Tag: law school

In Memoriam, Stephen A. Smith

Memories of one of my favourite professors

Stephen A. Smith, who taught me Contract Law and Advanced Common Law Obligations at McGill, and for whom I was a research assistant for two summers, has died. It is very sad news indeed. He was a good teacher and a good man.

Professor Smith was a leading private law theorist. He once joked that “every law professor only has one thing to say”, and there is truth in this, I’m afraid, as in any good joke, but he was very much the exception to this rule. Still, others will be better placed to speak to his accomplishments. As much as I liked him and enjoyed working for him, private law was and has remained beyond me, and indeed I don’t think I realized how important a scholar he was until much later; I’m afraid we took our professors for granted a lot. But I wanted to try to explain why I liked Professor Smith, despite not having been very interested in his subject.

As a teacher, he was always interested in why the law worked the way it did. One way in which this manifested itself, which I don’t think was especially popular but was probably my favourite part of the three semesters he taught me for, was having his second-year students read David Ibbetson’s A Historical Introduction to the Law of Obligations. Knowing that, centuries before Donoghue v Stevenson, there had been a case about a shipper who “by force of arms”, introduced salt water into the plaintiff’s wine barrels? I was there for that. Also, because he was interested in how things fit together and made sense, Professor Smith had no piety for courts that failed to live up to that standard. He wasn’t the only one of my professors from whom I learned this, but he was definitely one of them.

At the same time, he was mild-mannered, pleasant, unpretentious, and supportive. When a torts professor asked a class to describe the reasonable person, someone said that it was simply Stephen Smith. And he was.

Well, most of the time. Perhaps, to paraphrase Arthur Clarke, to discover the limits of the reasonable one needs to cross them a little into the unreasonable, and that’s what he did in the research he got me to help with. One of his jobs for me was to find out about remedies in French law. This sounds straightforward enough, until you realize that French law has no concept of remedies at all. It thinks in terms of obligations and the execution of obligations, rather than rights and remedies like the common law, and translating one into the other is by no means obvious. Professor Smith then went one better: what about remedies in Roman law? I’d never studied Roman law; good luck to me… And that wasn’t all. The best one, in fact, was this: try to find out if there actually exist private law examples of rights without remedies. That brought to mind Cristobal Junta, a character from the Strugatsky brothers’ Monday Starts on Saturday, a former inquisitor become researcher into wizardry and magic who regarded it as a point of principle to only investigate questions that had no answers, because if an answer exists, what’s the point of looking for it?

It wasn’t always easy to wrap my head around these things, but I think I learned a lot from them. Not so much about remedies, alas, but about law more generally, and about curiosity and thinking outside the box. I’m grateful to Professor Smith for having given me these opportunities ― despite my not having been an especially good student in his classes. These assignments may have made my head swim at the time, but they are some of my fondest law school memories now.

It is trite to say that one will miss a person who has died. But there it is, I will miss Professor Smith. He made me think harder and better, and he made the world a more interesting place, even if it was always in a low-key, reasonable, way. Thanks, and farewell.

Why Read Cases?

Some advice for law students

Legal education in the common law world revolves around reading cases. Perhaps a little less than in the past, but still. But why? And why should students spend time on reading cases in full, instead of finding short summaries? Especially now that (unlike, say, 100 or perhaps even 50 years ago) there are great textbooks that summarise whole areas of the law, and (unlike, say, 20 or perhaps even 10 years ago) online sources, some of them quite good, that summarise individual cases, and indeed short and sometimes plain-language summaries produced by the courts themselves?

Before I explain why, I mention a fundamental fact which students at the outset of their legal careers probably don’t think much about, understandably: your legal career, if that’s the one you choose, may well extend for 40 or even 50 years, and during this time the law will change a lot. Think about what the law was like in 1972, and what it is like now. How many statutes and even cases from back then are you encountering in your classes? Some, no doubt; perhaps quite a few if your lecturers are more historically-minded. But still. For lawyers who graduated in 1972 or 1982, almost all of the law they are applying now was made after they left law school.

In a superficial sense, law school cannot prepare you for this, because we don’t have time machines and cannot really guess what the law of the future will look like. So how do the lawyers who graduated in 1972 and 1982 manage? It’s because law school doesn’t only or even mainly teach you what the law happens to be at the moment in time when you go there. Instead, it teaches you the skills you need to understand the law as it develops over the course of your career. This is why law school is not just a trade school, but part of a university: it is doesn’t just teach you how to do something, but how to think.

Reading cases is one such skill, for (at least) three categories of reasons. The first has to do with learning what the law is; the second, with expressing oneself in the law’s language; the third, with solving problems like a lawyer. All of these, it is worth noting, apply across all areas of law ― nothing in what I will say here is specific to public law.

To begin with, you need to read cases to know what the law is because many of the most important legal rules and principles are not recorded in legislation, and are only given form, however imperfect, in judicial decisions. Moreover, even legislation seldom stands by itself. You need to know how it is interpreted and applied by the courts. Of course, you can pick up a lot about the cases decided in the past from the abovementioned sources ― textbooks, online summaries, etc. Maybe, from this perspective, you could get away with not reading cases in law school, though it’s not a good idea. These sources may be wrong, or, even more likely, they may be incomplete or slanted in one way or another. You want, as much as possible, to be able to judge for yourself.

And then, what happens when you graduate, and new cases keep getting decided? Suppose the Supreme Court decides a case that bears on an ongoing issue you are helping a client with. You cannot very well tell them to wait for a few months or even years until someone else does the work for you. You need to know how to read the case for yourself and update your advice to your client accordingly. Practicing to read and understand cases in law school is how you prepare for that.

Next, you need to read cases to write and speak like a lawyer. Like any profession, law has its own jargon. It can be peculiar. To be sure, law has become less attached to some of the more archaic English or even Latin words and phrases it used to be fond of ― though of course you may still need to be comfortable with them to understand older cases. But that doesn’t mean that lawyers now speak like any other educated persons. You need to know, for example, that you can have a claim at common law, or in equity, and not in common law or at equity. Why? I’m not sure there’s a reason. It certainly doesn’t make a whole lot of sense. But you need to know these things to establish a common language with your fellow lawyers and with the judges, without which you cannot be a full member of the legal community ― or an effective representative of your clients’ interests.

Reading cases is the most obvious way in which you will acquire this peculiar language. Textbooks and summaries often abstract it away in the process of distilling the cases’ holdings to single sentences or short paragraphs. They might help a little, but they won’t be enough. I suppose you might read statutes, but I’m not sure that’ll be as effective, and I’m certain it will be boring. (You should sometimes read statutes too, to know what they are like. But you don’t need to do it as much as with cases.)

Finally, and perhaps most importantly, you need to read cases to understand how lawyers and judges solve problems. In his famous report of Prohibitions del Roy, Coke CJ claims that he told James I that the King could not decide cases himself, instead of letting his courts do it, because

His Majesty was not learned in the laws of his realm of England, and causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be decided by natural reason but by the artificial reason and judgment of law, which law is an act which requires long study and experience, before that a man can attain to the cognizance of it.

While a lot in that report was made up, this idea was true in 1607, and it remains true today. The law has its own way of thinking through difficult questions, and being a smart person, which you are if you have made it to law school, isn’t enough to grasp it. In sports, you probably won’t be picked for a high-level team without some natural gifts. But you still need to train to become a great athlete, and not just someone who could have been one. It’s the same in law.

The cases are where you absorb legal reasoning. Textbooks and summaries focus on giving you the outcome, and not the step-by-step reasoning of the judges. Nor do they usually tell you which arguments the court found unpersuasive, or spend much time unpacking judicial rhetoric, which can be very useful if you are going to persuade judges: giving them ready-made arguments they can re-use will make them more likely to side with you. Lectures may go into such details from time to time, but they are too short to do it much.

Ultimately, there is no substitute for taking your own time and working your own way through judgments. Even if someone could learn all the legal rules that exist when they graduate law school without acquiring ― through long study and experience ― the skills that reading cases gives you, they would be useless to their clients within 10 years. And they’d still have 80% of their career ahead of them. You don’t want to be that person. The good news is that cases are often fun to read. They are stories, often interesting and sometimes well-told. The more you get use to reading them, the more attuned you become to the smaller details that can make them fascinating. And the sooner you start, the better you will be at it.

Learn Your Craft!

Justice Stratas shares his thoughts on succeeding in law school and beyond on the new episode of the Pod

Last month, co-blogger Mark Mancini launched an experiment in podcasting. We are back with a second episode, for which we have had the honour and the pleasure of speaking with Justice David Stratas, of the Federal Court of Appeal. With the new school year starting, we thought we would ask Justice Stratas for his thoughts on succeeding in law school and in the legal profession, with a particular emphasis on advice for first-year students. We are very grateful to him for accepting the invitation!

I am happy to report that the sound is rather better than last time, though no doubt we still have much to learn. Still, we think this should be an engaging and useful episode. You can listen to our conversation right here:

It is also available on Spotify and Google Podcasts. We also hope that you will share it with any law students ― especially first-year students ― you happen to know, or be teaching.

And, for further reading: Justice Stratas writing tips; and also, Mark’s post on “The First Year of Law School“.

F-Words

Some words and arguments to avoid in law school exams

This post is the first in what I plan on making a short series dealing with some things that bother me while marking public law exams. I once wrote a post along these lines, but happily at Reading its very basic advice is not as necessary as it was where I used to teach. Do refer to it for 101-level stuff. And please also refer to Mark Elliott’s excellent and helpful post, over at Public Law for Everyone, on the importance of making an argument in an essay question (or indeed a longer-format essay). That would be the 201 module.

This, by contrast, is going to be “issues in” course. What this means, really, is a course in the professor’s pet peeves. Of course, different people have different ones, and these might only be mine. But I do hope that they are of some use, both to colleagues and to students, and I hope that they will make for some entertainment if nothing else. After all, the first lesson concerns f-words! No, no that f-word. There are others, including four-letter ones. The one I’ll mostly focus on is “fair”. But first, let me say something about “floodgates”.

Floodgates arguments generally suggest that A’s claim against B should not be entertained by a court, because if it is, other similar claims will be brought ― the floodgates of litigation will open ― and the courts will be deluged with more cases than they can handle. I don’t think that floodgates arguments are often successful in real life. If A’s claim against B is without legal basis or factual merit, it can be rejected, and the rejection ought to serve as a deterrent to analogous future claims. To invoke the floodgates argument is to implicitly concede that, at the least, there may be something to A’s claim. But having made that concession, an advocate and especially a court will find it awkward to peremptorily refuse doing justice for no other reason than to economise resources. If many analogous claims ― all possibly meritorious ― are out there, the injustice of refusing to consider them is only compounded.

As a result, floodgates arguments are rarely persuasive in student work either. Truth be told, they are often the mark of a weak script. It is sometimes difficult not to suspect that the student could think of nothing better, simply remembered this catchy name, and went with a floodgates argument for lack of an alternative. Perhaps even a weak argument, at least if it is used accurately, is better than none at all, though one might want to consider whether making an inherently feeble argument does not harm one’s cause by exposing the defects of one’s position. (This is certainly true of the “kitchen sink approach”; not only do many bad arguments not add up to a good one, but they make it clear that one hasn’t understood which arguments are worth making.) Anyway, if you are choosing among a floodgates argument and a different one, always go for the other idea, whatever it might be. I would suggest making it a rule to simply banish this particular f-word from your vocabulary. It is a crutch, and not relying on it will only help you by forcing you to think a bit harder and more creatively.

My beef with the other f-word, fair (or its derivative fairness), is much the same: it is a crutch makes students think they’ve made a satisfactory case when they haven’t. But the explanation is perhaps a little more complicated in this case, or at least harder to believe. Unlike the floodgates of litigation, fairness is not a fancy-sounding technical concept, but one that we appeal to all the time. Unfortunately, that is part of the problem. Nobody wants to be against fairness, of course. But we should all be wary when someone ― including, I am afraid, a student in an exam answer ― seeks to persuade us by making opposition emotionally difficult rather than logically impossible. We should also be wary of making such arguments ― ideally, out of respect for our readers but, failing that, out of a self-interested concern not to arouse their suspicion that we might be trying to trick them.

More substantively though, fairness ― despite its intuitive appeal ― is also an elusive notion. Just what it means in any given context is often unclear. Now, sometimes ― and in our daily life, often enough ― we have a good, and, importantly, shared, sense of what fairness requires. If you insisted on choosing where to go for dinner with your friend last time, it is fair to let the friend choose now. If you were late to the pub, it is fair to buy your friends a drink. And so on. The trouble is that shared understandings of what is fair run out quickly in the kind of situations that law school exams, and indeed a great deal of law ― perhaps especially, though by no means only ― public law in the real world deal with.

Does fairness mean that people should be subject to human rights constraints or allowed freedom from them? Does it require government to seek parliamentary approval for a given course of action? Does it mean officials need to comply with rash, perhaps untenable promises to members of the public? Students ― and not only students, to be, ahem, fair ― may think that there are answers to such questions. But there are usually people on both sides of them. If you find one in an exam paper, you can be very confident indeed that there are serious arguments on both sides. And people on both sides probably think that their answer is fair. This suggests that no real concept of fairness is doing the work of compelling an answer one way or another. At best, people rely on intuitions about what is fair. At worst, they are actively covering up their true motivations under the specious rhetoric of fairness. (To be clear, I don’t suppose students do this often, if at all.)

Of course, these questions must have answers, if only provisional ones, and there are reasons why the answers are or ought to be one way rather than another. But fairness is not such a reason. There are other considerations involved. Some have to do with specific constitutional principles such as individual liberty, government accountability, the Rule of Law, the sovereignty of Parliament, or what have you. Others are policy arguments (including the dreaded floodgates, though to repeat it is a particularly weak one). Usually, more than one reason bears on a given answer. Relevant considerations sometimes complement one another, and sometimes pull in different directions. But it is their summing up, untidy and unsatisfactory as it sometimes is, that actually answers difficult questions, rather than appeals to fair play.

As with “floodgates”, I think that students should banish the other f-word from their exam-writing vocabulary. If you feel the itch to use it ― and, given its ubiquity, that is understandable ― you should ask yourself why you think that this course of action, or this approach to the problem, or this rule, is or would be fair. And then, give that explanation, in as much detail as you have room for, instead of speaking of fairness. Again, this will force you to think harder ― but it will also make for better results, because you will be discussing actual principles and policy arguments instead of hoping that the marker shares your intuitions, or at least understands them ― and neither is a given.

Whatever their differences in detail, marking grids at every law school I have known as either a student or a lecturer reward, first, understanding of the subject and then, to get really high marks, critical thinking and creativity. Clichés and stock arguments add little to a demonstration of competence, and actively get in the way of showchasing originality. The less you rely on them, the better off you are likely to be.

The First Year of Law School

For many, the coming of September signals the start of a new school year. More specifically, law schools will be kicking into full gear in the coming days and weeks, and nervous 1Ls will occupy the halls of law schools the country over. 1L can be a scary time; meeting new people, overcoming the challenges of a rigorous academic education, and simply learning a new legal language can all appear daunting. I write today to try to assuage some concerns, and in general, make a few recommendations about how to approach life, law, and law school. Of course, my views are simply based on my experiences. But I am in the position of being about 2 years out of the law school experience, and in that time, I have gained some perspective about how to get the most out of one’s time at law school. I present these ideas in no particular order.

The first thing that is important, I think, is to recognize for whom the law is designed. I had a professor in my first year of law school tell us that we were now separate and apart from the man or woman  on the street, who could not understand legal language. Of course, this is strictly true; people who aren’t trained as lawyers are not lawyers. But I think it is important to retain perspective. The law is not designed to separate the intelligentsia from the rest of us. It is designed for the people, and lawyers are there to communicate complex legal concepts to the people. Once one becomes a lawyer, they do not stand separate and apart from the rest of society. And one is no better than anyone else simply because they have chosen a life of the law.

This is why I urge students to learn plain-language writing, and to not take prose tips from the old judges you read in 1L. Far be it from me to dole out writing tips, but I think that learning to write for one’s audience is such an important skill that should be inculcated in the first year of law school. This takes practice. But it will make you a better, more relatable lawyer in the long run, especially if you wish to practice law.

Secondly, I think it is important to enter law school with an open mind. One might have an idea as to the sort of career path in the law that one will take once entering the law school. But it is important to recognize that that path should not be set in stone. At the stage of entering law school, it is hard to fathom the ways in which you will grow; the passions you will develop; and the skills you will learn. You may very well be a different person at the end of the experience. So, if you really want to be a criminal lawyer now, nurture that interest. But do not stop thinking about the other possible avenues.

Third, I would view law school as a time to intellectually feast. This is true even if you do not want to be an academic. There will likely never be another time (unless you pursue graduate studies) where you can sit back and learn for the sake of learning. You will be surrounded by smart students and professors. Take advantage of that opportunity. It will also make you a better lawyer in the long run.

Connected to this is the ever-present issue of grades. Grades are the necessary evil of law school. Indeed, it is true that one needs good grades in order for certain doors to open. But keep in mind that you will have an impoverished law school experience if you only take courses in which you think you will do well in your upper years. Take courses that will challenge you. Do so for two reasons. First, a course that challenges you is, in its own right, a benefit to you. You will learn something you didn’t know before, in a way that forced your mind to operate in different ways. Second, if you put in enough work, a challenging course could end up being a sparkling A on your transcript.

Fourth, work hard—but do not shun your friends and family. This is a grave mistake that can sometimes be made by those who feel they need to work 24/7 to do well or to be an ideal lawyer. The assumption is not true. It is more important to work smart rather than hard. By this, I mean adopt a method for reading cases that works for you; decide what the most important parts of the case are and focus on those parts. In class, consider the possibility that it is bad for your overall education to transcribe pages of notes, much of which might be irrelevant come exam time. By listening intently and writing down what is important, you end up leaving more time at the back-end to study the material, rather than creating some master document of the material that is 100 pages long. Hopefully, with this sort of method in place, you have time to retain connections with those that matter to you. Because law school is only three years, but friends and family are forever.

The final point that I can raise is something that is of the utmost importance to me, personally: dare to be different. If you don’t agree with something your professor or fellow classmate says, and have an intelligent critique to offer, speak up. Of course, this is not an invitation to interrupt a lecture with uninformed commentary. No one likes that. But if you have an informed disagreement with a professor that is material to the class discussions, let him or her know. This will help you to learn the language of argument in the law, not to mention that it will force you to understand the material from different perspectives. Being different can come at a cost. But it is worth standing up for what you believe in.

Overall, take law school for what it is; a glorious opportunity to learn and to grow. Do not take it as an opportunity to be competitive, or to prove you are the smartest. You will lose out in the end. Remain humble, eager to learn, and be proud of what you stand for and believe. In my view, these are the tickets to a fantastic law school experience.

Politics in, and of, Law Schools

That legal education is tied up with politics is no excuse for indoctrination or ideological homogeneity

In an op-ed in The Globe and Mail Lisa Kerr and Lisa Kelly criticize “[c]alls for a return to … a legal education free of politics”, which they say amounts to “[s]tripping law of context”. Legal education, they insist, is necessarily, and properly, political. It is not just about legal doctrine, but also about “the complex relationship between legal principles and societal values”, as well as “history, culture, economics, and political economy”. I do not disagree with most of what they say on this point, so far as it goes. But I have a strong impression that Professors Kerr and Kelly, as well as their enthusiastic supporters in the Canadian legal academic corner of the twitterverse, elide crucial distinctions, and fail to address important questions that arise is their claim about the relationship between law, and especially legal education, and politics is accepted.

One claim in Professors Kerr and Kelly’s op-ed which I would not endorse without qualificaion is “that law and politics are not distinct domains”. To be sure, as I argued in one of my early posts here, “legal theory … is different from scientific theory, because it is in some measure argument [that] involves values, and hence ideology”. (Some of the things I said in that post now strike me as overstated, but I stand by this claim, and the post’s general tenor.) And it’s not just theory. As I wrote elsewhere, while Canadian courts is sometimes contrasted with American law as being less ideological, this is a mistake; Canadian judges are ideological, though they tend to share an ideology, and observers of Canadian courts believe, or pretend, that it is no ideology at all. Yet for all that, I think it would be a mistake to conclude that law and politics are wholly indistinct. Politics (in the sense of ideology, not necessarily partisanship) influences law, but it is not all there is to law. Professors Kerr and Kelly disparage “formalism”, but the law’s forms and procedures are important and valuable. “Due process of law” is not the same thing as political process, or the court of public opinion. I am not sure whether Professors Kerr and Kelly mean to suggest otherwise, but it would have been better had their op-ed not been open to such an interpretation.

I am also quite skeptical of the claim that Canadian law professors teach students not only law but also “history, culture, economics, and political economy”. With respect to my colleagues, how many of them master these subjects at even an undergraduate level? How many regularly read even, say, blogs written by historians or economists ― let alone scholarship? As readers who have followed my occasional musings on the “empirical turn” in constitutional law will know, it’s not that I am against the law being informed by these ― and many other ― disciplines; quite the contrary. But I am also skeptical about the capacity of the legal profession ― including the academy, as well as the bar and the bench ― to carry out the immense work that the “empirical turn” requires. Canadian law schools are several hundred Richard Posners short of offering the sort of interdisciplinary teaching that Professors Kerr and Kelly claim for them.

Be that as it may, as I said above, what worries me more is what Professors Kerr and Kelly do not say. First, as Michael Plaxton points out, there is a difference ― which Professors Kerr and Kelly elide ― between “drawing attention to political values” that permeate the law, and “adopting any particular political view, or imposing one on students”. One can expose the law’s politics and explain its context without necessarily arguing that the law is good or bad as a result. Now, I think that this distinction can only be taken so far. Given the limits on the time available to teach any subject, the choice of readings one assigns or of the issues one emphasizes is in part influenced by what one finds interesting and important, and one’s politics help shape those perceptions. Still, that’s not an excuse for giving up on even-handedness, or on broadening the issues one raises beyond one’s own interests and preoccupations.

Another important distinction is that between the positions of individual educators and educational institutions vis-à-vis politics. Professors Kerr and Kelly elide this distinction too, speaking of the way “we … teach law” and “the role of a law school” as if they were the same. They are not. Individual professors will, unavoidably, bring their particular political orientations to their teaching. They have a responsibility to strive, nevertheless, to fairly present views and concerns with which they disagree, but there are limits to how well individuals can discharge this responsibility, both due to the imperfections of the human nature and to the practical constraints I have already mentioned. Professors’ duty to create an environment where students who disagree with them feel free to do so is more absolute, but again, I am afraid that there are limits to what one can do. Ultimately, the professor gets the last word in a classroom discussion ― though the last word should often be a reminder that disagreement is welcome.

Law schools, as institutions, are subject to different constraints. Unlike individual professors, they are not entitled to their own political agendas. Individuals can only go so far in resisting the influence of their pre-existing commitments on their teaching. But law schools should have no pre-existing political commitments to resist. On the contrary, given the inevitability of a certain politicization of the teaching of individual professors, law schools should try to counteract this politicization by ensuring a certain degree of ideological heterogeneity among their staff, so that students are exposed to a variety of perspectives during the course of their studies. As Emmett Macfarlane points out, concerns about the role of politics in legal education have to do with “homogenizing attitudes” at (some) law schools that present them as committed to specific political orientations, so that other views would be unwelcome or at best devalued there.

One response to this that I have seen is to say that professors do not really change their students views. I think this is beside the point. For one thing, I don’t think that it’s necessarily improper for professors to change their students’ minds. If the change results from the students’ free assessment of arguments on both sides of an issue fairly presented by the professor, it’s a good thing, not a bad one. But conversely, even if  professors who set out to indoctrinate their students, or take a one-sided or authoritarian approach out of sheer carelessness, do not succeed at changing the students’ opinions, they are still causing harm. As Ilya Somin observed in a recent discussion of Keith Whittington’s new book on freedom of expression in universities, and as Matt Harringon pointed out in response to Professors Kerr and Kelly, students respond to such professors by hiding their true opinions, which harms the quality of classroom discussion. As Jonathan Haidt often reminds us, this leaves the holders of the majority opinions quite unprepared to argue against contrary views when they are confronted with them ― as will inevitably happen in the legal world, in particular.

So while I take Professors Kerr and Kelly’s point that the teaching of law is inevitably political, it is only true in certain ways and to some extent. Good legal educators do not shy away from discussing values, but they try to present more than their own value-laden perspective on the law, and do not seek to impose their own on their students. And, knowing that these attempts are bound to succeed only imperfectly, good law schools try to ensure that students are given opportunities to learn from professors whose political commitments are not homogeneous. I hasten to add that I strongly suspect that any legislative remedies for real or alleged failures of law schools and their faculties to live up to these commitments would be worse than the disease. But that just means that legal educators have to work very hard at it ― no one else can help them.

Passing Observations

Some thoughts on writing exams, from a guy who just graded 240 of them

As I’ve mentioned in previous posts, I recently graded (or, as we say in New Zealand, marked) more than 240 exam papers (or scripts). So I thought I’d volunteer some observations, in case any students who might be reading this are looking for tips. Of course, much of what follows will feel intuitive to many, and perhaps to most. The art of answering exam questions is not especially difficult to master. But there are, I can now tell, more than a few people who really could use some advice before they sit another final. (Whether they read my blog is a different question, admittedly.)

By way of introduction, let me say something of which students don’t think (I know: it’s not very long ago that I was a student myself!). A student writes only four or five exams, at most, at the end of a semester, but an instructor has many dozen, and possibly (as in my case) several hundred of them to read. This means that I only have a few minutes to devote to each script. (Ever complained about the marking taking too long? I know I have. But if it had to be done faster, that would mean even less time to look at your answers!) If I don’t know what you are saying ― whether that’s because your answers are poorly structured or even because your handwriting is atrocious ― I’m not going to spend a lot of time figuring it out. If you want me to understand you, it’s your job to make sure I do.

And beyond that, it’s in your self-interest to make sure that I… how to put this nicely… don’t get too worked up while reading your answer. Sorry as I am to say this, when reading the answer to the same question two hundred times over, it is unfortunately easy to find small things aggravating. I know one should not get aggravated, and I try not to. But still, don’t give me reasons to become annoyed. Try to spell correctly ― especially when you are writing my name on the exam booklet. (Seriously. I’ve seen my name spelled a couple dozen different ways, though the best one was the student who wrote my last name as Sinatra.) Try to punctuate sensibly ― instead of just randomly strewing periods all over your answers, or at the end of each line. Try to use proper syntax. In particular, ensure that your sentences have subjects and conjugated verbs, and that they are not just subordinate clauses floating around without anything to attach them to. (Of all the annoying things I’ve seen, this one is perhaps the most bizarre.) If your writing tone is formal, don’t be pretentious; if it is conversational, don’t be familiar. Oh, and please, don’t make unfunny jokes. Keep in mind that if you feel the need explain your joke, it’s probably not funny. And when in doubt about whether a joke you want to make is funny, abstain.

This all goes to the form of your answers. Let’s now turn to the content. The single most important thing is also the simplest one: answer the question you are asked! I will at least try to overlook those annoying periods all over the place, ignore ignorance of apostrophes, and put those free-floating subordinate clauses down to the stress of the exam room; but I can’t pretend that you are answering the question when you are not. In particular, if the question is a descriptive one, asking you what the law on a certain point is, don’t answer it as if it were a normative one, asking you what the law ought to be. And if the question asks you for a prediction about the consequences of a development in the law, don’t answer by explaining why this development ought not to, or will not, happen. That’s just not what I want to see, and as a result, your grade for that question will not be one that you want to see.

Another general point is that you won’t get very far by simply spewing the notes you took in class, and a fortiori the notes that I provided, right back at me. For the most part, doing this just shows that you have no idea what you are talking about and are throwing the proverbial kitchen sink at me. The same goes, of course, for keywords from my Powerpoint slides inserted into answers regardless of relevance. A related point is that if the exam is wholly or partly open book, you shouldn’t just print out your entire notes for the semester. Prepare an aide-mémoire that synthesizes what you’ve learned ― it will help you study, and finding things during the exam will be much easier than rummaging through a semester’s worth of notes. The one I used for the first year contracts exam, for a full-year class, was all of seven pages long, in size 12 font. It’s perfectly doable if you put in the effort. And of course, “putting in the effort” means actually understanding the material, enabling you to show the instructor that you have understood ― which is precisely what he or she wants to see.

Some more specific issues now. Perhaps the most important one is that you need to distinguish what is and what ought to be. This is one of the most important things in legal education, and it’s a safe bet that most instructors try to get you to do this, and want to see you do it on an exam. So don’t assume that things are necessarily right the way they are, and don’t assume that things were necessarily wrong in the past, when they were not as today. Don’t assume that judges always act as they are supposed to ― they are only human beings, prone to error and susceptible to the corrupting effects of power, especially to the desire to increase the power of courts at the expense of other institutions. But don’t assume that Parliaments and governments are always looking out for the public good, either. Don’t assume that they are all always wrong, or corrupt, or evil, of course. Judge each case on its own merits, and don’t forget that there is a decent chance that, if you are being asked a question, the answer to it is not altogether clear-cut or obvious. Pay attention to the context of your answer, perhaps especially on problem questions: if you are asked to write a memo for a client, it is probably not helpful to launch into philosophical disquisitions, or discussions of Roman law. Whatever the question, however, avoid making pompous general statements, which are invariably untrue and almost as invariably irrelevant (these include, for example, declarations that something has been done “throughout history” or needs to be done “in every country”). Last but not least, know your stuff! Don’t confuse Governor-General and Attorney-General. Don’t represent a concurring or a dissenting judgment as that of the court (even if I focused on that particular judgment in class). And don’t bring up a case to illustrate the application of a common law rule developed or a statute enacted years after that case was decided (in other words, know when the cases we studied were decided).

Contrary to what some students think, it’s actually a lot more fun for an instructor to give good grades than bad ones. It’s certainly more fun for me. But that doesn’t mean I’ll do it without good reason. I’m happy to interpret borderline cases favourably to you ― but not to pretend that your work is better than it really is. Do it well, and we’ll both be happy. Good luck!