Law students ask, “Isn’t law school more than just memorizing? The answer is clear: Absolutely!
But should law students memorize? The answer is just as clear: Absolutely!
Some professors mistakenly tell students that “law school isn’t about memorizing.” I say “wrongly” because the law school IT IS on memorization… and much more. But for now, let’s focus on grades, and for most courses, that means focusing on tests.
To write a high scoring essay exam answer, a student needs to employ many skills and strategies. Compelling presentation, high-level analysis, sophisticated legal reasoning… yes, these are critical skills when it comes to earning “A” grades.
But one cannot get an “A”… or a “B”… without being able to detect the topics that the professor expects to see analysed. To find trouble, one must “know” the law. In a deeper sense, to “know” the law is to understand its background, variations, nuances, subtleties, etc. And, yes, that feeling of knowing is very important. But in the fundamental sense, to “know” the law (in the context of answering a test) is to be able to write a rule statement without actively thinking; to “know it by heart”.
Before taking a Torts final exam, a student committed to getting the best grade he or she is capable of must have learned “by heart” at least each of the following:
-
For each tort, a statement of each “rule,” that is, a sentence or more that includes all of the elements that must be proven to determine that the tort has been committed.
-
For each affirmative defense, a statement of each “rule”, that is, a sentence or more that includes all the elements that must be proven to determine that the defense is viable.
-
A definition of each item, including “tests” to determine if that item can be tested.
A schematic template for constructing an essay essentially falls into these three categories. Here’s a partial example:
-
To prove negligence, a plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by failing to act in accordance with the standard of care, and that this breach caused the plaintiff harm.
-
Should. A plaintiff must prove that the defendant owed a duty to all foreseeable plaintiffs, that the defendant breached this duty by failing to act in accordance with the standard of care, and that this breach caused the plaintiff’s injury.
-
Standard of care. The standard of care is the degree of prudence and caution required of an individual who has a duty of care.
-
Breach of duty. A non-compliance problem can be viewed from (at least) two different angles…
-
Balance test. Liability depends on whether the burden of taking adequate precautions is less than the probability of harm multiplied by the severity of the resulting injury. B.
-
negligence per se. The three essential criteria include: the plaintiff is a member of the class purporting to be protected by the statute, the type of injury that occurred is the type against which the statute was enacted, and the violation was not excused.
But a student does not need to memorize these 214 words. This works:
-
Negligence: duty, breach, standard of care, cause, damage.
-
Breach – balance, per se. (…and so…)
Should a student “memorize by heart”? Ideally not. Not necessary if a student has adequately prepared for each class, produced a personal course summary (outline), and answered dozens of short (and longer) answer practice questions. The repetitive use of the fundamental rules to solve difficult problems embeds the elements in the memory of the majority. But not all. This is why memory tools are important to many law students. (More on that later.)
Another useful item to add to the bulleted list above (what to memorize) is this: a list of each topic studied. This provides an excellent checklist for the student to quickly review during the pre-writing stage of essay response writing. How much rote memorization does this involve? Not much. (To see an example of a criminal law checklist, go to this link, then scroll down to Criminal Law Checklist.)
Students must remember that the “memorizing” part, the learning by rote part, is only a small part of what needs to be done to score high on tests. But if a student is not able to review the elements of each intentional error (for example) quickly, without pausing to try to remember the details, problems will be missed. Don’t let that happen!