Meaning of "knowing more than just the law/case" for Exams?

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tizza58
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Meaning of "knowing more than just the law/case" for Exams?

Postby tizza58 » Fri Aug 25, 2017 4:41 pm

I've read some of the law-prep/self-help books and at this point it doesn't make as much sense as I believe it will later on down the line. However, using a case that I'm assuming every law student has read, Marbury v. Madison, what does it mean that when taking an exam we need to know more than just the rule/law in the case?

Can anyone help with an example of whatever the "deeper analysis" part that is needed to do well with an exam using the M v. M case?

Thanks!

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dodint
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Re: Meaning of "knowing more than just the law/case" for Exams?

Postby dodint » Fri Aug 25, 2017 4:51 pm

Perhaps an understanding of what the US would look like without Judicial Review is important.

For instance, look at the Swiss Constitution. It's considerably longer than that of the US in part because they lack Judicial Review as part of their process. This puts an extra burden on the legislature as they have to address far more topics in their codified law because it will not flex as much without the mechanism of judicial review.

If the M v. M had not validated judicial review, which is not explicitly stated in the US Constitution, the US form of governing would look significantly different today without the judicial branch having the ability to strike down laws and executive actions as being unconstitutional.

tomwatts
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Re: Meaning of "knowing more than just the law/case" for Exams?

Postby tomwatts » Fri Aug 25, 2017 5:16 pm

This is so dependent on your professor that it's hard to say.

My Con Law prof was a historian, so it was useful to know that the background to Marbury was the changeover of power from the Federalist Party to the Democratic-Republican Party in the election 1800, which was accompanied by, let's say, some concern on the part of the Federalists because there had never been a peaceful transition of power in American democracy before and no one really knew what was going to happen. So some Federalists packed in some appointments at the last second.

It was also useful to know the oddness of the structure of the Marbury opinion. I mean, the ordinary rule is that you're not supposed to decide any substantive issues if you don't have jurisdiction, and the Supreme Court decided that it had no jurisdiction at the end of the opinion (because the statute providing jurisdiction was unconstitutional). But somehow the Court saw fit to decide a bunch of other stuff before getting to the jurisdictional issue (Marbury had a right to his commission, and there is a remedy for the violation of this right), which is unconventional, if not downright improper. Why did Marshall do this? Probably because he felt like yelling at the new government, but he also knew that the Supreme Court was not well established as of 1803, and they ran a serious risk of just being laughed at if they actually decided the question in favor of Marbury. It was not clear that the administration wouldn't just openly defy a court order if it came out in a way that the administration didn't like.

How would any of this come up on an exam? It really depends on your prof. My Con Law prof had a really odd question type in which he gave a whole set of pairs of cases and you were supposed to say something interesting about the relationship between the cases in each pair (in about a paragraph, like 3-4 sentences). So if Marbury were paired with, say, Korematsu, you could say that both involved the Supreme Court doing something at least somewhat improper/problematic (less so in Marbury, more so in Korematsu) probably influenced by the risk of the administration openly defying the Court had the decision gone the other way.

But that's all super specific to my particular Con Law professor. There are other professors for whom you really just need to know blackletter law (the rule established by the case's holding). There are other professors with other fixations. It just depends.

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mjb447
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Re: Meaning of "knowing more than just the law/case" for Exams?

Postby mjb447 » Fri Aug 25, 2017 5:19 pm

I take it to mean mostly that it's not enough to know "what was the rule that came out of X v. Y?" or "what case established the rule that ...?" You're going to be asked to apply that rule to a new hypothetical situation during an exam, which requires you to understand the reasons behind the rule and how far they extend (particularly, how far your professor thinks they extend), not just the rule itself.

I don't really want to engage with Marbury right now because I don't remember it well enough and it's pretty complicated, but, to take another example, Hadley v. Baxendale is a pretty well-known case stating that a party breaching a contract is liable for foreseeable damages arising from the breach. For purposes of a law school exam, it's not enough to know this rule or that it was laid out in Hadley. Instead, a prof will give you a situation where someone breaches a contract and ask you what damages are recoverable - you have to argue in your answer about the extent to which the rule should apply and what damages are "foreseeable," which means engaging with the reasoning and purposes behind the rule.

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PeanutsNJam
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Re: Meaning of "knowing more than just the law/case" for Exams?

Postby PeanutsNJam » Sat Aug 26, 2017 2:11 am

It's not "knowing more than" the law/case. It's: "knowing the law/case isn't enough."

Con law is a bad example because, in other doctrinals, historical context is completely extraneous. Some con law professors might care about how the political climate during the Civil Rights era influenced key SCOTUS decisions--most won't. However, NO torts professor will give 2 shits about what the plaintiff's first name was in Palsgraf.

Knowing the law/case is like knowing how to nail two boards together, or knowing how deep a foundation to dig. You will have to build a house on the exam.

Also, argue BOTH SIDES. So many people don't, and they literally leave almost half the points on the table.

tizza58
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Re: Meaning of "knowing more than just the law/case" for Exams?

Postby tizza58 » Sat Aug 26, 2017 2:12 pm

Thanks for all the replies!
Does anyone have a link to a graded exam where it breaks down the answer and explains why it's good or not so good etc.?

cavalier1138
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Re: Meaning of "knowing more than just the law/case" for Exams?

Postby cavalier1138 » Sat Aug 26, 2017 3:23 pm

tizza58 wrote:Thanks for all the replies!
Does anyone have a link to a graded exam where it breaks down the answer and explains why it's good or not so good etc.?


No, and it wouldn't be useful for you if it wasn't graded by one of your professors. There is no universal formula for a good exam. Once you remember to cover BOTH SIDES of each issue, it's down to how you pick the issues to address and how you articulate BOTH SIDES. And that stuff is all going to be professor-specific.




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