Property II Final Exam, Spring, 2002 Date - Southwestern Law School

MEMORANDUM 1
To:
From:
Property II Students
Professor Ira L. Shafiroff
Subject: Property II Final Exam, Spring, 2002
Date: May 22, 2002
I have prepared this memorandum to assist you in better understanding your
performance on the Property II final examination. The memo contains five parts. The first
part details common mistakes that students made on the essay portion of the Property II
final examination. The second part is an annotated model answer. The third part is a selfdiagnostic
that will enable you, in conjunction with the grading sheet that is enclosed
with your bluebooks (essay examinations, bluebooks, and grading sheets are available in
the front lobby; I do not return the multiple choice questions or the answer sheet), to
enable you to critique your work through active learning. The fourth part of this memo
are miscellaneous observations about your exam performance. The fifth and final part of
this memo are my concluding remarks on the Property II examination.
COMMON MISTAKES
The number of mistakes made were significantly less than on the Property I exam.
Nonetheless, there were still a significant number of common mistakes made on the essay
portion of this examination. These mistakes cost students valuable time and
consequently, directly or indirectly consequently, raw points.
Failure to Write any Issue Statement
As I stated in my essay writing lecture, the memo to the Property I exam, and the
last day of class in Property II, I award two points for the issue statement: one point for
the legal issue and one point for the facts that are triggering that issue. More than a few
students failed to write any issue statement, especially near the end of the exam. Perhaps
this was due to running out of time. In any case, however, students who failed to write
issue statements forfeited two points per issue.
Failure to Write an Original Issue Statement
1 Copyright © 2002 by Ira L. Shafiroff. All rights reserved.
No part of this material may be copied, stored, printed, reproduced, transmitted, or distributed in any
manner or format without the express written consent of the author.
1

Some students merely copied my interrogatories, especially for the first part of the
exam (“If Abel seeks to prevent Westmoreland from acquiring title to Blackacre, what
legal theories, if any, can Abel raise”). As I have stated previously in class and on your
past memo, I do not give points for copying. I give points for creative thinking only.
Failure to Write a Specific Issue Statement
Quite a number of students made an attempt at writing a correct issue statement,
but did not get full credit because the issue statement they wrote was not precise, either
legally or factually. For example, in the first interrogatory, some students wrote, “Can
Abel raise constitutional arguments to stop Westmoreland from acquiring Blackacre”
This is too vague an issue statement because it fails to state the precise constitutional
argument that Abel may raise. Some students stated, “Can Abel raise a Fifth Amendment
theory to stop Westmoreland from acquiring Blackacre” This is better, but it still lacks
the facts that are triggering this issue: that Westmoreland is not going to use this for the
people of Westmoreland, as in a public park, but is going to turn Blackacre over to a
corporation wherein only a relatively few people will actually use the property.
Quite a number of students combined issues, especially in the second
interrogatory: “Did the decision to prevent Abel from building his project go to far
because it was an economic wipeout, did not substantially advance an important
government interest, and interfered with his investment backed expectations” By
lumping several issues together, these students typically jumped back and forth in their
analysis and often failed to give both sides of the argument. Thus, for example, a student
who wrote a multi-issue statement (“Did the decision to prevent Abel from building his
project go to far because it was an economic wipeout, did not substantially advance an
important government interest, and interfered with his investment backed
expectations”), often just gave one side of the argument for each issue. Thus, the student
would write why there was an economic wipeout, and fail to discuss why there was not a
wipeout; the student would discuss why the Westmoreland decision did not substantially
advance a legitimate government interest, but failed to discuss why it did.
As I stated in class on numerous occasions, and in previous memos which I gave
out, fully discuss one issue at a time, issue by issue. When you combine issues, you
confuse both yourself and me.
Failure to State a Correct Issue Statement
Many students wrote an issue statement, but it was fully wrong. Of course, I could
not give any points for writing on a legally irrelevant issue. For example, in the first
interrogatory, some students wrote, “Can Abel stop Westmoreland from acquiring
Blackacre because Westmoreland is not paying just compensation to Abel” This was
absolutely not an issue because the facts state that Westmoreland is to “acquire Blackacre
for the fair market value of $500,000.” This fact precluded any discussion relating to the
just compensation requirement of the Fifth Amendment.
2

Similarly, some students wrote out issue statements for covenants, easements, and
exactions. 2 None of these were issues on the exam.
Failure to State a Correct Rule of Law
Some students stated a proper issue statement, but failed to state a correct rule of
law. For example, in the second interrogatory, some students stated, “Did
Westmoreland’s decision to deny Abel permission to develop the sandy area of
Greenacre constitute a regulatory taking because the decision went too far in that it did
not satisfy the middle-tiered scrutiny test of Lucas” This was a proper issue statement.
When it came to stating the rule of law, however, some of these students stated the rule
for minimal scrutiny: “For a denial of a building permit to pass constitutional muster, the
denial must be rationally related to a legitimate government purpose.” Of course, this is
not the rule for a middle-tiered level scrutiny analysis. As the court stated in Lucas and in
other cases, a regulation or decision regarding land use must be substantially related to
accomplish a legitimate/important government purpose. Obviously, I could give no points
for an incorrect rule of law. Moreover, as I have stated before, if a rule is incorrect, the
analysis which follows will almost certainly be incorrect, too.
Similarly, some students properly raised the issue of conceptual severance, but
failed to define exactly what conceptual severance is. Without a clear definition of this
term—and you should always define terms of art—the student could not analyze the rule
in light of the facts. As a result, the student received no points for the rule and few or no
points for the analysis.
Failure to Analyze
This was a major problem for many students. A good number of students were
able to state the issue and the relevant legal doctrine, but fell down in the analysis. Such
students received full credit for the issue and rule, but only little or no credit for the
analysis. The reason for this is that these students merely repeated the facts. A mere
repetition of facts, coupled with a conclusion, is not analysis. As I have stated often in
class and in my past memos, analysis is your reasons for why the rule or element of the
rule exists on the facts at hand, and why the rule or element of the rule does not exist on
the facts at hand. While it is important to use the facts as the foundation for your analysis,
the facts by themselves will give you no credit. This is because the facts by themselves
are inconclusive as to whether the rule/element exists or does not exist. For example, in
the first interrogatory, many students correctly identified the issue and stated the rule for
a physical taking: that the property must satisfy the public use requirement, which means
that the property must have a public purpose. Stating, “Because only 24 students will
make use of the school, the public purpose requirement is not satisfied,” is consclusory
and earned no points in the analysis. Why does a school for only 24 students not satisfy
the public purpose requirement Why does it not As I have explained in the past, by
answering the question “why” fully, you will use the facts in your analysis, but not repeat
2 A good number of students wrote about exactions and the Nolan-Dolan tests. There was no issue of
exactions on the essay portion of this examination. I discuss this matter in greater depth in the section
dealing with non-issues.
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them. What does that mean It means that the facts will be the foundation of your
analysis, but the heart of your analysis is your creative argument—and the basis for your
getting points.
Likewise, many students wrote, “Because Westmoreland relied on a report that
stated Abel’s plan would contribute ‘somewhat’ to beach erosion, the decision was not
substantially related to a legitimate government interest.” But why What are your
reasons Without reasons (which could be based on social policy, economic policy, legal
precedent, etc.) your analysis is nothing but a conclusion attached to a set of facts.
Argument is what gets points, and that is something that many of students need to work
on and strengthen.
Discussing Non-Issues
Many students discussed quite a few non issues. For the first interrogatory, some
students discussed the non-issues of just compensation and nuisance. The facts precluded
a discussion of just compensation because the facts expressly state that Westmoreland
was prepared to pay fair market value for the property. As to nuisance, which a few
students discussed, there were simply no facts to trigger any nuisance issue. For the
second interrogatory, many students discussed the issue of exactions and the Nolan-
Dolan tests. There was, however, no issue of exactions. Recall what I had stated in class
many times: that Nolan-Dolan applies only in exaction cases. Indeed, the City of
Monterey expressly held this to be the law. Further, an exaction is defined as something
that the government wants from the landowner in consideration for letting the landowner
build. In Nolan, the government let the landowner build, but only if the landowner
granted the public an easement across the subject property. In Dolan, the government let
the landowner build, but only if the landowner dedicated some of the subject property for
a flood plain and bicycle path. In a prior exam that I gave and which is on file, the
government let the landowner build, but only if the landowner donated money to some
fund. In the exam question that you just took, however, there was no exaction because the
government did not condition approval of Abel’s project with Abel granting something to
the government or the public. Rather, the government simply stated that Abel could not
build on the sand area of Greenacre. This calls into play not Nolan and Dolan, but Lucas,
Pennsylvania Coal, Penn Central, Palazzolo, and Lake Tahoe. I did not take off points
for discussing exactions and the Nolan-Dolan tests, but too many students wasted
precious time on this clear non-issue. Indeed, for quite a number of students, the issue of
exactions was the largest part of their exam. As a result, these students did not have the
time to devote to the real issues that had to be discussed.
Quite frankly, I was most disappointed that exactions was discussed at all. Not
only were there no facts to trigger such a discussion, but we spent so much time on the
material, not to mention the outline that I handed out. It seems to me that for too many
students, rules were memorized but little thought went into the writing of the exam.
As a side-note, the rules stated by students for exactions were too often
incorrectly stated. In any event, and for obvious reasons, I could give no credit for a
discussion of the law of exactions, any more than I could have given credit for a
discussion of the Rule Against Perpetuities. Just as there were no facts to trigger a
perpetuities problem, there were no facts to trigger an exaction problem.
4

Ping Pong
There was improvement over last semester’s exam. Nonetheless, some students
continued this back-and-forth, back-and-forth style, which is difficult to read and even
harder to grade. “Abel will argue. . . Westmoreland will counter-argue. . . . Abel will
counter this by arguing. . . . Westmoreland will counter this by responding. . . . ” makes
for a difficult time, for me and you. Again, while I was pleased to see that this ping-pong
was less than last semester, no one should write an analysis in this manner. As I stated in
class and in your last memo: give all your reasons for one side, then give all your reasons
for the other side. Do not go back-and-forth, back-and-forth.
Handwriting
Most of you wrote legibly. Some of you did not. I do not understand how even
one of you could write illegibly, in light of what I have previously told you, both in class
and in your past memo. Your professors and bar exam readers have an obligation to read
what you wrote, not decipher it. In the future, if your handwriting is poor, consider
typing. Of course, if you have to ask me if your handwriting is legible—then it is not.
Part 1. 4
MODEL ANSWER 3
3 I state here exactly what I stated in the model answer to the fall, Property I examination: Although I have
labeled this as “Model Answer,” the student should be aware that it is not my choice of words. The term
model connotes perfection, and nothing done by human hands is perfect. Certainly, this answer is not
perfect. Nonetheless, this is a good answer and you should compare it to your own. In this way, you may
better understand what is expected of you and why your received the grade that you did. Of course, this
answer is probably more complete than your answer. Remember four important points as you read this
material, however: First, I did not write this model answer under the stress of exam conditions. Second, I
created the exam. Third, I have been teaching this subject since 1986. Fourth, I did not have to be
concerned about a time factor (if you are interested, it took me approximately four hours to write this model
answer, including the time necessary to prepare these annotations to the model answer; additional time was
spent going through a second draft to clean up typographical errors, etc.). As in everything in life,
perspective is important. Still, a good essay exam will share common characteristics with this answer. To
facilitate your learning, I have added a commentary to the answer. This commentary is found in the
footnotes to the answer. Although I generally have answered the question in the “IRRAC” format that I
discussed in the essay writing class, the point you must always keep in mind is that all good answers must
do three things: (1) identify the legal problem, (2) state the doctrine that may be used to solve the problem,
(3) and solve the problem with the doctrine stated. IRRAC or IRAC or any other acronym is just an
organizational tool, and ultimately, is itself quite secondary to substance. One last, but important, point:
When it comes to the analysis, many of you will undoubtedly feel that other reasons could have been given
(especially when you are thinking about this in your home, and not under the stressful conditions of an
exam). Remember, ten people can come up with ten different reasons why there was an economic wipeout,
as per Lucas, and all can be correct. The point is that every good answer has analysis.
4 You should always number your interrogatories. This is especially necessary if you go out of order and
start with question #2, for example. Of course, it is not advisable to begin with anything other than question
#1, but if you must go out of order, number your interrogatories. Some of you began by answering the
second or third interrogatory and did not bother to number it as such. Doing so throws off the professor. By
5

Abel v. Westmoreland: 5 Public Use Requirement of the Fifth Amendment 6
Can Abel prevent Westmoreland from exercising its eminent domain power
regarding Blackacre because the public use requirement may not be satisfied if
Westmoreland transfers title to a small private school 7
The Fifth Amendment to the Constitution provides that if government takes land,
it must provide compensation and the property in question must be taken for a public
use. 8 The United States Supreme Court stated in Hawaii Housing Authority 9 that where
the exercise of the eminent domain power is rationally related to a conceivable public
purpose, 10 the public use requirement is satisfied. 11
the way, if your professor thinks it is smart to begin with question #1, don’t you think that you should start
with question #1, too
5 I use a heading. Headings are not necessary. They do help to focus the professor and student in on the
problem, but they are not at all required. I begin my heading with the parties. In this exam, it clearly was
not necessary to state the parties in the heading because there were only two actors: Abel and
Westmoreland. Nonetheless, if there were more than two parties, it would be a good idea to state them in
the heading, if you chose to use a heading.
6 The heading states the legal issue that I will discuss: the public use requirement of the Fifth Amendment.
7 This is the issue statement, which includes the parties, the legal issue involved, and the key facts that
trigger that issue. My issue statement is in the form of a question. Others may prefer an affirmative
statement. The key is substance, not form. Remember, that if there are no key facts to discuss an issue,
there is no such issue. Thus, because there are no facts to trigger an easement issue or nuisance issue (some
students actually discussed this; of course, such a discussion made no sense), you cannot discuss easements
or nuisances.
8 This is the rule of law, or the first “R” of the IRRAC method that I taught you in the first semester writing
lecture. Of course, it is important to remember IRRAC or IRAC or any other acronym is simply a tool to
help you organize your thoughts in a logical manner. No acronym is a substitute for thinking, however.
Remember that every good essay will state the legal problem, state the doctrine that can be used to solve
the problem, and use the doctrine stated to solve the problem. IRAC by any other name is still IRAC. When
some teachers tell you not to “IRAC” your exam, I believe they mean that they do not want the words
“Issue,” “Rule,” and “Analysis” on your paper. In such a case, just state the issue, rule, etc., without stating
what you are going to do, as I have done in this model answer. On the other hand, as I stated to you last
semester in the essay writing class, if you have a teacher who states that he or she does not want you to use
IRAC (identify the legal problem, state the doctrine, and use the doctrine stated to solve the problem), then
you need to go to that teacher and ask what that teacher wants.
9 In this answer, I regularly cite to relevant United States Supreme Court cases. Was that necessary As I
told you in the essay writing class, in my property class (and this may or may not apply to other classes),
one does not have to cite to a case unless the case is not just a case, but rather a doctrine. I told you in that
class that in the first semester (Property I) you do not need to cite to any cases, but that you will probably
want to when we get to the takings cases in the second semester (Property II). As you now know, the
takings cases are not just cases, but doctrines. Hence, it would be most helpful for you to cite to relevant
cases. Many of you did. I did not downgrade anyone, however, for just stating the relevant rule in the
absence of cases. Quite frankly, I was pleased to get just the correct doctrine, which too many of you were
not able to state.
10 The United States Supreme Court stated in Hawaii Housing Authority that “the public use requirement is
coterminous with the scope of a sovereign’s police powers.” Some students stated that the rule was strict
scrutiny, which is not the case. While it is true, as a few students stated, that the Michigan Supreme Court
in Poletown Neighbord Council has indicated that there must be “substantial proof” that the public is
primarily benefited, that case was, of course, simply for purposes of comparison to the federal standard: to
get complete credit, a student would have to indicate, as we discussed in class, that the federal requirement
is only minimal scrutiny, but that the states can provide a greater protection to the landowner than the
federal government does.
11 This sentence is the second “R” of IRRAC: it lets the professor know what element is in dispute by
defining that element. The element in dispute was public use. More than a few students wrote on the just
6

Because Blackacre immediately will be transferred to a small private school,
which will charge parents significant tuition, 12 the public use doctrine was not satisfied
because the purpose would necessarily be to directly benefit an exceedingly small
number of wealthy students and the people who draw salaries from Best School, which is
not anywhere even close to benefiting the public at large. 13 As a matter of policy, 14 the
use of taxpayer money—which is where the $500,000 will come from—to benefit a small
number of wealthy people is something that the framers of the Constitution probably
never intended. Indeed, even in the Hawaii Housing Authority, 15 the number of people
benefiting from the state’s exercise of the eminent domain power was quite large. Here it
is quite few. It is bad enough for taxpayer money to subsidize foolish projects; it is even
worse when government has to subsidize foolish projects for the wealthy few. 16
On the other hand, 17 just because only 24 students will be enrolled, 18 that does not
in any way defeat the public use doctrine requirement: Because these students are not
able to attend public schools, 19 society must find a place to put these students. 20 If not
here, society will have to put them somewhere else. 21 Moreover, when even a few people
get an education, however they get it, society benefits. 22 Indeed, using the Supreme
Court’s minimal scrutiny test in Hawaii Housing Authority, 23 Westmoreland could
hypothecate that having 24 troubled students off the streets and out of trouble will free up
the police to do other things, which would certainly serve the public purpose of having a
compensation requirement. But this could not have been an issue because of a preclusion fact that I gave
you: that Westmoreland was to pay Abel “the fair market value of $500,000.” Hence you were precluded
from raising just compensation as an issue.
12 This now begins my analysis. Remember what analysis is: the reasons why the element is satisfied and
the reasons why the element is not satisfied. More specifically, I shall state why the public use doctrine has
not been satisfied on these facts; then, in a new paragraph, I shall state why the public use doctrine has been
satisfied. Before I go into the analysis, a few comments are in order. First, notice that what I have stated so
far is just the facts. What follows is my argument. Too many students simply repeated the facts, apparently
believing that such recitation will suffice for an analysis. Thus, for example, many students wrote,
“Because Westmoreland will transfer Blackacre to a private school benefiting only 24 students, the public
use doctrine was not satisfied.” But why Why is it that on these facts the public use doctrine was not
satisfied Remember what I stated in the essay writing lecture in the fall semester: If you can intelligently
ask the question why, you have not given your reasons and, therefore, have not done an analysis. (Recall
also that virtually all of my issues are open ended, meaning that a cause of action or an affirmative defense
does not definitely exist. There is a purposeful ambiguity as to one or more elements.) Consequently, a
student who merely restated the facts and added a conclusion on to those facts did not perform an analysis.
Rather, such a student was, as we say, conclusory. Of course, such an answer could receive no credit.
13 Here is my analysis, that is, my creative argument why the pubic use doctrine was not satisfied on these
facts.
14 Here, I continue with my argument. Notice that I draw on public policy as the heart of my reasoning.
15 As part of my argument, I attempt to distinguish the key facts in the Hawaii Housing Authority case,
which equated public use with public purpose.
16 I continue with my argument, again, focusing on public policy.
17 I use words of transition to let the professor know that I am switching sides.
18 These are the facts that I am given. What follows are my reasons for why this condemnation is consistent
with the public use doctrine.
19 Still the facts.
20 Here is my argument.
21 My argument continues.
22 More argument.
23 Using case law to buttress my argument.
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safer society. 24 Further, that Best School is a non-profit organization is relevant in that
such designation indicates that the school is already serving the public, and the transfer of
the property to Best School—for which Best School is paying fair market value—only
assists it in serving the public even more. And serving the public is necessarily congruent
with the public purpose. 25
Therefore, Abel will fail in his eminent domain challenge. 26
Part 2. 27
Abel v. Westmoreland: Regulatory Taking 28
Can Abel challenge the Westmoreland decision to bar his building on the sand
area of Greenacre on the ground that the action by Westmoreland “goes too far” 29
A regulation or decision regarding land use is a taking under the Fifth
Amendment when, as per Pennsylvania Coal, the regulation or decision “goes too far.” A
regulation or decision can go too far when there is an economic wipeout of the whole or a
wipeout of a conceptual part, the decision is not substantially related to an important
government interest, interferes with distinct investment backed expectations, or is
improper nuisance control. 30
Abel v. Westmoreland: Economic Wipeout 31
May Abel challenge Westmoreland’s decision denying any building on the sand
area of Greenacre on the theory that such a decision acted as an economic wipeout of the
whole
24 Still more argument.
25 Here I weave into the argument the fact that Best School is a non-profit charitable organization, which
concept we discussed in class when we covered Hill v. Community of Damien of Molokai and City of
Edmonds v. Oxford House, Inc.
26 My conclusion, short and to the point. Remember, your conclusion lacks reasons because your reasons
are—or should be—the heart of your analysis.
27 It is helpful to let the professor know which interrogatory you are next going to discuss. Some of you did
not do this, and proceeded to discuss an economic wipeout. That is fine and good, except when I realized
that a few of you discussed this in the context of the eminent domain (part 1) issue. This really added to my
confusion. The moral: it is best to identify each interrogatory.
28 A heading, indicating the parties and the legal issue. Again, headings are not necessary, but they are
helpful to focus the teacher and the student on the matter at hand.
29 My issue statement.
30 This entire paragraph is the rule, but it is far too unwieldy discuss in one “IRRAC.” Consequently, what I
shall do is break down each rule into a separate IRRAC (or IRAC, or anything else that is a logical,
concise, and precise way of presenting your thoughts). In fact, if all that the student wrote so far was this, I
would award little or no points. This is because so far, all that I have is little more than a statement of
abstract legal principles. The heart of the essay is what follows. For this reason, if a student skipped this
introductory part of part 2, and went directly to the material that follows, that student would be given full
credit. What I have done is simply put out a roadmap of sorts, to let the teacher know what I will discuss.
Remember, this is a so-called model answer, and while it is not “perfect,” it is good and provided to you for
understanding (as well as to future students for study). As I have stated so many times in class and in this
and other memos: there are many ways to write an A grade answer. But all good answers have several
things in common: stating the legal problem, stating the doctrine that can be used to solve the problem, and
then solving the problem. IRRAC (or IRAC) by any other name is still a good answer.
31 My heading, with the parties. As previously stated, you do not need headings to get an A on the final
examination, but they can be helpful to the student and the reader.
8

Per Lucas, 32 a governmental land-use decision which denies a landowner all use is
an economic wipeout and in violation of the Fifth Amendment as a regulatory taking. 33
By preventing Abel from developing the sand area, 34 Westmoreland might just as
well have denied all building on Greenacre because without developing the sand area, the
project cannot be profitable. It does a landowner no good to develop land that will drain
his bank account and not result in any cash inflow. 35 A decision which assures a
landowner of a business loss is just as much a wipeout as if the government physically
seized the property without paying compensation. 36
Nonetheless, 37 as the court in Lucas made clear, a regulatory taking based upon an
economic wipeout must totally eliminate all rights to the land, as the landowner in Lucas
suffered. 38 Here, while Abel will suffer an economic loss, his rights to all of Greenacre
have not been demolished; only 10 percent has been, leaving 90 percent that can be
developed, if not commercially, then residentially. 39 The point is that even if we look at
Abel having suffered a wipeout for the sand area, that is only 10% of his fee and
represents a mere “diminution in value,” and which the Supreme Court, in Penn Central,
Lucas and in Lake Tahoe, 40 has stated is not compensable under the Fifth Amendment. A
mere loss of value is not a taking because, if it were, every zoning ordinance which limits
a landowner in the use of his land would be a taking. 41
Thus, the decision to deny building on the sand area was not a wipeout and
taking. 42
32 I cite to a United States Supreme Court case. As stated previously, it was not critical in my class; it might
be in some other professor’s class.
33 Here is my rule of law. Note that this is the second “R” in my IRRAC formula, the first “R” being the
rule stated in the introductory paragraph. Alternatively, you could just say that this rule (“Per Lucas, a
governmental land-use decision which denies a landowner all use is an economic wipeout and in violation
of the Fifth Amendment as a regulatory taking”) cannot be broken down any further, and so we just have
one “R.” The key is to remember that IRRAC or IRAC or anything else you use for an organizational tool
is just that—a tool and not a substitute for thinking.
34 These are the facts that I am given. What follows is some more facts, plus my all important and critical
creative argument.
35 More argument.
36 A final argument. One last point: Are there other arguments Of course. The point is, as I have often
stated, 10 people can come up with ten arguments, and all can get full credit.
37 I use words of transition to let the reader know that I am switching sides.
38 Here is my argument. Notice that I cite to Supreme Court doctrine, not necessary for the award of points
in my class, but certainly impressive from a teacher’s perspective.
39 More argument.
40 I have cited to two important Supreme Court cases on the subject. Necessary No.
41 My argument continues. Notice that this last point is based upon public policy. Notice also, as I have
stated so often, that there can be many different arguments. This is mine. Yours can be different, and we
can all get full credit. The key is to think creatively, within the bounds of the rule.
42 My conclusion: short and to the point. Of course, as I have often stated, your conclusions are not
important to me; your reasoning is.
9

Abel v. Westmoreland: Conceptual Severance 43
Assuming Abel fails in an attempt to convince the court that there was a wipeout
of the whole, 44 could he prevail on the more limited ground that a decision denying his
building on the sand area was a total wipeout of that part via conceptual severance, for
which the state must pay compensation 45
As the Supreme Court implied in Pennsylvania Coal, a wipeout may be found
through conceptual severance. 46 Conceptual severance occurs when government
decision-making denies a landowner all use of a distinct part of an estate in land. 47
Initially, 48 it may be argued that the sand area arguably is a distinct and separate
part of the whole because of the unique nature of beachfront property. This includes its
scenic beauty, high cost, and erosion problems, and, in this specific case, the “division,”
such as it is, from the grass area of Greenacre. 49 As such, it may be said that a refusal to
let Abel build on the sand was a destruction of a complete estate, no different than the
separate estate—the support rights—that was found in Pennsylvania Coal. 50 Moreover, 51
while the Supreme Court has seemingly repudiated the idea of conceptual severance in
Penn Central. Bituminous Coal and, most recently, in Lake Tahoe, the fact is that
Pennsylvania Coal has never been expressly overruled. Moreover, in Lucas, the Court
43 Many students could not see this issue and how it tied into the previous issue. The point is really quite
simple: Abel should contend that the action by Westmoreland acted as a complete wipeout. Failing that,
however, he should next contend that there was a partial wipeout, based upon conceptual severance. Many
students did not see this relationship. Of course, I suppose it would have made the most sense for Abel to
argue regulatory taking of the whole via (1) total wipeout; then arguing (2) the Westmoreland decision was
not substantially related to accomplishing an important government purpose; next arguing (3) the
Westmoreland decision violates Abel’s distinct investment backed expectations; next arguing (4) that the
Westmoreland decision was improper nuisance control; and finally arguing (5) conceptual severance. The
reason for this is that if Abel wins on points (1), (2), (3), or (4), Abel gets Westmoreland to pay him for the
time the property was left unimproved during his ownership (per First English), which payment would be
based upon 100% of the whole. If Abel prevails on point (5), he gets compensation, but only based on a
smaller denominator. Your thoughts certainly could have been presented in such a logical manner. For
purposes of this model answer, however, I present the conceptual severance argument next, because it does
tie in with the idea of an economic wipeout. Many students took this approach, and that, of course, is just
fine. Again I state: the form is not important; the substance is.
44 Never cut yourself off from points just because of a prior conclusion. More specifically, assuming Abel
won on the preceding point (a total economic wipeout), he would not argue that there was a partial wipeout
based on conceptual severance. But what if he lost on that point (and on the other points, discussed later in
the model answer) Would Abel not at least try to secure some payment from Westmoreland The answer,
of course, is in the affirmative. Hence, the next issue.
45 Here is my issue statement.
46 My rule of law, the first “R” of IRRAC.
47 The second “R” of IRRAC. Of course, I could have combined this sentence with the preceding.
Remember, the key is substance, not form.
48 Here begins my argument for why there is a taking based upon conceptual severance. Note that it is a
two-part argument. First, the sand area is a separate “estate” (to use the term in Pennsylvania Coal), and
second, that there was a wipeout of that estate. Most students who spoke of this issue did not clearly make
the point that the sand was a separate interest or entity and, second, that it was wiped out.
49 Here is the first part of my argument.
50 Here is the second part of my argument.
51 My argument continues. Notice how I use case law to support my reasons. As I have stated in class,
sometimes argument (analysis) may be based on logic; sometimes on public policy grounds; sometimes on
economic aspects of the problem; and sometimes based on precedent, as I have done here. Of course, you
may take a different approach, and we can all be right. That is the nature of analysis or argument.
10

stated that the Court has never made it clear what the “denominator” was to be, and
reiterated this in the recent case of Palazzolo 52 Moreover, even the Lake Tahoe case,
which seemed to disavow conceptual severance, might well be read for the proposition
that conceptual severance is disavowed, but only in the case of “temporal” severance,
which was at issue in that case. 53 Finally, 54 assuming that the sand is a separate estate, it
was wiped out because Abel cannot build on it, and without building, it is wiped out just
as much as the estates in Pennsylvania Coal and Lucas were wiped out. 55
On the other hand, 56 Pennsylvania Coal dealt with a separate and distinct estate
that was recognized by statute, which does not exist in our hypothetical; as such, the idea
of conceptual severance should not be applied here. To the extent that Lucas and
Palazzolo spoke equivocally about conceptual severance, it should be noted that the latest
Supreme Court decision dealing with it was Lake Tahoe and, as such, we should
acknowledge that the Court has not looked favorably on the entire theory. Of course,
while it is possible for the state to give landowners greater protection than the federal
government provides, uniformity in land use and not wanting to unduly tie the hands of
government officials warrants Westmoreland to adopt the federal position on the matter.
Finally, assuming that the sand is a separate estate, it was not wiped out because Abel can
use the property for other uses. Indeed, it may well be that he can build something on it,
such as a cabana; all that we know is that Westmoreland will not let Abel build a 500
room hotel on the sand area. In any case, Abel needs to exhaust his administrative
remedies first: Let Abel secure permission to build anything else on the sand, and let
Westmoreland deny it. Then and only then would there be an issue of a wipeout of that
part. Right now, all that we know is that Westmoreland will not allow a hotel to be built,
and that, by itself, is not a denial of all use.
Therefore, there was no wipeout based upon conceptual severance. 57
Abel v. Westmoreland: Middle Tier Level of Scrutiny 58
May Abel challenge Westmoreland’s decision denying any building on the sand
area of Greenacre because of a concern that construction will “somewhat” 59 contribute to
beach erosion and that such a decision does not comport with a middle tiered level of
scrutiny 60
52 These are my arguments why, based on conceptual severance, the denial on the sandy area could be
considered a taking of the sandy area. Again, is it possible to create other arguments Of course. Are my
arguments the best Absolutely not. Remember, this answer is good, not a perfect. Keep this in mind as
you go through this model.
53 My argument continues.
54 I now proceed with my argument why, assuming that the sand was a separate estate, it was wiped out by
the Westmoreland decision.
55 My argument is based upon comparing the landowners in Lucas and Pennsylvania Coal to Abel: all
could not build, therefore the holdings in these cases should be followed in Abel’s situation.
56 I let the professor know that I am switching sides by using words of transition. My argument will be two
fold: First, the sand is not a separate estate, and second, even if it were, there is no wipeout of that estate.
57 My conclusion.
58 Here is the next issue that I shall discuss: that the Westmoreland decision was not substantially related to
accomplishing an important/legitimate government purpose.
59 As to the significance of “somewhat” contribution to beach erosion, see discussion, infra.
60 Here is my issue statement.
11

Under a middle tiered level standard of review, and as stated by the Supreme
Court in Lucas, 61 a land use regulation or decision will act as a regulatory taking and
require compensation if the regulation or decision does not substantially advance a
legitimate or important 62 state interest. 63 Such a level of review is tighter than a mere
rational basis standard, but somewhat looser than a strict scrutiny standard. 64
While avoiding erosion of the beach is clearly a legitimate government interest
and within the state’s police power, 65 and it is also probably an important government
interest as well, 66 it is doubtful that a study finding that construction of a hotel would
“somewhat” 67 add to erosion is sufficiently connected to the ends to sustain a middle
tiered level of review. 68 This is because the term “somewhat” could be interpreted to
mean that a relatively few grains of sand will be lost in the course of constructing the
hotel, and if that is the case, the prohibition against building would not substantially 69
advance the government interest in avoiding erosion. Indeed, 70 while such a standard
61 As I have stated earlier, it was not necessary to cite to cases in my class. Nonetheless, I have made
reference to these cases in this model answer for the benefit of those who have taken this exam, and for
those in the future who will study this exam.
62 Recall that sometime the Supreme Court uses the term “important government interest” and sometimes
uses “legitimate government interest.”
63 Here is my rule of law.
64 Here is the second “R” of IRRAC. Was it necessary No. I added it only for completion. Remember, as I
have stated so many times: the form is not important; the substance is.
65 Beginning my analysis, I concede that preventing beach erosion is a legitimate government interest.
66 I concede that it may also be an important government interest. I do this because I want to spend my
limited time on the means aspect, not the ends. Thus, I will argue that while the ends are legitimate or even
important, the means do not sufficiently advance those ends.
67 As to the use of the term “somewhat” in my analysis, the following should be noted: Very few students
worked with the fact that the study found that Oscar’s construction would “somewhat” add to the erosion of
the beach. As a matter of exam taking skills, when a word or clause is in quotation marks, it is a sign that
you need to work with it, as it is almost always either triggering an issue and/or can be used in your
analysis. Rarely will it be a so-called red-herring. (A red-herring is something that looks like an issue, but it
is nothing, and is designed to trick students into writing about nothing. I rarely have given students redherrings.)
In this case, the word calls into doubt whether Westmoreland’s decision to deny Abel the permit
to build is substantially related to advancing the legitimate or important government interest of preserving
the beach. The word “somewhat” triggered the issue here, and also is to be used in the analysis. Again, few
students dealt with it.
68 So far, I have not given any creative argument. Al that I have done is set up my argument. Many students
left their “analysis” at this point and went on to something else, apparently believing that they had
performed an analysis. But think for a moment: What reasons have I given in this sentence to show that the
means do not sufficiently advance the ends The answer is, there are none. All that I have here is an
assertion of facts and a conclusion. There are no creative reasons given. Those reasons follow in the next
sentence. Yes, I know: I stated in class that one should never have a sentence of pure fact in the paragraph
dealing with analysis. The point is that I needed to deal with the ends before I dealt with the means. The
moral: Let IRRAC or IRAC or any other organizational tool guide you for the order that you will present
your thoughts, but do not become a slave to these tools. Again, one more time: the key is substance, not
form.
69 Is it necessary to underline Generally, except for use in headings or case names, the answer is no. I do
so here only to address the question of underlining. The fact is that you should strive to write so that every
word is important—and if every word is important, then no one word can be singled out for emphasis. In
any event, it certainly does no harm to underline a critical word here or there. Some students underline
quite often, and the effect is to diminish the importance of the underlined words. Again, as in life in
general, reasonableness and common sense should be your guide.
70 My argument continues.
12

would pass constitutional muster under a minimal scrutiny standard of review because
that standard allows government officials to hypothecate, this “if I can imagine it, its
constitutional” approach will not work when the means must have a closer fit to the end,
as is required in regulatory takings law. 71
Alternatively, 72 a court should not routinely or be inclined to so readily second
guess those government officials whose duty it is to protect the public’s interest in the
beach, which is a most valuable asset, 73 especially when it is stipulated that the
government gave Abel “due consideration.” Governmental officials are in the best
position to determine the adverse effects of construction, not the landowner who has
selfish interests at stake. In this regard, as to the relationship between the construction
and its “somewhat” adding to the erosion problem, 74 courts should be deferential to the
Westmoreland study and the deliberative process and find, as a matter of policy if not
fact, that the construction will adversely effect erosion. After all, this is not a case of
personal liberties, but economic development, and while a higher level of scrutiny is
mandated by Lucas, that does not mean that government decisions and their reasoning
process cannot be afforded significant weight. 75
Therefore, Westmoreland’s decision comports with a middle tier level of
review. 76 Abel v. Westmoreland: Interference With Distinct Investment Backed
Expectations 77
Did Westmoreland’s decision interfere with Abel’s distinct investment backed
expectations when Westmoreland denied Oscar twenty years earlier and Abel
subsequently received Greenacre as a gift from Oscar 78
71 My argument here effectively states that while such a report may well sustain a decision using a rational
basis test, it will not support a decision that must use a substantial relationship test. Of course, other
arguments could well be made. These are mine, and your arguments may be different. The key, however, is
you must give a creative argument when the cause of action or affirmative defense is satisfied, as is the
case here.
72 I am switching sides at this point.
73 While my argument in support of Abel’s position was based on the law, my argument in support of
Westmoreland’s decision is based upon public policy. Could you have taken another approach I am
certain that such could have been done. The point is, ten people can take ten different approaches, and we
can all be right.
74 Again, very few students worked with the fact that the study found that Oscar’s construction would
“somewhat” add to the erosion of the beach. It was not easy to work with it from Westmoreland’s
perspective, but I give it my best in my analysis for why Westmoreland’s decision comports with the
substantial relationship test. Are there other arguments Certainly, but it is interesting that few students
worked with it. Was the failure to work with it because it is difficult Perhaps, but that is what the law is
about at times: representing your client who finds himself in a tough legal bind. When that happens, you
must do your best with the facts that you are dealt, as I have tried to do, and as you should have attempted.
75 Note that my argument weaves together law and policy.
76 My conclusion.
77 Here is the next issue that I will address.
78 Here is the issue statement. Note that it has the key facts (Oscar being denied a permit and giving the
property to Abel as a gift) and the legal issue. While many students wrote on distinct investment backed
expectations, few discussed it relative to the facts that Oscar had previously been denied and Abel did not
pay for the property. The point is whether Abel can have any distinct investment backed expectations on
those facts. As I just indicated, many students discussed the issue, but without these critical facts they
13

In Penn Central, 79 the Supreme Court stated, without elaborating, 80 that a taking
goes too far when it interferes with a landowner’s “distinct investment backed
expectations.” 81 In Palazzolo, the Court held that acquisition of title after the effective
date of regulations did not bar a regulatory taking claim, 82 although Justice O’Connor’s
concurrence, given great weight in Lake Tahoe, stated that the timing of a regulation’s
enactment relative to the acquisition of title is not necessarily immaterial to the Penn
Central analysis. 83
Because Abel knew or should have known that Westmoreland denied the identical
plan many years earlier, and because Abel did not pay for the property, 84 he cannot be
heard to complain: if a person neither is not out of pocket nor frustrated in an
expectation-like manner, a court should be hard pressed to know how government action
frustrated the landowner. Put another way, if one is out neither money nor time, there can
be no basis for complaint since that is what makes the world go around: time and money.
Moreover, while Justice O’Connor’s concurrence in Palazzolo stated that the timing of a
regulation’s enactment relative to the acquisition of title is not necessarily immaterial to a
Penn Central analysis, in conjunction with a lack of payment, it may well be that these
two factors together could defeat a takings claim. 85
On the other hand, 86 the fact that Abel received the property from his father as a
gift, who himself was denied a permit for the same building plans, should be
immaterial: 87 To hold that an after acquirer who pays no money cannot raise a takings
ended up just discussing it in the abstract. Of course, I could award only very few points for such an
abstract discussion.
79 Again, I make reference to the case which articulates the doctrine in question. It was not necessary that
you do so in my class, but it would have helped you, I think, to stay focused. In any case, I add it here for
completeness and for the benefit of those students who follow you who will study this exam in later years.
80 I add the clause, “without elaborating,” because the Supreme Court to date has never precisely defined
what this term is.
81 Here is my rule of law.
82 Here is an elaboration on the rule, what may be looked at as the second “R” of my IRRAC approach.
83 A third “R” Is this IRRAC, or is it IRRRAC Could I have handled Justice O’Connor’s concurrence as a
“counter-rule” of sorts, and include it in yet another and distinct IRAC The answer is, of course. But
remember, either way is appropriate, so long as you discuss it in some logical way. Handle it anyway you
want, so long as it is logical and reads easily. Again I say, the key is not form, but substance.
84 These are the key facts, upon which I shall now proceed to build my analysis. Note, however, that this
clause by itself is not argument. Thus, of the students who did tackle this issue and did so in the context of
these facts, some simply stated, “Because Abel knew or should have known that Westmoreland denied the
identical plan many years earlier, and because Abel did not pay for the property, he did not have any
distinct investment backed expectations.” This is just a conclusion, supported by the facts, but lacking in
creative argument. Argument is necessary here because it is simply not clear if, on these facts, Abel’s
distinct investment backed expectations were frustrated.
85 For purposes of having to draw the line somewhere, I purposefully have neglected to deal with the
following words of Justice O’Connor in her concurrence, beginning at the very last word on page 643 of
the official reporter: “We also have never held that a takings claim is defeated simply on account of the
lack of a personal financial investment by a postenactment acquirer of property, such as a donee, heir, or
devisee. . . . Courts instead must attend to those circumstances where are probative of what fairness
requires in a given case.” The point is that one cannot address every point on an exam, nor even in a socalled
model answer. Nonetheless, with the time allotted, you still can get a good grade by discussing the
major points—and I can still prepare a good model answer by doing likewise.
86 Changing sides.
87 These are the facts upon which I shall now build my analysis (argument).
14

claim is to relegate such a landowner to second class status vis-à-vis others who have
paid consideration for the property. 88 Society should not create such differences, which
can have a socially detrimental effect by allowing some landowners more rights than
others and thereby dividing our society into protected classes. 89 It is not in society’s
interest to create different levels of landowners who enjoy gradations of rights, depending
upon how and when property was acquired. There should be only one class of
landowners and not discriminate against those who pay versus those who do not pay,
those who acquire property before a decision and those who acquire it afterwards.
Thus, Abel can assert an interference with his distinct investment backed
expectations. 90
Abel v. Westmoreland: Improper Nuisance Control 91
Assuming that Westmoreland’s land use decision denies Abel all use, 92 Can Abel
challenge Westmoreland’s adverse decision denying him a building permit on the ground
that its action was improper nuisance control 93
Assuming that governmental land use decision denies a landowner all use of land,
government can still avoid a takings claim if it establishes that the that the prescribed use
was not part of the landowner’s title. 94 What is not part of a landowner’s title is a
common law nuisance. 95
As the Supreme Court stated in Lucas, building a house is not a traditional
common law nuisance. 96 Consequently, a hotel, just a larger version of house where
people eat, sleep, and relax, should not be deemed to be a nuisance, either.
However, as the Supreme Court stated in Village of Euclid, 97 “A nuisance may be
merely a right thing in the wrong place—like a pig in the parlor instead of the
barnyard.” 98 It may not be a common law nuisance to build a house on a beach, as in
Lucas, but it may well be that a 500 room hotel is another matter, with hundreds of
people converging on a beach is a common law nuisance, especially in conjunction with
88 Again, note that my argument is based on public policy grounds.
89 My argument continues, here and in the next few sentences.
90 My conclusion.
91 Here is the next issue. Only a few students addressed this issue. It is based upon the holding in Lucas:
government can avoid a takings claim by asserting nuisance control, but government must be attempting to
control something that is not within the landowner’s bundle of rights, such as common law nuisance. Is
building a structure something that would be a common law nuisance In and of itself, probably not, but in
conjunction with the effect of beach erosion, the answer—at least in my mind—is not abundantly clear.
92 This is an assumption that is necessarily antecedent to raising the improper nuisance control issue.
Remember, as mentioned earlier, never conclude yourself out of raising issues—and getting points.
93 Here is my issue statement.
94 Here is the rule of law. This may be looked at as the first “R” of my IRRAC approach.
95 This sentence tells the reader what use is not part of the landowner’s title. This may be looked at as the
second “R” of my IRRAC approach. But remember, the key is substance, not form.
96 In this sentence and in the next I have my argument as to why this hotel construction should not be
considered a nuisance.
97 Citation to a key Supreme Court case, which, as I have already stated, is not at all necessary in my class,
but can be helpful and, at the least, make a good impression.
98 Do you have to quote a case on an exam Not at all. Paraphrasing would be fine, too. In any event, this is
one memorable line (“a pig in a parlor”) which many people know, albeit not the source. Again, you could
have received an A grade without even making any reference to the Village of Euclid case—as some A
students did.
15

the beach erosion that it will cause. In any case, the fact is that the common law did not
know of sea-side resorts, and if it had, it may well have decried this construction plan is
one which will create a nuisance. The law does not remain immobile. Rather, it changes
as times dictates. As such, even if a beach front hotel was not found to be a common law
nuisance, it should be deemed to be one for regulatory takings purposes on these facts.
We recognize constructive possession in the law of property; so, too, we should
recognize constructive nuisance if that is what is necessary to protect public use of
beaches. 99
Abel v. Westmoreland: Transferable Development Rights (TDRs) 100
Assuming that there has been a regulatory taking in whole or in part, can
Westmoreland avoid paying compensation to Abel on the theory that it has given him a
TDR 101 A TDR gives a landowner a right to develop property where he otherwise would
not be allowed to. The Supreme Court has indicated in Penn Central that such rights may
meet the Fifth Amendment’s requirement of just compensation. 102
Because Westmoreland gave Abel the right to construct valuable R-2 housing on
Whiteacre, which is zoned R-1, he was given, if not money, then a money equivalent. As
such, his net worth is greater than it previously was, and so long as what he was given
equals what was taken, Abel should have no complaint. 103
On the other hand, the constitution requires “compensation,” which implies
payment in money, not so-called “funny-money” that does not cost the government
anything out of pocket. To allow TDRs is to essentially allow local governments to print
their own money, something that the Constitution forbids (see Article 8). Further, the
purpose of the just compensation clause is to restrict government exercise of the eminent
domain power. If government does not have to cut a check for such exercise, there is little
standing in the way of government interference with landowner’s rights. 104
Therefore, assuming that there was a regulatory taking, Westmoreland’s TDR will
not satisfy the just compensation requirement. 105
SELF-DIAGNOSTIC
99 My analysis. Notice that in my analysis, I come up with creative reasons why a hotel should be
considered a common law nuisance, or, in the alternative, even if it is not, why it should be deemed to be
one.
100 My last issue. Assuming that there has been a taking in whole or in part (the conceptual severance
issue), can Westmoreland get out of paying compensation because it has given Abel a right to build in an
area where he would otherwise not be allowed to build That is the question, and the answer, as with
everything on this exam (and almost every issue for all my exams), is unclear.
101 My issue statement.
102 My rules of law. Of course, I could just as easily have combined these two sentences in to one rule. The
key, yet again, is substance, not form.
103 My argument why the TDR satisfies the just compensation requirement.
104 My reasons why the TDR does not satisfy the just compensation requirement.
105 My conclusion.
16

I provide you here with the same self-diagnostic that I provided to you in the
memo regarding your Property I examination. I state here exactly what I stated in the
previous memo to you.
To assist you in learning how to improve your thinking skills, I have prepared this
self-diagnostic. If you complete this diagnostic, you will gain greater insight into what is
expected of you on a law school exam and learn from your mistakes and omissions by
active learning (as compared with passive learning, an example of which is reading a
commercially prepared outline).
Step 1: Read the Property Question
The first step to diagnosing your own weaknesses is to read the property essay
question again. This is necessary because by now it has been a full month since you took
the exam. Too many students read their essay exam and do not read the question. This is
foolish. So be certain to read the exam question over.
Step 2: Read Your Answer
Through the years I have had students come to me to review their exams without
them taking the time to read their answers first. Such a waste of time (mine and theirs).
Read your answer. Yes, it is painful, but you must read your answer if you are going to
understand why you received the grade that you did and improve your performance.
Step 3: Read My Grading Sheet
As you read your answer, you must also read the grading sheet that I used to
award the raw points to your essay. When you do so, try to see why you received only
one point for an issue statement instead of two. Make an attempt to understand why you
earned little or no credit on your analysis.
Step 4: Read the Model Answer
After you read your essay, read the model answer that I have provided for you. In
this way you will start to get a better sense for what is expected of you, and what you
failed to do.
Step 5: Study the Model Answer
After you read the model answer you must next study the model answer. This
means you must engage in active learning and ask yourselves questions: Why did the
professor raise this issue Why did he frame it in the way that he did How did he phrase
the rules of law What makes his analysis strong
Of course, these are only suggestions and certainly not the only questions that you
should ask yourselves. The point is that you must learn to start to think on your own, and
when you ask yourselves these and other kinds of probing questions, you are facilitating
that objective.
17

Step 5: Study Your Answer
You should next study your answer. Please note how I choose my words. I stated
that you should now study your answer, not just read your answer (which you have
already done). Mere reading is a passive activity and is inferior to active learning, where
the student is not an observer, but a participant. Consequently, I ask you to study your
answer. Think as you read. Ask yourselves why you raised a particular issue, why you
framed it in the way that you did, why you stated the rule as you did, and why you wrote
out your analysis in the manner that you did.
Step 6: Mark Up Your Answer
With this step you will really be getting into the active learning phase. What you
must do in this phase is take a red pen and make believe that you are me and start
marking up your answer. For example, if you believe that an issue statement is poorly
written because it does not have the key facts within it, then you should take your red pen
and write the following comment next to the issue statement in big red letters, “Omitted
Key Facts.” If your rule of law is incorrect (feel free to check with a hornbook, as
necessary), then you should write, “Incorrect Law.” If your analysis is a mere repetition
of the facts given, you must write, “Conclusory.” Whatever problems you see, you must
note them in big red letters.
Some of you may be wondering: How can I correct my own work To this, my
answer is: You must start to learn now, because you have no other alternative. If you
expect only your professors to give you commentary on your exam (another example of
passive learning), what are you going to do the next time you take an exam Your
professor will not be available during the exam. Moreover, when you wrote your
appellate brief, did you think that your first draft was also going to be the final draft Of
course not. You revised it on your own, and each time you made a revision, it was better.
The point is that you get better at doing something when you do it, not when someone
tells you how to do it. It is for this reason that if you want to improve, you must annotate
your exam in the manner that I have stated. If you do what I have told you to do, you will
learn much, more than I can ever articulate in a memo.
Step 7: Re-Write Your Exam
The next step is also part of active learning: re-write your exam. By now you
know the issues and the rules of law. Put this knowledge into action by seeing how much
you can improve. When you re-write your exam, remember that my arguments are not
something to be inserted between Numbers and Deuteronomy. There is nothing special
about my analysis. You may well think of other arguments, or even better ones. That is
fine. Indeed, that is what I desire and expect.
Step 8: Study Your Re-Write a Day Later and Answer These Questions
18

After you have written out your re-write, put it down for at least a day. Thereafter,
read and study it. After you study your re-write, answer the following questions (I mean
this literally, not figuratively; print or type out the answers on a separate sheet of paper):
(1) How do the issue statements in your re-write differ from the issues statements
that you wrote out on the exam Be specific.
(2) How do your rules of law in your re-write differ from the rules of law that you
wrote out on the exam Be specific.
(3) How does the analysis in your re-write differ from the analysis that you wrote
out on the exam Be specific.
(4) How else does your re-write differ from the exam Be specific.
Step 9: Write Out Your Questions
If you have come this far, you have undoubtedly learned much. If you have
additional questions, write them out and come and see me. I will be pleased to discuss
them with you.
MISCELLANEOUS OBSERVATIONS
At this point, I present you with sundry observations and information that I think
you will find interesting and helpful.
Multiple Choice and Essay Performance
There were 33 multiple choice questions on the exam. Each multiple choice
counted 2.121 points. Therefore, the total points available on the multiple choice was,
rounding off, 70 points. The total number of points available on the essay was 70 points.
(On every exam, I have a section titled, “other issues,” in case a student writes on an
issue which is valid but which I did not previously consider. For your exam, no students
received points for this category.) Therefore, the total number of points available on the
exam was 140 points.
For the multiple choice, the average score was approximately 14 correct, which
was also the median. The highest score was 19 correct. The lowest score was 7 correct.
For the essay, while I do not have any analysis available (this is not fed through a
computer, as the multiple choice is), I estimate that the median grade on the essay was
approximately 20 points. Consequently, the median total points earned for exam was 49-
50. Some of the exams were excellent. Others were quite poor.
Students who do not do well on the multiple choice do not know the law very
well. While essays test broad concepts (takings, for example), multiple choice test on
narrow concepts, such as a particular element of a rule.
19

As I stated in the memo to your fall exams, there were a few students who did
poorly on the essay (receiving only a handful of raw points), but did exceptionally well
on the multiple choice. The explanation, I believe, is this: Such a student knows the law
well enough to identify the correct answer, but does not know the law well enough to
construct an answer. These students need to work on knowing the law well enough to
construct an answer.
“I Have a Writing Problem”
What I stated in the memo to the fall exam, I repeat here: Some of you will be
tempted to say, “I have a writing problem.” Let me assure you that if you can put a noun
and a verb together, you do not have a writing problem. Rather, the student who says he
or she has a writing problem actually has either a deficiency in understanding the law or a
thinking problem, or both.
If a student does not know the Supreme Court’s tests for a non-exaction
regulatory taking, he or she cannot answer a question on non-exaction regulatory takings.
It is that simple. The solution is to learn the law and the legal (read thinking) process.
This you do by reading and briefing your cases (I know from observing you in class that
a good number of you stopped briefing before Thanksgiving), participating in class,
preparing your own outlines (don’t just copy your notes; outlining is true active learning
and an integral part of the learning process), and writing out complete practice exams
(and then going through the diagnostic that I have given you in this memo and critiquing
your own work).
Yes, I know that this is a lot of work. But remember, there are no shortcuts to
success. If there were, everyone would be successful.
Exam Review
If after you have performed the nine-step diagnostic you still have questions,
write your questions out and come and see me. I will be in only infrequently during the
summer, but I will make the time to see you if you wish to meet with me. Of course, you
also can come into see me during the fall semester, when I will have regular office hours
(to answer your exam questions, or to talk about politics, life, religion, etc.). I will be
pleased to discuss any of these questions with you.
If there was a mathematical error on your exam (it does not happen often, but it
does happen), you do not need to go through the nine-step diagnostic. Just call me on the
telephone. I will then be able to determine if the change in points will result in a grade
change. If so, I will then ask you to mail me a photo-copy of your exam and grade sheet.
Of course, I urge everyone to go through the nine-step diagnostic because you will learn
so much about the law school thinking process if you do.
CONCLUDING REMARKS
I conclude with words of congratulations, encouragement, and perspective.
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Some of you did quite well. Congratulations! Your hard work has paid off.
Continue working hard. You have earned your success.
Many of you passed your exams, but did not do as well as you wanted to do. To
those of you in this category, I ask you to study this memo and understand why you did
not do better. It may be—and I say this just as an observation, not as a criticism—that
you just need to put in more time. Remember, you cannot cram for law school exams.
To those of you who did poorly, you are undoubtedly in great distress. You have
put in money and time, all seemingly for nothing. I also understand that my words will
not assuage your pain. Nonetheless, I ask you to consider the following, not to remove
your pain, but to help put it in perspective.
All of us are here for a purpose. What that purpose is no one knows for sure.
Perhaps when we are about to leave this existence we can have a better understanding of
such things. But right now, this much I do know: The results on this set of exams for
some of you indicates that right now, it was not the right time to go to law school. For
some of you, this does not mean that you will never be lawyers. It only means that you
will not be a lawyer in three years. For others, it may well mean that your destiny is not
law, but something else.
It is also good to remember that no successful person has ever gone through life
without struggle. Moreover, every successful person has had many failures attached to his
or her name. As it is written in the Book of Ecclesiastes, “To everything there is a
season.”
It has been my pleasure to teach you this year. I wish all of you health, happiness,
and prosperity, all the days of your life.
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