ORDER OF PROCEEDING
• Logistics & Exam Structure
• Exam Technique
– Generally
– QI: Opinion/Dissent
– QII: Statutory Amendment
– QIII:Issue-Spotter
• Questions from You
– Exam Technique & Logistics
– Substantive
Logistics &
Exam Structure
General Logistics
• On Course Page:
– Exam Instructions Page posted now
– Posted tonight:
• These Slides
• Model Answers for 3 Practice Qs
• Model Answers for Spring 2011 Exam
• Exact List of Subjects That Might Be
Covered
General Logistics
Practice Exam Qs for Review
• Instructions on Course Page
• Must be submitted by Sunday @ 4 pm
• I’ll get you feedback by e-mail by next
Wednesday @ 4 pm
• I’ll do all of one Q at a time. Within each Q,
I’ll do in the order received.
General Logistics
• I will respond to E-mail Qs (within
reason) sent before 11pm Wednesday
April 25; I will send e-mails to whole
class if I think Qs are significant.
General Logistics
• Written Assignments Not Available 
– Compare work to posted comments &
models
– Ask Qs that don’t give your work away.
OR
– Send Qs to Letty Tejeda and ask her to
forward w/o your name.
Exam Coverage
• Test can’t cover every issue in the course
• Major issues from all across course
• Major issues should be familiar from questions
and/or hypotheticals raised & discussed in
class or from written assignments.
• Trying to reward attendance, careful prep of
DQs & careful work on written assignments
Exam Coverage
• Testing This Year’s Course; Issues from
Prior Years in Old Tests Outside Scope:
– Standing
– Statutory Defenses (exc. 3604(f)(9))
– Steering & Blockbusting
– Reasonable Modification
– Sexual Harassment & 3617
Exam Coverage
• Just FHA & §1982; Can Use
State Statutes & Cases as
Examples
Exam Coverage
• Just FHA & §1982
• Constitutional Law: Very Limited
– Not asked for substantive Constitutional
analysis
– Can use avoidance of Constitutional issues
as a policy argument (as in Rommmate.com)
Exam Coverage
Two Topics That Will Be Covered
(to think about in advance):
1. Roommate.com issue in context of §1982:
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Race v. other characteristics
Language/Purpose of §1982 v. FHA
•
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Can look at Jones for some of this
Example of non-statutory exception
Exam Coverage
Two Topics That Will Be Covered
(to think about in advance):
1. Roommate.com issue in context of §1982
2. Special Issues w Religion (1 or both of):
–
–
Is it religious discrimination for a landlord to
establish a facially neutral rule for religious
reasons?
Should there be an FHA claim when facially
neutral rules interfere with people’s ability to
practice their religion?
Structure of Exam
• Three equally weighted Qs, one of each type
• Eight-hour take home
– About 2.5 hours per Q
– I suggest
• ~2 hours: Write answer as thoroughly as you can
• ~30 Minutes: Edit down to page limit
• Formatting instructions online:
– Follow exactly to avoid penalties
– I suggest setting up correctly formatted Word
document in advance
Open Book Take-Home Tests: Virtues
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•
•
•
Time to Read Carefully
Checklists
Blow-ups of Selected Statutes
Security Blanket of Having
Everything Available
• Clothing Optional
• Food & Drink Available Throughout
Open Book Take-Home Tests: Dangers
• Temptation to Study Less & Look Stuff Up
During the Test:
– You’ll Miss Issues
– You’ll Cut Way Down on Your Writing Time
• Avoid Copying (v. Reading & Responding)
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–
–
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cf. Computerized Telephone Answering Menu
From Outline
From Old Model Answers
Long Passages from Cases or Statutes
Open Book Take-Home v. In-Class Exam
• Qs will not be more difficult than what I
normally give, although Q3 may be a bit
longer b/c of time to read
• 6 pages is about typical length for best
answers on in-class exams.
• I won’t grade harder b/c take-home, except I
will be less tolerant of disorganization and
impenetrable sentences b/c you have time to
edit/proofread
Aftermath
• After May 11, I’ll send e-mails with
grading progress.
• I’ll send e-mails when assignments are
ready to be picked up.
Aftermath
• Once grades are posted, I’ll make available a
packet for you to pick up with:
– Copy of your test
– Exam Questions, My Comments & Best Answers
– Explanation of Grading & Your Individualized
Scores
– Assignments not yet picked up
• I’ll set times to meet to review with you if you
choose (both in Summer and in Fall)
Qs on Structure
or Logistics?
Exam Technique:
Generally
Exam Technique: Generally
• My Exam Techniques Lectures Available on
Academic Achievement Website
• Some Repetition Here, But Focused on
Problems Commonly Arising on Old HDisc
Exams
Exam Technique: Generally
(1) Follow Directions
• Read Very Carefully
• My Exams: Different Qs = Different Tasks
– Kinds of arguments/authority useful for each is different
– Important to see differences between Issue-Spotter and
other two kinds (I’ll do in more detail below)
Exam Technique: Generally
(2) Best Prep is Old Exam Qs
•
•
•
•
Do under exam conditions (esp. Q1/Q2)
Review in groups if possible
Read my comments
Use model answers
– to see organization/style I like
– to see some possible ways to analyze
– neither complete nor perfect
Exam Technique: Generally
(3) Testing Ability to Use Tools, Not
Knowledge of Them
• Don’t Simply Recite Legal Tests; Apply Them
(as Soon as You Mention Them)
• Helpful (but not Crucial) to Refer to Relevant
Authority (see old best answers)
• Make your reasoning explicit: Wizard of Oz
(Because, Because, Because)
Exam Technique: Generally
(4) Draft, Not Final Product
• No need for formal introductions &
conclusions
• Use abbreviations (names; recurring phrases)
• Can use telegraph English
• Use headings, not topic sentences
• Can use bulleted lists (e.g., of evidence
supporting one side of an argument)
Exam Technique: Generally
(5) Be Concise
Regarding the recurring problem of wordiness, almost all of the
thirty-three otherwise diligent and competent students who in
2010 took the time to submit a practice exam answer in
Property IJ pursuant to the rules posted on the course page
for doing so thoroughly demonstrated the fact that that they
had a tendency to that problem as well as showing
redundancy and continued difficulties writing in a concise,
brief and to the point way.
Exam Technique: Sample (Disc. Intent)
McD-Dgs Bdn Shift (see Asbury)
• PF Case
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P.Class: Sex/Fem
Applied? Filled out appl.
Qualif? Hi credit score; OK TNT
Denied: On wait list, but last apt and min. 1 yr lease so probly
equivalent
– Left Open/Non-Class Member: Sat on for 3 days w no alt; then
went to man
• D Easy Bdn to i.d. Legit Reason: Mac + TNT +
Compatibility
• P Bdn to Show Pretext: …
Exam Technique: Sample (Disc. Intent)
Notes re McD-Dgs Bdn Shift
1. Direct Proof Analysis Mostly = Pretext Step of
McD-Dgs (X-Reference; Don’t Repeat)
2. When Not to Use
– If seems like won’t add much (quick version or 0)
– Gov’t defendant doing zoning/legislation
Exam Technique: Generally
(6) Use of Cases
• If case directly addresses issue raised by test, I
expect you to discuss/compare it.
• For other points, citation to relevant authority
is helpful, but not crucial
• Use single words or brief abbreviations as case
citations: Starrett, Jones, SoSub, SoMgmt
Qs on
Exam Technique
Generally
Exam Technique:
Question I
Opinion/Dissent
Question I: Purposes
• Force you to articulate arguments both ways
• Force you to give policy/theory rationales
– Good housing policy
– Statutory interpretation materials/arguments
• Best place for Blatt/Speluncean Explorers;/Legisl History
• BUT: Use tools, don’t just show them off
• Demonstrate you understand Judge’s role:
– This case and others
– Judiciary & statutes
INSTRUCTIONS:
Compose drafts of the analysis
sections of a majority opinion for the
U.S. Supreme Court, and of a shorter
dissent, deciding this questions in the
context of the facts of this case.
Question I
Compose drafts …
• As with issue-spotter, can include
headings, bullet points, abbr., etc.
• Present concise versions of arguments, not
rhetoric (don’t get carried away with role)
• Don’t need fancy language, transitions, etc.
Question I
… of the analysis sections …
• No need for
– Introduction
– Statement of facts
– Procedural history
– Separate history of the legal issue
– Conclusion
• Do make clear which side would win
Question I
… of a majority opinion … and of a
shorter dissent …
• Articulate best arguments for two different
positions (doctrinal & policy). (I really don’t
care who wins.)
• Each opinion needs to justify the particular
approach it endorses (v. alternatives)
Question I
… of a majority opinion … and of a
shorter dissent …
• Do 2 separate opinions (or big penalty)
• Some flexibility in arranging arguments
– Can put pro arguments in majority & con in
dissent
– Can do back and forth in long majority, then do
very short dissent explaining different
conclusion.
• May be helpful to write simultaneously.
Question I
… of a majority opinion … and of a
shorter dissent …
• Increasing Degree of Difficulty: Each
opinion should try to deal w other side’s
best arguments (“Four Tasks”)
Question I
… for the U.S. Supreme Court …
• Lower court cases aren’t binding
• Awareness that deciding law for whole
country, not just case in front of you
– Must defend positions taken even if consistent
with other cases in course
– Consideration of incentives re similar situations
in future
– Consideration of effects on future cases & legal
system
Question I
… deciding this question …
• Q is very specific; read carefully
– Stay within any boundaries set by Q
– Case in problem up on pleadings; not asked
to do application of law to facts
• Don’t avoid addressing my Q by making
cute legal or procedural arguments.
Question I
… deciding this question …
• Address arguments made by lower courts
– Guiding you to some available arguments
– At least have side that rejects say why
Question I
…in the context of the facts of this case.
• Again read carefully
• Think about why particular facts &
allegations are there
• Treat my facts/allegations as given (don’t
argue with Question)
Question I
…in the context of the facts of this case.
• Can use facts/allegations from particular
case you’re given as example or as
counterexample
– “The case before us demonstrates why …”
– “We think this case is not typical because …”
Question I: Best Answers
• Show good understanding of relevant
authority: caselaw & policy
• Show familiarity w statutory materials
• Provide strong arguments both ways
• Respond in each opinion to best arguments
of other side
Question I: Preparing
• Be aware of policies supporting
particular rules or relevant to particular
areas of law
• Look at old comments/models.
• Look at Comments/Models for
Assignment IV
• Do at least one under exam conditions
Question I: Final Point…
And finally, if you choose to name
your judges (you don’t have to) …
Majority (Trump, C.J.)…
Simpson, J., Dissenting: …
Question I: Final Point…
… don’t use your name (or your
pseudonym) as the name of one
of the judges!!
Simpson, J., Dissenting:
Doh!
Questions on
Question I
Exam Technique:
Question II
Statutory
Amendment
Question II
Two Skills:
Statutory Drafting &
Policy Discussion
Question II: Statutory Drafting
Compose a draft of a memo for your boss assessing
the proposed amendment. The memo should include:
• Technical Critique including identification of
technical drafting problems with the amendment
as written and identification and explanation of
possible changes to address these problems (if Rep.
Waffle decides to support the substance of the
amendment) …
Question II: Statutory Drafting
Technical Critique
• Do each section of amendment separately then
problems with the whole thing together (if any)
• It’s a type of Issue-Spotting (can use bullets)
– X is bad because
– This change would make it better because …
• Be specific; not helpful to simply say text is
“vague” or “confusing” or “wordy”
• Keep technical critique distinct from substantive
Question II: Policy Discussion
Compose a draft of a memo for your boss assessing
the proposed amendment. The memo should include:
• Technical Critique …; and
• Substantive Critique including discussion of the
pros and cons of the substance of the amendment
and identification and explanation of possible
substantive changes to improve the amendment.
Question II: Policy Discussion
Substantive Critique
• Do pros & cons for each section separately then
for the whole thing together (if relevant)
• Can give & support ideas to improve substance
• Can Refer to Range of Possible Concerns:
– Housing & social policy
– Administrative costs & judicial efficiency
– Potential Constitutional problems
– Political concerns (Can it pass?, Voters like…)
Question II: Common Problems
1. You Are Amending a Federal Statute
– The amendment can’t violate the statute
– You can’t say it’s bad b/c inconsistent w statute
– You can’t say its bad b/c inconsistent w cases
or doctrine
– You can say: I don’t like policy behind …b/c …
Question II: Common Problems
1. You Are Amending a Federal Statute
2. Work at Understanding the Drafter’s
Intent
– Read wording carefully (badly drafted)
– Read description of context (esp. cases)
– If you are unsure: indicate assumption(s): “Not
sure what 2d sentence means. Assuming it is trying to
change Starrett City result …”
Question II: Common Problems
1. You Are Amending a Federal Statute
2. Work at Understanding Drafter’s Intent
3. Organize Your Answer
– Topical may be helpful (v. tech then policy)
– Break into clear sections either way
– Leave room for discussion of interaction betw
sections or amdt as a whole
Question II: Common Problems
1. You Are Amending a Federal Statute
2. Work at Understanding Drafter’s Intent
3. Organize Your Answer
4. Redraft Without Explanation is Risky
Question II: Preparation
1. Work with Old Qs
– Do at least one under exam conditions
– Go through others to issue-spot (useful in groups)
– Compare to Comments/Models
2. Prepare Policy Arguments
– Try to anticipate places in course I might test (Q1)
– Include Policy arguments in Checklists/Outlines
3. Reread Statutory Drafting Materials
4. Look at Comments/Models for Assignment V
Questions on
Question II?
Exam Technique:
Question III
Traditional
Issue-Spotter
Question III: Instructions
Based on the facts below, P brought an action in U.S.
District Court alleging that D violated [the FHA
and/or §1982]. Discuss the following legal questions
in the context of the facts, noting the strengths and
weaknesses of each party’s position. The three
questions will be weighted roughly equally, so allot
your time and space accordingly:
(A) …
(B) …
(C) …
Question III: General Points
•
•
•
•
Read Carefully
Stick to Qs Asked
Treat Three Issues Roughly Equally
Try to Show Off Your Ability to …
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Work with Facts
See Two Sides on Each Major Issue
Question III
Traditional Issue-Spotter:
What I’m Looking For
1. Identification of the Most Important
Issues
2. Quality of Analysis
3. Clear Presentation
4. Quantity of Relevant Points Made
Question III
1. Identify the Most Important Issues
•
•
•
Not enough space to discuss everything
Need to choose among topics
Focus on most contested issues
– Serious arguments on both sides
– Look for topics with a lot of facts
– If lawyers wouldn’t fight about it, address it
quickly or not at all.
Question III
1. Identify the Most Important Issues
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•
Not enough space to discuss everything
Need to choose among topics
•
Focus on most contested issues
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Human Models (Fam.Stat./Race v. Handicap)
FHA Def. of Handicap (Quadriplegic v. Dwarf)
Question III
2. Quality of Analysis
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•
•
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Arguments for both sides of issues.
Work with/compare relevant authority
Try to use all the facts in the problem
You can note missing facts/evidence that
could help determine outcome (if not
inconsistent with facts you do have)
Question III
2. Quality of Analysis
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•
Defend key positions thoroughly
Increasing Degree of Difficulty: Keep
pushing toward resolution; don’t have to
reach one.
–
–
Doctrine, Stat. Language, Cases, Policy
Which side seems stronger & why
Question III
3. Clear Presentation
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•
•
•
Discuss one issue at a time & thoroughly
Use headings to indicate transitions
Make logic of arguments apparent
Deal with overlap through cross-reference,
not repetition
Question III
4. Quantity of Relevant Points Made
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•
•
Used primarily as tie-breaker if answers
otherwise similar
To save space, use abbreviations,
headings, bullets
Outline at end if more to say
Question III
4. Quantity of Relevant Points Made
•
•
A little bit of credit for quick citations to
relevant authority, but thorough analysis
of contested issues yields the most points
Use any authority you mention
Questions on
Question III
Penultimate Slide
Qs on Exam
Technique or
Logistics
Very Last Slide!
Substantive Qs?