ORDER OF PROCEEDING

1. ORDER OF PROCEEDING • Logistics • Exam Technique • Generally • QI: Statutory Amendment • QII:Issue-Spotter • Questions from You • Exam Technique & Logistics • Substantive

2. Logistics

3. General Logistics • On Course Page: • From My Exam Techniques Lectures: • Slides • PodCast • These Slides (Right After This Session) • Status of Grading Updates (Starting After I Receive Exams)

4. Structure of Exam • Two equally weighted Qs, one of each type • Maximum 7 Pages Each. I Suggest: • Write answer as thoroughly as you can • Then edit down to page limit • Formatting Instructions as Provided: • Follow exactly to avoid penalties • I suggest setting up correctly formatted Word document in advance

5. Submitting Qs • If you have Qs re: • the meaning of any of the language of the exam OR • these slides or the exam technique slides • Submit Q by e-mail before 10:00 a.m. tomorrow (3/5) to my assistant Tina Sutton at <tsutton@law.miami.edu> • Qs will be passed on to me without revealing your name. • If one or more Qs are appropriate to answer during the exam, we will e-mail the responses to the entire class by noon tomorrow.

6. Exam Coverage • Testing This Year’s Course; Issues from Prior Years in Old Tests Outside Scope: • Standing • Statutory Defenses (exc. 3604(f)(9)) • Steering & Blockbusting • State Statutes • Sexual Harassment & 3617 • Constitutional Defenses

7. Exam Coverage • Testing This Year’s Course • Relatively Comprehensive Coverage BUT • Can’t Cover Every Topic in Two Exam Qs • One Q re Private Ds; One Q re Govt Ds • Explicit Issues re “Handicap” & Nat’l Origin (NO) • Remember NO includes not just immigrants but U.S. natives of particular heritage (Italian-Americans, Chinese-Americans, etc.) • All Your Names in Test

8. Exam Coverage • Testing This Year’s Course • All Your Names in Test • Acheing Jarzabek v. David Radier • Part of Issue-Spotter Will Be a Proof of Intent Issue (Either Private or Gov’t) • Focus on Compiling Best Evidence for Each Side • Explain Relevance Where Not Obvious • Helpful at End to Discuss Which Side Seems Strongest

9. Open Book Take-Home Tests: Virtues • Time to Read & Reread Carefully • Time to Percolate • Time to Proofread/Edit (for Clarity) • Security Blanket of Having Everything Available • Clothing Optional • Food & Drink Available Throughout

10. Open Book Take-Home Tests: Dangers • Temptation to Copy (v. Read & Respond) • From Notes or Outline • From Old Model Answers • Long Passages from Cases or Statutes • Temptation to Spend Time Creating “Final Product” Rather than “Draft” • Inclination to Write to Page Limit & Stop

11. Open Book Take-Home v. In-Class Exam • Qs will not be more difficult than what I normally give, although Issue-Spotter is a bit longer b/c of time to read • 7 pages is a typical length for best answers on in-class exams. • I won’t grade harder b/c take-home, except I will be less tolerant of disorganization and impenetrable sentences b/c you have time to edit/proofread for clarity.

12. Aftermath • Once grades are posted, I’ll make available a packet for you to pick up with: • Copy of your test • Exam Questions, My Comments & Best Answers • Explanation of Grading & Your Individualized Scores • My riff on the Star-Spangled Banner • I’ll meet with you to review if you choose.

13. Qs on Structure or Logistics?

14. Exam Technique: Generally

15. Exam Technique: Generally Some Repetition Here from My Exam Technique Workshops, But Focused on Problems Commonly Arising on Old HDisc Exams

16. Exam Technique: Generally (1) Follow Directions • Read Very Carefully • My Exams: Different Qs = Different Tasks • Kinds of arguments/authority useful for each is different • Important to see differences between Issue-Spotter and Statutory Drafting (I’ll do in more detail below)

17. Exam Technique: Generally (2) Good Info in Old Exam Qs • Read my comments • Use model answers • to see organization/style I like • to see some possible ways to analyze • neither complete nor perfect

18. Exam Technique: Generally (3) Testing Ability to Use Tools, Not Knowledge of Them • Don’t Simply Recite Legal Tests; Apply Them (as Soon as You Mention Them) • Helpful (but not Crucial) to Refer to Relevant Authority (see old best answers) • Make your reasoning explicit: Wizard of Oz (Because, Because, Because)

19. Exam Technique: Generally (4) Draft, Not Final Product • No need for formal introductions & conclusions • Use abbreviations • Names: Use Initials (Claire Calvo = CC; Dahl County = DC) • Shorten Recurring Phrases: McD-Dgs, ReasAcc, • If Unsure, Do Explicity 1st Time: Major Life Activity (MLA) • Can use telegraph English • Use headings, not topic sentences • Can use bulleted lists (e.g., of evidence supporting one side of an argument)

20. Exam Technique: Generally (5) Be Concise Regarding the recurring problem of wordiness, almost all of the thirty-three otherwise diligent and competent students who in 2010 took the time to submit a practice exam answer in Property IJ pursuant to the rules posted on the course page for doing so thoroughly demonstrated the fact that that they had a tendency to that problem as well as showing redundancy and continued difficulties writing in a concise, brief and to the point way.

21. Exam Technique: Sample (Disc. Intent) McD-Dgs Bdn Shift (see Asbury) • PF Case • P.Class: Sex/Fem • Applied? Filled out appl. • Qualif?Hi credit score; OK TNT • Denied: On wait list, but last apt and min. 1 yr lease so probly equivalent • Left Open/Non-Class Member: Ds sat on for 3 days w no alt; then went to male • D Easy Bdn to i.d. Legit Reason: Mac + TNT + Compatibility • P Bdn to Show Pretext: …

22. Exam Technique: Sample (Disc. Intent) Notes re McD-DgsBdn Shift • Direct Proof Analysis Mostly = Pretext Step of McD-Dgs (X-Reference; Don’t Repeat) • When Not to Use McD-Dgs • If seems like won’t add much (quick version or 0) • Gov’t defendant doing zoning/legislation

23. Exam Technique: Generally (6) Use of Cases • If case directly addresses issue raised by test, I expect you to discuss/compare it. • For other points, citation to relevant authority is helpful, but not crucial • Use single words or brief abbreviations as case citations: Starrett, Jones, Pinchback, SoMgmt

24. Qs on Exam Technique Generally

25. Exam Technique: Question IStatutory Amendment

26. Question I Two Skills: Statutory Drafting & Policy Discussion

27. Question I: Statutory Drafting … The bill includes two paragraphs that would become part of [a specific FHA provision] Paragraph (i) (set out below) addresses [either gov’t or pvt Ds]. Paragraph (ii) [which your boss has assigned to a different staffer] covers [the other]. … Compose a draft of a memo for your boss assessing Paragraph (i) of the proposed amendment. The memo should include two components [that will be weighted roughly equally]: DON’T DISCUSS THE SUBJECT OF PARAGRAPH (ii)

28. Question I: Statutory Drafting Compose a draft of a memo for your boss assessing Paragraph (i) of the proposed amendment. The memo should include two components [that will be weighted roughly equally]: • Technical Critique including identification of technical drafting problems with the amendment as written and identification and ex­planation of possible changes to address these problems (if Rep. Waf­fle decides to support the substance of the amendment); and

29. Question I: Statutory Drafting Technical Critique • Do each section of amendment separately then problems with the whole thing together (if any) • It’s a type of Issue-Spotting (can use bullets) • X is bad because • This change would make it better because … • Be specific; not helpful to simply say text is “vague” or “confusing” or “wordy” • Keep technical critique & suggested changes distinct from substantive

30. Question I: Policy Discussion Compose a draft of a memo for your boss assessing Paragraph (i) of the proposed amendment. The memo should include two components [that will be weighted roughly equally]: • Technical Critique …; and • Substantive Critique including discussion of the pros and cons of the substance of the amendment and identification and explanation of possible substantive changes to improve the amendment.

31. Question I: Policy Discussion Substantive Critique • Do pros & cons for each section separately then for the whole thing together (if relevant) • Can give & support ideas to improve substance • Can Refer to Range of Possible Concerns: • Housing & social policy • Administrative costs & judicial efficiency • Potential Constitutional problems • Political concerns • E.g., Can it pass the Congress?, Voters might… • BUT: Don’t make politics your whole critique

32. Question I: Common Problems • You Are Amending a Federal Statute • The amendment can’t violate the statute • You can’t say it’s bad b/c inconsistent w statute or its original Legislative History • You can’t say its bad b/c inconsistent w cases or doctrine • You can say: I don’t like policy behind …b/c …

33. Question I: Common Problems • You Are Amending a Federal Statute • Work at Understanding the Drafter’s Intent • Read wording carefully (badly drafted) • Read description of context carefully • If you are unsure: indicate assumption(s): “Not sure what 2d sentence means. Assuming it is trying to change Starrettresult …”

34. Question I: Common Problems • You Are Amending a Federal Statute • Work at Understanding Drafter’s Intent • Organize Your Answer • Paragraph (i) has two parts (A & B) • Could go A (Tech, Policy) then B (Tech, Policy) OR • Could go Tech (A, B) then Policy (A, B) • Either Way • Break into clearly marked sections • Consider adding discussion of interaction between sections or of paragraph as a whole (if relevant)

35. Question I: Common Problems • You Are Amending a Federal Statute • Work at Understanding Drafter’s Intent • Organize Your Answer • Redraft Without Explanation is Risky • I might not see what you intend • Try to briefly explain what you are trying to fix (maybe in parenthetical)

36. Questions on Question I?

37. Exam Technique: Question II Traditional Issue-Spotter

38. Question II: Instructions Based on the facts below, P brought an action in U.S. District Court alleging that Ds had violated [the FHA and/or §1982]. Discuss the following three subquestions in the context of the facts below, noting the strengths and weaknesses of each party’s position. The three subquestions will be weighted equally, so allot your time and space accordingly. (A) … (B) … (C) …

39. Question II: General Points • Read Carefully • Stick to Qs Asked • Additional Issues Not = Extra Credit BUT • Failure to follow directions/Waste of space • Treat Three Issues Roughly Equally • Precise Lengths are Judgment Call • Try to Show Off Your Ability to … • Work with Facts • Identify Best Arguments for Each Party on Each Major Issue

40. Question II Traditional Issue-Spotter: What I’m Looking For • Identification of the Most Important Issues • Quality of Analysis • Clear Presentation • Quantity of Relevant Points Made

41. Question II • Identify the Most Important Issues • Not enough space to discuss everything • Need to choose among topics • Focus on most contested issues • Serious arguments on both sides • Look for topics with a lot of facts • If lawyers wouldn’t fight about it, address it quickly or not at all.

42. Question II • Identify the Most Important Issues • Not enough space to discuss everything • Need to choose among topics • Focus on most contested issues • Human Models (Fam.Stat./Race v. Handicap) • Disproportionate Effect (Quadriplegic/Stairs v. National Origin/Zoning)

43. Question II 2. Quality of Analysis • Arguments for both sides of issues. • Work with/compare relevant authority • On issues other than intent, briefly state and then refer back to the relevant legal tests. • Try to use as many of the facts in the problem as possible • You can note missing facts/evidence that could help determine outcome (if not inconsistent with facts you do have)

44. Question II 2. Quality of Analysis • Defend key positions thoroughly • Increasing Degree of Difficulty: Keep pushing toward resolution; don’t have to reach one. • Doctrine, Stat. Language, Cases, Policy • Which side seems stronger & why

45. Question II 3. Clear Presentation • Discuss one issue at a time & thoroughly • Generally more effective to do by topic rather than all one side, then all the other • Latter approach tends to overstate each position and miss more nuanced arguments • Use headings & subheadings to clearly mark transitions • Make logic of arguments apparent

46. Question II 4. Quantity of Relevant Points Made • Used primarily as tie-breaker if answers otherwise similar • To save space, use abbreviations, headings, bullets • Can do brief outline at end if more to say: • “Might also look at [list of topics or evidence] • Helpful to give me very brief indication why things on list might matter.

47. Question II 4. Quantity of Relevant Points Made • A little bit of credit for quick citations to relevant authority, but thorough analysis of contested issues yields the most points • Use any authority you mention

48. Questions on Question II

49. Penultimate Slide Qs on Exam Technique or Logistics

50. Very Last Slide! Substantive Qs?