Chapter 1 – Intro

Typical exam tests ability to use the material you’ve learned and apply it to problems never seen before.
P.4

It’s not what you know and can regurgitate, it’s what you do with the questions you encounter on the
exam. P.5

What you will find inside the typical law exam question is ambiguity,

Lessons to unlearn:

1) Undergraduate exams and information dump: The point of Law School exams isn’t to convince
the professor of how much knowledge you have. It is to persuade the grader that you
understand the ambiguities and how they apply to the problem. Not that you just know the
issues. P.7-8
o I.E. Engineering student explains fundamentals of widget building instead of building the
widget as asked on exam. P.5
2) Law school rumors: Relying on the tips and rumors from 2Ls, 3Ls, alums, and peers is often
misleading. Three examples follow. P.8-10
o Spot the Issues: Crucial to exam performance, but nowhere near enough.
o Grasping the Fundamentals of the Course: Another form of information dump, but it is
worse because regurgitating everything learned from the course (undifferentiated
dump).
o IRAC Method: It is four simple steps for the answer NOT for assessing the question.
 Issue  What is the issue or the parties to the cause of action
 Rule  DEFINE the rule that applies with all of its elements.
 ID any jurisdictional issues.
 Apply  Go step by step through each element adding the arguments from
both the plaintiff and defendant.
 Conclusion  Some teachers don't even care what the conclusion is if it is
borderline, however if not borderline, this is important because affects your
remaining reasoning.
3) Socratic Method Problem; The Rulebook vs. The Loose Cannon: Most students, grown frustrated
by the Socratic methods lack of concrete answers and ambiguity, take one of these two highly
simplified approaches to legal analysis and exam taking. P.11-17
o The Rulebook: The false belief that once you know the rule, “The rule decides the case”.
This substitutes rule-regurgitation for reasoning and analysis. Essentially, note taking
stops when the professor is going into greater depth (i.e. the rule could have multiple
meanings), waiting for the concrete rule.
o The Judge as a Loose Cannon: Judges decide cases on the basis of politics, values,
personal beliefs, policy, or some combination having nothing to do with rules. Students
tend to write exam answers that discuss everything but the rule.
 o Simultaneous: Some students are drawn by both perceptions. Either randomly
alternate between the two or show both types of answers.

PART ONE: Issues

Chapter Two – Issues as Forks in the Road

Typical Exam tells a story that presents a hypothetical dispute and asks you to identify the issues. P.21

Issues are really just “forks in the road” and the more paths explored, the better the answer. P.21-2

“Halfway across the bridge/up the flag pole” example used to explain concept. Basically an artist enters
into an agreement to paint, but offer cancelled once sketches began. This leads to a fork in the road
concerning traditional common law rule vs. Restatement. Basically a “rule vs. counter-rule” issue. P.22-
3

There is another issue addressed in the example concerning the facts, not the law, which is referred to
as a “fork in the facts”. P.23-4

Nearly all issues on exams will be one of the two forks, but you have to know the material to spot the
issues. These issues appear in patterns addressed later in the book. P.24

The MOST important issues are the ones the professor stresses in class. P. 25

Chapter 3 – Forks: Rule vs. Counter-Rule Issue

A. Patterns to Watch For

1) Traditional Rule vs. Modern Rule
a. Law changes over time. We typically are taught a traditional rule and a more
modern rule that applies today. i.e. The Artist example and the example given on
the page in-depth. P. 29
2) Different Strokes for different folks
a. Different jurisdictions adopt different rules because of political, regional, or
philosophical differences between the jurisdictions in question. Example is given
regarding Riparian Rights, where someone diverts a stream. If done in the West one
result would likely occur that is opposite of East. P. 30
3) Common Law vs. Statute
a. Differences arise between Common Laws and Statutes, which is increasingly
common due to States enacting laws that were historically common law. An
example is given about a buyer backing out of a purchase due to seller changing
offer. Under common law “mirror image” applies, but under statute opposite is
true. P. 31-2
B. How Professors Test Rule vs. Counter-Rule
1) If you learn the rules you can spot them on the exam, but students often don’t realize they
have spotted an issue. P. 32
 2) Even if the professor pointed out the correct rule to use in class you should still point out
the counter-rule for issue spotting points. P. 33
3) If it seems too straightforward, you may be missing something. There are patterns that
appear on tests that indicate issues, which are: P. 33-5
a. Unintended or Imaginary Jurisdiction
i. Professor expects to look at both rule and counter-rule under this setting
b. Jurisdiction whose law was explored in course
i. This is not extremely common as tests usually cover “traditional vs.
modern” or “majority vs. minority” instead of specific jurisdictions.
ii. If a specific jurisdiction is mentioned that was covered in class, then apply
the correct ruling. You might be penalized for extensively discussing an
approach that doesn’t apply to the facts at hand.
c. Traditional vs. Modern Rule, where Modern Rule has not been judicially adopted
i. Many students focus on Modern only, but oftentimes the modern rule is
only a trend and many jurisdictions may have not or will never adopt it.
ii. The Restatement is
1. NOT a statute
2. Is NOT law until a court or other authoritative body says it is
4) Summary P. 35 ******
a. If you encounter a jurisdiction that was stressed in class, then use that rule.
b. If you encounter a traditional vs. modern in any other setting, do not assume
modern is correct

Chapter 4 – Forks in the Law Competing Interpretations of Statutes

This fork focuses on the different readings of the same rule. i.e. No vehicles in park apply to tricycles?
The common definition of vehicle may yield one result, while focusing on the reasons for the law may
yield something else. This is statutory ambiguity and there are common patterns to watch for. P. 37-8

A. Patterns of Ambiguity P. 39
1) Plain Meaning vs. Purposes Issues P. 39
a. Most common pattern is tricycles example, by focusing on language or purpose.
i. Plain Meaning (language): Is tricycle a vehicle?
ii. Purpose: Tricycles do not pose same threat as trucks.
b. Second example: Order made electronically and then cancelled after accepted.
Seller sues for breach of contract.
i. Plain meaning: Electronic message may not constitute a “writing”.
ii. Purpose: Electronically saved message may serve purpose of having record.
2) Where do purposes come from? P. 40-1
a. Legislative Intent – We can find the intent of the authors (congress, legislature, city
council) of a rule in the following places.
i. Legislative History: Official reports of committees, statements by legislators,
floor debates, testimony, etc.
 1. i.e. “No vehicles in park”. If committee reports focused on auto
traffic, purpose of rule nothing to do with tricycles.
ii. Other Provisions of Statute
1. i.e. Presence of provision making revocation of license key sanction
reveals not intended for children.
iii. Official Comments: Uniform statutes often have “official comment”.
1. i.e. regarding email if comment to code stated “to afford basis for
believing oral evidence”.
iv. Real World Catalysts: Legislature reacts to events.
1. i.e. “No Vehicles Law” passed after tragic auto accident with joggers.
If a teacher tests on purpose of statute then she will usually teach you in class.
b. Policy Analysis – Reviewed in depth in Chapter 10. P. 42-3
3) Purposes as a source of statutory Ambiguity
a. Competing Purposes P. 43-6
i. Most rules have more than one purpose and there are often statutes that
pit purposes against one another. This can cause two forks in the road!
ii. i.e. Tricycles example, there may have been another purpose as seen by
legislative records concerning elderly people and safety. Then tricycles
might also be banned.
iii. Don’t forget to push on multiple purposes as there is often more than one.
b. The Pattern of Conflict: Broad vs. Narrow Purposes P. 46-7
When lawyers argue about the interpretation of a statute, opposite sides will speak
in either narrow or broad purposes. They come in at least two versions.
i. Spin vs. Counter-Spin
1. Supporters of a rule will put a spin on it in the most sweeping of
terms, while critics will put a narrower spin on the rule.
a. i.e. Case challenges a rule, lawyers defending the rule will
put a broad spin “marks a dramatic shift in policy”, while
challenging lawyers will claim “law never intended to affect
all companies, just a few”.
ii. Floodlight vs. Laser Beam
1. Broad purpose used to weaken or diffuse the effect of a statute,
while narrow purpose is to used to sharpen its effect.
a. i.e. “No vehicles” example. Stated broadly, tricycles pale in
comparison to effect of motor vehicles. Stated narrowly “to
protect the elderly” the threat of trikes may be serious.
4) Language as a Source of Statutory Ambiguity: Competing Meanings P. 48-51
The meaning of the language used frequently isn’t clear at all, for instance vehicles
has 6 definitions in Oxford Dictionary.
a. The Dictionary of Statutory Context
i. The legislature often includes a section in the statute that defines terms.
b. The Dictionary of History
 i. Today’s meaning frequently becomes tomorrow’s historical meaning.
ii. i.e. Email may in 2020 be considered writing, but opposing attorneys may
cite historical meaning “requiring paper”.
c. The Dictionary of Commercial Context
i. Conflict between a plain meaning and an interpretation that draws meaning
from a commercial context arise often with statutes designed to regulate a
particular trade, industry, or profession.
ii. i.e. 1 toilet per 40 “seats” in all restaurants. Seats in a commercial context
may include only those intended for eating, but plain meaning may mean
each and every seat.
d. The Dictionary of the Common Law
i. Statutes frequently use terms that had a well developed meaning in
Common Law. Statutes are often enacted to change common law. Often
the two occur at the same time.
ii. Statutes are more frequently used to displace the common law.
5) Fact Situations to Watch For P. 52-3
a. Variation on a Hypothetical Examined Closely in Class
i. i.e. If time in class spent on tricycle example, watch for other vehicle to be
used
b. New Application of an Old Statute
i. A statute that has been around for some time is invoked in a factual setting
that was unimaginable at the time of enactment. Often tests plain-meaning
and historical-meaning or statutory-purpose meanings.
c. New or Imaginary Statute
i. Question may be designed to test your policy analysis by asking you to apply
a statute you’ve never seen before.
d. Statute Making a Cameo Appearance in a Common Law Claim
i. Students focus too much on the Common Law and not enough on the
statute.

Chapter 5 – Forks In the Law: Competing Interpretations of Caselaw

Exam problems typically ask only one question: Should you follow the case? The answer is “maybe”.
Questions are usually just a variation on the fact of a case you studied in class. There are recurring
patterns in caselaw as well. P 55-6

A. Desperately Seeking Similarity: When to Follow Precedent. p. 56-7

a. i.e. teacher asks you to evaluate imaginary statute outlawing cloning. Infertile person
wanting to clone self brings to court. Don’t view in narrow terms, look at it as Casey case
regarding reproduction (wants to reproduce himself).
i. There is a fork in the law about Casey (reproductive rights v. abortion rights)
ii. What varies is the level of generality.
B. Searching for Distinctions that Make a Difference p57-9
 a. Exam questions force students to find the analogy between a case previously read and
the fact patterns of exam case.
i. Explore differences and similarities
ii. Explain why differences matter
b. i.e. tenant being sued for withholding vital info from buyer and seller.
C. Patterns of ambiguity to watch for p. 59-64
a. The case says so
i. Case will tell you to discuss certain factual differences.
b. Rule vs. Rationale
i. The rationale behind a rule may allow you to view the facts more broadly than a
narrow rule would.
c. Levels of generality: Narrow vs. Broad Holdings
i. Narrow holding doesn’t allow for any wavering beyond rule. i.e. only seller can
be sued, not tenant.
ii. Broader holding focuses more on rationale behind rule. i.e. if rule designed to
protect buyer from misleading info from anyone with a stake in outcome than
might apply to tenant and seller of home.
iii. Extremely broad holding focuses entirely on rationale behind rule.
d. Finding the rationale in case language
i. Sometimes courts will be cryptic and have to rely on class notes, discussions,
and policy analysis.
e. Multiple rationales
i. Different rationales may point in different directions and even lead to conflicts.
f. A word about technique: Applying vs. extending a case
i. Apply a case to the present facts
ii. Extend earlier case to reach this case
D. Dealing with Multiple Cases p 64-6
a. Exam problems sometimes ask you to evaluate scenarios for which a whole line of cases
may be relevant.
i. Often just in Con Law
b. May not ask you to decide how to apply, rather which case applies

Chapter 6 – Forks in the facts

A majority of cases don’t dispute the interpretation or rules of law, but rather how the law applies to the
case.

i.e. Owners of a private golf club may disagree with someone who is excluded whether the course is
public or not.

A. How law creates “forks in the facts”: Why Categories Matter p 68-74
 Legal rules often divide the world into categories, with different rules applying to different
categories (i.e. tricycle in vehicle category?)

Lawmakers cannot imagine every situation, so the law groups activities into categories and
establishes rules covering each.

a. Rule vs. Exception

i. Most common legal formulation is a particular area of law governed by a basic rule
with exceptions for less common situations.
1. i.e. The general rule is that there is no duty to rescue, unless person refusing
aid created peril, etc.
ii. Exams may make it unclear whether the general rule or the exception applies
b. Statutory Boundaries
i. Terms in statutes often constitute categories that determine if statute applies.
ii. i.e. UCC applies to “sales of goods”. If you sell a service (catering) may argue it isn’t
a good and food incidental.
iii. Most exam questions require you to determine whether facts inside or outside a
category.
c. Sequential Categories
i. Many areas of law are organized based on a chain of sequential events.
ii. i.e. Con Law, buyer and seller discuss particulars of forming a contract. As long as
conjectural, counts as preliminary negotiations not contract.
iii. Exam often leaves you in doubt of which side of sequence you are on.
d. Crossing the Line
i. When the law divides conduct in ways that might not be sequential, we often call it
“crossing the line”.
ii. Exams will ask to identify which side of the line defendant’s conduct is on.
e. Categories as Elements of Legal Rules: Running the Gauntlet
i. Many areas of law require one party to prove several elements to make out a case.
ii. i.e. intent, an overt act, and causation of the forbidden result.
iii. We call the structure “running the gauntlet” because each element must be
satisfied.
iv. Exams may create doubt with several of the elements of the “gauntlet”.
v. There may be MULTIPLE ambiguities, don’t assume when you see one, that’s all.
f. Open-Ended or “Evaluative” Categories
i. Evaluative labels application doesn’t depend on whether one of two labels is
applicable (prelim. Neg. or offer), instead whether a single more open-ended label
governs at all.
ii. i.e. Con Law often requires “good faith”. So exam question may need you to
determine whether good faith or not. Nuisance Law requires substantial harm, is it
substantial?
B. Why Categories Don’t Settle Things: Sources of Factual Conflict and Ambiguity p 75-85
a. Facts on both sides of the category
i. Professor will take two well-established categories and have facts point to two
directions
1. You will need to show how exam reflects ambiguity and make arguments for
both sides.
2. i.e. Property, landlord-tenant question where unrenovated loft used as
music studio with the people living there. Outcome depends on whether
lease is commercial or residential.
a. There are facts for both sides, so need to argue both ways
b. Differing standpoints
i. Facts may be clear, but may be viewed differently by different actors.
ii. i.e. Supervisor says to union organizer/employee “Congrats on marriage, because in
your position it’s a good thing”. Employee may see as threat and employer may view
as merely congratulations.
iii. The different perspectives may make it unclear what categories facts fall under.
c. Differing Time Frames
i. Same set of facts may be viewed differently depending on time frame.
ii. i.e. News report describes accident where a white driver obeying all laws hits black
pedestrian. Showed group of blacks calling it racism and whites saying the black
group always cries racism. If you look further back though, the bus route is highly
dangerous and black neighborhood asked for it to be moved easily. Could be viewed
as racist when viewed further back in time.
iii. Manipulating time frames is often used in tests.
iv. i.e. Torts doesn’t require one party to help another unless that party somehow
caused it to occur.
v. You can use time frames to discuss application of a legal test.
d. Differing Ways to make sense of the facts
i. Take things one at a time or view them as a totality
1. i.e. Alleged offeror states “I’d like to buy watch” and “I’d probably pay
around 300” and “I have your 300 right here”. Each statement on its own
isn’t an offer, but taken together it may be.
2. Sometimes there are rules governing totality of the circumstances
3. The presence of a test won’t make the debate disappear so a good analysis
would begin argument on totality topic.
ii. Lenses of generality
1. May write questions hinging on varying levels of generality to impose doubt
2. Even when agreement of generality of rule, a similar ambiguity may occur.
a. i.e. landlord fails to provide hot water, so tenant boils water and
accidentally spills on child. Were injuries caused by landlord’s
breach of habitability? There are many levels of generality here not
just two polar choices (landlord couldn’t foresee chain of events,
but proximate cause rules don’t require this, etc)
 b. Also, example regarding permissible and unlawfully deceptive
practices.
3. Paying careful attention to how facts can be presented through different
lenses of generality and argued into different categories is another trick for
answering issue spotter exams.
iii. Linguistic Ambiguity
1. Words also make up the principal components of legal categories that rely
on lay understandings and words are the key part of every contract
2. Exams may highlight the ambiguity of everyday language
3. Debates over contractual terms could be a hybrid between forks in the facts
or law.
a. i.e. if we look at what parties said, in example, they have an
agreement and contract; but if we look at what they meant, the
case comes out the other way.
4. Borderline cases
a. Some legal categories give rise to what is ordinary vs. unordinary
b. i.e. police searches validity depends on where conducted. Ok to look
into car and there is more leeway because expectation of privacy
different in car than a home
i. Exam may say what about a Winnebago? You need
knowledge of both categories of this borderline case.
5. Words vs. action
a. Often a difference between what people say and what they do
b. i.e. probationary employee who is given both verbal and physical
evidence of job safety and even promotion (new furniture and
duties and boss saying job highly secure), but is terminated just
prior to end of probationary period. Contract said probation ends if
promoted though. Does this count as promotion? Words differ from
the actions so can argue both ways.
6. Written vs. Oral statements
a. Often forced to discuss difference in oral and written statements
and why one should take precedence over the other.
7. Liberalism vs. reasonable expectations
a. i.e. mortgage co. sends letter that says in big bold letters in front,
“loan approved”. Week later mortgage co. calls and says loan not
approved due to less than expected appraisal. Co. says agreement
stated conditional. Your duty id to argue that there is a conflict
between the reasonable expectations of borrower and the fine
print.
8. Multiple sources of meaning
a. Parties may use words in contracts that have different meanings
depending on context.
 b. i.e. Baker’s dozen is 13 not the usual 12.

Chapter 7 – Taking it to the Next Level: Twin Forks

Many Exam questions throw more than one ambiguity at you simultaneously.

i.e. rule banning vehicles in park. First might talk about interpretation of rule (plain-meaning v. broad
purpose). For that “fork in the law” you have to determine intentions of drafters. Under either meaning
you must still discuss proper treatment of the wheelchair, which is a “fork in the facts”.

This issue within an issue is called a twin fork, because you must decide between two different forks.

i.e. home sellers child is beat up in school. If all home sellers under duty to disclose what may affect
home value, do they need to disclose this?

 You might say that it is one incident and doesn’t mean it would affect home value.
 If you didn’t notice home value in rule, may discuss best way to read cases (i.e. they all discuss
only home defects). Can also show slippery slope questions to illustrate.
 Your ability to detect both sources of ambiguity is what will get the A
 Other examples are given
1) Linked Forks
a) In “forks in the road” patron artiste example, there were two different forks. Fork in the law of
common law rule (offer may be revoked prior to completion of acceptance in uni K) against S45
(an offeror may not revoke once offeree begins work). Fork in the facts regarding preliminary
sketches counting as starting performance or mere preparations.
b) Need to learn to spot relationships between issues.
c) Linked Forks are Forks that you encounter after the first set of forks leads you there
i) i.e. you discover a fork in the law, but when one is chosen it only leads to another fork in the
facts
ii) i.e. Artiste example with addition of no signature on painting
2) Reciprocal Forks
a) Recall hypo regarding email acknowledgment of order
i) Fork in the law of competing interpretations, under S2-201 of UCC requires “signed writing”
(plain-meaning v. purpose-based)
ii) If you follow plain-meaning it leads to another fork in the facts. Might be considered writing
because we can print it out. This leads us yet to another interpretation of “signed writing”
between commercial meaning and dictionary meaning
iii) This is yet another example of linked forks
b) There is another way to look at this:
i) You can hold the facts steady and look at the law
ii) You can hold the law steady and look at the facts
iii) This is reciprocal forks because they go back and forth
3) Concurrent forks: straddling a statutory boundary
a) For most subjects the common law covers anything outside the statutory boundary.
 i) i.e. hypo with bookbinder making it in 22 point font instead of 24
ii) statutory boundary between sale of goods (UCC article II) from a mere service (common
law)
iii) You can argue for either side of the statutory boundary for this fork in the facts
iv) Hypo also contains fork in the law
v) These are concurrent forks because the path you take in the fork in the facts determines the
path you take in fork in the law.
(1) i.e. if sale of goods than it determines both fork in facts and law
b) If there is a fork in the facts straddling the boundary there is bound to be a fork in the law too
4) Proliferating forks: competing domains
a) Exams typically have fact patterns that straddle different doctrines, cases, or even bodies of law
i) Contracts: “consideration” and “promissory estoppel”
ii) Property: competing domains question would present facts that straddle the two cases
iii) Employment law: present facts that straddle the two bodies of law i.e. discharge of teacher
at a charter school
b) i.e. concerning “social guest” or business invitee. What if it is a Tupperware party?
i) Fork in the facts: business invitee or social guest?
ii) Concurrent forks: path you take in fork in the facts determines path for fork in the law
iii) There are also reciprocal forks: hold the law steady and take facts back and forth b/w the
two characterizations. Hold the facts steady and see if there is broad or narrow
interpretation.
iv) Represents both concurrent and reciprocal forks simultaneously
v) Shows in-depth example
5) Hidden Forks: Dodging the statute
a) Example concerning property. Company leasing property uses leaking barn to get owners to sell
property.
i) Plain-meaning would be in favor of company
ii) By using history and purpose (not readily apparent) you can see designed to protect regular
tenant and you can dodge the statute by using purpose based.
iii) If you take the case out of the statute, it typically falls into common law, which sometimes
directly leads to a result
iv) Can also look at statutory intent
6) Background v. foreground: variations of twin fork theme
a) Not every choice on an exam will present you with a fork
b) You not only have to spot issues, but craft an argument well
c) Your strategy must include as many persuasive arguments as well
d) BIG example
e) Some areas require you to pay close attention to the style of your writing as well
f) You can’t make arguments until you spot the issues