In our last post, we talked about the importance of asking a 2L or a 3L for an outline of the course taught by your professor. We won’t reiterate all the benefits of doing so here, but taking class notes in the outline both saves time and lets you focus on the key points in each class, which sometimes aren’t obvious.
By now, you’ve probably heard of “black letter law.” This refers to law that is clear and well-settled. Although your outline should capture this law, there are many areas where the law is ambiguous and much class time will be devoted to exploring these gray areas. Although your instinct may be to capture only “what the law is,” that narrow focus will leave you blinded to ambiguities in the law that are fertile ground for exam questions and that a great exam answer will explore.
For example, some broad categories of gray areas in the law are:
Majority vs. minority rule: This refers to situations in which a majority of jurisdictions (states, courts) have adopted one rule, but there are other jurisdictions that have adopted a different rule. The rule followed by more jurisdictions is the “majority rule,” and the rule followed by fewer jurisdictions is the “minority rule.”
Traditional vs. modern rule: This similarly refers to situations in which jurisdictions are split on what the law (or rule) is. Instead of comparing the number of jurisdictions adopting one rule or another, though, this divide captures jurisdictions that have adopted a long-standing rule versus jurisdictions adopting a more recent rule. Although a majority of jurisdictions may embrace the traditional rule, your professor may think the modern rule is preferable. In such a case, when responding to an exam question, you should not blindly cite the majority rule and instead should analyze the result under both rules.
Statutory vs. common law: Sometimes statutes and the common law address the same topic in a different way. Expecting students to analyze how the result would differ under a statutory or common law approach is fertile ground for an exam question.
Judge A vs. Judge B: Are there judges in a single case (e.g., a majority opinion vs. dissenting opinion), or judges examining similar cases, that reach different conclusions? Appreciating the different conclusions, and the bases for each, is helpful if asked to analyze an analogous situation on an exam.
Even when looking at a single statute or case, keep an ear open for class discussion of gray areas, such as:
Would following the plain language of the statute violate its purpose in a given circumstance, and if so, which interpretation should control?
What if a statute was enacted for multiple purposes and those purposes conflict in a particular scenario?
Should a statute be interpreted broadly or narrowly?
Does the rationale that led a court to adopt a particular rule still apply under different facts?
Is a case’s holding narrow or broad (i.e., is it meant to apply only in the limited circumstances of a particular case or should it apply to a range of situations)?
If a court gives multiple reasons for its decision, could those rationales conflict under different circumstances?
Often, the law isn’t as clear as you’d like it to be. Instead of worrying about such ambiguity, embrace it, because you’ve spotted an issue that may well end up on your exam. Also, because most professors will use class discussion to tease out these issues, capture the various sides of the debate in your notes and you’ll have an advantage at predicting exam topics and at drafting a superior exam response.