Elie and Joe sit down to discuss one of the truly stupid law school final exams in history. Did it cover material that could reasonably come up in future practice? No. Did it require reasoning through currently controlling precedent? No. Was it wildly offensive? Oh, you better believe it was.
Special thanks to our sponsor Major, Lindsey & Africa.
Above the Law – Thinking Like a Lawyer
The Dumbest Law School Exam Question Ever
Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.
Joe Patrice: Hello and welcome to another edition of Thinking Like A Lawyer. And some quick applause, thank you. Thank you. I am Joe Patrice from Above the Law and with me as always is my co-host, Elie Mystal.
Elie Mystal: It’s amazing to me sometimes how laypeople use the term thinking like a lawyer as a slur.
Joe Patrice: Yeah. You know, that’s interesting, that came up, I guess it wasn’t really used as a slur this week, we will talk about this, but it came up this week and I was like oh, that’s the name of my show.
Elie Mystal: Yeah, that’s exactly why I was thinking that.
Joe Patrice: Yeah, no. So how are you?
Elie Mystal: I am pretty pissed off this week.
Joe Patrice: Oh really?
Elie Mystal: What a surprise.
Joe Patrice: Yeah.
Elie Mystal: So first of all, I should tell the listeners that I am doing this podcast kneeling, because it is my right to kneel or not stand or sit if I damn well want to. And the thought that I should be forced, forced like a tool, like a field hand to stand just because you play some goddamn song is an anathema to the American experience.
I am obviously talking about the NFL. The NFL, for reasons passing understanding, decided to wade back into the anthem controversy, which had been completely dying out, because nobody actually cares about Black football players being blackballed and not being able to get jobs, the controversy was actually dying out, but the NFL wade back in and promulgated kind of a new rule-ish thing that says that football players during the anthem, if they come outside, which they don’t have to, but if they come outside, they have to respect the national anthem, although who the hell knows what that means.
Joe Patrice: Right.
Elie Mystal: It’s supposed to mean that they can’t kneel during the anthem.
Joe Patrice: Yeah. I saw somebody wrote a thing that triggered for me the thought, we really need to recruit Jehovah’s Witnesses into football, just to put this case right where it needs to be. Because obviously, they have won the right, not that they won the right, their rights that preexisted were vindicated by the courts years and years ago that they don’t have to stand for a national anthem or a Pledge of Allegiance or anything like that. So it would be interesting if we treated regular people with the same dignity and respect we seem to treat religious groups.
Elie Mystal: Yes, if only not getting shot by cops was also a deeply held religious belief, then perhaps the NFL would have to allow players to protest in whatever way seems best to them.
Joe Patrice: Yeah.
Elie Mystal: Look, as Jemele Hill said, and if you don’t follow Jemele Hill on Twitter, you are doing it wrong man. She was kind of pushed out of ESPN; now she writes for The Undefeated, which is also in the ESPN family, but she is great. And she put it exactly perfectly this week when she said that the NFL played itself, because they only did this to try to keep big bad Mr. Trump off of their — from calling their players sons of bitches.
And in fact, after the NFL promulgated its policy, Trump came out and said well, if you don’t come out for the anthem, that’s just as bad and people who don’t respect the anthem shouldn’t be allowed in the country. That’s the President of the United States saying people should be banished for not having subservience to a song.
Joe Patrice: I mean look, the list of to-do items for ICE right now is already pretty long; obviously, people speaking Spanish in restaurants is now on their agenda, thanks to Aaron Schlossberg’s video, so why not add throwing Michael Bennett out of the country while you are at it.
Elie Mystal: So anyway, so I am in a pissy mood, but anyway, that’s not what we are talking about.
We are going to talk about a thing to put us in a whole different kind of pissy mood.
Joe Patrice: We will. We will. Though first we are going to briefly talk about, now you never lateraled, you only worked for one firm.
Elie Mystal: No, I just washed the fuck out.
Joe Patrice: Well, it’s not necessarily that. I however did lateral, which is why our sponsor Major, Lindsey & Africa is a interesting topic to think about, especially for those of you in your careers who haven’t yet moved firms, but that day comes. It’s rare that you end up somewhere for your whole time.
So Major, Lindsey & Africa is our sponsor. They are a world leading legal search firm that helps move talent from one firm to another. You are not going to know everything about the legal market when you are starting out and it’s useful to have somebody out there who can say, this is what you like, well then, you probably would love moving over here. You will get a better deal over here.
That’s what Major, Lindsey & Africa does and we are happy that they are our sponsors. They have been doing that for 35 years, not sponsoring us, but that job, and so we wanted to give a shout out to them.
If you are interested in learning more about them, it’s at www.mlaglobal.com. I don’t know why I said www; I think everyone assumes that at this point.
Elie Mystal: And as does Google at this point.
Joe Patrice: Yeah. Anyway.
Elie Mystal: I got an email just yesterday from an in-house friend who was looking to hire a new lawyer and he was like well, where should I find these lawyers who want to lateral, should I go on LinkedIn? And I was like, no idiot, you actually go to a recruiter, there are people who do this profession.
So if you are looking to lateral out, no, posting your résumé on LinkedIn is not the way to do it, check out our friends at Major, Lindsey.
Joe Patrice: Right. So that’s our career advice for the day. So what are we talking about? Are we moving to a discussion about law schools?
Elie Mystal: We are, and terrible law school exams.
Joe Patrice: Yeah. This is the end of the year, so this is the time where we are going to get our law school exam horror stories and we got a doozy at Above the Law, if you have not read it, we have got a couple of stories about it.
Break down what this law school exam was for us.
Elie Mystal: Yeah. So at the University of Texas an African-American professor teaching Constitutional Law, on one of his essay questions; so the essays for this particular exam were 50% of the grade and the multiple-choice was the other 50%, because it’s the University of Texas and not an elite school like Harvard where you can’t get away with half of your grade being a multiple-choice exam.
Joe Patrice: Yeah. Yeah. No, multiple-choice.
Elie Mystal: Who does that? Who does that?
Joe Patrice: You know, who does that? I actually do know who does that.
Elie Mystal: 06:58.
Joe Patrice: Well, yes. But no, a law professor who does that, Amy Wax does that; Amy Wax of Penn, who has notoriously been banned from teaching 1Ls because of her not cool with race comments.
Elie Mystal: So perfect segue actually, right? So this African-American professor, one of the questions on the essay portion of the exam was explain — to basically offer a defense of segregation. He was talking about Brown v. Board of Ed. He wanted the students to analyze that case, point out the weaknesses in it and defend segregation as a constitutional proposition in the exam.
Joe Patrice: Actually, I am going to go one more. It’s slightly worse. It wasn’t just defend the other side of Brown; it was pretend you are in 1954 writing a defense of Brown, which I think is a nuanced problem and not the big problem, so I am going to expound on it here so we can get it out of the way.
What’s the point in a common law system based upon precedents to say to a law student consider that all the laws that happened after the fact don’t exist and put yourself in the mind of something that happened a long time ago. It’s actually useless unless time travel becomes possible, at which point I guess then I would turn to a lawyer from Texas.
Elie Mystal: Yes, exactly, he asked the students to put their heads in the minds of a Confederate and defend segregation. This exam pissed quite a few people off.
Joe Patrice: It did.
Elie Mystal: Although the emails that we got being pissed off about it were not from African-American students, all of like four of them at UT, sorry, but from White students who were like what the hell is up with this question. They then referred us to, as one would assume happened, a blog post written by some kind of —
Joe Patrice: Mark Pulliam, he is a Texas blogger who actually writes about the University of Texas quite a bit, but he also has a right wing blog talking about law students being snowflakes and stuff.
Elie Mystal: Right. So he turned it into a whole like, oh, the social justice lawyers are so butthurt because they were asked, but real lawyers have to argue both sides.
Joe Patrice: Yes.
Elie Mystal: Which is about when Joe and I started weighing in, so you had the first.
Joe Patrice: Yeah, I jumped on this early. I think that there is — I do think there is a problem with the time travel aspects of it, because we don’t live in that universe. I also think though that the problem with claiming that you have to argue both sides is that it is very — and you hear this a lot, and this is where he used the language thinking like a lawyer in this article actually, the problem is that’s not actually how your career works.
You don’t — it’s kind of a sepia toned idea of how lawyering works, but you aren’t some weird generalist who — it’s a quirk of who comes in the door or who your clients turn out to be, that isn’t who you are. You choose and have a lot of control over what kind of practice you have.
If you decide to go into criminal law, you have a choice of whether or not you ever want to be a prosecutor, maybe you only ever want to be on the defense side. Some people go both sides, some people don’t.
The case that I brought up in the piece actually, Lisa Bloom, famous lawyer, was reached out to by Harvey Weinstein in the immediate aftermath of those allegations and briefly flirted with representing him, but ultimately didn’t because her practice is based on defending women and it would be bad for her practice to get into that game. You make choices.
Elie Mystal: It’s such a layperson’s dumb view of what lawyers do to act like lawyers are just kind of mouths in bubbles who are willing to say any old thing that comes out of their — that their client demands, right?
As Joe is saying, lawyers do choose their practice areas, in part based on what they can morally stomach. There are a lot of criminal defense lawyers who won’t represent kiddie pornographers and wife beaters, they just won’t do it, because they don’t have — they don’t want to be on that side of the argument.
My wife, when she works pro bono, she does asylum work, right, so she helps people seeking asylum, I think it’s really good work. I am very proud of her. That was a late career kind of transition for her. At first she did kind of criminal appellate work and it turned out that was morally questionable stuff, because even though we can both sit here and say like a lot of these people in jail did not receive full and effective representation and desperately need the help of lawyers, a lot of them did it, a lot of them did it. And kind of walking into Rikers to defend somebody who well, he didn’t kill his girlfriend; he most certainly beat her a couple of times, but he didn’t actually kill her, which is why he is at Rikers, like that work was not something that my wife chose to do eventually.
So this thought that just because you are a lawyer means that you have to be willing to argue any old horrible argument is just wrong.
Joe Patrice: And it’s unethical too, and that’s the thing that a lot of people don’t understand is like, part of that zealously representing your client, which is an obligation you have as a lawyer, part of that does mean that if you can’t bring yourself to offer the best possible representation for that person, it’s unethical for you to be doing that. Someone else who can do that should be representing that person.
Elie Mystal: So A, it is unlikely that many students at the University of Texas are going to find themselves defending segregation.
Joe Patrice: In 1954.
Elie Mystal: No matter how much they might want to. But there is another aspect to this question that Joe hit on and then I particularly hit on when I did a follow-up piece, and that’s that this question unfairly and particularly disadvantages African-American students in a way that White students cannot be disadvantaged.
Now, that statement, and again, I wrote 1,800 words on this, so I am going to summarize that now a little bit. That statement does bear some further inquiry, because it’s not obvious, at least not to a lot of White people, why that question disadvantages a Black student differently than a White student. And what I have tried to explain is that if you are an educated African-American, and I do make a kind of a break here between an educated African-American versus just an educated Black person perhaps from another country versus just an educated Latino person, like it’s different.
But part of the African-American experience, you know Brown v. Board of Ed long before you get to law school, long before you get to college, because part of being educated as an African-American means that you know why you are allowed to be educated. And Brown is the demarcation line between you being allowed to be educated and not. So if you are an educated Black person, you have kind of heard of the case before.
My own personal story, my mother was born in 1950 in Mississippi. I know something about Brown v. Board of Ed. It’s an important case, not just in my kind of intellectual ferment, but it’s an important case in my family’s history. That’s the baggage that many African-American students bring with them when they get to law school in the first goddamn place.
So while other White students might have heard of Brown v. Board of Ed in the milieu of Miranda and Roe v. Wade and some other Supreme Court cases that you kind of hear about in popular culture, for a lot of African-American students this is — again, this is part of their history when they get to law school.
Then you get to law school, you read Brown v Board of Ed, and it’s crap. Given the kinds of decisions that you are used to reading as a 1L, Brown v. Board of Ed is a little bit out of left field. They use science. A lot of cases that you read as a 1L aren’t using science as part of their judicial analysis in any way.
The science is explained poorly, I think is the nice way of saying it; it involves dolls, are you effing kidding me, dolls, my freedom, my ability to like sit in the front of the bus is because some White kids and Black kids thought Black dolls were bad. What?
Joe Patrice: It’s what we call sociology, but yeah. No, it’s an experiment that they are describing. It’s what happened post the Brandeis Briefs.
Elie Mystal: Yeah, it’s an unusual case in the context of 1L year.
Joe Patrice: It’s also — part of that is the 9-0 aspect of it, part of getting it to be a unanimous decision involved paring it down to be the most simplistic that it could be. And I think that — my con law professor was the late great Derrick Bell and so a lot of my con law was —
Elie Mystal: Oh my God, I am actually jealous for the first time ever of your education.
Joe Patrice: Oh yeah, no. So we spent a lot of time on this case, because he was fairly famous for criticizing that decision, but not in the way that this exam question was, but in the argument that because of things like, it being a 9-0, which made certain tradeoffs, because of the lack of follow-up and so on, it failed to produce the changes that it was really after and it created both a dismantling of the grassroots efforts that were working at the time, as well as a backlash that became worse. And he spends a lot of time talking about those sorts of questions.
So I mean, the idea that yeah, it’s not a great decision and part of that is part of the negotiation process is something that like resonates.
Elie Mystal: Yeah. In my law school class, I didn’t have Derrick Bell criticizing the case; I had a racist White guy from Florida criticizing the case. And that’s the other part of the African-American experience, when you get to Brown and there are criticisms that can be leveled at Brown, whose hands go up, it’s all the other racist jackasses in your class who haven’t said crap all semester, who now want to stand up and be like oh, well, I don’t know about that. And they are not into it for the hardcore intellectual discourse about Brown; they are just into it to make it sound like segregation might have been okay.
Joe Patrice: Yeah.
Elie Mystal: That is the context in which you are now putting a question on the exam, okay? That’s why I am saying that when you ask that question on the exam, it by its very nature is biased against the African-American experience versus the White experience.
The White experience allows you to kind of intellectually detach and just answer the question as an intellectual exercise. I am not saying the Black experience means that you can’t intellectually detach, but the degree of difficulty there is ridiculously harder.
You shouldn’t expect, you shouldn’t — we talked a little bit in both of our articles about what the White equivalent is, and there is none, right? But there are a couple of people online who were like oh, this is like asking a Jewish student to defend Nazi free speech. No, it’s not, that’s Nazi free speech. This would be like asking a Jewish student to explain why concentration camps should be constitutional and their grandmother shouldn’t have made it out of Germany, that’s what it’s like asking the Jewish student.
Joe Patrice: Yeah, that’s a good point. The stakes are just a little bit higher. But it is true that like there is religious groups that potentially White people couldn’t belong to that can approximate this discussion, but those questions aren’t going to be what gets asked.
Elie Mystal: And why is that on a 1L exam? Kind of the closing part of my post, and again, as part of going to law school, it was important for me as a law student and as a thinker to be forced to wrestle with Brown in a much more intellectual way than I had previously, that’s part of the reason why I paid the money for the education.
But by the time I was ready to deal with Brown in a real way, I was a 2L, I was a 3L. I had had some more training and more experience. It was in a small — when I really got into it, it was in a Larry Tribe seminar, not in a 100 person 1L section, right?
Joe Patrice: Yeah.
Elie Mystal: I am not saying that you cannot ask tough questions about important cases obviously. I am saying that there is a time and a manner and a place to do it, and a 1L freaking exam, half of which is multiple-choice, goddamn anyway, is not the place.
Joe Patrice: Yeah. No. I mean you can have these sorts of conversations in a seminar where that’s not really the focus of what’s going on. I mean it’s just — and a thing that I talk about is like, if you view an exam as a test of the material that you have covered in the course, what were they reading in the course that could possibly have made time warp yourself to 1954 and defend Plessy?
If your 1L course spent a couple of weeks reading that stuff, then you probably should get your money back, because that’s fairly useless for anything but this like shocking exam question. It’s just not useful.
And like look, you can have a conversation about Brown today and say that it was wrong and I wouldn’t suggest that for the same reasons you are talking about, but if you did say to somebody hey, you represent a state who is being slapped with a lawsuit because technically — because as geographic patterns and so on have played out, there is an argument against your state that de facto segregation has returned, which is probably true in a lot of states.
Elie Mystal: And in a lot of places like New York.
Joe Patrice: Yeah. I mean, New Jersey is having this discussion. You could ask that question and not of 1Ls and you could ask that question and I at least get why you would say oh, that has some educational value for learning how to manipulate the various cases, blah, blah, blah. But this is just — there is no value to it morally or pedagogically.
Elie Mystal: Look, the alt-right always wants to say like every question is okay and I think if you listen to this episode closely, we are not saying questions aren’t okay; we like questions, we like taking a deep dive and looking behind and looking deeper and into things; time, place, manner.
Joe Patrice: Yeah, your grade should not rest on material that you never covered, that is also literally asking you to denounce your own being, probably.
Elie Mystal: Speaking of what your grade should rest on, what’s your worst law school question that you actually had because my —
Joe Patrice: Interesting.
Elie Mystal: So part of the aspect here is that, so the professor asked the question, it doesn’t necessarily mean the students have to answer it, and there are such — I mean look, you are dealing with law students, you are dealing with people who have self-selected to be risk averse, I get it. But just because some authority figure is asking you to fix your mouth to say some dumbass thing, doesn’t mean you actually have to say it. You could have written the exam and said, you know professor, I am not answering this question and here is why. You could have said, you know professor, go fuck yourself, here is why.
You could have said, hey, you know what, I am not going to defend segregation; I am going to defend Brown. If you want to fail my grade on it, you feel free sir. That takes a certain level of courage and a certain level of, I don’t even know what the word is, it’s easy for me to say that given where I went to school, where I could have suffered kind of a bad grade without it being particularly career-ending for me.
Joe Patrice: That’s true.
Elie Mystal: Probably still true at Texas, but you don’t go very far before you are asking students to risk a lot more than just — maybe you are asking students to risk too much.
Joe Patrice: Yeah.
Elie Mystal: But in point of fact, when I was in law school, I had a torts exam and the third question prompt was, fact pattern, fact pattern, fact pattern and the question goes now Mr. Mystal will say this is an example of how the torts system is a lottery. Explain to him why he is wrong was the actual third question on my 1L torts exam.
Joe Patrice: Yeah, that’s not really fair for you.
Elie Mystal: How do you think I answered it?
Joe Patrice: My guess is you protested against the question.
Elie Mystal: Yeah.
Joe Patrice: Yeah.
Elie Mystal: I said actually Mr. Mystal is right, blah, blah, blah, blah. Now, dumber people might say that blah, blah, blah, blah. I got a B; I was cool with it.
Joe Patrice: Yeah, that’s fine. Yeah. No, mine is not nearly that much fun. I was taking a course, the second question, he took real life fact patterns basically and it was like now deal with the issues here.
Elie Mystal: So like a law and order writ from the headlines kind of thing.
Joe Patrice: Kind of yeah, but I mean it was conflict of laws, which was a course I was very good at, it’s ultimately what I wrote my note on and stuff like that, but I did not do well in this actual course, even though I did well on the concept of conflict of laws as it appeared in other courses and I wrote my note and whatever.
But on this course I got tripped up, because the second question was a real fact pattern of a wrongful death suit that had happened across state lines involving this and that and the other and break that down.
And the people who had died I actually knew.
Elie Mystal: Wait, what, who did you kill? What, what, what do you mean you knew them?
Joe Patrice: I knew them not closely, but professionally, it was a question about a Kansas’ debate team and stuff like that and so they were people that I knew of professionally, not professionally, debate wise. So yeah, it was people who had died who I like knew of, I knew the like survivors of that and stuff like that. So it was — and I mean it was changed slightly in certain places, but like I was reading it and I was like oh, oh, okay, this.
Elie Mystal: So how did you get that question wrong?
Joe Patrice: No, I mean it was a question of — it was a conflict of law question. So I am rolling through it and I just kind of blanked on a couple of key concepts. I didn’t apply Neumeier to one of the issues of; I think it was a rental agreement sort of a thing or whatever. Point is, I don’t really remember it, but yeah, I was taken aback and I soldiered on, but it led to me screwing up some stuff. So I got the B instead of the A that I was fully expecting. So these things happen.
Elie Mystal: I do feel for professors sometimes, because from a professorial standpoint, writing these exam questions and grading these exams are like very low on their hierarchy of things they care about. They are there for the academia. They are there for the scholarship. They are there to impart knowledge, some of them.
There are a lot of professors who are very into the concept of teaching. An exam is not teaching. Grading certainly is not teaching. And so they devalue and they minimize this part of their job and the dissonance is so strong, because for the student it’s the most important thing. For most students in most law schools, this part is the most important part. So you have the students kind of concerned about this above all else and the professor, yeah, number 10 on a list of 12 things that they care about.
Joe Patrice: Yeah. I think we are coming close to the end here. So to sum up, this was a terrible exam question on just every conceivable level. The more I try to think about this question, because I — back to that thinking like a lawyer thing, I attempt to put myself in the place of asking this question and I am just dumbfounded by it. Like there’s never a scenario where I would think this would make any sense as a question.
Elie Mystal: The only way I could see doing it is if I was teaching like truth to power, like as a college question, right, not as a law school question, but as a college question if I was kind of teaching truth to power and like I wanted to basically ask a bad question to see —
Joe Patrice: To evoke that response?
Elie Mystal: To evoke a response of go fuck yourself Professor Elie. Like that would be the only version.
Joe Patrice: Interesting. Yeah.
Elie Mystal: Which is probably why I am not a college professor?
Joe Patrice: Look, these discussions are important, it’s worth going through them; it is not an exam question.
So yeah, if you out there have some awful exam stories, you should always send them to us, because we will probably not follow up this episode with it, but we will hold them in reserve, because that’s a good topic.
And you know how you can send them to us.
Elie Mystal: It’s also a good way to — you never know, because we can write a post about it.
Joe Patrice: That’s true.
Elie Mystal: You can at least like piss off your professor.
Joe Patrice: So yeah, you can send them to us by sending them to [email protected] or hit us up at Twitter; you are @ElieNYC, I am @JosephPatrice. Took a second there to remember that it’s not Joe Patrice, which is dumb, but whatever.
Point is read Above the Law, always, subscribe to this podcast. Give this a rating. Give it a review. That’s more important almost than the rating to actually have some words written there. It helps us get up there little algorithm.
Subscribe to other Legal Talk Network podcasts always. Kathryn Rubino, who occasionally comes in and fills in on this show, also has a new show called The Jabot, after the thing that Ruth Bader Ginsburg wears.
Elie Mystal: The doily.
Joe Patrice: The doily is not what we called it ultimately. So check that out.
Elie Mystal: Keep looking. I need to paint my house.
Joe Patrice: That’s right. Okay, talk to everyone later.
Outro: If you would like more information about what you heard today, please visit legaltalknetwork.com. You can also find us at abovethelaw.com, atlredline.com, iTunes, RSS, Twitter, and Facebook.
The views expressed by the participants of this program are their own and do not represent the views of, nor are they endorsed by Legal Talk Network, its officers, directors, employees, agents, representatives, shareholders, and subsidiaries. None of the content should be considered legal advice. As always, consult a lawyer.
Above the Law's Elie Mystal and Joe Patrice examine everyday topics through the prism of a legal framework.
Joe and Elie take a dive into the college admissions scandal going on with celebrities and their children.
Jerry Buting and Jackie Maloney debate about the prosecution versus defense and how the portrayals on FOX TV’s ‘Proven Innocent’ compare to reality.
Joe and Elie discuss the US News and World Report law school rankings and breaks down who's on top and who's making big moves...
FOX's "Proven Innocent" creator David Elliot, California Innocence Project managing attorney Michael Semanchik, and real-life exoneree Jason Strong, talk about wrongful convictions and the...
Ian Bassin, the Executive Director of Protect Democracy, talks about the pressing task of defending democratic institutions from authoritarianism.
Executive producer Danny Strong talks about the new legal drama “Proven Innocent” and what drew him to the subject of wrongful convictions.