The entire section is based
on Michael Josepheson, Evaluation and Grading in Law School, AALS
Section on Teaching (1984).
Introduction
Wrong options are called distracters or foils
Distracter is something which compellingly and confusingly attracts in
the wrong direction.
Foil is something which services to set off another thing to advantage
or disadvantage by contrasting with it.
Game is played this way:
Test knowledge and reasoning
can't be obvious
cant' use tricky devices or puzzling language
uses distracters and foils
All the options are given a look of superficial plausibility. Must read
carefully.
Incomplete definitions and
arguments
No: Murder is the unjustified killing of a human being.
Yes: Murder is the unjustified killing of a human being with malice
or forethought.
Don't complete the definition or argument in your mind and conclude that
it is correct.
Deal with the facts
Assume nothing in addition to what has been established or given
Prosecutor proves that John shot Mary and that Mary died an hour later.
Is John guilty of Murder?
No: Must also prove that John's bullet caused Mary's death
Don't ignore facts!
Assume that you have been taught that an intoxicated person is not capable
of driving her car in a reasonable manner. The root say that after Mary
drank two quarts of whiskey, she was driving her car in a reasonable manner
when she collided with Paul. Was Mary Negligent!
No: Negligence is unreasonable conduct, since you were told that she
was driving her car in a reasonable manner, you must conclude that she
was not negligent.
Common errors
Wrong options are often based on common errors made by law students:
Misunderstanding about the significance of legal expressions
Plaintiff goes to sleep in the middle of the road and is struck by defendant
who sees her in time but fails to take reasonable steps to avoid striking
her.
Defendant wins because plaintiff had the "last clear chance"
No: Doctrine of "Last Clear Chance" Applies only to plaintiff
Overlooking the obvious
Sometime the option is so obviously correct that there is no rational excuse
for missing it.
Plausible Creations
ignore meaningless garbage: Post Hoc Ergo Propter Hoc
after which, therefore because of which
name given to the error in reasoning
It always rains after I wash my car, so washing my car makes it rain.
Double talk
a plaintiff could not be the holder of a certain easement because "an incorporeal
hereditament lies only in grant"
Doctrine or Rule never heard of = probably incorrect
Unfamiliar phrases
may use familiar concepts in non traditional words
Instead of saying: "John owed Mary a duty of reasonable care only if he
created a foreseeable risk to her.
May say: John had no obligation to Mary unless it appeared that John's
conduct would injure her.
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