Excerpted From: Michael Josepheson, Evaluation and Grading in Law School, AALS Section on
Teaching
(1984).
- most flexible and effective variety of multiple choice items
- permits more subtle gradations of correct/incorrectness by simply asking you to
select the option which BEST responds to the interrogatory
(the call of the
question).
- calls for relative judgments
- does not require the examiner to draft options which are absolutely
true/correct and false/incorrect.
- Allows a wide variety of question types which can focus on various tasks and
competencies such as:
- Best, more likely or most probable results.
- Best reasoning supporting a stated result.
- Best argument supporting a stated position or a particular party.
- Best defense.
- Applicable concept the concept,
(e.g., crime, cause of action, doctrine)
which best applies to a fact pattern or describes a
stated result.
- Most helpful facts the fact or facts which will MOST help a particular
party or the success of a particular
argument/position.
- Best or MOST EFFECTIVE tactic or approach.
- Best Result Illustration
Roofer entered into a written contract with Orissa to repair the roof of Orissa's
home, the repairs to be done "in a workmanlike manner." Roofer completed the
repairs and took all of his equipment away, with the exception of a 20-foot
extension ladder, which was left against the side of the house. He intended to
come back and get the ladder the next morning. At that time, Orissa and her
family were away on a trip. During the night, a thief, using the ladder to gain
access to an upstairs window, entered the house and stole some valuable jewels.
Orissa has asserted a claim against Roofer for damages for the loss of the jewels.
In her claim against Roofer, Orissa will
(A) prevail, because by leaving the ladder Roofer became a trespasser on
Orissa's property.
(B) prevail, because by leaving the ladder Roofer created the risk that a person
might unlawfully enter the house.
(C) not prevail, because the act of the thief was a superseding cause.
(D) not prevail, because Orissa's claim is limited to damages for breach of
contract.
- Best Reasoning Supporting a Stated Position:
Tess occupied an apartment in a building owned by Len. She paid rent of $125 in
advance each month. During the second month of occupancy, Tess organized the
tenants in the building as a tenants' association and the association made demands
of Len concerning certain repairs and improvements the tenants wanted. When
Tess tendered rent for the third month, Len notified her that rent for the fourth and
subsequent months would be $200 per month. Tess protested and pointed u=out
that all other tenants paid rent of $125 per month. Thereupon, Len gave the
required statutory notice that the tenancy was being terminated at the end of the
third month. By an appropriate proceeding, Tess contests Len's right to terminate.
If Tess succeeds, it will be because
(A) a periodic tenancy was created by implication
(B) the doctrine prohibiting retaliatory eviction is part of the law of the
jurisdiction
(C) the $200 rent demanded violates the agreement implied by the rate charged
to other tenants
(D) the law implies a term of one year in the absence of any express agreement
- Best Argument Supporting a Stated Position or Particular Party
- Illustration
Professor Merrill, in a lecture in her psychology course at a private university,
described an experiment in which a group of college students in a neighboring city
rushed out and washed cars stopped at traffic lights during the rush hour. She
described how people reacted differently--with shock, joy, and surprise. At the
conclusion of her report, she said, "You understand, of course, that you are not to
undertake this or any other experiment unless you first clear with me." Four of
Merrill's students decided to try the same experiment but not clear with Merrill.
One subject of their experiment, Carr, said, "I was shocked. There were two
people on each side of the car. At first I thought negatively. I thought they were
going to attack me and thought of driving away. Then I quieted down and decided
there were too many dirty cars in the city anyway."
Charitable immunity has been abolished in the jurisdiction.
If Carr asserts a claim against the students who washed his car, his best theory is
(A) assault
(B) negligence
( C) invasion of privacy
(D) false imprisonment
- Illustration
Which of the following would be most important in deciding an action by Quincy
against Byer for $25,000?
(A) Whether the Byer-Zeller agreement was completely integrated
(B) Whether Byer was negligent in not having carefully read the written
agreement
(C) Whether Zeller was negligent in not having carefully read the written
agreement
(D) Whether Quincy was a party to the contract
- Illustration
A state accredits both public and private schools, licenses their teachers,
and supplies textbooks on secular subjects to all such schools. Country
Schoolhouse, a private school that offers elementary and secondary education in
the state, denies admission to all non-Caucasians. In the suit to enjoin as
unconstitutional and continued racially exclusionary admissions policy of the
Country Schoolhouse, which of the following is the strongest argument AGAINST
the school?
(A) Because education is a public function, the Country Schoolhouse may not
discriminate on racial grounds.
(B) The state is so involved in school regulation and support that the equal
protection clause of the Fourteenth Amendment is applicable to the school.
(C) The state is constitutionally obligated to climate segregation in all public
and private educational institutions within the state.
(D) Any school with teachers who are licensed by the state is forbidden to
discriminate on racial grounds.
- Best Defense
- Illustration
Dexter, a physician, and Caroline, his patient, had sexual intercourse in his office.
Caroline is a married woman and if charged with the crime of adultery, her best
defense would be which of the following?
(A) She promptly reported the incident to her husband, who condoned her
conduct.
(B) Dexter induced her to believe that a natural cure through sexual intercourse
was best for her condition/
(C) Dexter induced her to believe that she was pregnant, that childbirth would
be dangerous to her life, and that he could abort the pregnancy by sexual
intercourse.
(D) Dexter induced her to believe he was using a medical instrument.
- Illustration
While negligently driving his father's driving his father's uninsured automobile, 25-year-old Arthur crashed into an automobile driver by Betty. Both Arthur and
Betty were injured. Charles, Arthur's father, erroneously believing that he was
liable because he owned the automobile, said to Betty: "I will see to it that you are
reimbursed for any losses you incur as a result of the accident." Charles also called
Physician and told him to take care of Betty, and that he, Charles, would pay the
bill.
Arthur, having no assets, died as a result of his injuries. Dodge, one of Arthur's
creditors, wrote to Charles stating that Arthur owed him a clothing bill of $200
and that he was going to file a claim against Arthur's estate. Charles replied: "If
you don't file a claim against Arthur's estate, I will pay what he owed you."
In an action by Betty against Charles for wages lost while she was incapacitated as
a result of the accident, which of the following would be Charles's best defense?
(A) Lack of consideration
(B) Mistake of fact as to basic assumption
(C) Statute of Frauds
(D) Indefiniteness of Charles's promise
- Applicable Concept
- Illustration
The strongest constitutional basis for the enactment of a federal statute requiring colleges
and universities receiving federal funds to offer student aid solely on the basis of need is
the
(A) police power
(B) war and defense power
(C) power to tax and spend for the general welfare
(D) power to enforce the privileges and immunities clause of the Fourteenth
Amendment
- Illustration
If Employee was cutting a sheet of plywood, and while he was doing so, the saw
blade flew to pieces and severely cut Employee's arm, and if Employee asserts a
claim against Storekeeper, the theory on which Employee is most likely to prevail
is
(A) strict liability in tort
(B) express warranty
(C) negligence, relying on res ipsa loquitur
(D) negligence, relying on the sale of an inherently dangerous product
- Illustration
Suppose that before closing, the house on the property had been totally destroyed
by fire. In determining the rights of Sue and Peg, the court would most likely
consider the doctrine of equitable
(A) marshaling
(B) sequestration
(C) subrogation
(D) conversion
- Illustration
A state statute divides murder into degrees. First degree murder is defined as
murder with premeditation and deliberation or a homicide in the commission of
arson, rape, robbery, burglary or kidnapping. Second degree murder is all other
murder at common law.
In which of the following situations is Defendant most likely to be guilty of first
degree murder?
(A) Immediately after being insulted by Robert, Defendant takes a knife and
stabs and kills Robert.
(B) Angered over having been struck by Sam, Defendant buys rat poison and
puts it in Sam's coffee. Sam drinks the coffee and dies as a result.
(C) Intending to injure Fred, Defendant lies in wait and, as Fred comes by,
Defendant strikes him with a broom handle. As a result of the blow, Fred
dies.
(D) Defendant, highly intoxicated, discovers a revolver on a table. he picks it
up, points it at Alice, and pulls the trigger. The gun discharges, and Alice
is killed.
- Most helpful facts
- Illustration
Professor James said to Mary Digit, president of the X-L Secretarial Service,
"Since you folks have done good typing work for me in the past. I promise to
bring you the manuscript for my new book." "When?" asked Mary Digit. "First
chapter next Monday," replied the Professor. "Wouldn't that be nice," said Mary
Digit. The following Monday James, foregoing the services of another secretarial
service brought chapter one to the X-L office but Mary Digit refused to take it,
saying they were all booked up for three weeks.
Which of the following facts or inferences would be most helpful in an action by
James against x-L?
(A) "When" and "Wouldn't that be nice" implied a promise to type the
manuscript.
(B) James relied on Mary Digit's statement by bringing the manuscript
to X-L.
(C) X-L had done good work for James in the past.
(D) James had foregone the services of another secretarial service.
- Illustration
Philip was a 10-year-old boy. Macco was a company that sold new and used
machinery. Macco stored discarded machinery, pending sale for scrap, on a large
vacant area it owned. This area was unfenced and was one-quarter mile from the
housing development where Philip lived. Macco knew that children frequently
played in the area and on the machinery. Philip's parents had directed him not to
play on the machinery because it was dangerous.
One day Philip was playing on a press in Macco's storage area. The press had
several wheels, each geared to the other. Philip climbed on the largest wheel,
which was about five feet in diameter. Philip's weight caused the wheel to rotate,
his foot was caught between two wheels that were set into motion, and he was
severely injured.
A claim for relief was asserted by Philip through a duly appointed guardian.
Macco denied liability and pleaded Philip's contributory fault as a defense.
In determining whether Macco breached a duty to Philip, which of the following is
the most significant?
(A) Whether the press on which Philip was injured was visible from a public
way
(B) Whether the maintenance of the area for the storage of discarded
machinery was a private nuisance
(C) Whether the maintenance of the area for the storage of discard machinery
was a public nuisance
(D) Whether Macco could have eliminated the risk of harm without unduly
interfering with Macco's normal operations.
- Most Effective Tactic or Approach
- Illustration
Assume for the purpose of these questions that you are counsel to the state
legislative committee that is responsible for real estate laws in your state. The
committee wants you to draft a statute governing the recording of deeds that fixes
priorities of title, as reflected on the public record, as definitely as possible. Which
of the following, divorced from other policy considerations, would best accomplish
this particular result?
(A) Eliminate the requirement of witnesses to deeds.
(B) Make time of recording the controlling factor.
(C) Make irrebuttable the declarations in the deeds that valuable
considerations was paid.
(D) Make the protection of bona fide purchasers the controlling factor.
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