Law School Exam Last Minute Help

Random student (probably law) demonstrating how to study:

File:Bush at desk reading SotU draft.png

First, of all, if you are a law student and still reading this post, you are in deep trouble.  In fact, you really don’t have time for this and should really go away.   If you’re a law student and still reading, you must be truly desparate, drinking way too many non-diet soft drinks, or insanely bored.

All right, so here’s the last minute advice.  If you don’t already know, the ultimate issue on every law school exam comes down to this:   How can something whose essential identity is to be two or more things at once be in fact just one of those things and not the other?   The reason this is the issue is because all law professors are legal realists and avid followers of Thomas Reed Powell—the great early twentieth century legal thinker—who is widely believed to have said: “If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind.”   You too, of course, will want to show on your exam that you have acquired a legal mind and that you too can make something whose essential identity is to be two or more things at once be in fact only one of those things.   There is a limited set of currently favored juridical techniques for doing this and here are the most excellent of them all:

On balance, predominantly, primarily, principally, taking all the considerations into account, or in the totality of circumstances, (pick one) it is more one thing than the other.

It was intended to be one thing, not the other.

Viewed in context, it is one thing and not the other

It cannot reasonably be said to be the other, therefore it must be the one thing.

Traditionally, customarily, historically, it has been treated as one thing and not the other.

The majority rule says it is one thing and not the other.

The better view says it is one thing and not the other.

The better view of the majority rule says it is one thing and not the other.

It will be more practical, useful, efficient, just or fair to treat it as one thing rather than the other.

Blackstone would say it is one thing and not the other.

This leaves you with just two things to do.  One of them is to come up with a truly stellar argument as to which of the preferred techniques above to use.   The other thing is to come up with an argument as to which thing is the one and which is the other.  For further, decidedly more serious, explorations of such thoughts, see my essay, The Anxiety of the Law Student at the Socratic Impasse—“An Essay on Reductionism in Legal Education,” 31 N.Y.U. Rev. L. & Soc. Change 575 (2007) available on Westlaw or Lexis (Don’t go there now—you don’t have time.)  Next time around, pick up a copy of the excellent “Getting to Maybe: How to Excel on Law School Exams,” by Michael Fischl and Jeremy Paul.  (Full disclosure: I don’t get a cut, but they are friends.)

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