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The Pot at the End of the Rainbow: Analyzing Torts Issues on an Essay Exam

Most of this book has dealt with the substance of tort law, analyzing the liability standards courts apply to claims for personal injury. This Part has a different goal: to introduce you to the type of analysis you will be expected to perform in answering an essay question on your Torts exam.

  A major goal—in fact, the major goal—of the first-year curriculum is to develop students’ analytic skills, to teach you to “think like lawyers.” And the primary way in which we determine whether students have absorbed that skill is through essay exams. Most students have never encountered essay exams quite like the typical law school exam. It seems appropriate to give you some explanation of the logic behind these exams, together with examples of the type of analysis we expect you to produce.

  This Part includes three chapters on the nature of the legal analysis expected on a Torts exam. This chapter discusses the basic analytic approach required on a Torts essay, by pulling single issues out of an essay and illustrating how to address them. The next chapter comes at the problem from the other direction. It provides examples of the typical mistakes students make in answering essay questions. These can be kind of fun, and the explanations should help you to avoid these pitfalls and highlight the proper approach. The last chapter includes several essay questions, with sample answers and some suggestions, from the professor’s point of view, about how to approach the questions.

  I should offer a disclaimer here. While I believe the approach in these chapters would be endorsed by a large majority of your professors, some may draft their exams differently. Your Torts professor may have taken a heavily philosophical approach to the course, engaging in extended discussion of economic analysis, critical legal studies perspectives, or feminist legal analysis. If so, she may write an exam that emphasizes high-altitude policy perspectives more than effective application of doctrine to facts, as I do. On the other hand, even a professor who luxuriated all semester in philosophical speculations may surprise you with an exam that looks much like mine, since analytical skills are fundamental and are easier to test than more freewheeling policy analysis.