Kevin Kneupper’s Blog

This is the fifth post in a series about preparing for your first year of law school. Part One dealt with preparation during the summer before you arrive. Part Two dealt with what you should do in those stressful first few weeks. Part Three dealt with the case study method, and what you should know about the very different way in which law professors teach. Part Four dealt with briefing cases, and how you should be studying. This post, part Five, deals with practice exams.

I should start out by noting that I consider this the single most important thing I did during my first semester. It’s also the one thing that virtually no one focuses on until the last minute - but I recommend starting to take practice exams once you are a few weeks in. Law school exams are VERY DIFFERENT from what you are used to in your undergraduate classes, and your final grade will depend on how well you are able to adapt to the changes.

For those who are unfamiliar with what a law school exam is like, they generally focus on what’s known as “issue spotting.” Certain classes focus on this more than others - a torts exam will probably be heavily devoted to it, while a constitutional law exam may be closer to something you took in an undergrad poli-sci class depending on your professor. In general, however, exams will ask you to spot legal issues and then comment on how they should be resolved. The issues will be hidden within a fact pattern designed to allow arguments on both sides. Many exams will consist of a giant, page-long description of a series of events and simply ask you who has claims against who. A brief example from a Property professor at Kentucky here:

“OWNER was in the hospital to have an operation performed for a brain tumor. OWNER told DEAR FRIEND who was visiting him that OWNER had buried one hundred gold coins in OWNER’s garden under the azalea plant. OWNER said to DEAR FRIEND, “If I do not survive the operation, the gold coins are yours.” The operation was performed successfully but a week after the operation, while OWNER was convalescing in the hospital, he had a heart attack and died. DEAR FRIEND then dug up the coins. OWNER’S ADMINISTRATOR filed suit to recover the gold coins for OWNER’s estate. DEAR FRIEND’s answer claims that the coins belong to her because OWNER gave them to her.

How should a court resolve this law suit and why?”

You’ll notice first off that this question does not tell you anything about what it is asking. The question requires you to know about a specific area of law - gift causa mortis, or gifts made in contemplation of death. But it won’t say “Please explain the gift causa mortis doctrine.” It requires you to look at the fact pattern, realize that the person is attempting to make a gift in ancitipation of death, and remember that you learned about this area of law. You will have to know the elements required to make the gift valid (intent to donate, adequate mental capacity, constructive delivery of the gift, acceptance of the gift). That’s straight memorization, and you would get some points on most exams for listing these - but not many.

Here’s another big difference between an undergraduate exam and a law school one: an undergraduate class would stop here. It would be sufficient to just say “Here’s what a gift causa mortis is, and here’s what he has to prove.” But in law school, all your classmates will know this, and virtually all of them will see the issue and write out those four elements. Because you’re graded on a curve, you don’t get points for doing what everyone else is capable of doing. You get your points in the next step - the analysis.

You’ll have to figure out all the arguments that either side could make. You’ll need to get good at putting yourself in the other person’s shoes, and not just picking a side and advocating for it. For example, let’s look at the mental capacity issue. You should be thinking, what would I say if I were the attorney for either side? If you wanted to prove he wasn’t competent to make a gift, you’d point to the brain tumor. That’s a flashing red light - most facts mean something in a question, and this one wasn’t put in there randomly. The law professor could have given him cancer, diabetes, etc., but he chose a brain tumor. Why? Because a brain tumor calls into question his capacity. It could have affected his functioning or understanding of what he was doing. A second fact might be the situation itself. Gold coins buried in a backyard under a plant? Sounds a little nutty. You’d probably get points for writing about that, maybe a few more for noting that it doesn’t have that big a likelihood of success unless it was buried recently. Burying it years ago is eccentric, burying it recently indicates a mental breakdown possibly associated with the tumor. But what would the other side say? They’d say that a tumor isn’t proof of a lack of capacity - just because it’s in the brain doesn’t mean it has affected his mental abilities. And maybe he was just concerned about theft and inflation, which is why he got gold coins. And they were under a plant - how recently could they have been buried?

It’s this back and forth that gets you the points. You should generally state at the end which argument you think is more persuasive - but you’ll find that getting things right often accounts for very little of the score. In fact, in my first year contracts class I got a very high score on a question while giving a completely wrong answer. I earned the points by making arguments on both sides, and even though I stated the wrong legal conclusion, I still did very well.

To get really good at issue spotting, however, you have to practice. Nearly every book I read on doing well in law school gave the advice that a few weeks before exams, you should start looking at the old exams. Nearly every school has them, and if not you can get the exams of other schools online in all your first year classes. The books advise you to take the exams, and maybe do an outline of what your answer would be, just so you can get used to seeing what the issues are.

I think this is bunk. You should start doing practice exams 3-4 weeks into law school. And I don’t mean looking at it for 20 minutes and writing down the issues you see. I mean a full, timed exam question where you write it exactly as you would under real conditions. Many people are probably thinking of a few objections:

But you don’t know everything! How can you take the practice exams? You can’t take all of them. Many practice exams will be impossible for you to do 4 weeks in - a general rule of thumb is that if a page-long fact pattern, you’re not going to know enough to do it. Many, however, will be like the one that I just talked about. That was a full, short question about a discrete area of law. If you had been through a gifts causa mortis unit in your property class, you would be able to do that question without learning a single other thing about property. In fact, I found that some classes, like Property, were very well-suited to doing practice exams early - everything is essentially unrelated in that class. Other classes, like Contracts, are poorly suited to it - you’re forced to wait in most cases because all the concepts relate to and reinforce each other. But you can still find some questions to do - once you finish a unit on something, go try to find practice exam questions that are obviously on it. You don’t have to do a full exam - just do one question.

What’s the point? I should be learning the law, not messing around with the exams this early. Wrong. Dead wrong. First, in the premise that you are better suited learning the law by sitting there with some flash cards. How exactly? I gained a much better understanding of what the elements meant by trying to apply them to practice questions. It’s all good and well to memorize a list of elements, but working with them is a much better way to see what they mean and how you would use them on a real exam. Second, do you want to get a good grade, or memorize the law? The grade will stick with you for life. You’ll forget the stuff you memorized next semester. Being a lawyer is about looking things up, not having things memorized. You’ll get more practical benefit from learning how to apply the law well anyway.

But it’s really hard! Why not just do the outline thing you were talking about? Well, duh - law school is hard. And you’ll be taking the same exams eventually anyway - outlining your answer instead of writing it is just a rationalization you’re using to try to avoid grappling with the problem. Trust me, the first practice exam you sit down to try to write will be extremely frustrating. You will sit there, 10 minutes into a thirty minute question, certain you have utterly no clue what you’re doing and sure that the best idea is just to close the book and go read what the answer should have been. DON’T DO IT. The only way to get over that hump is to suck it up and write for thirty minutes. Do you want to get over the frustration now, or put it off until actual exams when sitting there costs you real points?

Fine. What do I do then?

1) Go get a study group to take practice questions with you. Many practice questions won’t have answers published - do the questions in your group that don’t.

2) Don’t just take one or two. I would set a goal like a question a day. I don’t think I met that when I was doing it, but I came close.

3) Put off doing your professor’s old exams until the end of the semester. Do the exams from other professors early on, then switch over. The reason is that your professor’s exams are closest to the real thing - you want to get them right and you want to do them when you have a little experience under your belt.

4) However, do go LOOK at some questions by your old professors. I saw people botch exams big time because of this. Our criminal law professor taught traditionally, but asked questions that focused entirely on the Texas Penal Code. People who memorized the Model Penal Code stuff he taught got very bad grades. People who looked at the exams beforehand could realize that they were going to need to study stuff that he wasn’t discussing in class.

5) Start with discrete questions. Look for units in your classes that have very narrow sets of rules unrelated to anything else. For example, in Civil Procedure, you can often find old exams online focusing solely on personal jurisdiction. It has nothing to do with anything else, and nothing you learn elsewhere in civil procedure will affect the analysis. These are what you should be doing early on.

6) Start making “buzzword lists.” I did this for some classes with space or time constraints - what is the quickest way you’re going to get across that you understand a concept to the professor? For many areas of the law, there are short phrases that they will be looking for. You should know that many professors grade the exams in a very rigid, mathematical way. They have a list of things they want to see you talk about, and they read through looking to see if they find one. If you use a buzzword (”due process,” “minimum contacts,” “stream of commerce”), they can latch on easily and give you points.

7) Get used to writing quickly and not spending as much time on outlining. Do the back and forth in your head as you’re going. More time spent writing means more points and more chances to get points.

8) Look over the exam for any facts that seem significant - if there’s anything you haven’t used to support an argument, it’s probably there for a reason. Think about WHY they picked a brain tumor instead of cancer for what the guy has.

9) Use the exams you practice with to figure out how you’re going to study. They should be helping you figure out what you DON’T understand, and what you need to spend more time on. Use exams with answers. What issues did you miss? Study the law on that. Get the mistakes out of the way on the practice exams so you don’t make them on the real thing.

10) Use the practice exams to supplement your actual studying. Have you just finished the portion of your Civil Procedure outline on personal jurisdiction? Well, it’s time to do some practice questions on that. Whatever you get wrong, you can make sure it’s in the outline. If your exam is open book or open outline, get used to looking things up under exam conditions so you can do it more quickly.

11) Take multiple questions on the same thing. Remember that for some questions, you can write out beforehand the elements of a tort, etc. and use them verbatim on an exam to save time. Put it in your outline word for word how you’d write it on the real thing. Don’t go overboard with this - but anything that is simple like a list of elements, you don’t want to waste time rewording when you’re writing the real exam.

12) Take LOTS of practice exams. Focus on getting better at doing them. Spend time thinking about what you did wrong. If you think up a better answer or an issue you missed later on, don’t just kick yourself. Write it down, and review it later. Missing the issue now means you’re more likely to spot it later.

13) Spend time thinking about strategy. Do your professors favor certain questions? Many of them act like clockwork - they will repeat questions every few years, put in the same facts over and over in big fact patterns, etc. Many always try to come up with something new - which, in the end, is predictable if you think about it as well.

14) Remember that what is on the exams is what counts. If your professor has been giving an exam for 13 years that always asks “What crimes were committed under the Texas Penal Code on these facts?,” he’s probably not going to shake things up and suddenly start asking about the Model Penal Code, even if he spent a month talking about it. Get ready for it, but spend most of your time on what he has already been PROVEN to ask about.

15) If you start getting pressed for time and think you don’t have time to do practice exams, CUT SOMETHING ELSE FIRST. Practice exams are your highest priority. Use an old outline in another class. Read stuff only once. Cut something else, ANYTHING ELSE, before you cut the practice exams.

Taking practice exams can’t guarantee you a good grade - but no one does it. It’s the one thing where I found it easy to gain a huge advantage over other people who blew it off, worried more about outlines, or just didn’t want to do all the work involved.  

Some online sources of old exams:

http://www.uky.edu/Law/exams/

http://www.re-quest.net/g2g/law-school/exams/index.htm

The Origin of Consciousness in the Breakdown of the Bicameral Mind is a classic psychology book that poses an interesting, but in my view unlikely, theory that human consciousness is not a product of evolution. Instead, Jaynes believed that it was something developed socially and only recently in brains that had evolved instead for a “bicameral mind.”

The bicameral mind in Jaynes’ theory is a mind that operates much like a modern schizophrenic. The two hemispheres of the brain, right and left, would be disconnected, with each operating essentially separately from each other and with no concept of the “I” or self. The left brain in this theory operates as the closest analogue to our modern self, while the right brain functions as a “god,” issuing dictates to the left brain in the form of hallucinated voices and images.

Jaynes thought that the bicameral mind functioned well only in small societies, where a chief or leader would arise and that individual’s image or voice would impose itself as the hallucinated “god” of the right hemisphere, allowing small societies to form around the “leader,” when in actuality the right hemisphere of the human brain was imagining the commands that the chief would issue were he present.

This bicameral mind, however, could not function in larger societies that began to spring up. Too many competing priests and other lower functionaries arose as intermediaries to the chief, leading to periodic societal collapse as conflicting orders were recieved and larger societies could no longer function. This process was accelerated by the gradual development of writing, which Jaynes thought created an entirely separate mode of thinking. As writing developed, it eroded the auditory hallucinations by weakening the auditory aspects of the mind, shattering the fragile hallucinatory effects somehow by altering which portions of the brain we most frequently use.

Jaynes’ support for his theory is mostly literary and historical. He points to a variety of societies that seem to have suffered from a gradual collapse of the bicameral mind, as evidenced by societal failure and an alteration in their literature to evidence consciousness of the self. The Scythians, for example, suddenly altered their statues and writings to begin to refer to a refusal of the gods to communicate directly with them. The Greeks experienced the Dorian invasions, a series of migrations and attacks that preceded a shift in the Illiad and other oral literature from referring only to actors being driven by the Gods to later literature in which they contemplate their own emotions and basis for acting. The Hebrews went from the God of the Old Testament, who spoke directly to his people, to a God who would no longer appear before them. The Aztecs and Incas periodically collapsed for unknown reasons, abandoning their cities and returning to the surrounding areas.

Ultimately, while it’s a very interesting theory, I see the support as thin. Jaynes supposes that our bicameral ancestors, milling about like cattle, had been thinned from the herd in favor of those who were genetically less inclined to hear voices and better able to function in a modern, post-literate society. This thinning of the ranks left only schizophrenics as the modern remnants of those who used to possess a true bicameral mind. This seems to me to be unlikely given the many isolated tribal peoples who have persisted to this day, often with little contact from the outside world. If the theory of the bicameral mind were correct, we would expect them to behave as Jaynes suggests, given that few have systems of writing. While, as Jaynes points out, there could be some degree of projection at work in the same sense that there is a human tendency to see emotions and motives in animals which are not truly conscious, illiterate tribesman are hardly the passive, hallucinatory creatures suggested by the theory.

A further complication for me is the question of why modern men who are never taught to write do not display these hallucinatory characteristics. The genetic culling of those who hallucinated could only go so far - if the human mind truly did not evolve to display consciousness, and it is a recent consctruction caused by human writing, then an individual who was never taught to write would never be rewired to be conscious.

A related problem is that the rate of literacy has been near universal only recently. At the times suggested by Jaynes for the shift towards the existence of consciousness, only small numbers of people would actually have had any experience with writing - and yet Jaynes points to dramatic shifts that affected entire populations.

My guess is that the alterations in writing to refer to the first person identified by Jaynes were a refinement of language itself, and not the genesis of consciousness. As he points out, language is a recent phenomenon. Complicated emotions and discussion of consciousness cannot become a part of literature until there is a vocabulary with which to describe them - and, as a functional matter, this would be the last aspect of language to develop. Language’s importance is as a conduit for information - Jaynes traces its beginnings to efforts to communicate valuable information such as the presence of threats and how to make tools. Emoting beyond the basics of anger or fear has little survival value, and words for more complicated emotions might have been a long time coming even while the emotions themselves existed. English does not contain a word for shadenfreude, yet we feel it just the same.

Regardless of the merits of the theory, the book is thought provoking and interesting. It’s a great tract on the basics of consciousness and the history of the development of language and the mind.

You can buy the Origin of Consciousness in the Breakdown of the Bicameral Mind online here.

Relate Discussion of the Book’s Theories:

An antecdote about him and a link to a society promoting his work here.

Discussion of the book in relation to a theory that mental processes follow inevitably from physical ones which result in evolution here.

Some discussion of the theory and its application to modern children who hear voices here.

Further attempts to place the beginnings of advanced consciousness here.

Old Man’s War is a science fiction book with undertones of Robert Heinlein’s Starship Troopers and Joe Haldeman’s Forever War. It’s set in the future, on an Earth with people living lives much as they do today. Earth, however, is a backwater, with a sort of futuristic East India Trading Company called the Colonial Defense Force calling the shots off-planet. Having the only direct contact with aliens, the CDF also has obtained a monopoly on the most advanced technologies which it has been able to reverse engineer. Earth itself lives in blissful ignorance of a bitter ongoing struggle with a variety of nearby races to colonize the few habitable planets in the area.

The book tells the story of the soldiers in that conflict: a group of geriatric warriors who sign up at age 75 to have their bodies renewed. They risk death, but no more than they would from the alternative of the ravages of old age. The CDF gains the benefit of a combat force honed with the experience of years of living, but fighting from genetically engineered bodies that surpass anything available in the soldier’s actual youth.

I enjoyed this book a lot - it was a quick read, but well written. It focuses primarily on the nuts and bolts of galactic warfare from the soldier’s perspective. My only disappointment was that it raises a number of interesting themes without following through on them. For example, the idea that human experience would allow the elderly to make better soldiers than a 20 year old is interesting - as the old saying goes, youth is wasted on the young.

A technology that could extend people’s functional life span to allow them to work in any job, let alone the military, for longer periods would have dramatic effects on society, and the foremost of these would be the preservation of “wisdom.” I notice this frequently in my job as a judicial clerk - the chief difference between a judge and a law clerk is the years of memories of individual cases that clues the judge into legal problems that a clerk does not notice. This produces a huge performance differential even if the judge and the clerk possess the exact same intellectual abilities.

Unfortunately, the book doesn’t explore this much. There isn’t any real instance in the book of a soldier applying experience to the novel situations they encounter - how it benefits them is ignored. It also glosses over the reasons why humans are unable to come to some negotiated settlement with the nearby races, and while it raises some interesting ideas such as the point that a cute, cuddly alien might be more dangerous than a slobbering monstrosity, it touches on these only briefly.

Despite this, I still thought it was a great book. It’s a short read, and the ideas are enjoyable to think about even if the book only prompts you without providing much analysis of its own.

You can order Old Man’s War here online.

Some other reviews:

http://www.professorbainbridge.com/2006/01/john_scalzis_ol.html

“I was absolutely blown away; it literally was one of those “you can’t put it down” books.”

http://www.coyoteblog.com/coyote_blog/2006/03/congrats_to_joh.html

“Old Man’s War was one of those instant classics, a book that 25 years from now could easily be included in a best of science fiction series.”

http://kenneth.typepad.com/blog/2005/02/old_mans_war.html

“A big thumbs down on the simplistic treatment of what to expect from aliens and the reliance on preemptive violence”

http://www.transterrestrial.com/archives/006385.html

“While it’s entertaining, I was irritated early on by technical errors in it.”

Apparently, it will also be sold as an e-book as well:

http://www.scalzi.com/whatever/004052.html