Law School Essay Exams: What to Memorize
Law students ask, “Isn’t law school more than just memorizing? The answer is clear: Absolutely!
But should law students memorize? The answer is equally clear: Absolutely!
Some professors mistakenly tell students that “law school is not about memorizing.” I say “wrongly” because law school IT IS about memorization … and much more. But for now, let’s focus on grades, and for most courses, that means focusing on exams.
To write a high-scoring essay test answer, a student must employ many skills and strategies. Compelling presentation, high-level analysis, sophisticated legal reasoning … yes, these are critical capabilities when it comes to earning “A” grades.
But you can’t get an “A” … or a “B” … without being able to detect the topics that the teacher expects to see analyzed. To find problems, one must “know” the law. In the deepest sense, to “know” the law is to understand its background, variations, nuances, subtleties, and so on. And, yes, that feeling of knowing is very important. But in the fundamental sense, “knowing” the law (in the context of answering a test) is being able to write a rule statement without actively thinking; to “know it by heart”.
Before taking a final grievance exam, a student committed to obtaining the best grade he or she is capable of earning should have learned “by heart” at least each of the following:
For each grievance, a statement of each “rule,” that is, one sentence or more that includes all the elements that must be proven to determine that the grievance has been committed.
For each affirmative defense, a statement of each “rule”, that is, one sentence or more that includes all the elements that must be proven to determine that the defense is viable.
A definition of each item, including “tests” to determine if that item can be tested.
A schematic template for constructing an assay essentially falls within these three categories. Here is a partial example:
To prove negligence, a plaintiff must prove that the defendant had a duty to all foreseeable plaintiffs, that the defendant violated this duty by failing to act in accordance with the standard of care, and that this breach caused harm to the plaintiff.
Should. A plaintiff must prove that the defendant had a duty to all foreseeable plaintiffs, that the defendant violated this duty by failing to act in accordance with the standard of care, and that this breach caused harm to the plaintiff.
Standard of care. The standard of care is the degree of prudence and caution that is required of a person who has a duty of care.
Breach of duty. A non-compliance issue can be viewed from (at least) two different angles …
Balance test. Liability depends on whether the burden of proper precautions is less than the probability of harm multiplied by the severity of the resulting injury. B
Negligence per se. The three essential criteria include: that the plaintiff is a member of the class intended to be protected by the statute, that the type of injury that occurred is of the type that the statute was enacted to protect and the violation was not excused.
But a student does not need to memorize these 214 words. This works:
Negligence: duty, breach, standard of care, cause, harm.
Default – balance, per se. (… and so …)
Should a student “memorize by heart”? Ideally, no. It is not necessary if a student has prepared adequately for each class, compiled a personal course summary (outline), and answered dozens of short-answer (and longer) practice questions. The repetitive use of the fundamental rules to solve difficult problems integrates the elements into memory for most. But not all. That is why memory tools are important to many law students. (More on that later).
Another useful item to add to the bullet list above (what to memorize) is this: a list of each topic studied. This provides an excellent checklist for the student to quickly review during the pre-writing stage of writing the essay response. How much rote memorization does this involve? Not much. (To see an example of a criminal law checklist, go to this link, then scroll down to criminal law, checklist.)
Students should remember that the “memorizing” part, the rote learning part, is only a small part of what must be done to get a high score on tests. But if a student cannot analyze the elements of each intentional grievance (for example) quickly, without stopping to try to remember details, the problems will be missed. Don’t let that happen!