HOW TO STUDY LAW | C. General Duty of All Agents to Follow | Principal's Lawful Instructions and to Obey Reasonable Orders. It is the principal's business--he . has right to say how it shall be run within reasonable and legal limitations. 1. Reasonableness is question of | fact in each case. (NB ---.) 2. Orders may be violated in emer-_ gency. (NB---.) D. Duty of Loyalty--Negative Obligation --Requires Agent to Refrain from any Conduct which Might Jeopardize the Principal's Interests. Is a duty arising out of the fiduciary’ character of the agency rela— tion--May be modified by prin-, cipal's consent. | 1. Prohibits agent from acting as! adverse party (buyer-seller) ori for adverse party without prin-/ cipal's consent. (NB ---.) | 2. Prohibits agent from competing with principal. (NB ---.) 3. Prohibits agent from making se~ eret profits. (NB---.) : 4, Prohibits agent from intention- ally disclosing principal's business secrets or using them SEE Feo i [60] DEI eet aaCASE SYSTEM for his own advantage without principal's consent. (NB ---.) 5. Principal has numerous remedies for breach of this duty--Dis- charge--Forfeiture of agent's compensation--Action for dam- ages--Bill to enforce construc- tive trust--etc. (NB =--.) EB. General Duty to Account to Principal for Money or Things Received for or from Him--Duty to Pay Over to Prin- cipal When Required. Duty based on theory that money or property received by agent in course of employment belongs to principal and must be .account- ed for. (NB ---.) 1. Qualifications on duty in case of money or property tainted by illegal or immoral transaction. (NB ---.) 2. Remedies of principal--action for. accounting--constructive trust --etc. (NB ---.) The above outline is, of course, merely illus- - trative. You might make it more elaborate with a larger number of groupings. You might arrange the subdivisions in a different order, You might wish to make more specific [ot] weerHOW TO STUDY LAW references to the material in your NB (note- book) rather than the simple page reference. As it stands, however, it brings out the salient points of the chapter—the main principles in- volved—and exemplifies the essential skeleton- ized, analytical nature of an outline. oe: pom me hy One big advantage of making such outlines | is_that they greatly facilitate exam writing | and problem solving in general. By organiz- ing the material in each course and then lift- ing out the framework in the form of a short, compact outline, you have created a picture that can be easily memorized and carried with ‘ou into the examination room and later out ato practice. It is the sort of picture you will se able to recall long after the details of the. course have faded out, and by mental refer-} ence to it you can quickly classify a new prob-’ lem and “see the points involved in it” without the necessity of culling a mass of irrelevant material. True, you can get this same mental picture or catalogue by careful periodic review) without making a written outline, but there is something about putting it down in black and white that brings it out sharply and makes it stick. [62]CASE SYSTEM ‘Perhaps this discussion of outlines and peri- odic review is overly long and detailed, but , this phase of your study is so essential, and at \ the same time so frequently misunderstood or / omitted entirely, that it deserves special em- phasis. [63]HOW TO STUDY LAW STUDYING LAW FROM “TEXTBOOKS”? Jj Law Textbooks. ; A law textbook is a treatise on some major | field of the law written usually by an expert who has spent years studying the cases and statutes in that field. It is an attempt on his’ part to set forth in a logical and systematic way the body of legal rules and principles that the courts and other judicial or quasi-judicial tribunals apply in deciding controversies with- in that field. The textbook is focused on gen- eral rules and conclusions, and is thus largely the product of inductive reasoning. The au- thor is expounding generalizations derived by him from statutes and from an examination of thousands of specific cases. His object is to present a relatively concise statement of the established general principles of law and the specific rules applicable to various types of controversy, and thereby save the student, the ' lawyer and the judge the time and trouble of hunting up the specific cases, reading them, Lor]TEXT METHOD reconciling the conflicts and formulating con- clusions from them.* Studying from a Text. When reading a textbook always remember that you are dealing with condensed, concen- trated material. The holdings in dozens of cases will frequently be distilledinto~a-single sentence or paragraph. Conflicting lines of decisions and extensive legal controversies will often be summarized in a page or less. The reasons for the rules and the arguments pro and con will usually be stated very briefly or else will be packed into a short footnote. Yor can’t absorb that sort of mental food in hast Every sentence and every paragraph must | 5. On all of the important subjects of th law covers by the law school course, textbooks for student use hav been published. These books extract the principles from thousands of cases and may be used with value for col- lateral reading in casebook schools. It is often very help- ful to follow a case from your casebook into one of these ~ textbooks by means of the Table of Cases and there ascer- tain how the author treated the particular principle pre- sented in its relation to other principles of the law. A complete series of such books, known as the Hornbook Series has been published. One of the outstanding features of the Hornbook Series is the terse presentation of various principles of the law in bold face type, thus enabling the student to review all of the outstanding principles of any subject with comparative ease and speed, [65]HOW TO STUDY LAW read carefully and thoroughly together with the footnotes appended to it. If you don’t understand it the first time, go back and re- read it. A text is not a novel or narrative. It’s a concentrated exposition of difficult legal concepts and arguments, and_your object_in reading it is to understand them thoroughly so you'll be able to apply them in solving your own legal problems. Don’t try to skim through a textbook! In the next place, always try to keep in mind he specific fact situations to which the stated ules apply. Remember that law begins and ends with definite, concrete problems and con- troversies, and that all these rules and general- izations in the text are made with reference to them. You don’t need rules unless you have problems, and rules have significance only in their application to problems. Every time you ‘ come across a general proposition in the text, i try to find an example of its application. Of ; course, the author frequently gives you one or | more illustrations of each general rule, and he nearly always cites the cases on which his | statement is based and in which the rule was i applied. Sometimes he even discusses the more [66]TEXT METHOD important cases in detail, but his space is lim- ited and you can’t depend on the text alone for adequate illustration of all the rules em- bodied in it. That means that you will have to do a certain amount of case reading along with your text reading. Some publishers of student textbooks publish companion books of illustrative cases, and if one of these is avail- able by all means get it and use it. If you can’t get such a book, look up some of the cases cited in the text and read them, especially those cit- ed in connection with the rules for which you can’t find a good illustration. Above all, don’t fill your mind up with a lot of floating general- izations. Anchor each general rule or princi- ple to one or more concrete examples, and think of the rules in terms of their application to specific fact situations. Another important factor in text reading is a critical attitude. As has already been point- | ed out, all of us have a tendency to accept any- thing in print as true without question. Type adds an aura of authenticity that is not always warranted. Remember Xemember that the sta the statements inthe text are onl sions of the author. They aren’t the Gospel. . [67] { i { { iHOW TO STUDY LAW Read them critically and questioningly. Be on the lookout for contradictory statements, illog- ical arguments and fallacious reasoning. Ask yourself whether the propositions_set.forth— } | /_seem reasonable,_If you run into a statement j “that doesn’t seem right, go back over it care- fully. It may be that you have simply misread or misunderstood what the author wrote. The most carefully worded phrases often are sus- ceptible of several meanings. However, if the statement still seems wrong or questionable hiss a thorough scrutiny, check up on the ses and see whether they support it, and if } >, what reasons the courts have given for it. { Don’t accept a doubtful proposition as law un- til you’re convinced that the courts have clear- . ly done so. d In_reading a textbook, just as in reading a , i _casebook, it is usually helpful to underline im- ‘,’ pertant passages. This not only facilitates note a taking and review, but helps you concentrate { 1 and read more carefully. Don’t, however, | mark up any books except those that belong | to youl | | [68] ae eeTEXT METHOD Taking Notes on the Text. Taking notes on the material in_your text the cases in a casebook. The object in doing it.is to summarize, organize and state in your tion and chapter of the text. If, after reading a section, you stop and try to formulate in your own words the ideas expressed in it, you'll find that they’ll be much clearer and that you'll _ understand and remember them much better. Furthermore, by taking adequate notes you make a permanent record of the essentials ir each book, and if you have made them accu- rately and systematically they'll greatly facili- ' tate your reviewing for school and bar exams. You will find, if you analyse one of your texts, that the material in each chapter or sub- division follows a fairly definite pattern. The author nearly always sets forth the general rules and principles of law first, then the ap- plication or exemplification_of_those_rules in specific cases, also_the qualifications.and ex- ceptions if any, and frequently -his-own_com ments, arguments_and opinions about the rules and the reasons for or against them, The [69]|} HOW TO STUDY LAW order in which these matters appear may vary from text to text or even from chapter to chap- || ter, but they constitute the fundamentals of } '\ text writing, and it is extremely important to observe them when reading and when taking notes. In fact, it’s a good idea to adopt a defi- nite order or scheme for noting these things, and stick to it. For example, look first for the general rule or rules and summarize them. Then write down some of the specific situa- tions in which they apply. Then indicate any limitations, qualifications and exceptions to the | ule. Then state the reasons for it, arguments {| nd comments. By doing this systematically { i ou’ll force yourself to digest what you read | and at the same time you'll produce a set of ; notes in each course that are readily under- | + standable and that can be easily outlined when | you come to review. As a matter of fact, if / you take the table of contents of your text as | a framework for your notes, and indicate the ‘ various main divisions and subdivisions of the | course as you make them, you can effectively | combine note taking and outlining. [70]| ! 5 TEXT METHOD Classwork and Class Notes. The fundamental objective of lectures and classwork under the text method of law study is the same as under the case method, namely, to supplement and clarify your individual study. The actual class procedure, of course, will be somewhat different because of the dif- ference in the material you are reading. In- stead of developing general rules from a dis- cussion of specific cases and opinions, you'll be applying the general rules you’ve studied to specific problems suggested by the instruc: tor. Consequently, your class notes will con: sist largely of hypothetical cases, questions, references to outside reading, and summaries of reasons and arguments underlying the prin- ' ciples set forth in the text. As to the procedure for taking class notes and getting the most out of class work, the remarks made above (at pages 42 to 46) are’ generally applicable. Pay close attention and | follow everything that is going on, but don’t try to write it all down. . Use a little discre- tion. Pick out the important things—the things that add to what you have learned by reading or that correct erroneous ideas—and [71]| let the rest go. Above all, don’t lose the thread i of the discussion. A solid legal education is | built up brick by brick and stone by stone, { each resting on the other and each giving sup- port to and deriving support from the others, A gaping hole or missing keystone weakens i the whole structure. ' The same thing applies to class attendance. / Don’t miss a class period unless it’s impossible to be there. Not that the instructor will miss ; you or that there’s anything reprehensible ! about “cutting”, but you miss a link in the chain that may be vital to an understanding of the material that is yet to come. Class periods are not isolated, independent units unrelated ; to each other. Each one is developed on those ; that have gone before and each adds an im- ; portant segment of the whole picture, just like the pieces in a jig-saw puzzle. An occasional i Will blank here and there is not necessarily fatal, | “but always try to fill it in and don’t have too’ wf i many. Legal blanks may serve a useful pur- | I « : t pose out in practice, but they usually flunk out of law school. Incidentally, this all applies to your studying as well. As the advertise- ments warnus: Be Regular. i HOW TO STUDY LAW [72]TEXT METHOD Reviewing. The types and methods of review and the | function of outlines have been extensively de- ‘> veloped above (pages 46 to 65). What was said there is equally applicable to textbook study, and should be carefully considered. About the only thing that needs to be repeated is that “review” is not synonymous with “memorize.” So far as we are concerned, its primary meaning is “put together” and “ ganize’—“see the parts in relation to the whole.” we 173) sulHOW TO STUDY LAW OUTSIDE READING Both under the case method and text method of law study you will find and be given exten- sive references to additional cases in the re- ports, law review articles and comments, qn- notations to leading cases, pertinent discussion in treatises and texts that you are not using in class, digests, encyclopedias, the Restate- ments, and other sources of legal information. Of course you will not be expected to read nd digest all of this outside reading, at least ‘vhen it’s not specially assigned. It is made wailable to you as a complement to the re- quired material—a source of further informa- tion about questions you have not dealt with thoroughly or gone into at all in your regular work, { The important thing is to use it intelligent- ly. Don’t disregard it entirely simply because ‘ you’re not required to read it. On the other hand don’t gorge yourself by reading so much | of it that you simply get fuddled and confused. | Dip into it whenever you feel uncertain about a problem, or when your knowledge of some | phase of a course is sketchy and incomplete. [74]OUTSIDE READING In using it, remember that your required read- ing, classwork and review comes first. It’s the foundation on which you build, so don’t neg- lect it in order to do extensive outside reading about something you won’t understand with- out it. Outside reading is an accessory, to be used in filling in the chinks and in clarifying the unclear. , Don’t try to do much outside reading the first few months in law school. Wait until you get the hang of things and learn the lan- guage. Then acquire the habit of looking ir this outside material for the answer to you questions before running to your instructor You'll need that habit after you leave schooi and have nothing but the books to go to for help. Intelligent use of outside reading is the . principal device by which you gradually be- come self reliant and mentally independent of _ a teacher. In addition to the strictly technical law ' books, there are a number of treatises on the broader aspects of the legal system. These : you should explore to some extent simply for the cultural background they will give you. A lawyer is more than a legal craftsman. His ’ 75} i | | iHOW TO STUDY LAW work, in its broadest aspects, is really social engineering. He should have an understand- ing of the place of law in society and its func- tion as an instrument of social order. Such an understanding can be obtained from such classics as Pollock and Maitland’s History of English Law, Holdsworth’s History of Eng- lish Law, Wigmore’s Panorama of the World’s Legal Systems, Burdick’s Bench and Bar of Other Lands, Holmes’ Lectures on the Common Law, Cardozo’s Nature of the Judi- cial Process. - * * * * * * [76]}! PREPARING FOR EXAMS This completes our consideration of law | study, its objects and the effective methods of | doing it, both under the case system and the text system. Before going on to the matter of examinations, however, a word or two is nec- essary about the much-discussed preparation for exams or “boning up.” The fact of the | matter is that you don’t need to do any “bon- | ing” or do any special kind of studying. The iii whole object and purpose of periodic review ie and outlining is to prepare you for solving problems, both in exams and out in practice or business—to put your legal knowledge ii usable shape. All _you need to do at_exa’ \ time is bring your reviewing up to date in ea course. Of course you'll have to go back an put the whole course together—review it all as a whole—but the procedure is the same and ; there’s no change in purpose or object. When jy, | you’ve mastered the technique of proper re-__{'!! view, you’ve learned how to study for exams. There is one device, however, that may prove helpful in preparing for an exam, and that is practice in solving problems_and—in 77}.= : HOW TO STUDY LAW wiiting answer. completed your reviewing. Old bar exam questions are frequently avail- able, and in some law schools copies of old school exams are handed out. If you can get some of these, use them to test your under- standing of the various courses. Allot your- self approximately the same amount of time you'll have in your coming exams and then try to analyse the old questions and write con- cise answers to them. Follow the procedure outlined in the succeeding pages on “How to Write Law Examinations.” Try to develop a systematic method so that when you get into the exam room you'll have a definite idea of just how you’re going to proceed. After you have written these practice answers, discuss the problems with some of your classmates who are good students, or with a practicing lawyer or your instructor, providing they are willing to do so and have the time. Show | them your answers and ask for criticism and | comment on them. Doing this is not absolute- | ly essential, but it will help you do a better job, and is most useful when you find that you have difficulty in expressing your ideas on: [78]PREPARING FOR EXAMS paper. The best way to learn how to write well is to practice writing. Another source of problem questions and material for this sort of practice is the law “guizzer”.® Remember, however, that the an- swers in a “quizzer” do not purport to be model exam answers! They merely indicate the points involved and the correct rules. Write your answers in accordance with the rules hereafter stated. Use the “quizzer” an- swers merely to check your accuracy. 6There are several different types of quizzers. First, the problem type of which Ballantine’s Problems in Law is a leading example. The object of this type of quizzer is t enable the student to test his ability to apply the principly he has learned to specific legal problems, a matter of gre moment not only in connection with the taking of examin. tions, but in the actual practice of the law. The Ballan tine work was prepared by a number of professors in the leading law schools in the country, each a specialist in his own field. The problems were prepared by them and the answers given are in their language thus making it highly authoritative. The second type of quizzer analyzes the law as Professor Quiz does the everyday problems of life over the radio. | This type of quizzer approaches the subject more from the | standpoint of the principles of law than from the stand- \ point of problems. A leading quizzer of this type is Owen’s. It has helped three generations of law students to test their knowledge of the subjects they have studied. In the Owen Quizzer, the answers are taken from leading text- books and specific references are given to these text-books enabling the student to pursue the subject further if he de sires. [79]PART 2 ! | ' HOW TO WRITE LAW EXAMINA- A] TIONS BOTH IN LAW SCHOOL | AND FOR ADMISSION TO THE BAR i Types of Exam Questions. ; Some instructors and bar examiners no . fiw Qdoubt still use the qld-fashi chool-marm ‘¢ — type of exam made up of questions like “What is the rule in Shelley’s Case ?”’, “What-is_first- jegree murder?” or “What is the definition of B assault?”. Such questions obviously test sthing but the student’s memory, and are 1erely designed to bring out how many of the definitions, rules and exceptions he can recall. If you expect to get that sort of an exam, memorize as many of the important details of each course as you can, and pray that you will be able to remember them. That’s about all that can be said as to that type of question. Another type of quiz that several law schools have been trying is the modern “ob- , jective exam” so widely used in high schools Rae on [80] main oei TYPES OF EXAM QUESTIONS and colleges throughout the country. That is the type that embodies the “true_and_false” statements, “multiple choice” propositions, “matching questions” and so on. The princi- pal object in giving such exams seems to be to get a set of answers that are easy to grade, and although some of the questions do involve an element of problem solving, they are still largely informational in character. The_ob- ject_in answering one of these tests is to spot the correct statements, fill in or underline the correct words, and match up proper correla- tives or opposites. If you expect to get one of.them, your emphasis will have to be largel: oy memorizing the correct rules and other tails, and on remembering them. Howevi you will also have to remember some of tl specific applications of the rules and have some idea of the types of situation in which they apply. You should have no difficulty in under- standing what you are expected to do. By far the commonest type of law exam, the one most of you will have to face and the one to which the rest of this booklet will be (evoted, is the one composed of “problem” uestions—statements of fact_situations in- Law Study—6 (81)