S.O.U.N.D. Advice: Constitutional Law--Addressing Fundamental Rights Questions
Fundamental Rights and Due Process: Review of fundamental rights under the due process clauses invokes strict scrutiny: the government must prove a compelling state interest and the law must be narrowly tailored to the goals sought to be achieved. The fundamental rights are: privacy (generally), contraception, abortion (whether it is a fundamental right any more may be in question), family autonomy, marriage, procreation, sexual activity, the right to refuse medical care decision making, travel, voting, and access to courts.
S.O.U.N.D. Advice:
When addressing fundamental rights questions, apply the following methodology:
1. Is there a fundamental right?
2. Is the right infringed?
3. Is the government’s action justified by a sufficient purpose?
4. Are the means sufficiently related to the goal sought?
Thursday, March 18, 2010
Sunday, November 1, 2009
S.O.U.N.D. Advice: Five-Minute Drill
Consider the following three ways the examiners may phrase the call of the question. In what ways are they different? Come up with a plan for addressing each one, and note the differences in your planning:
“What is Selma’s best argument that Darla’s claim for intentional misrepresentation should be dismissed?”
“Discuss the rights and liabilities of the parties.”
“What tort claims may be brought by Darla?”
“What is Selma’s best argument that Darla’s claim for intentional misrepresentation should be dismissed?”
“Discuss the rights and liabilities of the parties.”
“What tort claims may be brought by Darla?”
Monday, September 7, 2009
S.O.U.N.D. Advice for the Bar Exam, 9.8.09
S.O.U.N.D. Advice for Addressing Evidence Questions:
Past Recollection Recorded: For the admission of hearsay as Past Recollection Recorded, the party offering the recollection must first establish the proper foundation and then the witness may read the recollection into evidence or play the tape into evidence. The thing itself cannot be offered into evidence by the proponent, but may be offered by the opponent.
Past Recollection Recorded: For the admission of hearsay as Past Recollection Recorded, the party offering the recollection must first establish the proper foundation and then the witness may read the recollection into evidence or play the tape into evidence. The thing itself cannot be offered into evidence by the proponent, but may be offered by the opponent.
Monday, August 24, 2009
S.O.U.N.D. Advice for the Bar Exam, 8.25.09
Remember that on a bar essay, your time and space are often limited. Therefore, every sentence you write must effectively convey the precise information that you're attempting to convey to the examiners. To help determine whether your sentences are effective, proofread and edit your practice essays. Read each sentence you've written carefully, asking the following questions:
* Is the sentence effective at getting across the precise point or message that you're attempting to get across with the sentence?
* Is the sentence too "clunky" or "choppy?"
* Does the sentence contain your proper "buzz words:" the correct legal terms of art that you need to use?
* Is the sentence grammatically correct?
* Is the sentence otherwise raedable (for example, in terms of style and tone?)
* Is the sentence effective at getting across the precise point or message that you're attempting to get across with the sentence?
* Is the sentence too "clunky" or "choppy?"
* Does the sentence contain your proper "buzz words:" the correct legal terms of art that you need to use?
* Is the sentence grammatically correct?
* Is the sentence otherwise raedable (for example, in terms of style and tone?)
Sunday, August 16, 2009
S.O.U.N.D. Advice for the Bar Exam, 8.15.09
S.O.U.N.D. Advice on Thinking Ahead:
In your last semester of law school, or taking the next bar exam? Don't leave your preparation to the last minute. Start thinking about -- and getting answers to -- the following questions early on:
In your last semester of law school, or taking the next bar exam? Don't leave your preparation to the last minute. Start thinking about -- and getting answers to -- the following questions early on:
- In which jurisdiction(s) do you plan to take the bar?
- What are the jurisdiction's requirements to sit for the bar? (For example, what do you need to provide with your application? Do you need to have achieved a passing score on the Multistate Professional Responsibility Exam? Will you need to round up letters of recommendation or references?)
- What is the format of the jurisdiction's bar exam? Check www.ncbex.org for a comprehensive listing.
- What subjects does your jurisdiction's bar exam test?
- How much time will you have to study, and how will you allocate that time? Come up with a concrete study plan.
- What resources are available to assist you with your bar preparation?
Monday, August 10, 2009
S.O.U.N.D. Advice for the Bar Exam, 8.8.09
What do you need to suceed on your state's essay exam?
First and foremost (and not surprisingly,) state bar examiners emphasize one important point: in order to pass the essay exam, an applicant must exhibit superior analytical skills. The National Conference of Bar Examiners’ Comprehensive Guide to Bar Admissions Requirements asserts that a state “bar examination should test the ability of an applicant to identify legal issues in a statement of facts, such as may be encountered in the practice of law, to engage in a reasoned analysis of the issues and to arrive at a logical solution by the application of fundamental legal principles, in a manner which demonstrates a thorough understanding of these principles. The examination should not be designed primarily to test for information, memory or experience.”
First and foremost (and not surprisingly,) state bar examiners emphasize one important point: in order to pass the essay exam, an applicant must exhibit superior analytical skills. The National Conference of Bar Examiners’ Comprehensive Guide to Bar Admissions Requirements asserts that a state “bar examination should test the ability of an applicant to identify legal issues in a statement of facts, such as may be encountered in the practice of law, to engage in a reasoned analysis of the issues and to arrive at a logical solution by the application of fundamental legal principles, in a manner which demonstrates a thorough understanding of these principles. The examination should not be designed primarily to test for information, memory or experience.”
Congratulations July Bar Takers!
Congratulations to all who survived the July 2009 bar exam! May you receive good news this Fall!
Saturday, July 11, 2009
S.O.U.N.D. Advice for the Bar Exam, 7.13.09
S.O.U.N.D. Advice for Bar Essays:
One mistake that students make is in thinking that merely regurgitating facts and then drawing a legal conclusion is sufficient—it is not, if your knowledge of the applicable principles of law is not coming through! For example, simply stating “When Officer searched the car based on spotting marijuana in plain view and seized the drugs, he performed a valid warrantless search” is not enough because it doesn’t allow the examiner to gauge how well you know the law and how well you can define what the plain view doctrine is. State, instead, “The marijuana seized by Officer is admissible under the plain view doctrine. An exception to the search warrant requirement, this doctrine allows the government to seize objects in plain view and admit them into evidence. Here, Officer spotted the marijuana on the backseat of the car in plain view and seized it during a valid warrantless search; therefore, the evidence will be admissible.” Although the second version is longer, it is still a concise yet completely thorough analysis, applying the principles of law involved to the facts.
One mistake that students make is in thinking that merely regurgitating facts and then drawing a legal conclusion is sufficient—it is not, if your knowledge of the applicable principles of law is not coming through! For example, simply stating “When Officer searched the car based on spotting marijuana in plain view and seized the drugs, he performed a valid warrantless search” is not enough because it doesn’t allow the examiner to gauge how well you know the law and how well you can define what the plain view doctrine is. State, instead, “The marijuana seized by Officer is admissible under the plain view doctrine. An exception to the search warrant requirement, this doctrine allows the government to seize objects in plain view and admit them into evidence. Here, Officer spotted the marijuana on the backseat of the car in plain view and seized it during a valid warrantless search; therefore, the evidence will be admissible.” Although the second version is longer, it is still a concise yet completely thorough analysis, applying the principles of law involved to the facts.
S.O.U.N.D. Advice for the Bar Exam, 7.6.09
An Evidence S.O.U.N.D. Byte:
Best Evidence Rule: The Best Evidence Rule applies when proving the contents of a writing, recording, or other document: you must produce the original document unless you can satisfactorily explain the loss of the original.
Best Evidence Rule: The Best Evidence Rule applies when proving the contents of a writing, recording, or other document: you must produce the original document unless you can satisfactorily explain the loss of the original.
Monday, June 22, 2009
S.O.U.N.D. Advice for the Bar Exam, 6.22.09
As you practice bar essay questions in preparation for the exam, diagram your issues by:
1. deconstructing the question and reading it one sentence at a time;
2. spotting all of the issues within each sentence;
3. spotting the facts or “buzz words” that go to each issue you’ve spotted;
4. and then reconstructing the question based on the issues—diagramming each issue, and including under it the facts that dealt with that issue in the question.
Remember that the examiners won’t necessarily present each fact in chronological order; they won’t necessarily present each issue in the order on which they’d like you to discuss them. By deconstructing and then reconstructing the question and paying attention to which facts and “buzz words” go with each issue, you can draw up an organized diagram to help you better organize your thoughts and points.
1. deconstructing the question and reading it one sentence at a time;
2. spotting all of the issues within each sentence;
3. spotting the facts or “buzz words” that go to each issue you’ve spotted;
4. and then reconstructing the question based on the issues—diagramming each issue, and including under it the facts that dealt with that issue in the question.
Remember that the examiners won’t necessarily present each fact in chronological order; they won’t necessarily present each issue in the order on which they’d like you to discuss them. By deconstructing and then reconstructing the question and paying attention to which facts and “buzz words” go with each issue, you can draw up an organized diagram to help you better organize your thoughts and points.
Wednesday, June 17, 2009
S.O.U.N.D. Advice for the Bar Exam, 6.15.09
S.O.U.N.D. Advice for Federal Jurisdiction Questions:
On the topic of rule numbers: must you remember rule numbers on a civil procedure question on the bar? While knowing the right rule numbers and stating them when applicable can’t hurt, it’s more important to focus on knowing the substance of the rules than it is to memorize rule numbers. If you aren’t entirely sure of the rule number, however, don’t include it—better to keep your rules more general and get them right than to state the wrong rule. For example, if you’re dealing with a motion to dismiss under Rule 12(b) but aren’t sure which subsection applies, just keep your statement general and write Rule 12(b).
On the topic of rule numbers: must you remember rule numbers on a civil procedure question on the bar? While knowing the right rule numbers and stating them when applicable can’t hurt, it’s more important to focus on knowing the substance of the rules than it is to memorize rule numbers. If you aren’t entirely sure of the rule number, however, don’t include it—better to keep your rules more general and get them right than to state the wrong rule. For example, if you’re dealing with a motion to dismiss under Rule 12(b) but aren’t sure which subsection applies, just keep your statement general and write Rule 12(b).
Saturday, June 6, 2009
S.O.U.N.D. Advice for the Bar Exam, 6.8.09
S.O.U.N.D. Advice for addressing commercial speech issues on Constitutional Law questions:
Remember: Commercial speech now merits protection, but not as much as protected non-commercial speech. Apply the following methodology:
1. First, ask: is it commercial speech? There are four types that can be identified:
i. Advertisement of illegal activities – no protection
ii. False and deceptive advertising – no protection
iii. True advertising that inherently risks becoming false or deceptive – government may regulate
iv. Laws that limit commercial advertising to achieve other goals such as enhancing the image of lawyers, or decreasing consumption of alcohol or tobacco, etc. – Supreme Court generally does not allow government regulation here.
2. Then, apply the Central Hudson Test:
1. For commercial speech to merit First Amendment protection it must concern lawful activity and not be misleading. Is it?
2. Is the governmental interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest (not least restrictive alternative analysis)?
Remember: Commercial speech now merits protection, but not as much as protected non-commercial speech. Apply the following methodology:
1. First, ask: is it commercial speech? There are four types that can be identified:
i. Advertisement of illegal activities – no protection
ii. False and deceptive advertising – no protection
iii. True advertising that inherently risks becoming false or deceptive – government may regulate
iv. Laws that limit commercial advertising to achieve other goals such as enhancing the image of lawyers, or decreasing consumption of alcohol or tobacco, etc. – Supreme Court generally does not allow government regulation here.
2. Then, apply the Central Hudson Test:
1. For commercial speech to merit First Amendment protection it must concern lawful activity and not be misleading. Is it?
2. Is the governmental interest substantial?
3. Does the regulation directly advance the governmental interest asserted?
4. Is the regulation more extensive than is necessary to serve that interest (not least restrictive alternative analysis)?
Congratulations to the Class of 2009!
Congratulations to all of those who newly received their Juris Doctor degrees!
And a special congratulations to our students, the Class of 2009 at the Massachusetts School of Law!
And a special congratulations to our students, the Class of 2009 at the Massachusetts School of Law!
Sunday, May 31, 2009
S.O.U.N.D. Advice for the Bar Exam, 6.1.09
S.O.U.N.D. Advice on Bar Essay Exams:
R emember the “6 C’s” of a readable paragraph!
What does a great paragraph look like on the bar exam? It should have the following basic characteristics:
Concision and clarity in expression
Clear identification and statement of the issues
Correct statement of the applicable principles of law, as well as any sub-rules, variations, or limitations that may apply to the facts
Complete and thorough analysis of the law as applied to the relevant facts
Clear and definite conclusion or thesis
Correct language and solid writing style
R emember the “6 C’s” of a readable paragraph!
What does a great paragraph look like on the bar exam? It should have the following basic characteristics:
Concision and clarity in expression
Clear identification and statement of the issues
Correct statement of the applicable principles of law, as well as any sub-rules, variations, or limitations that may apply to the facts
Complete and thorough analysis of the law as applied to the relevant facts
Clear and definite conclusion or thesis
Correct language and solid writing style
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