Wednesday, May 16, 2007

Some thoughts on taking my exams

Students occasionally use outlines from previous years. I don't object to this in theory -- there are lots of ways to learn the material, and as long as there is equal accessibility I see no harm in an additional source -- but it can cause problems in practice. For example, late in 2006 federal dilution law changed a lot. As a result, on my trademark exam this year, it was occasionally painfully obvious which students relied on earlier materials rather than on the current syllabus and class lectures. Dilution isn't a particularly easy beast to grasp to begin with, which surely made the problem worse, but now I have a cautionary tale for future years about old outlines.

More generally, I thought it might be worthwhile to write up what I want from a law school exam, for students' future reference and perhaps for comparison with other professors' ideas.

My theory of law school exams is this: in practice, clients come to lawyers with big messes of facts, from which the lawyer’s job is to extract the relevant ones and then apply the governing legal rules. A law school exam should resemble this experience, within the limits of the subject matter.

There will be some yes or no answers in the fact patterns, since there are a few places in which the law offers yes or no answers, but you’re also going to have to exercise your judgment. On issues like fair use in copyright or infringement in trademark, you need to analyze the relevant factors, but you also need to use your common sense. If the factors seem to point in a nonsensical direction, ask why: is there some other fact that ought to be taken into account in this particular circumstance? Thus, don’t be afraid to say “You’d have to be pretty stupid to think that Wal-Mart sponsored or endorsed the Wal*ocaust T-shirt, and to the extent that the standard confusion factors favor a confusion finding, that just shows that Rogers v. Grimaldi was right to create a separate standard for evaluating parody.” Or, if you think it’s the better result: “Because confusion is likely, there is no justification for a separate parody defense. If consumers are deceived, the parody is a failure and protecting it serves no social purpose.” Either way, you’ll have addressed the facts that are somewhat out of the ordinary.

A key point: It is not enough to say, “this is a hard case, and there are arguments on both sides.” I should never have to write on an exam, “How should a court resolve this issue?” Neither clients nor judges will be impressed by failure to take a position. Sometimes in practice, you may be asked for probabilities, but on the exam I’m looking for your assessment of which side has the better argument on balance.

Take a clear position immediately after setting forth your analysis. That is, if you are analyzing fair use and then covering some other issue, don’t leave me hanging: give me the right outcome on fair use, then move on. This makes me happy and improves your grade.

How much to write: As Dorothy Sayers wrote, begin at the beginning, go on until the end, and then, if you can, stop. In other words: I don’t generally use word limits because I think they add additional stress to an already stressful short time period. But really long exams generally mean the writer has disgorged everything s/he knows about the topic without stopping to think about what matters to the particular question I asked. I don’t give credit for knowing the difference between generic and descriptive terms in trademark if the question doesn’t require you to address that difference. In my experience, really long exams (generally, anything over about 21 double-spaced pages, 12 point font) tend to do no better, and often worse, than somewhat shorter exams because I question the relevance of much that’s in them.

Substantively, I reward uses of the relevant statutory text. Students understandably resist reading the statutes – it’s not the fun part – but in copyright it’s vital, and it’s extremely important in trademark as well. Recent Supreme Court trademark cases have turned on the precise statutory language, and forthcoming issues about dilution will also do so. Thus, if a question about copyright’s distribution right arises, it may be a good idea to quote the relevant statutory language – is there a sale or other transfer of ownership involved? Relatedly, specific is better than general. For example, tell me which statutory safe harbor you think applies to an online service provider’s conduct.

For my favorite trademark exam question, go here.

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