Author: Larry Law Law

This is Part 4 of 10.  These are links to Part 1, Part 2, and Part 3.

Last time we discussed how to study the law — not by reading cases, but by studying the law more directly.

The “law” I refer to here is the black letter law — the most stripped down form of the law.  I set out more in the following video:

When I mention that it is necessary to focus on or memorize the black letter law, I am talking about several things here.

• The major rule, those that set out all of the elements or factors needed to make out a given claim or defense.
• The network of sub-rules.  These sometimes set out exceptions or ways to apply a given element or factor.  They are often specific applications of certain fact scenarios, generalized to other scenarios (what I refer to as Rules of General Application.  This is, of course, redundant, because a rule should be generalizable).

This may seem a simple concept but it is important enough to understand that this is the what you are after when you are studying the law and reading cases.

What is funny to me is that few enough professors will define the black letter law for you.

They just mention it in passing.

Oh, and by the way, come exam time, professors assume you know it by heart– however little it is explicitly address in class.  Well enough to apply it on an exam.

Study the black letter law directly from commercial outlines if you want to get ahead in law school.

This tip will help you immediately reduce your study time, while retaining just as much important information.

Watch the video and then read the rest of my explanation below.

What is the black letter law?

You now know (from here and other sources) that the socratic method or the case method is a long, indirect path to learning the black letter law you need to do well on issue-spotting exams.

So judo-flip that shit.

Study the law directly: memorize the black letter law.  

By which I mean:  you can generally boil down a 2 to 3-page case on murder to a legal definition of murder (“the black letter law”).  Here is an example:

Intent-to-kill murder:  the (1) unlawful (i.e., without a legal excuse) (2) killing (3) of a human being; (4) committed with malice aforethought, which includes (a) intent to kill (b) intent to inflict severe injury or (c) reckless indifference to an unjustifiably high risk to human life.

Other cases can be different. They may not identify a legal definition, but rather apply it to a specific situation.  

You can boil down such a case like so into a single line of black letter law in an outline (I don’t go over every element here):

Intent to Kill Murder [definition]

. . . Malice aforethought . . . (a) intent to kill

Yes, guilty:  sudden impulse to kill, w/ no pre-planning, is enough intent for intent to kill (Commonwealth v. Carrol)

Now, this is a single sentence summary of Commonwealth v. Carrol, a case about a guy who saw his wife beat their children, argued with her later and, consumed with anger later, shot her; he made no plans, before grabbing his gun, to kill her.  (Jeez.)

For your purposes on an exam, the quick 1-sentence summary of Carrol (“sudden impulse to kill = intent”) is all you need. It helps you make arguments on behalf of one party and resolve claims.

Other cases create more specific principles that apply the general legal definition.  

You just need a quick line that sets out those facts.

You won’t find these in your case book.  

F’ing Chris Langdell made sure of that.

How to find the black letter law: Commercial outlines

The black letter law is set out in commercial outlines (like Emanuel’s or Gilbert’s), the modern day treatise for students.  

Commercial outlines will save your life.

Buy them new or used for $40 each.  

Get a BarBRI Conviser Mini Review (available on Amazon or eBay), which is what people use on the bar exam and contain all 1L subjects.

Print out free outlines you find on the web.

It doesn’t matter that much.

You can even buy old outlines (they are cheaper).  Don’t spend a fortune on them.  Borrow them from a friend.  

Read these outlines.  Memorize the “legal definitions” (the elements or factors of each claim, like murder, or defenses, like self-defense.).  Commit to memory the case blurbs that apply the definitions.

You can do this before law school starts.  You can do this during law school, studying the black letter law before reading cases.  Emanuel and Gilbert outlines are keyed to the most common casebooks you read.

Yet other tips

• You don’t have to master the black letter law completely.  Read to understand so that (1) you can start atking practice exams (see Shortcut 3 below) and (2) so the key legal concepts are familiar when your professor discusses them or you come across them in your case book reading.
• Don’t over do it.  That is,do not buy or read more than one outline per law school subject.  This will become repetitious or just make you confused.
• Read short commercial outlines.  I prefer Gilbert’s or Emanuel’s because they are brief.  Just study the summary outline at the front. It is 50-70 pages.  If you study from a free outline, only do so if the outline is short, less than 50 pages.  You may be tempted to buy a big hornbook or treatise.  These are very comprehensive and might confuse you.  (Such books are really meant for practicing attorneys.)

But: your professor’s black letter law trumps the outline  

Just use commercial outlines to prepare for class and to learn enough law to take practice exams.  

However, if your professor says something different about a law or a case than your outline, the prof’s words win.  

Your job in law school is to understand your professor’s view of the law and apply that to an exam if you want a good grade.

That’s it.

Avoid busy work like briefing cases

Generally, you want to avoid busy work, like briefing cases. And please don’t re-read cases.

(Sidenote:  This, to me, includes avoiding any 1L extracurricular activities, like moot court.  Only your grades matter to potential employers.  Packing your resume 1L year won’t help you get a job.)

Also, for the reasons we explored in the last post, most case-related studying is busy work.

Now, go ahead and read assigned cases in your case book.  

That’s not busy work (for reasons I explain elsewhere.)

But do only the bare minimum: read the cases once, and only the night before they are covered in class.  You can follow what happens in class.  If called on, you might mess up.  (So what?  No one will remember, trust me.)

Beyond that, do not worry about cases any further.  

Why it is hard to avoid busy work

Now, without exception, you will feel pressure to read and re-read cases.  And to be briefing cases.

There is pressure to master the details of cases.  

Most profs still cold call people in class.  Everyone fears humiliation.  Everyone hates looking stupid.  (Some profs even threaten to dock the grades of the unprepared).

But as I already showed you, cases themselves are not the key to performing well on issue-spotting exams.  

Students who don’t know this (most students) will put every effort to understand cases they assigned .  

Students who don’t know this (most students) will spend their time briefing cases.

But you know better.  

Cases are not the law.  Repeat:  CASES ARE NOT THE LAW.

You will not get good grades because you can cite an obscure detail from a case from week 13.  

If you spend too much time reading or analyzing cases, and you will have no time to focus on activities more likely to get you good grades.  

It can ruin your academic life to re-read cases.  I saw this with my own eyes as a tutor to law students (who came to me after doing this).  Is anything worse than working really hard for nothing.

What to avoid, again (um, briefing cases)

To be even clearer, for your own sake, avoid the following:

• Briefing cases.  Briefing cases is a law school tradition.  A stupid one.  A “case brief” is a case summary you write that identifies in painstaking detail parts of a case (the parties, their claims, the holding, procedural posture, dicta, background).  
  • None of this helps you on an exam.  You will get 0 points if you try to recite these details on cases.
  • This is insanely time intensive:  my first two students briefed cases 40-50 hours a week. They got crap grades.  I asked them stop briefing.  They got better grades.
  • PLEASE for the love of god DO NOT BRIEF CASES.  
  • Even if professors make case briefing mandatory the first week or so, stop it as soon as you can (i.e., after they stop checking).  
• Re-read cases.  Read cases once before class.  More won’t help you.  The secrets to good grades are not in your case book.  
• Read cases in advance.  This sounds like a time saver for eager beavers.  But if you read on Sunday for a Wednesday class, you’ll likely need to re-read on Tuesday.  It is a sin to re-read cases! Bad!