Law School Without Fear: Strategies for Success
Authors:
Shapo, Helene S. / Shapo, Marshall S.
Edition:
3rd
Copyright Date:
2009
24 chapters
have results for law school without fear
Chapter 16 It’s a Mind Game: Psychological Tips for the Study of Law 25 results (showing 5 best matches)
- There has been a lot of discussion over the years about whether law school needs to be as unpleasant as it is for many students. Derek Bok, a law professor who became dean of Harvard Law School and president of Harvard University, reflected on the question of whether the first year could be “done without the fear, without the doubts and the gnawing sense of inadequacy that often accompanies” that period of law study. He answered doubtfully, rationalizing that “one of the unpleasant but enduring truths in life is that most of our greatest personal advances, our most creative leaps, the times when we really move forward in our self-understanding and our self-awareness come
- Sometimes law school breeds resentments and alienation. There is, in fact, a scholarly literature that has developed about these phenomena. But in part, they are an outgrowth of some very positive developments. For example, a generation ago, few people expressed concern that women and minorities felt alienated from a law school culture that was overwhelmingly white and male. The reason there was little concern was that there were few women or minorities in law schools. One of us cannot recall a single African-American, and can remember only a few Latinos, in a large law school when he began teaching in 1965. When the other was a member of a law review in 1975, every one of the dozen top editors was male and she was one of only eight women out of a total of 76 members of the Review.
- These diverging views in law schools are certainly not unique, and they reflect changes in society as a whole. We could say that everyone should celebrate diversity and leave it at that. Instead, we will indicate that one of the best things law school can do for you is to teach you to judge people, as well as ideas, on their merits, and to see that their merits may be diverse ones.
- We conclude with some ideas what law school should do, what it does do, and how generally to cope with the process of legal education. Law school should make you better—intellectually richer, mentally sharper, psychologically more sensitive to a variety of viewpoints, more practiced and more secure in dealing with situations involving conflict.
- a heavy workload, law school is stressful, and the combination of a lot of work and stress is fatiguing. This point requires emphasis for people whose prior lives have tended to ignore the need for relaxation as well as for sleep. No matter how important it may seem to do the extra half hour’s work, consider listening to a favorite recording without a law book in front of your nose, or observing the squirrels, or chatting with friends about something other than law, or even watching a lawyer show on television.
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Preface 5 results
- Our message, however, is that you not only can cope with your fear and your stress, but you can overcome them. What we really try to tell you, beyond how to survive, is how to get the most out of your legal education. Besides being expensive, studying at an American law school is a privilege—and it is an opportunity.
- This book began when one of our children decided to go to law school. It wasn’t originally planned as a book. It just grew, out of conversations between us. The subject was what we ought to tell our son about ways to overcome the toughest hurdles that confront law students. Year after year, with every new group of first year students, we see the same patterns of intellectual confusion and emotional tensions. As we talked about how to advise our own child about how to deal with both sets of problems, we began to put our thoughts into writing.
- In introducing those thoughts, we want to tell you up front that at times you may feel that all you can do is to cope. You will think that the title of this book promises more than it can deliver. And in one sense you will be right. For many students, fear is part of the experience. When we were deciding on a title for this book, we asked several students for their reactions to the title we selected as well as several others. One mature and able student confessed that she was indeed fearful at the beginning and admitted, late in the spring semester, “I’m still scared.”
- had to say. Finally, one of us said, wearily, “You’re grown up now, a college graduate. All we can give you is our advice.” Without hesitation, he responded, “Well, I value your advice.”
- Law professors ask a lot of questions, but they also at least suggest a lot of answers. As a famous professor once said, “Sometimes I asks ‘em and sometimes I tells ’em.” In this book, we mostly tell you.
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Chapter 3 Classes 20 results (showing 5 best matches)
- Most students have heard rumors about what classes are like before they even arrive at law school—perhaps they have even seen a movie about it—and they already fear what they consider the dreaded Socratic method to which they will be subjected. Indeed, most teachers of first-year classes do conduct their classes in that style. Even teachers who do not use the Socratic method will usually ask questions in class, sometimes calling on particular students for responses rather than waiting for a volunteer.
- Most of you probably have been using a laptop in class to take notes for years now. You may not be able to conceive of the idea of not having your laptop in class. Many universities and law schools require their students to have a laptop and more schools strongly suggest that students have a laptop. So it may surprise you to learn that laptops in class have become controversial. At least one major law school has banned the use of the Internet in class, and several professors at other law schools have banned laptops. They do so for different reasons. They worry that students spend their time in class surfing, or playing video games, or sending messages to each other; and even if most students are taking notes on laptops, many professors believe the very use of laptops to do so changes the dynamics of a law school class.
- Class time and class preparation will be the central focus of your time in law school, certainly of your first year in law school. Classroom teaching, especially in first-year classes, typically involves what is called the case method. The focus of this method of study is cases, mainly appellate cases, that are reproduced in your coursebook, and other cases that your professor adds to your reading.
- • The more you understand, the more you can engage in and maybe even come to enjoy the learning experience that is law school. Law school is not only a time-consuming experience, it is also an enterprise that can consume your life. You may as well participate and enjoy it.
- Although the questions truly are often more important than the answers, where professors use the Socratic method, some students complain about what they consider its unfair aspects. A few years ago, one student sued his law school and started a hunger strike, attributing his depression and anxiety to the law school teaching method. He described the school’s teaching practices as “humiliating and embarrassing.”
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Introduction: How to Approach Law Study 11 results (showing 5 best matches)
- A related observation is that there are a lot of lessons to be learned from law school that go far beyond book learning. The pressures of law school will reveal inner resources that you may not have known you had. Eventually, they will help you to put things in a more mature perspective. For many, law school will enhance a sense of community in a society where that sense is diminishing.
- Our principal goals, however, go far beyond checklists. We are trying to present enough of an overview of law—at least the law that law schools present to their students—that when you get stuck in the trees of law school, re-reading this book may help you to see the forest. We also hope that on certain mornings during your first year of law study—mornings unpredictable in advance—you will wake up and suddenly understand what we meant when we explained something that you now have
- Because law school involves learning both a new vocabulary and new forms of analysis, we provide what are sometimes simplified explanations of terminology, concepts, and analytical techniques. We hope these will help you to understand some foundational ideas and to go on to comprehend the more complex ideas that build upon them. We also seek, however, to help you make sense of an experience that at the beginning is frustrating for many, but should be fascinating if you approach it correctly. Thus, we set these ideas in the context of the psychological environment of law school—from which, you will see, it is difficult at times to separate the ideas and intellectual approaches of law itself. Besides focusing on the psychology of law study in an entire chapter—Chapter 16 of the book—we refer to it in several places throughout the book in ways that we hope will prove helpful.
- Some of the ideas and techniques we identify can be learned only by constant exposure and repetition. Moreover, there is no substitute for mastering the details. We use many examples from courses found in most first-year curriculums—civil procedure, constitutional law, contracts, criminal law, property, legal writing, and torts. However, even as a reference, this book will not take the place of more detailed treatments of those subjects. We try here to do no more than give you a general framework that will aid your grasp of the law school curriculum.
- We want to emphasize here a point that appears in several ways later in the book. This is that studying law will teach you to ask questions and to analyze problems, but will not always provide clear answers. Many of your law school professors will not spend much time communicating clear legal rules, except to question them. The law student’s lot is to live with uncertainty, and that can be unsettling. However, everyone goes through this experience. If you begin to feel troubled as you explore this new educational world, you are reacting normally.
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Chapter 8 Interpreting Language 23 results (showing 5 best matches)
- Law school, and law generally, provide both challenges and opportunities in the use of language. In law school, the difficulty of the challenge will depend in part on your prior experience with the plastic possibilities of words. In practice, your ability to use language perceptively and creatively will create unlimited opportunities.
- Another example appears in a much-discussed decision in which the Supreme Court said that a statute exceeded the power of Congress to regulate interstate commerce. At issue in this case was the Gun-Free School Zones Act, which made it a federal crime knowingly to possess a firearm in a place that the defendant knew or reasonably believed was a school zone. The defendant in this case was convicted under that statute because he brought a handgun to his San Antonio high school. A majority of the Court decided that the legislation was unconstitutional, so the defendant could not be convicted under it. The Court said the “the possession of a gun in a local school zone is in no sense an economic activity” that through repetition of that behavior in other places “might … substantially affect any sort of interstate commerce.” ...is, activity within a single state. However, it distinguished that case because it “involved economic activity in a way that the possession of a gun in a school...
- When Mr. Green died, Ms. Green was destitute, having forfeited her seniority and pension when she left her job at her husband’s insistence. Because of the premarital agreement, she would receive nothing from Mr. Green. She claimed that his premarital will was revoked by the statute because he had made no provision for her, arguing that to make “provision” meant to give property, which he had not done. Thus, she contended, he died without a will and she was entitled to a statutory inheritance share as his surviving spouse.
- A good part of the job of courts and of lawyers is to interpret words and phrases. Rather vague phrases like “equal protection of the laws,” or “due process of law,” or “cruel and unusual punishment” do not come to us defined for all time and all situations. Is it “cruel and unusual punishment” to impose the death penalty on a murderer? There is a difference of opinion on that question. Is it a deprivation of employees’ “due process of law” to limit the hours that they may work because it deprives them of their property? Early in the 20th century, there were serious differences of opinion on that issue. Courts often resolve
- A lot of the work that first-year law students do involves common law, but that should not obscure the fact that a substantial amount of practicing lawyers’ work consists of reading and interpreting statutes. Many students are apprehensive about analyzing statutory topics. Although some of the preceding material in this chapter deals with statutes, this Part specifically introduces some basic steps of statutory analysis and by doing so, seeks to relieve some of that anxiety.
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Chapter 17 Lawyers Reflect on Law School 34 results (showing 5 best matches)
- Law school teaches you how to approach a legal problem, attack it, research it, and solve it, to the extent solvable. This is the groundwork for whatever type of law you intend to practice. As a corporate lawyer, I am not engaged in a typical practice, yet I still use daily the principles and approaches I learned in law school…. The purpose of law school in my mind is to understand the process of legal reasoning so you can apply it to whatever legal problem you need to solve.
- The short answer is that law school (as it was in the 60’s) has provided very little, if anything, that has been of use to me in my day-to-day trial practice. Indeed, it took me a long time to recover from the obstacles to effective trial practice that law school put in my path. Law school tends to punish creativity and interpersonal skills. It rewards argumentativeness and aggression. It squeezes whatever poetry you may have had out of you. It has a profound dehumanizing effect.
- I came to law school from the studying and teaching of Philosophy wherein I was tested, orally and by written examination, to dilate upon a philosopher’s or philosophical school’s ideas or doctrines—to evidence my understanding thereof and ability to formulate arguments for and against their validity or reasonableness. My law school study oriented me to attune myself more narrowly to ascertained “facts” and the relationship of those “facts” to applicable law in the resolution of what purported to be the problem(s) before me.
- If I had to identify one thing that I learned in law school that has been the most useful to me in the practice of law, it would be that there are no shortcuts for being prepared. I didn’t like the “Socratic method” but one thing that it drilled into me was the importance of preparation and that has paid many dividends over the years. Preparation of course is not just identifying the issue and the proper outcome but consideration of the counter arguments and the reasons why they are wrong (in the final analysis). It was embarrassing in law school when called upon and I didn’t have the answer or, worse, I thought I had the answer only to find out that there was something that I had failed to take into account. Of course the consequences in law school were nowhere comparable to the consequences of being unprepared in real life.
- Quite unlike high school trigonometry, whose formulas I painstakingly memorized but have yet to use in my adult life, it is not for nothing that law school requires us to spend hours reading cases whose facts are similar, but not quite the same, to discern the outer limits of a legal precept….
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Chapter 14 Studying and Reviewing 13 results (showing 5 best matches)
- Most law students find that law school, at least the first year, requires the hardest studying they have ever had to do. That is not surprising. Law school requires you, all at once, to absorb a different method of approaching problems, to learn a new language, to use new sources of information, and to employ a different technique of taking examinations.
- If you feel at sea the first few weeks of law school, struggling to manage your time, you should understand that everyone else is in the same boat. Moreover, you will be pleased to know that things will almost certainly get better. But not right away. You need experience to help you set priorities. We can also assure you that the experience of setting priorities in law school will prepare you for an even more difficult challenge—doing it in practice.
- One of the most important requirements for effective law study, which is good preparation for law practice, is to manage your time. Especially during certain weeks of law school, you will feel that there simply is not enough time to do what needs to be done. And you will be right. As we have remarked before, you will find that everything takes longer than you think it will. That is because everything is new to you, and that is why it is crucial to organize and to set priorities.
- This chapter offers a few basic suggestions about how to make your studying effective. As you seek to develop study habits that are productive for law school, you should take comfort in the fact that hundreds of thousands of people have done that with reasonable success.
- Law school examinations typically feature hypothetical problems, often invented by the professor, that seek to test the student’s developed ability to analyze the material presented in a particular course. Your task in reviewing is to prepare yourself to deal with those problems, or indeed any questions designed to test your command of the subject.
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Chapter 6 Roles of Judge and Jury; Facts and Law 10 results (showing 5 best matches)
- (Does this incident give you an idea of how you will start thinking once you’re in law school? A former student once said that he had seen eleven different legal issues when he looked out the bus window coming to the law school.)
- A second fundamental principle is that jurors, where there is a jury, decide facts. When a trial is to a judge alone without a jury (a “bench trial”), the judge acts as both a “fact finder” (often called the “trier of fact”) and rules on the law. Sometimes the question of fact is a simple one. Did A hit B? Did C drive through the intersection while the light was red? Sometimes it is more subtle: Did A purposely hit B? With reference to any questions of fact, even relatively subtle ones, the practical premise is that the jury is making a decision, based on the evidence at the trial, with respect to what happened or what exists. That determination, it should be noted, does not necessarily dispose of the facts; jury determinations of fact are subject to judicial review. Although courts usually will not overturn a jury’s findings, a court may decide, on combing through the evidence, that a jury could not reasonably have found the facts as it did.
- One way to ease the tensions created by sharp distinctions between law and fact is to speak of “mixed questions of law and fact.” Some of your teachers will take you through the complexities of these concepts, and you will learn to deal with these ideas reflexively after you read a lot of cases. For now, it is worth underlining a few simplified ideas: judges rule on the law, juries (or judges acting as fact finders) find facts, and sometimes judges control “unreasonable” jury verdicts by saying that, under the law, no one reasonably could have found the facts the way the jury did.
- A fundamental point is that judges, not juries, rule on the law. This makes good sense. Judges have legal educations. They, or their clerks, know how to use a law library. To take just one example, if the question arises as to whether a particular crime requires proof that the defendant had a purpose to injure the victim or whether the prosecution can succeed by showing only that the defendant acted recklessly in injuring the victim, it is the judge who must decide the question. This is a question of law, to be answered by professionals consulting statutes or judicial decisions, or deciding the question for the first time. It is not an issue for jury determination.
- Our outline of main topics in procedure leads directly to two related subjects: the way the legal system divides litigation tasks between judges and juries, and the distinction between questions of “fact” and questions of “law.” As is so with most important legal topics, most students will fully grasp these ideas only after exposure to many cases.
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Title Page 2 results
Glossary 29 results (showing 5 best matches)
- Law review: A scholarly journal about law. Most law reviews are published by law schools, and usually are edited by law students. Law reviews consist of articles of various lengths, usually designated as articles, notes, or comments, written by faculty, practicing attorneys, and students.
- Coursebooks: Books used as the basis for law school classes, often also called “casebooks.” The term “coursebook” is more inclusive, because it encompasses teaching materials that are different from cases.
- Socratic method: In law school, a technique used mainly to teach first-year classes, principally involving questions and hypotheticals rather than lecture.
- Uniform Laws: Codes of statutes in particular areas of law that are prepared by a private body, the National Conference of Commissioners on Uniform State Laws. A state legislature must enact a uniform law for it to gain any legal effect. A particularly important uniform law in first-year law study is the Uniform Commercial Code.
- b) Common law system: By contrast with a civil law system, in a common law system law comes from court decisions as well as from a legislature.
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Chapter 11 Choices Among Policies 44 results (showing 5 best matches)
- The law schools have provided important stimuli to the policy analysis of law in which courts now engage. In some law schools, students will find that there is quiet—sometimes not so quiet—warfare among their teachers about the primary goals of law and policy. Some teachers who have a law and economics slant, for example, will focus exclusively, or in very large part, on using the law to achieve efficiency. Others will suggest that the law should focus primarily on equity, or will emphasize redress of historic injustices. Some will say, or assume, that the power of the law lies in its ability to choose among different goals, and to accommodate several different sets of rationales and aspirations.
- will argue that the law should resist intruding in people’s affairs—it should “stay off their backs”—letting people live their own lives and work out their own bargains among themselves so far as social peace allows. Libertarians frown on labor unions and civil rights laws. They will argue that union wages command more than an efficient share of the income of companies and that civil right laws, on balance, produce more discrimination than would exist without them. People who take the libertarian position also tend to oppose various kinds of regulatory regimes, such as the regulation of safety in the workplace. They would suggest that, in that environment, people should be able to decide whether they want to face a particular risk at a given wage without the interference of a paternalistic government.
- Notions of ethics and morality tie in with the idea of justice. The justice orientation of some people, including some law professors, inclines towards equity; among other things, these people believe in relatively equal distributions of goods among the population. Others see that as a basically unethical position, because it fails to reward effort and the virtue that effort represents. Particularly if your past education has not focused on these questions, you may find that teachers who challenge you with them force you to do some of the hardest thinking you must do in law school.
- Economic analysis generally proceeds on the premise that goods and services are scarce. This principle covers automobiles, stereo equipment, law school coursebooks, certificates of deposit, and visits to the dentist. Because the supply of these things—and people’s resources—are limited, people often face choices about what to buy. Acquiring one of these items sometimes means forgoing another, so people concentrate their spending on purchasing the things they want the most. Generally, they indicate the strength of their desire to possess a good by how much they are willing to pay for it.
- The economic theory presented in law school classes generally assumes free markets, or at least begins with a model of unregulated markets in which people are free to sell and buy goods and services at mutually agreed prices. Freedom of choice is a philosophical underpinning of economic analysis, paralleling the premise that there is competition in the marketplace. Two basic ideas tied in with markets are those of shopping (“searching”) and bargaining. It is assumed that, within the limits of their resources, and given competing demands on those resources, consumers will shop for the goods that best fulfill their needs and, where it is possible to make deals with sellers, will bargain over price and other features of goods and services. A lack of
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Chapter 10 Policy Foundations 40 results (showing 5 best matches)
- Law students should be apprised of an important feature of present academic life that reflects ideological struggles in the world generally, and that relates to the issue of neutrality of decisionmaking. This is the rise of schools of thought about the law that feature avowedly ideological approaches, sometimes focusing on the impact of the law on particular groups. We will briefly discuss some of these approaches, including such schools of thought as feminism, critical legal studies, and critical race theory, in the next chapter.
- As just one institution in the governance of human affairs, courts have a limited function in the overall scheme of law. Many law school courses, especially first-year courses, tend to focus on judicial cases. However, that focus may implicitly convey the idea that judges can, or should, play more of a role than they do.
- It is beyond the scope of this book to give a full description of the principles governing the scope and limits of judicial activity. It is enough to stress here that, under the traditions of the common law, judges may adopt new liability doctrines, but also that most American judges have it bred in their bones that they should be very careful and selective about when they take steps that can be described as legislating. A good part of the reason lies in our sense that judges should not make broad social choices, nor should they impose their own moralities on litigants or society more generally. Deep roots of that thinking lie in our fear of tyranny, and in the idea that the legislature, composed entirely of elected representatives, is the principal foundation of our democracy. Less dramatic, but still fundamental foundations for the constraints we place on judges lie in the doctrine of stare decisis, and in the idea that the law should be stable and certain so that ordinary people...
- Courts dealing with common law cases also take activist roles on occasion, often without even thinking of themselves as being “activist.” Notably, courts may formulate new theories of liability or expand existing grounds for lawsuits. One illustration comes from property law, where courts now imply a covenant (a promise) in residential leases, known as a warranty of habitability. Under that theory, the landlord covenants to the tenant that the premises are fit for residential use. Prior to these decisions, landlords did not owe a duty to keep rented premises habitable.
- If you reflect on this idea, you will come to see that it is central to our legal system. To take an exaggerated example, let us say that a police officer discovers Mr. A dead on the sidewalk, and finds Mr. B casually leaning against a utility pole in the next block. Without any other facts, the officer arrests Mr. B for the murder of Mr. A. Could a court allow a conviction of Mr. B for the murder? Why not? Because it would be arbitrary—the very opposite of a reasoned decision. This fits into the law as the law actually is applied because such a conviction would violate due process. One of the most fundamental meanings of due process is that the decisionmaker must have a reason for her decision.
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Chapter 15 Exams 19 results (showing 5 best matches)
- Law school examinations are usually essay exams rather than short answer or true and false tests, and they may differ from exams you are accustomed to taking. They will not ask you simply to regurgitate material you have memorized, but rather will ask for analysis of a problem. That requirement of analysis may take a variety of forms. For example, you may be assigned the role of an attorney representing a client. Another difference from your prior studies is that in most law schools, your semester grade in most courses other than legal writing will come from one exam at the end of the semester. So a lot rides on the one set of exams each semester. For example, membership on the law review or other student-run journals is determined in large part on your first-year grades, although many journals now allow students to try to “write on,” that is, to write an article of acceptable quality during their second year of law school.
- We also want to limit our advice with a couple of observations. First, what we say here applies most focally to traditional law school essay examinations. We are talking most specifically about exams that consist principally of hypothetical problems fashioned to test your knowledge of a particular course and your ability to use that knowledge in an analytical fashion by applying the law you have studied to the hypothetical facts.
- We will not specifically discuss the type of exam question that asks you to evaluate particular goals or policies of the law while not necessarily placing the question in a factual context. We believe that the advice in this chapter will be useful to those questions and to your other law school work as well, and indeed generally to your future work as a lawyer. However, our focus is on the traditional law exam format, which typically will require you to write an analysis of a few questions drawn from the topics covered during the semester.
- The traditional law school exam consists of a series of hypothetical questions. The professor will ask you to apply to those questions, in some fashion, the analytical framework you have developed in the course. Some of these questions will invite extended discussion, perhaps even upwards of an hour, while some questions may require much less time.
- Law school exams differ from certain kinds of undergraduate exams on which you may have received credit for disgorging memorized material, or material that you happened to know but that was not particularly relevant. Successful law examination answers, like any successful legal work, stick to what is relevant to the issues the question raises. They use the facts in the problem that are crucial to the answer and they
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Chapter 1 Law: Constitutions, Legislation, and Courts 55 results (showing 5 best matches)
- All law schools publish law reviews, which are journals run by student board members.
- Legal philosophers spend a lot of their time trying to define “law,” but most of the first year of law school consists of trying to understand some very basic practical aspects of the legal system. The principal elements of that study, which will occupy the bulk of your time, are the decisions of courts, which are an important part of our “law.” But courts themselves operate in a broader framework of law, which includes constitutions and the laws enacted by legislatures—called statutes or legislation. This chapter briefly summarizes these three forms of law, as well as mentioning a fourth kind of lawmaking body, the administrative agency.
- The federal judicial system also includes some courts that specialize in particular subject matter, like the Tax Court, the Court of International Trade, and a court called the Federal Circuit. At least during the first year of law school, you are likely to encounter decisions of these courts very seldom.
- The Restatements you are most likely to meet in the first year of law school are the Restatements of Torts, Contracts, and Property. All of these are multi-volume works. It would be useful to pick up one of them in the reference section of the library and skim through it.
- The courts also test laws enacted by state and local governments for their constitutionality. A well-known example is a case consolidated from cases in four states in which the Supreme Court decided that provisions of state constitutions and statutes that required or permitted segregation of public schools by race were unconstitutional. The Court concluded that these state laws denied African–American students the equal protection of the laws in violation of the Fourteenth Amendment to the United States Constitution.
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Chapter 4 Precedent and How to Use It: Holding, Dicta, and Rules 22 results (showing 5 best matches)
- The subjects of holding and dictum and rules and standards lead to a practical point that will trouble many students, but is one with which you should get comfortable. This is simply that law is always subject to argument. You will rarely be working with unassailable ideas. There are few clear “yes’s” or “no’s” in law school.
- from other jurisdictions. If one state or federal court has not ruled on a particular question, its judges will often consult the decisions of other states or federal courts that have dealt with that issue. Thus, decisions from those other courts may be persuasive on a question, although they do not have the mandatory authority of precedent from that jurisdiction. Because your course work often treats cases and issues across jurisdictions, you may find that you lose sight of the significance of the law of a specific jurisdiction. The law school process may encourage you to look at a general body of American law, although, in actual practice, courts will require you to focus much more closely on the law of their particular jurisdictions.
- People complain that lawyers are argumentative. That is a trait that arises partly out of the nature of law. It is true, of course, that law is a stabilizing force in our society. There are thousands of rules and standards that we accept as relatively fixed to govern the way we live. But the law also is a vital and growing thing, and it deals constantly with specific facts. That means that on any legal subject that is worth discussion—which means the kinds of questions that often get presented in law school courses—there will be a lot of room for disagreement, even disagreement over what a prior decision means.
- If you are someone who does not relish argument, law school is a place to learn to tolerate it, and even to appreciate it. A story about Justice Oliver Wendell Holmes is that when he was practicing law, he would come to his office in the morning and tell a junior associate in the firm, “Mr. Evans, I am ready to contradict any statement you will make.”
- Law school will expose you to differing perspectives about how courts view, and treat, cases as authorities. A rather cynical view is that judicial rulings depend on “what the judge ate for breakfast.” A more sophisticated but also critical opinion suggests that judges are “result oriented”—they decide the outcome that they want to achieve on the basis of their personal philosophy, or their heart, or their gut, and then use intellectual hook or crook to achieve it.
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Chapter 13 Legal Writing 14 results (showing 5 best matches)
- Bryant G. Garth and Joanne Martin, Law Schools and the Construction of Competence, 43 J. Leg. Ed. 469, 474 (1993).
- Legal research is a complicated undertaking that you will begin to learn in your first year. Research now involves a combination of electronic sources and print media. Without even beginning to summarize the details of legal research, we offer a cautionary note about the use of electronic databases. Many of your professors grew up professionally with hard copy and not screen research. We know that most of our readers, not to mention our young grandchildren, are accustomed to using computers and often use them effectively. We ourselves find that they are valuable for many purposes. But a Dallas attorney sums up a world of warning in a complaint about “computer-educated law graduates” who “generally lack basic research skills” and do not know the “limitations of computerized legal research.” He gives ...in a hurry on a particular point of law and where a “computer-dependent associate reported that she could not find” such a case, although it “seemed obvious” to him that “some case...
- Your course on legal research will introduce you to citation form, probably accompanying this training with either the volume popularly called the “Bluebook” or with the more recent ALWD Manual of Citation Form. Either reference will give you scores of rules about how to “cite” sources. “Citing” sources means giving your reader information about the source of the authority that you are writing about. Like the footnotes in academic papers or some non-fiction books, the citation tells your reader how to find the material you have used. In your first year of law school these sources typically are cases, statutes, books, and journal articles. Citation form for legal materials is very stylized, as it is for other disciplines. There is usually some logic to citation form, but whether you discern the logic or not, you must follow the rules, if for no other reason than the requirements of the discipline.
- We have the pleasure every year of seeing some very good student writing. Yet however well students write, like anyone else they can always improve their writing. The key, for those who write well or less well, is to practice good writing. You will no more learn to write better without practice than you will improve at playing the piano or playing shortstop without practice. It is also crucial to start work on your written assignments very early. Your writing assignments will take longer than you think.
- Most people probably do not consider dangling modifiers to be sinful, at least if sin is measured by what people write without thinking they have erred. However, the dangling modifier is still wrong. When you see the participle form in a word that ends in “ing” at the beginning of one of your sentences, be especially critical of yourself.
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Contents 24 results (showing 5 best matches)
Acknowledgments 2 results
- This book has benefitted from the teaching of many people, but we must single out two. Those are our sons Nat, now a practicing lawyer, and Ben, a research scientist. We learned from them even when they were children, we have learned more from them as adults, and they are a joy. During the final rewriting of the initial edition of this book, we were especially informed by Nat’s experiences as a first year law student. Those experiences emphasized to us, even after all our years in teaching, just how much law school asks first year students to do.
- The lessons of our own teachers since elementary school have enriched our understanding about how teachers impart knowledge and understanding. Our teachers when we were law students—at the University of Miami, at Harvard, at Texas and at Virginia—have focused that knowledge on the law. And our faculty colleagues—for both of us at Northwestern and for one of us at Texas and Virginia, have added immeasurably to our understanding of what makes a legal education. Our gratitude to them is itself immeasurable. We are grateful particularly to some sympathetic critics of parts of the manuscript: Larry Marshall, Linda Rubinowitz, Len Rubinowitz, and David Haddock.
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Chapter 7 Legal Reasoning 20 results (showing 5 best matches)
- A common law illustration begins with the procedural requirement that a court must grant a judgment as a matter of law when the evidence is such that reasonable persons could not differ on the outcome. Let us say that there is a substantive rule of state tort law, fashioned from precedents, that says that a plaintiff cannot establish a medical malpractice case without offering expert testimony (testimony from other doctors) that the defendant doctor was negligent. The plaintiff presents facts from which many lay persons would conclude that a doctor behaved negligently, but does not offer expert testimony. Thus, the plaintiff has not met the requirements of the substantive rule. The defendant moves for judgment as a matter of law, and the court will grant that motion. Given a substantive rule that requires expert testimony to support a malpractice case, jurors could not reasonably find for a plaintiff who did not present expert testimony.
- Besides helping you to identify similarities in cases, reasoning by analogy also will aid you to analyze differences between and among cases. We discuss that skill in the section below on “Distinguishing Cases.” As you go through law school, it will become second nature to you to find such distinctions. That is a developed ability that is important to lawyers. Yet, you should not neglect the skill of being able to find similarities between cases. Sometimes we call that harmonizing cases.
- Here is an example involving two torts cases that shows how the ability to analogize cases may be helpful on the intellectual side of law. Assume, first, that a court has decided that it is a battery if a twelve-year-old boy playfully kicks a classmate during school hours, seriously aggravating a previous wound to the classmate’s knee that is concealed by his trousers. The court reasons that the kicker’s intent to make a contact was sufficient to constitute a battery, even if the young defendant did not intend harm to his classmate. In the model of case analysis we are developing, that decision provides the rule, which for these purposes we might state as being that an intended contact in violation of social norms is a battery.
- As more cases come along, and the law expands, an exception may become so complex that it becomes a rule—or a set of rules—in itself. Thus, we may speak of “the self-defense rules”—a group of rules that evolve in response to a series of cases that present variations on the general situation of killing for self-protection. One of those rules, which may vary among jurisdictions, requires a person to retreat before using deadly force in self-defense, at least if she may retreat safely. Still another rule gives a person the privilege to use deadly force in self-defense, without the need to retreat, if the person is in her own home.
- This inductive mode of thought also captures an important feature of what many lawyers think of as the genius of the common law—that is, judge-made law. The common law proceeds by increments, building precedent on precedent. It then establishes general rules and, as new cases arise, broadens or narrows those rules or creates exceptions to them. In our basic example, the court synthesized three cases; it put them together to formulate the rule that governed them.
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Chapter 5 Expanding On Procedure 20 results (showing 5 best matches)
- The next principal checkpoint in litigation is the motion for summary judgment. Either party may make this motion. A party who moves for summary judgment asks the court to decide the case without a trial. She contends that she is entitled to judgment as a matter of law and that no material facts are in dispute. So summary judgment requires the party making the motion to present a combination of law and facts, but those facts will not include testimony by live witnesses at trial who are subject to cross-examination. Rather, summary judgment facts will be limited, typically, to documentary evidence, such as depositions or interrogatories. It also would include affidavits—sworn, written statements—of people who might later testify at a trial if one is held, as well as such documents as contracts or property deeds.
- This chapter presents a brief overview of the procedural framework that courts apply to civil disputes—the system of “civil procedure.” Most law schools will introduce you to this subject in your first year, primarily through the Federal Rules of Civil Procedure, a comprehensive code that embodies the basic principles of the subject. Besides governing procedure in all federal litigation, the Federal Rules provide a nice model for classroom discussion of basic procedural principles. Each state also has its own set of rules—some of which follow the Federal Rules—that govern procedure in civil disputes. Some instructors may employ these state procedural codes in their classes. This chapter, using terminology that is fairly basic to both federal and state procedural systems, approaches the subject primarily through the motions that parties most often make at crucial stages of litigation.
- Let us briefly tie together the last several sections. When a court grants any of the motions discussed immediately above—(1) to dismiss (2) for summary judgment (3) for judgment as a matter of law or (4) the renewed motion for judgment as a matter of law—it is saying that reasonable persons could not disagree about the outcome. In the case of the motion to dismiss, it makes its ruling entirely on the law. In the case of the motion for summary judgment, it considers both law and the facts in documentary evidence. Finally, in granting either the motion for judgment as a matter of law or the renewed motion, it takes into account both the law and the facts as they have been developed in a trial. In each instance, a court that grants one of these motions concludes that the nonmoving party has no case under the law.
- The motion to dismiss, then, challenges the plaintiff to show that there is law to support the theory of her complaint. It thus presents a “question of law.” If the plaintiff cannot invoke a legal rule that supports her action, the court will dismiss the complaint and the suit will end there unless the plaintiff appeals.
- The motion for judgment as a matter of law represents an effort by the maker of the motion to persuade the court that in light of the applicable law and the facts that have been developed by the time the motion is offered, the party seeking the judgment win. The theory is that given the facts presented at trial that are most favorable to the party who did not make the motion (the “nonmoving party”), that party could not succeed under the law. This is analogous to the motion to dismiss in this sense: The party making the motion for judgment as a matter of law in effect tells the court that she is willing to concede, for the sake of argument, the facts that the other party claims to have proved. Even so, the moving party insists, what the nonmoving party proved is not enough to make a case under the law. We have said this several different ways in order to give you a variety of opportunities to understand the function of this motion. However, the only way you will truly grasp the...
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Chapter 2 Briefing a Case 20 results (showing 5 best matches)
- The first and perhaps most helpful advice we can give you about briefing is to read through the entire decision before you write anything, except perhaps the case name, in order to see what the case is about. Because the several segments of the case brief that we explain below are all interrelated, you also will get an early idea of what the relationships of those segments are. Another benefit of reading the entire case first is to see if there are words or phrases that you are not familiar with. In your first year of law school, you will run across many terms you don’t know yet. For example, a property case may include the term “words of limitation and not of purchase.” Very few students will know what that means. (In fact, many lawyers don’t know what that means). If you read the case first, you will see if the court explains the term. If it doesn’t, and if the notes after the case also don’t explain the phrase, then go to a legal dictionary. That’s what legal dictionaries are for...
- Here is one way to state the issue (which we would ordinarily not prefer): “Did Jones commit a battery when, without
- The holding is not necessarily the same as a rule; it is not a definition of what a battery is. A holding is a statement of the court’s decision in the case, in terms of the legal claim made in that case and the important facts of that case. It is the authoritative source of law from that case and it establishes a common law precedent. By comparison, a rule is a general statement of the law that may prescribe, prohibit, or permit particular conduct. A common law rule typically results from a synthesis of several decisions on the same issue. Not all the elements of a rule may be at issue in any one case. In our battery hypothetical concerning the tray, the definition of battery is the rule about what a battery is, but only the contact element of the definition of battery was at issue and would be the holding of the case.
- The best way to learn how to summarize the facts of cases is to do it several dozen times, if not several hundred times. We will provide a few examples and hints, but perhaps the most important part of stating the facts—as it is an important requirement in the law generally—is to be relevant. The quest for relevance, as it applies here, means that after reading and re-reading a case, you identify the facts the court found important for the ruling it made about the law.
- • Motion for judgment as a matter of law (formerly the motion for directed verdict)
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Chapter 9 Balancing Competing Interests and Factors 13 results (showing 5 best matches)
- Many decisions that the law makes to resolve disputes, and to deal with the underlying conflicts of social and economic policy, proceed on the assumption that law influences behavior. This premise underlies many rules of law, contained both in statutes and judge-made rules. Ordinarily, we hardly think about many of the ways that law affects behavior, so much are they a part of our lives.
- • The criminal law goes beyond the law of torts: Don’t drive over the speed limit, or you may go to jail. Absolutely, don’t drive while drunk, or you may go to jail for a long time. Thou shalt not kill, and if you do, you may be executed. Even, thou shalt not cheat. These illustrations represent, once more, negatively framed deterrence. Again, too, the law in effect offers some positive advice, for example, keep good records of your company’s sales. Here an implied threat for noncompliance is the risk of a prosecution for tax fraud. Framed in terms of what to do, rather than what not to do, such counsel embodies an incentive to avoid unpleasant treatment by officials.
- The law often does not emerge as a neat grid of mechanical rules. The very idea of law, as we have emphasized, arises from dispute and controversy in individual cases. Of course, the law tries to impose order on messes, and appellate review provides some of that order when appellate courts impose guidelines on lower courts’ exercise of discretion. But often the result is not an entirely tidy package. Factor analysis can provide a flexible means of sorting out several elements of an intellectually complex situation. The judge who seriously reviews a catalog of decisional factors will be the more honest, and the more persuasive, the more she reveals how she sorted out and ranked those factors.
- A great deal of law—and specifically for our present purposes, of the work of courts—consists of weighing and balancing, that is, to “weigh” the importance of various policy factors pertinent to a decision and to “balance” their importance against other factors. Courts also weigh the parties’ competing legal arguments, and relevant facts in particular situations, to determine which party has proved his case.
- Law as Influencing Behavior
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Chapter 12 Remedies 3 results
- There are several sub-classes in the injunction category for which the time element is crucial. Sometimes even without prior notice to the defendant, a court may issue a temporary restraining order (TRO), which immediately prohibits the defendant from conduct in which it has been engaging, for example, dumping chemicals in a waterway or abusing a spouse. The court may do this in situations in which it is not ready to make a definitive ruling about the legality of the defendant’s conduct, but in which the plaintiff will suffer “irreparable injury” if the court does not act right away to stop the defendant.
- Equity began as a system of courts in England that dispensed justice when common law courts could not provide an adequate remedy. It has now become a system of remedies
- The business end of the law lies in the remedies it offers. A court could tell a defendant in a tort suit that she was negligent and simply admonish her for her carelessness, or could scold a defendant in a contract action for breaking a promise. Usually, however, that will not satisfy a plaintiff who has suffered the consequences of the defendant’s negligence or breach of contract and gone to the expense and anguish of a lawsuit. Except for the few plaintiffs who seek only vindication, those who are successful in litigation will always pose the practical question to the court, “What will you do about the defendant’s behavior?” The remedy provides the answer.
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Copyright Page 1 result
- This publication was created to provide you with accurate and authoritative information concerning the subject matter covered; however, this publication was not necessarily prepared by persons licensed to practice law in a particular jurisdiction. The publisher is not engaged in rendering legal or other professional advice and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional.
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- Publication Date: May 26th, 2009
- ISBN: 9781599414195
- Subject: Academic Success
- Series: Academic and Career Success
- Type: Academic/Prof. Development
- Description: This concise, plain-spoken book is an indispensable guide for beginning law students. Field-tested by students all over the country for more than a dozen years for its practicality and its psychological realism, it has proved an invaluable introduction to cutting through the fog of case analysis; minimizing the bewilderment of the Socratic method; studying law; writing for law school; preparing for exams and exam writing; managing precious time; and coping with the emotional stress of law study.