Arguing claims and counterclaims or defenses on law school exams
There is abundant confusing advice about whether a student on a law exam should always argue two or more ways. I find much of the expert advice inaccurate and misleading, catapulting partial truths into unwarranted one-size-fits-all generalizations. Indeed, most of it fails the pertinent test: have you dialed into each of your professor’s wavelength and verified what he or she actually expects? It’s a micro empirical question, not a macro conceptual one. Professors vary greatly here as on other matters. The following analysis of this question is modified from pages 69-70 of my "How To Do Your Best On Law School Exams."
Avoid any automatic “claim-and counterclaim” approach
Avoid any automatic “claim-and-counterclaim” approach to issue spotting. At the unfounded extreme, some students believe they must invariably argue this claim-and-counterclaim approach with each element in a rule that they are applying. Such belief is utterly misconceived and misleading and will hurt you on law exams. The facts sometimes spell out a defense or counterclaim to an element and sometimes do not. You only argue such a defense or counterclaim when there are facts to support your argument, and there is nothing automatic about it. Moreover, study of countless exams reveals that you generally argue only one element in the applicable rule, not every element; the remaining elements are usually not at issue. Remember always that the facts, considered in light of the relevant rules and your professor’s expectations, are sovereign and determine which issues you do and do not raise — and which you argue one, two or more ways.
Where the issues point to rules that are open-ended, elastic, even clay-like, do not be surprised that the back-and-forth arguments may resemble Republicans and Democrats in election heat. Many fact patterns that raise such claim-and-counterclaim issues can be argued both ways because of the open-ended character of the relevant rules. Examples include such rules or standards as “the best interest of the child” in custody cases, “equitable distribution” in dividing martial property in divorce cases, “reasonable accommodation” in disability cases, and, indeed, any standard, rule, test, or principle that incorporates such words as “equitable,” “just,” “fair,” “proper,” “reasonable,” “undue,” "material" and many other comparably open-ended terms.
Constitutional standards, usually labeled as “principles” because of their foundational status, often lead to two-way argument. Examples include the First Amendment guarantees of freedom of speech, press, assembly, association, petition, and religion; the Fourth Amendment prohibition of unreasonable search; the Fifth Amendment guarantee of due process; and the Fourteenth-Amendment guarantee of equal protection of the laws.
But even if the applicable test is not open-ended or a principle but more concrete, professors in all courses can nevertheless craft the essay language so that two-way argument is expected, and you may sometimes even be asked explicitly in the interrogatory to argue two ways. Here too, your professor’s class hypotheticals and preferred responses and her old exams should enlighten you as to your teacher’s choices.
And recall that these same teachers as well as others can pose emphatically one-sided facts that call only for one-sided argument. As always, be open and responsive to their choices; go with their exam flow.
The lesson: It is as much a blunder to argue two ways without a concrete basis in the facts and relevant rules as it is to argue one way when the facts and rules call for two-or-three way argument. One professor called back-and-forth arguing without a basis in the facts, rules and professorial expectations, "ping-ponging." It's not meant as praise. On this issue, as others, you must dial into each professor’s frequency as revealed in classroom dialectics, assigned materials and especially her old exams and any old model or 'A' student papers. Verify her expectations. Always individualize!
John Delaney |
