Property (B1)
Professor Schnably
Fall 2014
Mid-Term Exam 1
Model Comprehensive Outline
This outline covers all the issues that you’d address in your answer, but is written in outline form rather than essay
form. On an exam, the outline you’d write before you begin to write an essay answer would be briefer than this.
Should AMIT workers be allowed to enter under State v Shack?
I.
Benefits to MWs/How important is info to MWs? 1
A.
B.
AMIT: it’s very similar to what lawyer and field service worker offered
1.
Employment info vital to economic well being
2.
More than just information; offers possibility of actually securing next job
3.
AMIT pays for transportation to TX, a great benefit for workers
Trisha: very different
1.
Employment info may not be as vital as information re: legal rights
a)
C.
Legislature endorses importance of info by making a legal right
(e.g., right to overtime). There’s no legislative endorsement of
working at AMIT
2.
Health care is more directly vital than a job; e.g., untreated illness or
wound could kill.
3.
Since info is from profit-making group, with reps getting a commission,
maybe info is biased or partial or not accurate?
Who has the stronger argument: 2
1.
[Example A: AMIT has the stronger argument because employment is just
as vital to well-being as good health or information about legal rights; as
for fears about the quality of the information, the MWs can judge that for
themselves]
2.
[Example B: Trisha has the stronger argument because the courts should
carve out exceptions to the right to exclude only if (as in Shack) there’s
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Notice how you don’t want to start: an introduction or overarching statement about the right to exclude
or human dignity. There’s almost never time for that on an exam answer, and it doesn’t show me that you
can analyze the issues. Note also that while you need to refer to specific facts throughout your answer,
you don’t want to summarize them at the outset.
Notice also that the organization is by issue, not by party – unless you’re specifically asked to, you
shouldn’t write a brief for one side, then a brief for the other.
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Note that the question does ask you to say which one has the stronger argument as to each issue. I would
only expect one answer – your own conclusion. What counts is giving a conclusion and a good reason,
not whether I agree with your conclusion. I provide two examples in this Model Outline just to show what
they might look like, and to make clear that there’s no one right answer.
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some strong legislative policy endorsement of the importance of the information the people seeking to enter are aiming to provide.]
II.
Availability of information by other means
A.
B.
C.
III.
AMIT: May not be so easily available if AMIT can’t enter
1.
MWs have limited access to info; that might make info on jobs in other
states hard to get
2.
Possible language barriers/many speak little or no English
3.
AMIT helps on both counts
Trisha: Not clear that this is only way for MWs to get info.
1.
Many or most people have cell phones
2.
MWs may know from word of mouth where jobs are
3.
AMIT does nothing to address need for info in other jobs beyond those
Texan farms AMIT represents. Why single out AMIT for special access?
Who has the stronger argument:
1.
[Example A: AMIT has the stronger argument because the combination of
language barriers and poverty make it unlikely that MWs will have full
access to a complete range of information on jobs available in another
state.]
2.
[Example B: Trisha has the stronger argument because with cellphones so
ubiquitous these days, it seems unlikely the MWs are as cut off from the
outside world as the MWs in Shack were.]
Burden on Trisha
A.
B.
AMIT: burden seems fairly small
1.
No privacy interest on Trisha’s part; it’s a farm business
2.
Telling someone re: future employment shouldn’t be any more interfering
than telling someone re: legal rights or removing stitches
3.
Might even help Trisha attract employees if people realize that one benefit
of working there is easy access to info re future employment places.
4.
Trisha can place reasonable restraints on time, location of AMIT workers
entry
Trisha:
1.
If she has to let AMIT in there may be a lot of other similar recruiters,
since there a lot of migrant farms all over the country. Burden is a lot more
than letting in a few governmental service reps
2.
Given profit incentive of AMIT reps, they may try to get them to leave before the scheduled time at Trisha’s farm is over (even though not supposed
to)
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C.
IV.
Who has the stronger argument:
1.
[Example A: AMIT has the stronger argument because what little interference there might be in the running of the farm in having AMIT reps come
in could be handled by reasonable rules and regulations set by Trisha.]
2.
[Example B: Trisha has the stronger argument because once the courts tell
her she has to let AMIT reps in, there’s no end to the number of recruiters
she’s going to have to accommodate, and even with some rules on hours,
it’s likely to be disruptive or time-consuming for her.]
Should AMIT be treated as a solicitor, in light of Shack’s disclaimer of creating a general
right of solicitation on migrant farms?
A.
Trisha:
1.
2.
B.
C.
AMIT fundamentally different from legal services/field worker Shack
a)
AMIT reps are selling things.
b)
AMIT is for profit corp.
Shack says no right of solicitation. That’s what AMIT reps are doing.
AMIT:
1.
Reps not selling anything to the MWs (it’s TX employers who pay the
commission) so like free legal/medical services
2.
Therefore the “no general right of solicitation language” in Shack is irrelevant.
If AMIT is treated as solicitor – standard
1.
2.
AMIT:
a)
Trisha is depriving MWs of practical access to things they need –
info on jobs
b)
If Trisha is worried about AMIT “stealing” MWs, she’s barring
their entry to gain a commercial advantage for herself
Trisha:
a)
b)
Barring AMIT doesn’t deprive MWs of anything
(1)
Has zero impact on info about non-TX jobs
(2)
Very unlikely AMIT is only way for info on jobs to get to
MWs
Shack concern about employer not gaining commercial advantage
is about overcharging employees for things at a commissary – hoping to avoid competition in selling things to MWs. That’s different
from employer not wanting to let reps of potential competitor onto
land.
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D.
V.
Who has the stronger argument:
1.
[Example B: Trisha has the stronger argument because AMIT is a profitmaking venture, the MWs can get the information other ways, and Trisha
isn’t using her right to exclude to gain a unfair advantage for herself.]
2.
[Example A: AMIT has the stronger argument because they’re not selling
anything to the MWs, just giving them information that’s vital.]
How broadly/narrowly to read Shack?
A.
B.
C.
AMIT: Read right of access broadly. If in doubt, grant access.
1.
Offends human dignity to deny MWs, who are very low-income, disadvantaged, info re future employment
2.
MWs are not organized, not in a position to help themselves. Presumption
should be to let anyone in if they offer help to MWs well-being and there’s
minimal practical burden on Trish
Trisha: Narrow exception to vital right of property. Unless very clear case for it
don’t grant access.
1.
Right to exclude is fundamental; therefore exceptions should be narrow
and for highly compelling reason
2.
Farm isn’t just workplace, but place where workers live. Not consistent
with MWs’ dignity or privacy to have it crawling with paid reps of other
farms trying to sign them up.
Who has the stronger argument:
1.
[Example A: AMIT has the stronger argument because Shack’s reference
to human values and dignity make clear that its protections of MWs
should be interpreted and applied broadly.]
2.
[Example B: Trisha has the stronger argument because the right to exclude
is fundamental, and in the absence of all the factors present in Shack (government-funded services workers working for charities that provide medical and legal rights), that right should be respected.]
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Property (B1)
Professor Schnably
Fall 2014
Mid-Term Exam 1
General Comments on Writing Exam Answers
Taking An Exam:
There are certain things you should keep in mind, which I list below, followed by a description
of what I am looking for and what can go wrong.
1. Follow the instructions. Pay attention to all the instructions. I put them on a cover sheet.
Make sure you read them before you start reading the exam questions.
2. Make sure you respond to the question.
o
What I’m looking for: Does the answer address the issue or issues that the question raised? Did the writer get basic facts wrong? Ignore important facts? Are
there significant legal questions raised by the facts that the answer simply doesn’t
address?
o
What can go wrong:

Sometimes people are in such a hurry to start writing that they rush
through reading the question, noticing only a few key words and then figuring they must know what’s being asked. Make sure you read the question carefully -- read it over once, and then go back over it.

Sometimes people think it’s important to write down everything they
know about the subject. It’s not. You need to thinking about and discussing how the rules (common law or statutory) could apply to these particular facts in a way that would best serve the underlying policies -- “policies” being the reason it would make sense to have the rule in the first
place.

Sometimes people fail to respond to everything that’s being asked. If the
question asks what the arguments would be in favor of a particular individual, and also asks you how you think the court should rule, remember
to address both.

Sometimes people assume there must be an issue -- one issue only -- in a
question. This can especially happen with people who adhere too rigidly to
some method like “IRAC” (“Issue, Rule, Analysis, and Conclusion”).
People may feel the need to state “the issue” right at the outset. The problem is that there will almost always be a variety of issues. In general, you
want to keep in mind that you should aim to write answers that are clearly
written and logically organized, and which address the question or questions asked; attempting to adhere too closely to any particular method
touted as good for law school exams in particular can easily undermine
that aim.
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
Sometimes people simply miss issues because they didn’t notice all the
facts. How much missing an issue will count against you depends on how
important the issue is; obviously, the more important the issue the more
detrimental it will be to omit any mention of it. Avoiding this problem is
mainly a matter of reading the question carefully and thinking about it.
One thing you might do, after you’ve written your outline, is take another
quick look at the question. Are there facts mentioned in the question that
play no role in your analysis? Sometimes facts may be included in a fact
hypothetical just for background, but typically fact hypotheticals are written to raise issues on a particular set of facts. If the answer you are planning on writing will pay no heed to a particular fact (particularly something prominent), you should just spend a moment to make sure that you
really think there are no associated legal issues. It may be that there aren’t;
I’m just saying it doesn’t hurt to double-check.

Sometimes people change the facts in the question and then analyze what
the result would be under the new circumstances. Answering a question
you’ve rewritten is almost always going to be a problem, especially if it
detracts from a thorough analysis of the question that has in fact been
asked.
3. Determine what the issues are and analyze them in an appropriate degree of thoroughness.
o
What I’m looking for: Does the writer identify the major and important minor issues? Does the writer seem to allocate his or her time properly? Is a disproportionate amount of time spent on less important issues, and not enough time on
more important issues? As to any given issue, does the writer argue for his or her
position, or simply assert it? How insightful is the analysis? Does the writer integrate the facts and the law in an analysis that takes policy considerations into account -- or does the writer just restate the facts from the exam, summarily state the
“black letter” law, and then assert that one side or the other would prevail?
o
What can go wrong:

Sometimes people think they need to get to the point -- to say that “A
owns Blackacre,” for example. What I’m looking for mainly, though, is
your analysis -- how you get there and why. Keep in mind that I have no
way of knowing whether you’ve mastered the material other than by what
you write. There are different types of exam answers:
1. answers written by people who understand the material well and
explain their reasoning well;
2. answers written by people who understand the material well and
leave out their reasoning;
3. answers written by people who do not understand the material well
and therefore leave out their reasoning;
4. answers written by people who do not understand the material well
and explain their reasoning poorly.
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Obviously, exams of the 1st type will do the best, and of the fourth type,
the worst. What may not be so obvious is that when I read an exam answer, answers of type 2 and 3 will likely look identical to me. People in
the second category therefore receive the same (lower) grade as people in
the third, even though they know the material as well as people in the first,
who receive higher grades.

Sometimes people start out an answer by recounting all the facts. That’s a
waste of time. I’m not looking for a repetition of the facts. You do need to
mention the relevant facts, but the way to do that is to work specific facts
into your analysis where they are relevant.

Sometimes people think it’s important to state the rules in their entirety at
the outset, in the abstract. They may then follow this by recounting the
facts and then asserting a conclusion. That is not the same as analyzing the
facts -- once again, discussing how the rules could apply to the particular
facts in a way that would best serve the underlying policies.

Sometimes people are too one-sided, and sometimes people mistakenly
treat everything as equally subject to a counter-argument. If you’re arguing for (say) a caveat emptor standard, you can’t just ignore the arguments
for a duty to disclose. You need to take note of the arguments for a duty to
disclose and then state why you find them unpersuasive. On the other
hand, while (as you should have seen from class) there is often a lot of
room to argue, you still need to exercise some judgment. Not every conceivable argument is worth spending time on.
4. Organize your answer and write clearly.
o
What I’m looking for: How good is the writing? Do the steps in the analysis flow
logically? How good is the paragraph structure? Is the answer simply a collection
of sentences with no particular organization? Is it repetitive? Are there problems
with grammar, run-on sentences, and the like? I don’t specifically grade for how
well written the answer is, but if the writing problems are severe enough, it may
be difficult for me to follow what the writer is saying. An essay answer should be
a series of paragraphs in logical order. Each paragraph should have a topic sentence. A topic sentence is what the paragraph is about. Everything that relates to
that topic sentence should be in the paragraph, and anything that does not relate to
that topic sentence should not be in that paragraph. The paragraphs should also
flow logically, so it’s evident when you move from one paragraph to the next why
what follows comes after (as opposed to having been addressed earlier or much
later). The way to achieve organization is to outline your answer before you
begin to write.
o
What can go wrong:

Sometimes people organize their answer by whatever comes to mind as
they think through the question. If this is what you’re doing, you are very
likely to leave something out, be repetitive, and hard to follow.
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
Sometimes people organize everything as an alternating sequence of “on
the one hand,” “on the other hand,” sentence by sentence. This is very
hard to follow. You need to organize your answer by topic. This includes
analyzing the counter-arguments to your position, but that needs to be
done in an organized way.

Sometimes people don’t put any paragraphs in. This is almost always a
sign of lack of organization. Of course, you don’t want to randomly hit the
return (on a laptop) or insert an indent (in a bluebook); your paragraphs
need to be organized and flow logically. But if you’re not putting in paragraph breaks (or doing so only every couple of pages in a bluebook),
something is going wrong.
5. Allocate your time properly. In one sense, this is more likely to be applicable to the final exam, since typically practice mid-term exams have one question, and you don’t need
to worry about (say) accidentally spending nearly the entire time for the exam on the first
two of three questions. Still, a mid-term exam may have subquestions. If there is more
than one question or if one question has some subquestions, make sure you spend the
right amount of time on each. What is the right amount of time? It basically turns on the
weight of the question. For example, if you have a three-hour exam and three questions,
and the instructions tell you that all questions will be weighted equally, then spend an
hour on each. Keep track of the time so you don’t spend 2-1/2 hours on the first two
questions and then have only a half hour left for the third.
In another sense, though, allocating your time properly will always be highly relevant.
Even if an exam has just one question for 60 minutes, with no subquestions, you still
need to allocate your time properly in a second way: you need to spend more time on the
more important or difficult issues, and less time on the less important or more straightforward issues. Doing an outline first can help greatly in figuring out, before you spend a
lot of time on a particular issue, whether it’s worth a lot of time.
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