Ed’s use of the private road—and determine that it was Oprah’s handwriting. In such
case, we can be assured that fraud is not present. Additionally, 85 while we might be
“bending” the Statute of Frauds somewhat, we are doing so to effectuate the intent of the
parties at the time: the statute should not impede business transactions but carry them out.
Thus, the Statute of Frauds’ signature requirement was satisfied.
Implied Easement by Prior Use 86
Assuming that Ed did not have an express easement, 87 can Ed secure use of the
private road on the theory that he had an implied easement by prior use? 88
An easement implied by prior use arises when there is a common grantor who
conveys a part and keeps a part; there is a quasi-easement; that after the severance there is
necessity; and that the use by the common grantor was apparent and continuous. 89
Quasi-Easement 90
Did Oprah have a quasi-easement when she used the private road once or twice a
year over a 36-year period to get to the public highway? 91
A quasi-easement exists when prior to the conveyance there was a usage of the
two parts which, had it been severed, could have been the subject of an easement with a
dominant estate and a servient estate. 92
84
I switch sides here.
Here, I make a policy-based argument.
86
Here is the next issue that I will address. I state here exactly what I stated on last semester’s exam: Note
that three elements that are problematic here: quasi-easement, necessity, and continuous and apparent.
Thus, I will essentially IRAC each element. Some students gave me all the rules for each element and then
gave me one big analysis. I have stated the next point often, but students continue to make this mistake. I,
therefore, repeat this important point: When you have multiple elements of a rule in dispute (what I call a
“complex analysis” issue), you IRAC each element that is problematic. You tackle each element fully and
completely before going on to the next element. Never, ever give all the elements and their concomitant
definitions up front followed by one huge analysis. It is too difficult to read and incredibly hard to grade.
87
Never conclude yourself out of points. Whether or not you concluded Ed had an express easement, you
next must discuss a prior use easement.
88
Here is the issue statement.
89
Here is the rule of law, the “R1” of my IRRAC formulation. I was surprised at the number of students
who raised this as an issue but were not able to state the rule of law completely. If the rule is not stated
completely and the student leaves out quasi-easement, necessity, and continuous—the key elements in
dispute here—the student ended up getting no points.
90
Again, because there are several elements in dispute, I will IRRAC each element. A mistake that some
students made was to raise the issue of an easement by prior use, but not focus on the particular elements of
an easement by prior use. Precision is required in the law and on law school exams. Note also that I
indented to make clear that quasi-easement is part of the easement by prior use. In past exams, I did not
indent but wrote, “Implied Easement by Prior Use: Quasi-Easement.” Some students did this. That is fine.
It is not a problem. I have just changed my style somewhat because I think the change makes the essay
better. I am constantly seeking ways to improve.
91
Here is the issue statement. A good number of students were confused by this. They wrote, “Did Ed have
a quasi-easement when he used the road to get to the public highway?” (Emphasis is mine.) The quasieasement refers to the common grantor’s usage—not the grantee’s usage.
85
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Oprah’s use should not give rise to a quasi-easement because the use was so
infrequent that we should not recognize a quasi-servient and dominant estate. 93 To do so
puts every owner at risk of finding a prior use easement; even one such use arguably
would be sufficient.
On the other hand, 94 we do not have merely one such use; we have somewhere
between 35 and 70 uses (once or twice a year)—not an insignificant number. Further, to
look at any number of uses is improper because to do so wrongly conflates two elements:
quasi-easement and continuous. In effect, 95 we would be putting the burden on Ed once
too often: once to show that 35 times is a quasi-easement and a second time to show that
35 times is continuous. This is a “doubling up” of the burden. It is—or should be—
sufficient that Oprah used the private road even just once.
Thus, there was a quasi-easement.
Necessity 96
Did Ed have necessity to traverse Westacre to get to the public highway when, but
for the private road on Westacre, he would have to travel an extra 5 hours to reach the
highway?
Necessity means either absolute or strict, meaning that there is no other access; or
it means just reasonable necessity, meaning substantial increased cost.97 Traditionally, for
a prior use easement created by implied grant (the case here), reasonable necessity was
required after severance; for a prior use easement created by implied reservation, strict
necessity traditionally has been the rule. 98 I will discuss here only reasonable necessity;
strict necessity is discussed in the section, easement by necessity, below. 99
Although having to travel an extra 5 hours is certainly an increased cost, 100 it may
be questionable whether it is a “substantial” increase in cost. At the present, gasoline
prices are down significantly and a few dollars extra per day, even assuming the worstcase scenario that Ed takes the road every day, is not a great burden. If Ed takes the road
less than once a day, his case is weakened still.
However, 101 cost is not just a dollar figure. To make Ed spend extra time on the
road diminishes his time that he could spend on other matters. Society should encourage
its members to be productive—not spend time behind the wheel polluting the
92
Here is the “R(2)” of my IRRAC formulation, the definition of the quasi-easement.
In this sentence and the next, I demonstrate why there was not a quasi-easement.
94
I switch sides here to show that there was a quasi-easement.
95
Note the logical argument that I make here.
96
Here is the next issue that I will IRAC.
97
Here is the rule of law, the “R2” of my IRRAC formulation.
98
What is this? Is this an “R3”? I never said that IRRAC has three Rs! The point here—and it is an
important point and one that I have made several times earlier in this memo—is that IRRAC is merely an
organizational tool. You should feel free to vary from it whenever reason, logic, or logistics tells you too—
just as I have done here.
99
I am not going to discuss absolute necessity twice. Thus, I leave that for below. Quite a number of
students discussed strict necessity twice: for prior use easements and easements by necessity. Of course, I
cannot give credit twice for the exact same argument (and in some cases the analysis was identical).
100
In this paragraph, I explain why Ed does not have reasonable necessity (no substantial increased cost).
The heart of my argument is economic based.
101
I switch sides here. The argument analyzes cost based on time—not money.
93
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environment and increasing traffic. To make Ed travel 5 extra hours one way (10 hours
round trip) is a great cost for Ed as well as for society.
Therefore, there is necessity.
Continuous and Apparent 102
Was Oprah’s use of the quasi-easement 35-70 times over a 35-year period
continuous and apparent? 103
Continuous means permanent, not temporary, and apparent means reasonably
discoverable. 104
As for continuous, 105 Oprah used the private road anywhere from 35-70 times;
this is not a large number of uses but that is not inconsistent with a permanent use; once
or twice a year for 35 years shows a constant “rhythm” of use, and that is all that should
be required. The key is permanent and we should not confuse it with “often.” Further, 106
anyone could observe Oprah’s use of the road by careful observation; this was not a case
of subterranean pipes, for example.
On the other hand, once or twice a year is far too modest to become “permanent”
because Ed could not have had any expectations—the heart of a prior use easement—
based on such an insignificant use. Related to this is the discoverability: 107 with such
infrequent use—especially over a 500-acre estate—no reasonable person could readily
discover this use. For all intents, it was so infrequent as to be done by stealth.
Thus, the use was not continuous and apparent.
Easement by Necessity 108
Can Ed establish an easement by necessity when he uses Oprah’s property to
avoid traveling an extra 5 hours (10 hours by round trip) to reach the public highway? 109
An easement by necessity arises when a common grantor conveys a part and
keeps a part and immediately after the conveyance there is a necessity to reach a public
road. 110 Necessity in easements by necessity traditionally means strict necessity. 111
102
Here is the next issue.
Here is the issue statement: key facts plus the legal issue triggered by the key facts. Many students
discussed whether Ed’s use was continuous and apparent. This was wrong. It is the common grantor’s use.
Consider this: An easement by prior use is based on prior use! The key word is prior. Hence, the common
grantor had to have used the property (quasi-easement) and have made continuous use, which was apparent.
True, necessity is based on necessity after severance, but the heart of a prior use easement is the conduct of
the common grantor before severance and the expectations of the parties.
104
Here is my rule of law, the “R2” of my IRRAC formulation. Should continuous be a separate IRAC, and
apparent another? I do not think so. The cases sometimes refer to the element as “continuous and apparent,”
and I, too, personally believe that they are one and the same. If a use is continuous (permanent), it will
almost certainly be apparent (reasonably discoverable), especially in light of the necessary element.
105
Here, I explain why the use was continuous.
106
Next, I explain why the use was discoverable.
107
Note how continuousness is related to discoverability.
108
Here is the next issue.
109
Here is the full-blown issue statement.
110
Here is the rule of law, the “R1”of my IRRAC formulation. Note that only one element of the rule is in
dispute. This is what I call a so-called simple analysis issue, and is to be contrasted with a so-called
complex analysis issue where multiple elements are in dispute. For a complex analysis issue, see above.
Note also that these terms (simple analysis issue or complex analysis issue) are my own terminology.
103
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Traditionally, 112 for an easement by necessity, strict necessity entails a landlocked
situation and there is no other way out, something that does not exist here. True, Ed has a
good deal of time that he must spend on the road, but courts are loath to allow grantees to
acquire an easement “on the cheap” when all that Ed had to do was inspect his land and
insist on an express easement in his deed. His foolishness should not trump well-defined
legal principles. Indeed, one court found that building a staircase up a mountain 113 means
that strict necessity does not exist. Ed’s case is not as extreme as that case.
Nevertheless, 114 tradition notwithstanding, modernly, some courts use a
reasonable necessity standard for an easement by necessity (which standard could allow
Ed to prevail, as discussed above). In this regard, the law evolves: what was proper 100
years ago may seem too harsh today: People make mistakes; that is part of the human
equation and perhaps such a mistake should not render their land virtually valueless or
essentially landlocked.
Thus, Ed should have an easement by necessity.
Irrevocable License 115
Assuming that Ed fails in his efforts to establish an implied easement by prior use
or necessity, could he prevail on the ground that he has an irrevocable license because
Oprah changed her mind and constructed a fence across her land?
A license can become irrevocable by an estoppel. 116 For an estoppel to arise there
must have been misleading conduct on the person sought to be estopped along with
detrimental reliance on the part of the other.117
When Oprah let Ed spend time and money to build his house, accepted a gift of
gratitude, and wrote, “You are most welcome,” and then shut him off her land because of
some “argument,” on its this is misleading because it gave Ed the reasonable impression
that he could continue to make use of Oprah’s private road. No other reasonable person
could think otherwise. As for detrimental reliance, Ed spent time and money building his
house—a huge investment for most people.
On the other hand, 118 every person is deemed to know the law and one should
know that when one is not near a public highway, one should get an express easement to
reach the highway—and not relay on the whims of a neighbor. From this perspective, the
revocation of a license can never be misleading, nor can one ever reasonably rely on its
continued existence.
Thus, Ed does not have an irrevocable license.
111
Here I make it clear to the professor the element that is in dispute by defining it. (For multiple elements
in dispute, I actually IRRAC each element; see above for illustration.)
112
In this paragraph, I explain why Ed does not have necessity, from a factual and policy perspective.
113
The staircase up the mountain case is a classic. Some students referenced it. No case name is required,
however. It is a case—not federal doctrine (in the manner of a United States Supreme Court case).
114
In this paragraph, I argue for a change in the common law, recognizing that the human condition is not
to be perfect.
115
This is Ed’s last chance for success. While a good number of students discussed this issue, many did not.
116
Here is my rule of law, the “R1” of my IRRAC formulation.
117
Here is the rule of law, the “R2” of my IRRAC formulation.
118
Here is my argument—a common sense one based on the nature of a license.
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Question 3
Common Law Covenant of Quiet Enjoyment 119
Did Lance breach the covenant of quiet enjoyment when he mowed the lawn on
Saturdays and disturbed Tina’s sleep?
The common law covenant of quiet enjoyment, implied in every lease, states that
the landlord shall not, by any act, interfere with the tenant’s peaceful enjoyment of the
premises. 120
By mowing the lawn on Saturdays when Tina catches up on her sleep, 121 Lance
has breached the covenant because this is the classical means by which the landlord
breaches the covenant: by doing something that affirmatively interferes with the tenant’s
enjoyment.
On the other hand, 122 not every act that interferes with the tenant’s peaceful
enjoyment can be a breach. For example, if the landlord had to have a plumber in over a
period of days to fix an emergency leak, the tenant could not be heard to complain that
his quiet enjoyment had been shattered. The key, therefore, must be reasonableness. In
this regard, mowing the lawn on a Saturday at 10 AM is not unreasonable. To have to
take into account the idiosyncrasies of every tenant would mean that landlords could be
sued for engaging in traditional business related activities.
Hence, there is no breach of the covenant of quiet enjoyment.
Constructive Eviction 123
Assuming that there had been a breach of the covenant of quiet enjoyment, 124 was
Tina constructively evicted when she left 3 months after the problem first materialized
and not sooner because of her work schedule? 125
119
This is the first issue that I cover. I need to point out something here: Many students had a great deal of
trouble with the issue. It certainly was not my intent. What most students did was to discuss the common
law and then Reste Realty. Reste Realty was not applicable, however. That case dealt with the most modern
view of quiet enjoyment and with the situation where the landlord fails to act (with the case holding that the
landlord breaches the covenant of quiet enjoyment when he fails to act even if he has no underlying duty to
act, so long as he has the power to fix the problem). The exam hypo, however, dealt not with a failure to
act, but by acting: the landlord made noise that disturbed the tenant’s sleep. In short, this was a basic
problem. Many people spent much time on the failure to act and wasted precious time.
120
Here is the rule of law. No “R2”? Well, I guess I could have broken this up into 2 separate sentences.
But remember that the key is substance over form.
121
In this sentence, I give a reason why there was a breach.
122
I now change sides and give several reasons why there was no breach. In short, my answer is based on a
reasonable person standard.
123
Here is the next issue that I will address. Some students started with constructive eviction. It makes no
sense to start with a remedy and not the cause of action. Indeed, to do so is an indication that the student
really does not understand the relationship between the cause of action (breach of the covenant of quiet
enjoyment) and the remedy (constructive eviction).
124
I previously concluded that Lance did not breach the covenant of quiet enjoyment. Hence, I begin with
the clause, “Assuming that there was a breach of the covenant of quiet enjoyment . . . .” Remember, never
conclude yourself out of points.
125
I mentioned this earlier in the memo, but it is so important that I will state it again: Every year a few
people frame the issue in this manner: “Did Tina constructively evict herself when . . .” I cannot tell you
how utterly absurd this sounds. A tenant does not constructively evict herself. She avails himself of the
remedy of constructive eviction or, as I stated, “Was Tina constructively evicted . . . .”
25
A tenant is constructively evicted when she vacates 126 in a timely manner after the
landlord has breached the covenant of quiet enjoyment. 127 Whether a vacation of the
premises is timely is dependent on the totality of the facts and circumstances. 128
By waiting for 3 months to vacate, 129 this was too long a period because the time
gap demonstrates that if the problem were that severe, Tina would have vacated much
earlier, notwithstanding a demanding work schedule. Life can be hectic, but if one wants
to avoid the liability of a lease, an important legal document, one must take responsible
action speedily.
On the other hand, 130 Tina did not delay because she was a lazy person. To the
contrary, she left as soon as her work schedule allowed. Moreover, Tina’s work is as a
police officer, a position with much stress and with great danger. Society should consider
a work schedule in general and a police officer’s in particular as part of the “totality of
the circumstances” test for timely vacation.
Thus, Tina was constructively evicted.
Implied Warranty of Habitability 131
Did Lance breach the implied warranty of habitability? 132
Implied in every residential lease in most jurisdictions is the implied warranty of
habitability. 133
Habitability [Fitness 134 ] 135
126
I state here almost verbatim what I stated last year: Note the word, “vacates,” This is the proper word. A
number of students used the term “abandons.” That is the wrong term to use. Vacate is neutral.
Abandonment is a vacating of the premises without paying rent, without intent to return, and without cause.
The term abandonment is used only as a conclusion: if Tina vacates and loses on all theories (quiet
enjoyment, implied warranty of habitability, etc.) she can be said to have abandoned. To repeat,
abandonment is nothing more than a conclusion. (Courts, too, often make the mistake of using the term
“abandons” when they mean, “vacates,” but it still is wrong to use the former term when the latter is
meant.)
127
Here is my rule of law, the “R1” of my IRRAC formulation.
128
The element in dispute is timeliness, and so the “R2” of my IRRAC formulation defines what timely is.
129
In this sentence I make an argument based on the delay: Tina has to move out in a timely manner and 3
months after the fact is not timely—a hectic work schedule notwithstanding.
130
Here I make a policy based argument in favor of Tina.
131
Just like last year, more than a few students referred to this as the implied covenant of habitability.
Remember: it is the implied warranty (signifying it is in the realm of contract law) of habitability, but it is
the implied covenant of quiet enjoyment.
132
Here is the issue that I am going to write on. You will note that there are no key facts stated. The reason,
as I have stated earlier in this model answer, is this: When you have a rule of law and multiple elements in
dispute, after you lay out the broad issue and concomitant rule, you will proceed to do an IRAC of each
element. This is what is involved in this issue. More specifically, there are two elements of the implied
warranty of habitability that are in dispute: (1) habitability or fit for human habitation (inability to
sleep/one-window-bedroom), and (2) premises (whether the doctrine applies to a single-family house).
Thus, I am going to IRAC each of these elements. It is just too cumbersome and confusing any other way.
That said, remember that IRAC is simply an organizational tool that allows you to present your thoughts in
a logical manner.
133
Here is the rule of law, the “R1” of my IRRAC formulation.
134
I put this in brackets to indicate that either term (habitability or fitness] was appropriate.
135
I have this indented to make clear that the element of habitability [or fitness, see above] is a subcategory
of the larger issue of the implied warranty of habitability.
26
Can the premises be deemed habitable [or fit] because Lance’s mowing disturbs
Tina’s sleep?
The implied warranty of habitability provides that a landlord must deliver and
maintain throughout the tenancy premises that are safe, clean, and fit for human
habitation. 136
Lance breached the implied warranty of habitability because 137 sleep is as
important as having heat and running water. If one does not get sleep, one can fall prey to
viruses and other ailments. Indeed, lack of sleep may even cause death. From that
perspective, sleep is as important as any “package of goods and services.” 138
On the other hand, 139 the implied warranty of habitability has been used typically
for defects in the building itself: here there is no defect in the building. Moreover, to
apply it to non-structural problems puts landlords at greater risk to the point where many
may consider getting out of the residential lease business and into something that is safer
liability-wise. With home foreclosures on the rise and apartments in demand, 140 the last
thing we should do as a society is make it easier to find a landlord liable.
Thus, the unit does not violate the standards of the implied warranty of
habitability.
Premises
Assuming that Lance’s duplex is not habitable, 141 should the doctrine apply when
it was a single family house that was converted into a duplex? 142
The implied warranty of habitability typically does not apply to single-family
homes. 143
Because Lance converted the house into a duplex, 144 it should be deemed to be
what it is functionally suitable for: 2 multi-family units. 145 Further, 146 that Lance failed
to fill out the proper paper work is irrelevant because to find that the house remains
single-family for this reason would allow unscrupulous landlords to avoid liability by
purposefully not complying with legal requirements.
On the other hand, the purpose for exempting the warranty form single-family
homes is to recognize that a typical homeowner is not any more capable of fixing a
problem and deliver a “package of goods and services” any more than any tenant. From
this point of view, Lance is not any more capable of fixing a problem with the premises
than is Tina.
Thus, the warranty is not applicable in this case.
136
Here is the “R2” of my IRRAC formulation.
Take note, yet again, of the word, “because.”
138
I reason that sleep is part of the “package of goods and services” per Green v. Superior Court.
139
I switch sides and make a policy argument why Lance did not breach the implied warranty of
habitability.
140
Note how my policy argument is tied into current economic matters.
141
As I have stated earlier, you should never conclude yourself out of points.
142
Here is the next issue statement. A number of students did not address this issue.
143
Here is the “R2” of my IRRAC formulation.
144
Here are the key facts. Now I will build my creative argument onto these facts.
145
This is simply a logical argument.
146
I make one more policy-based argument based on Lance not filling out all the paperwork.
137
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Frustration of Purpose 147
Was the purpose of the lease frustrated when Tina could not sleep when she
wanted to because Lance had no other time to mow the lawn when he had to take care of
his sick mother?
The doctrine of frustration of purpose holds that when the underlying purpose of a
contract can no longer be carried out due to unforeseen circumstances, through no fault of
the party seeking relief from the contract, the one seeking relief is excused from
performing. 148 The element in dispute is “underlying purpose of a contract.” 149 [The
element in dispute is “unforeseen circumstances.”] 150
The purpose of a lease is, at least in part, to be able to sleep—a part of the
“package of goods and services” tenants expect. By his mowing the lawn, for whatever
reason, Lance’s activities interfered with this critical part of the contract.
However, as with the covenant of quiet enjoyment, reasonableness has to be read
into frustration of purpose: frustration is a contract principle and good faith and fair
dealing are implicit in every contract. To use the doctrine of frustration of purpose to
avoid a contract/lease would be improper when the landlord’s actions are not on its face
unreasonable. It would be one thing if Lance’s conduct took place at 2 AM—but 10 AM
should not ipso facto become the basis for escaping liability. To do so gives any
individual tenant the right to be a nonconformist and, therefore, avoid contractual
liability.
Thus, frustration of purpose is not available to Tina.
Illegal Lease 151
Can Tina avoid liability under the lease on the ground that the lease was illegal
because Lance accidentally failed to fill out some paper work required by local code? 152
A lease that is made in violation of housing code laws is an illegal lease and
confers no benefits upon the landlord. 153 The violations must be substantial in nature.154
That Lance had to pay a $1,000 fine indicates that the provision, 155 while
“obscure,” is not without significance. Further, 156 we should not allow anyone, a landlord
147
A number of students did not include this. I do not know why they did not.
Here is my rule of law, the “R1” of my IRRAC formulation.
149
Here is the “R2” of my IRRAC formulation. We never discussed in class what means “underlying
purpose of the contract.” I state here what I stated in two past exam memos: While there are cases dealing
with the point, we did not cover it and I do not presume outside legal knowledge. Thus, I simply identify
the element in dispute and go on from there.
150
As in past years’ memos, I put this bracketed sentence in just to make it clear that another approach
could have been “unforeseen circumstances.” Some students took the “unforeseen circumstances” route;
others took the “underlying purpose” route. Either was fine. In past model answers, I have sometimes taken
the “underlying purpose of a contract” rout and sometimes the “unforeseen circumstances route.” For the
balance of this essay, I will discuss only the “underlying purposes” element.
151
Here is the next issue. A number of students used the term, “Illegal Use.” This is fully incorrect. If Tom
were using the lease for an unlawful purpose, it would be correct in such a case to speak of an illegal use
(as the facts called for on a previous exam). But that was not the case on this year’s exam.
152
Here is the issue and the key facts that are triggering the issue.
153
This is the rule of law, the “R1” of my IRRAC formulation.
154
This is the “R2” of my IRRAC formulation.
155
Here are the key facts; now I will build my creative argument based on logic.
156
This next argument is based on policy consideration.
148
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or otherwise, the right to pick and choose which laws to obey. To not find the lease
illegal here could tell landlords that skirting some laws will not result in any
consequences—something society should avoid.
Nonetheless, 157 the facts here are a far cry from the facts of the case that started
this theory—Brown v. Southall Realty. 158 In that case, one of the facts was that a toilet
did not work—a basic accommodation of any decent unit. Here, all of the
accommodations work and the unit satisfies “all building code requirements.” To
penalize Lance on these facts would be to emphasize form over substance and allow a
tenant to avoid liability when there is nothing wrong with the unit.
Thus, the lease is not illegal.
Private Nuisance (Unintentional) 159
Did Lance create a private unintentional nuisance when he mowed the lawn on
Saturday mornings and interfered with Tina’s sleep?
Unintentional nuisance is a substantial non-trespassory invasion that is negligent,
reckless, or ultra-hazardous. 160 The element here is negligent, that is, unreasonable
conduct. 161
It is unreasonable to mow the lawn at an early hour knowing that one’s tenant
needs to sleep. This is the classical case of a “pig in a parlor instead of a barnyard”
(Village of Euclid). 162 Under normal situations there is nothing wrong with it, but Lance
knows of Tina’s requirements. As such, Lance was acting unreasonably.
On the other hand, unreasonable conduct is relative; to have to take into account
the needs of each and every tenant could drive landlords out of the market place. One
could only imagine if Lance had an apartment building with “100 Tinas” residing there.
Lance would never be able to mow the lawn, fix the plumbing, or paint the building
because someone would always find the conduct unsuitable for themselves. The key must
be the reasonable tenant, not the reasonable tenant who is a police officer working the
nightshift.
Hence, Lance’s conduct was not a nuisance.
Mitigation 163
Must Lance mitigate his loss before filing suit?
In some jurisdictions, Lance must mitigate his loss, that is, discount his damages
by the amount of money that he could have secured had he attempted to find another
tenant.
157
I now switch sides.
I make reference to this case because, as I stated earlier, this is not just a case; rather, it is a doctrine.
159
Many students wrote on nuisance, but they wrote on intentional nuisance. The facts state, however, that
Lance’s conduct was not intentional. Hence, only unintentional nuisance is applicable.
160
This is the “R1” of my IRRAC formulation.
161
This is the “R2” of the IRRAC formulation.
162
Again, I cite the case because it is not just a case, but a doctrine. Some might be thinking, “but that was
a zoning case.” True, but remember that the rationale of that case was nuisance control.
163
This issue was a mere 5-point issue. There is no analysis here. The answer is dependent solely on which
jurisdiction Lance is in.
158
29
If Lance is in a mitigation jurisdiction and he did not mitigate, his damages would
have to be reduced accordingly if he were successful against Tina. If, however, he is not
in a mitigation jurisdiction, then he does not have to mitigate.
Question 4
Negative Easement: IRNE 164
Can Otto succeed in his suit against Abel for damages stemming from Abel’s
refusal to purchase Otto’s water on the theory that an IRNE burdens Abel’s land?
An implied reciprocal negative easement arises when a common grantor conveys
a parcel with restrictions and, by so conveying, the remaining lots retained by the
common grantor are similarly and reciprocally bound. 165 An implied reciprocal negative
easement, where recognized, 166 may be either a new type of negative easement, 167 or
merely a theory to sustain several elements of a running covenant (discussed below). 168
Under classical IRNE theory, when Otto sold the first lot to the first grantee (“Mr.
1”) who had the restrictions, all of the remaining lots retained by Otto were reciprocally
bound. 169 The problem is that the IRNE cannot work here because 170 the covenant in
question is not “negative,” but affirmative in nature; Otto seeks to make Abel do
something, not refrain make him refrain from doing something. Further, 171 the IRNE
typically has been used only with respect to equitable servitudes and injunctive relief;
Otto here seeks damages from Abel. Additionally, there are only 4 types of negative
easements under the common law; to find a 5th should not be done in a cavalier manner,
especially when this new easement really is an affirmative covenant in disguise and
would simply circumvent the law of covenants (see below).
On the other hand, 172 any affirmative grant (or covenant) easily can be made into
a negative one: “Abel agrees not to refuse to buy Otto’s water.” Further, 173 the distinction
between injunctive relief and equitable servitudes on the one hand versus law and
damages on the other hand is a relic from the past: courts today are of general jurisdiction
and can award equitable and legal relief. Hence, there is no longer any reason to
164
Here is the first issue to cover. This is a bit tricky (just a bit). Most students wrote on IRNE, but the
problem is to understand that the exam hypo deals with a positive grant. Of course, as discussed in class,
any positive grant can be made into a negative one, as I will demonstrate in my answer.
165
The issue is implied reciprocal negative easements, and so my rule is an implied reciprocal negative
easement. This is the “R1” of my IRRAC formulation.
166
I let the professor know that not all jurisdictions recognize this doctrine.
167
Note, again, that the doctrine applies with respect to restrictions; what we have here on the exam is an
affirmative act (unless we can change it into a restriction). See below.
168
This is the “R2” of my IRRAC formulation.
169
Here I explain how, at least initially, the IRNE works.
170
What follows is my first reason the theory cannot work here: we have an affirmative covenant and not a
negative covenant. I was quite surprised that most students simply glossed over this without any
explanation at all. Everyone should have seen this.
171
Here is the second reason the IRNE cannot be used here: traditionally it is used for injunctive relief (see
the Sanborn case).
172
I switch sides here. I will now argue why the IRNE can work here.
173
I now make the argument why the law-equity distinction is irrelevant—or should be irrelevant—in the
21st century.
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distinguish between legal and equitable relief. Moreover, 174 expanding the number of
negative covenants to 5 is not a problem: the common law is continuing to evolve; that is
how we have developed rules to ameliorate the harsh effects of the Rule Against
Perpetuities, for example. 175 Finally, 176 to the extent that we are marching toward
superseding covenant law with easement law, that is not a bad policy: the law of
covenants began because the courts stopped recognizing new negative easements. We
now are just going full circle.
Thus, the IRNE is available as a theory for Otto.
Burden of the Covenant at Law 177
Assuming the court does not recognize a new negative easement, does the burden
of the covenant run with the land at law so that Abel must pay Otto damages for not
buying Otto’s water?
For the burden of the covenant to run with the land at law, these elements must be
satisfied under the common law: Statute of Frauds (form); intent; touch and concern; and
horizontal privity.
Statute of Frauds 178
Is the Statute of Frauds satisfied when the original grantee (“Mr. 1”) had the
provision regarding the water in his deed but he did not sign any agreement and there
were no express provisions in the lots retained by Otto?
For the original parties (Otto and Mr. 1) to be bound, 179 there must be compliance
with the Statute of Frauds, although for real covenants, some jurisdictions do not require
satisfaction of the Statute of Frauds; these jurisdictions do not recognize a real covenant
as an interest in land. For successors to be bound, there also must be compliance with the
Statute of Frauds where applicable, and the implied reciprocal negative easement (IRNE)
satisfies this requirement, where recognized. 180
Here, if compliance with the Statute of Frauds were required, there was
compliance with the Statute of Frauds because Otto executed—presumably he signed it—
and delivered the deed to Mr. 1. 181 While the facts do not state whether Mr. 1 signed the
deed too, that is irrelevant because in American law, accepting is the equivalent of
signing, and it is tradition in American jurisprudence that only the grantor need sign the
174
I now address the common law concern about expanding the 5 common law negative easements.
Yes, I worked in a Rule Against Perpetuities argument.
176
I follow up on the preceding argument.
177
Here is the next issue. Some students wrote on equity—clearly wrong. Others wrote on the benefit
running—also clearly wrong. The issue is the running of the burden because the original parties, Otto and
Mr. 1 are the original parties (not Abel) and Abel is resisting the promise. Hence the issue is the running of
the burden. It is at law because Otto seeks money damages.
178
I indent to make it clear that this is all part of the running of the burden at law.
179
This sentence is the “R2”of my IRRAC formulation. Note that the original parties must be bound, that
is, Otto and Mr. 1. Some students approached the original parties from the perspective of Otto and Abel;
but Abel is not an original party.
180
Here is, yet again, the “R3” of my IRRAC (or IRRRAC) formulation.
181
As I have said in past memos dealing with running covenants, if the original parties are not bound none
are bound and that is the end of it. I think that the facts clearly imply that Otto signed the deed, and none of
you indicated or even hinted at anything else. This model answer, therefore, will not take issue with this
point.
175
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deed. Hence, Mr. 1 was bound. As to the successors (those who bought lots 11-100,
including Abel), they were bound by way of the implied reciprocal negative easement
theory, which was discussed above: that each lot was similarly and reciprocally bound
after Otto conveyed to Mr. 1. As for using the implied reciprocal negative easement
theory in law when it developed in equity, 182 we no longer have separate courts of law
and equity; the doctrine, therefore, should be applicable in law, too.
On the other hand, 183 if the jurisdiction in question takes the Statute of Frauds
more seriously and does not recognize the implied reciprocal negative easement, then lots
sold following lot #10 could not be bound. Moreover, there is good reason to not bind
those lots and hold Otto to a higher standard: 184 the Statute of Frauds developed to
preclude a “he says, she says” endless debate on who said what and when. As a matter of
policy, to force people to comply with the formalities long established, we should not
give an “easy pass” to someone like Otto. Harshness here will ensure less litigation in the
future. In such case, if the implied reciprocal negative easement theory is not recognized,
Abel is not bound. Additionally, the implied reciprocal negative easement theory—if it is
a means of establishing the form of the covenant (and not a new negative easement)—
developed in the law of equitable servitudes. It is questionable whether an equitable
theory should be transplanted into the legal realm. While it is true that there are no longer
separate courts of law and equity, courts still generally do distinguish between real
covenants and equitable servitudes. In such case, the implied reciprocal negative
easement theory would not be available to establish compliance with the Statute of
Frauds for the successors to Otto and Mr. 1.
Thus, the Statute of Frauds or the form of the covenant was not satisfied. 185
Intent 186
Assuming that the original parties were bound, 187 did the original parties (Otto
and Mr. 1), intend successors to be bound by the promise in Mr. 1’s deed and the lots
remaining in Otto?
For the parties to have intended successor’s to the promisor to be bound, no magic
words (such as “heirs and assigns”) are necessary; rather, we look to the totality of the
circumstances. 188
Although no magic words are necessary, 189 they certainly are probative. Here we
do have the words “heirs and assigns” to indicate that the successors to lots 11-100
182
Note my distinction between law and equity: that the implied reciprocal negative easement developed in
equity cases. See Sanborn v. McClean. Can the IRNE be used for real covenants, too? There is little
authority on the subject. As in past exams, a few of you were astute enough to pick this up.
Congratulations!
183
I switch sides here.
184
What follows is a policy argument opposing the implied reciprocal negative easement theory. By the
way, full and fair disclosure: this is identical to the memo from fall, 2006.
185
Here is my conclusion. Of course, if the original parties (Otto and Mr. 1) are not bound, then Abel
cannot be bound. I continue, however, because you never conclude yourself out of points.
186
This is the next issue.
187
Although I have concluded that the form of the covenant did not bind Abel, I do not want to conclude
myself out of points. Hence, I go on to discuss the issue of intent.
188
Here is my rule of law, the “R2” of my IRRAC formulation.
189
Here begins the first of several arguments to establish why the original parties intended Abel to be
bound.
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(including Abel) were to be bound; words of art have special meaning in law, so this is
quite powerful. Moreover, it would make no sense for Otto to want to bind only 10 lots
and not the other 90 lots in the subdivision; Otto wants to sell water to everyone.
Additionally, 190 the implied reciprocal negative easement is available to establish not just
the form of the contract to bind those not the original parties (see above), but also to
establish the intent: that the original parties intended via the implied reciprocal negative
easement to bind all in the subdivision. Indeed, it would not make sense to say that the
implied reciprocal negative easement theory bound successors (Statute of Frauds,
discussed above) but that the original parties did not intend these very same successors be
bound.
On the other hand, Otto is a developer and should be held to a higher standard. He
is not a mere layperson. If he wanted everyone to be bound by the covenant, he should
have so indicated this in the deeds to everyone.
Thus, the intent to bind successors is not satisfied.
Touch and Concern: Traditional View 191
Did the covenant to buy Otto’s water touch and concern Abel’s land?
A promise touches and concerns the land when relates to the land. 192 A promise
relates to the land on the burden side of the covenant when it either reduces the
landowner’s rights to the land or reduces the value of the land. 193
The promise to buy Otto’s water does not touch and concern or relate to the land
because the promise deals with payment of money and anyone can pay money, not just
those who are on the land. 194
Nevertheless, 195 the promise does relate to the land because Abel would be
consuming the water on lot #25 and, in this respect, the promise is appurtenant to the
land. Further, it reduces the value of lot #25 because a purchaser from Abel would
190
I make one final argument, based on the implied reciprocal negative easement theory.
Here is the next issue. A number of students “hedged” their bets on this one. I explain below. Note also
that I cover the traditional view separate from the Restatement view. I did this because this year I have
emphasized to a greater extent than in prior years the Restatement approach to touch and concern. A
number of students did address the policy considerations of the Restatement.
192
Here is my rule of law, the “R2” of my IRRAC formulation.
193
Here is my rule of law, the “R3” of my IRRAC formulation (see above for further elucidation). I also
state here what I sated last year and the year before: Quite a few students gave an improper definition of
touch and concern. Many stated something like this: “A promises touches and concerns the land when it
relates to the land.” True, but you need more: Hence, my “R3.” Simply stating that the promise relates to
the land does not assist us in addressing the problem at hand—or any problem dealing with touch and
concern. You have to tell me about reducing its value or reducing rights to the land. Other students stated
this: “A promise touches and concerns the land if it either reduces the landowner’s rights or increases the
land’s value.” This is incorrect. On the burden side, the promise must either reduce the rights or reduce its
value. Apparently, more than a few students were not clear that the promise for the burdened side reduces
rights or values. On the benefited side, the promise must increase the landowner’s rights or increase the
land’s value. But note: As I stated previously, there is no issue of the running of the benefit [on this year’s
exam or last year’s exam or the year before]. Thus, students who wrote on increasing the value of the land
or increasing the rights of the landowner regarding the running of the burden were clearly confused and I
obviously could not give credit for stating improper law.
194
Here is my argument why the promise does not touch and concern: payment of money does not relate to
the land. Cf. Neponsit.
195
I switch sides and argue why the promise does touch and concern, using a traditional approach.
191
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discount the asking price by the amount of money he would have to pay Otto. Finally, the
promise also reduces Abel’s rights to the land; but for the promise, he could buy any
one’s water or no one’s water.
Thus, the promise touches and concerns the land.
Touch and Concern: Restatement View 196
Is the promise unenforceable because it violates public policy?
The Restatement (Third) replaces touch and concern with a public policy
consideration: if the promise is unconscionable or violates public policy, it is
unenforceable. 197
The promise to buy Otto’s water is unconscionable because it would bind all
successors in perpetuity to spend money on something they do not need—tap water is
available. 198 In this respect, the promise also is wasteful of natural resources.
However, 199 the promise is not unconscionable because Abel (or his successors)
need not use the water; they need only pay for it. In this respect, it does not waste natural
resources. Additionally, one would be hard pressed to say that the covenant violates
public policy if the parties were realigned; if Abel did not have tap water and Otto
decided he did not want to be bound any more, it is inconceivable that a court would
allow Otto to cut off the supply of water. In this respect, fairness runs both ways: if Otto
is bound, so should Abel.
Thus, the promise does not violate public policy.
Horizontal Privity 200
Assuming that the covenant touched and concerned Abel’s land, 201 does
horizontal privity exist when Otto conveyed originally to Mr. 1? 202
Horizontal privity is either a landlord-tenant relationship; a simultaneous
relationship; or a grantor-grantee relationship. 203 The Restatement (Third) does not
require it.
If the jurisdiction requires a landlord-tenant relationship, horizontal privity will
not exist. If horizontal privity is defined as a simultaneous relationship or mutual
196
The Restatement view is that touch and concern is replaced with policy: if the promise is
unconscionable, it cannot be enforced. In fall, 2006 exam, the issue arose in the context of public policy:
that a subdivision cannot violate a fundamental right or violate public policy. I did not include that issue on
this year’s exam grade sheet, however, because I omitted that section from the text materials this year. A
number of students discussed public policy as per the 2006 exam. I gave credit for it under the Restatement
view of touch and concern.
197
This is the rule of law, the “R2” of my IRRAC formulation.
198
In this sentence and the next sentence, I explain why the promise is unconscionable.
199
I now switch sides to argue why the promise does not violate public policy.
200
Horizontal privity is traditionally required for the burden of the covenant to run with the land at law. The
Restatement (Third) of Property does not require it, however.
201
I previously concluded that the covenant does touch and concern. But what if I were wrong? I, therefore,
proceed to the next issue because, as I have stated so often, never conclude yourself out of exam points.
202
Horizontal privity is the relationship between the original parties. Here, it is the relationship between
Otto and Mr. 1 (the first purchaser with the restriction). Quite a few students did not understand that
horizontal privity is the relationship between the original parties. A number thought it was the relationship
between Otto and Abel. Others confused horizontal privity with vertical privity.
203
Here is my rule of law. I guess I could have transformed this one sentence into three to more readily
comply with my IRRAC formulation. But remember that substance is more important than form.
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relationship (a relationship apart from the land, such as a pre-existing relationship based
on an easement), horizontal privity will again not exist. If, however, horizontal privity is
defined as a successive or grantor-grantee relationship, it will exist because Otto
conveyed to Mr. 1 and the covenant was in his deed. If the Restatement view is adopted,
the issue is irrelevant. 204
Thus, if horizontal privity is based on a successive relationship, privity exists. 205
Constructive Notice: Inquiry Notice 206
If the jurisdiction has a notice or race-notice statute, did Abel have inquiry notice
of the covenant to buy Otto’s water?
Inquiry notice arises when one is apprised of facts that would lead a reasonable
person to investigate further; the investigation can include an interrogation of those in
possession of the property. 207
Here, Abel as a homeowner may have observed deliveries of water to his
neighbors; if he did, 208 it was incumbent upon him to inquire further by asking neighbors
about the trucks and their delivery.
On the other hand, even if Abel did observe the trucks, one cannot know what one
does not know; to impose such a burden on Abel to inquire would mean that no one could
ignore any sight or sound. No one could endure state of mind for long.
Thus, Abel did not have inquiry notie.
Constructive Notice: Record Notice 209
Did Abel have record notice of the covenant when the deeds for lots 1-10 were
recorded?
In some jurisdictions, a deed out from a common grantor imparts notice. If we are
in such a jurisdiction, Abel would be charged with notice. Otherwise, he would not be so
charged.
Benefit in Gross 210
Will the burden run if the benefit to Otto is in gross because Whiteacre is not near
Orangeacre?
In some jurisdictions, if the benefit is in gross, the burden will not run. In such a
jurisdiction, Otto cannot enforce the covenant against Abel.
204
There is no analysis for this issue. Rather, it is, as I call it, a mere “application” or “rule/counter-rule
issue (my own terminology): the rule of law is simply applied to the facts for a perfect fit. No creative
argument is needed.
205
Here is my brief conclusion.
206
Notice is not required for a running covenant at law (unlike an equitable servitude). Still, notice is
required if there is a notice or race-notice statute. Considering that all but two states use a notice or racenotice statute, I think it was appropriate to raise the issue here.
207
Here is my rule of law. Note that I could have broken this down into two rules, so that I have an “R1”
and an “R2.” Yet again, I did this purposefully to show you that IRRAC is just a tool; it is not holy writ.
208
You cannot assume that he did. Some students made this assumption.
209
This is another rule/counter-rule problem. There was no analysis. The resolution depends upon whether
the jurisdiction recognizes the doctrine stated.
210
The last issue. If the benefit is in gross, in some jurisdictions, the burden will not run.
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Here, because Whiteacre with its water supply is 2 miles from Orangeacre and
because Otto sold off all of the lots, the promise is not appurtenant but in gross. In the
jurisdiction described, the burden cannot run.
SELF-DIAGNOSTIC
I provide you here with the same self-diagnostic that I have provided my students
in prior years. I state here exactly what I have stated in previous memos.
To assist you in learning how to improve your thinking skills, I have prepared this
self-diagnostic. If you complete this diagnostic, you will gain greater insight into what is
expected of you on a law school exam and learn from your mistakes and omissions by
active learning (as compared with passive learning, an example of which is reading a
commercially prepared outline).
Step 1: Read the Question
The first step to diagnosing your own weaknesses is to read the property essay
question(s) again. This is necessary because by now it has been a several weeks since you
took the exam. Too many students read their essay exam and do not read the question.
This is foolish. So be certain to read the exam question over.
Step 2: Read Your Answer
Through the years, I have had students come to me to review their exams without
them taking the time to read their answers first. This is such a waste of time (theirs’ and
mine). Read your answer. Yes, it is painful, but you must read your answer if you are
going to understand why you received the grade that you did and improve your
performance.
Step 3: Read My Grading Sheet
As you read your answer, you must also read the grading sheet that I used to
award the raw points to your essay. When you do so, try to see why you received only
one point for an issue statement instead of two. Attempt to understand why you earned
little or no credit on your analysis.
Step 4: Read the Model Answer
After you read your essay, read the model answer that I have provided for you. In
this way you will start to get a better sense for what is expected of you, and what you
failed to do.
Step 5: Study the Model Answer
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After you read the model answer, you must next study the model answer. This
means you must engage in active learning and ask yourselves questions: Why did the
professor raise this issue? Why did he frame it in the way that he did? How did he phrase
the rules of law? What makes his analysis strong?
Of course, these are only suggestions and certainly not the only questions that you
should ask yourselves. The point is that you must learn to start to think on your own, and
when you ask yourselves these and other kinds of probing questions, you are facilitating
that objective.
Step 5: Study Your Answer
You should next study your answer. Please note how I choose my words. I stated
that you should now study your answer, not just read your answer (which you have
already done). Mere reading is a passive activity and is inferior to active learning, where
the student is not an observer, but a participant. Consequently, I ask you to study your
answer. Think as you read. Ask yourselves why you raised a particular issue, why you
framed it in the way that you did, why you stated the rule as you did, and why you wrote
out your analysis in the manner that you did.
Step 6: Mark-Up Your Answer
With this step, you will really be getting into the active learning phase. What you
must do in this phase is take a red pen and make believe that you are me and start
marking up your answer. For example, if you believe that an issue statement is poorly
written because it does not have the key facts within it, then you should take your red pen
and write the following comment next to the issue statement in big red letters, “Omitted
Key Facts.” If your rule of law is incorrect (feel free to check with a hornbook, as
necessary), then you should write, “Incorrect Law.” If your analysis is a mere repetition
of the facts given, you must write, “Conclusory.” Whatever problems you see, you must
note them in big red letters.
Some of you may be wondering: How can I correct my own work? To this, my
answer is: You must start to learn now, because you have no other alternative. If you
expect only your professors to give you commentary on your exam (another example of
passive learning), what are you going to do the next time you take an exam? Your
professor will not be available during the exam. Moreover, when you wrote (or will
write) your appellate brief, did you think that your first draft was also going to be the
final draft? Of course not. You revised it on your own, and each time you made a
revision, it was better. The point is that you get better at doing something when you do it,
not when someone tells you how to do it. It is for this reason that if you want to improve,
you must annotate your exam in the manner that I have stated. If you do what I have told
you to do, you will learn much, more than I can ever articulate in a memo.
Step 7: Re-Write Your Exam
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The next step is also part of active learning: re-write your exam. By now you
know the issues and the rules of law. Put this knowledge into action by seeing how much
you can improve. When you re-write your exam, remember that my arguments are not
something to be inserted between Numbers and Deuteronomy. There is nothing special
about my analysis. You may well think of other arguments, or even better ones. That is
fine. Indeed, that is what I desire and expect.
Step 8: Study Your Re-Write a Day Later and Answer These Questions
After you have written out your re-write, put it down for at least a day. Thereafter,
read and study it. After you study your re-write, answer the following questions (I mean
this literally, not figuratively; print or type out the answers on a separate sheet of paper):
(1) How do the issue statements in your re-write differ from the issues statements
that you wrote out on the exam? Be specific.
(2) How do your rules of law in your re-write differ from the rules of law that you
wrote out on the exam? Be specific.
(3) How does the analysis in your re-write differ from the analysis that you wrote
out on the exam? Be specific.
(4) How else does your re-write differ from the exam? Be specific.
Step 9: Write Out Your Questions
If you have come this far, you have undoubtedly learned much. If you have
additional questions, write them out and come and see me. I will be pleased to discuss
them with you.
MISCELLANEOUS OBSERVATIONS
At this point, I present you with sundry observations and information that I think
you will find interesting and helpful.
Essay Performance
Your exam was composed of four essay questions. Each question had
approximately seven issues. All but three issues were worth 10 points each. The issues
that were not worth 10 points each were worth 5 points each. There was a total of 285
maximum points available on the exam. The median grade was a B. The average grade
was 2.9. The median raw score was 117 points. The highest grade (A+) earned 244 raw
points. The lowest grade (D+) earned zero (no) raw points. The grades for the class and
the breakdown will be posted outside my office on January 11.
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“I Have a Writing Problem”
What I stated in past memos I repeat here: Some of you will be tempted to say, “I
have a writing problem.” Let me assure you that if you can put a noun and a verb
together, you do not have a writing problem. Rather, the student who says he or she has a
writing problem actually has either a deficiency in understanding the law or a thinking
problem, or both.
If a student does not know, for example, what a constructive eviction is, the
student cannot answer a constructive eviction issue. It is that simple. The solution is to
learn the law and the legal (read thinking) process. This you do by reading and briefing
your cases, participating in class, preparing your own outlines (don’t just copy your
notes; outlining is true active learning and an integral part of the learning process), and
writing out complete practice exams (and then going through the diagnostic that I have
given you in this memo and critiquing your own work).
Yes, I know that this is a lot of work. But remember, there are no shortcuts to
success. If there were, everyone would be successful.
Exam Review
If after you have performed the nine-step diagnostic you still have questions,
write your questions out and see me. I will be pleased to discuss any of these questions
with you.
If there was a mathematical error on your exam (it does not happen often, but it
does happen), you do not need to go through the nine-step diagnostic. Just call me on the
telephone or send me an e-mail. I will then be able to determine if the change in points
will result in a grade change. If so, I will then ask you to mail me a photo-copy of your
exam and grade sheet. Of course, I urge everyone to go through the nine-step diagnostic
because you will learn so much about the law school thinking process.
CONCLUDING REMARKS
I conclude with words of congratulations, encouragement, and perspective.
Some of you did quite well. Congratulations! Your hard work has paid off.
Continue working hard. You have earned your success.
Many of you passed your exams, but did not do as well as you wanted to do. To
those of you in this category, I ask you to study this memo and understand why you did
not do better. It may be—and I say this just as an observation, not as a criticism—that
you just need to put in more time. Remember, you cannot cram for law school exams.
To those of you who did poorly, you are undoubtedly in great distress. You have
put in money and time, all seemingly for nothing. I also understand that my words will
not assuage your pain. Nonetheless, I ask you to consider the following, not to remove
your pain, but to help put it in perspective.
No successful person has ever gone through life without struggle. Moreover,
every successful person has had many challenges attached to his or her name. Babe Ruth
has the distinction of being not just a great home-run king, but of being a strikeout king,
too.
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It has been my pleasure to teach you. I wish all of you health, happiness, and
prosperity, all the days of your life.
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