Law students ask, “Isn’t law school about more than just memorizing? The answer is clear: Absolutely!
But must law students memorize? The answer is just as clear: Absolutely!
Some professors erroneously tell students that “law school is not about memorization.” I say “erroneously” because law school IS about memorization… and so much more. But for the moment, let’s just focus on grades – and for most courses, that means focusing on exams.
In order to write a high-scoring essay exam answer, a student needs to employ many skills and strategies. Cogent presentation, high level analysis, sophisticated legal reasoning… yes, these are critical capabilities when it comes to earning “A” grades.
But one cannot earn an “A”… or a “B”… without being able to spot the issues that the professor expects to see analyzed. In order to find issues, one must “know” the law. In the deeper sense, to “know” the law is to understand its background, variations, nuances, subtleties, and so on. And, yes, that sense of knowing is very important. But in the fundamental sense, to “know” the law (in the context of exam-answering) is to be able to write a rule statement without actively thinking; to “know it by heart.”
Before walking in to a Torts final exam, a student committed to earning the best grade he or she is capable of earning ought to have learned “by heart” at least each of the following:
- As to each tort, a statement of every “rule” – meaning a sentence or more that includes every element that must be proven to result in a determination that the tort has been committed.
- As to each affirmative defense, a statement of every “rule” – meaning a sentence or more that includes every element that must be proven to result in a determination that the defense is viable.
- A definition of every element, including “tests” to determine if that element can be proven.
A schematic template for constructing an essay is, essentially, included within these three categories. Here’s a partial example:
- To prove negligence, a plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by not acting in accord with the standard of care, and that this breach caused the injury to plaintiff.
- Duty. A plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by not acting in accord with the standard of care, and that this breach caused the injury to plaintiff.
- Standard of care. The standard of care is the degree of prudence and caution required of an individual who is under a duty of care.
- Breach of duty. A breach issue can be looked at from (at least) two different angles…
- Balancing test. Liability turns on whether the burden of adequate precautions is less than the probability of harm multiplied by the gravity of the resulting injury. B
- Negligence per se. The three essential criteria include: that plaintiff is a member of the class intended to be protected by the statute, that the type of injury which occurred is the type the statute was enacted to guard against, and the violation was not excused.
But a student need not memorize these 214 words. This works:
- Negligence – duty, breach, standard of care, cause, damage.
- Breach – balance, per se. (…and so on…)
Should a student “memorize by rote”? Ideally, no. It’s unnecessary if a student has adequately prepared for each class, produced a personal course summary (outline), and answered dozens of short-answer (and longer) practice questions. The repetitive use of the fundamental rules to resolve tough problems embeds the elements into the memory for most. But not all. That’s why memory tools are important to many law students. (More about that later.)
Another helpful item to add to the bullet-point list above (what to memorize) is this: a list of every issue studied. This provides an excellent checklist for the student to quickly run through during the pre-writing stage of composing the essay answer. How much rote memorization does this entail? Not much. (For an example of a Criminal Law checklist, go to this link, then scroll down to Criminal Law, Checklist.)
Students must remember that the “memorization” part – the learning by heart part – is only a small part of what must be done to score high on exams. But if a student is not able to run through the elements of each intentional tort (for example) quickly, without pausing to try to recall specifics, issues will be missed. Don’t let that happen!