Foundations of the Regulatory State |
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(Last updated: 11 May 2005 )
Advice on preparing for the exam
General information. The examination in this course will be in 8-hour take-home format, and will be administered during the regular examination period. For further details on exam pickup and return, see the official examination schedule published by Academic Services.The exam will be completely open-book, and will consist of two essay questions of roughly the same format used on the memo assignments. Each question will present you with a factual background, put you in a role, and ask you for advice related to litigation, to legislation, to political activism, or some other policy context in which a lawyer might participate. You will be limited to a maximum number of words per question, with a total exam length limit of 2000 words. Individual questions will carry weight in the grading in proportion to their length limit. There will be one question relating to one or more of the three subject-matter-oriented modules of the course, and there will be one question (or part of a question) relating to some regulatory topic we have not discussed. The module-oriented question may ask about an aspect of regulation we have not discussed; for example, the environmental policy question may have to do with water pollution, or the workplace regulation question may have to do with privacy rights.
The reason that I use the take-home format is that it provides a better and more realistic test of what you have learned in the course. Specifically, it allows me to give you more realistic problems to solve, with longer and more detailed factual backgrounds than would be reasonable to expect you to read and think about in an in-class setting. Since a major theme of this course is that good lawyering requires a close and detailed analysis of the facts, I want to give you a chance to display this skill on your exam, just as we will be practicing in class. Additionally, the extra time gives you a chance to think about the problem and write a more coherent answer.
Advice on preparing for the exam.
The main skill being tested on the exam is your ability to work with a hypothetical problem. It is not to display or reproduce all the information you’ve learned over the semester. Thus one of your goals in reviewing should be to find some way to organize the course material so that you can retrieve in timely fashion and apply it intelligently and thoughtfully. In this regard, you needn’t spend time memorizing specific facts or the arguments of specific articles from the coursepack. Such materials are useful in learning the basic concepts of the course and practicing your analytic skills, and you may find it useful to refer to a specific article case as a way of making a point concisely, but this is not necessary and you can get a top grade (at least in my class) without ever citing a case or a specific reading on the exam
Your review should, however, include three bodies of material:
(1) Concepts: the specific descriptive and normative categories we develop thru the semester. This includes economic concepts (market failure, externality, etc) as well as non-economic ones (naming and blaming, cognitive heuristics, etc.). These concepts play the role in our course that black-letter legal doctrines play in a standard law course; they provide the intellectual framework in which policy analysis can take place.
(2) Examples: the various policy and planning problems we discuss. In preparing yourself to analyze and form judgements about specific problems, it is helpful for you to some concrete examples at your fingertips, and some appreciation of the ways in which the factual and political context shapes judgments about regulation. These examples play the role in our course that cases do in a standard course. Legal doctrines don’t mean much in the abstract without some sense of how they play out in cases; the same is true of the analytical concepts we study here.
(3) General themes and principles. Just as there are general themes in contract and tort classes that unite individual doctrines and cases, the same is true here. You need to develop these on your own, but to get you started on thinking about the problem, I suggest you consider the substantive arguments for and against regulation, the different modes of argument and analysis used in policy analysis, and issues of institutional choice, all of which play continuing roles in our discussions over the course of the semester.
The elements of a good exam answer include coverage of the relevant issues, clarity of expression and organization, sophistication in the use of specific facts, making clear the logical steps in your argument and giving reasons along the way, flexibility and creativity in seeing counter-arguments and alternate interpretations, and judgment in distinguishing major from minor and stronger from weaker points. To see what these elements consist of in practice, your best bet is to look at the sample of top student memos I provided online and my comments on those memos, as well as the top student answers to old exams in other sections of the course, available below. For what it is worth, in my grading I base 75-80% of the exam raw score on a checklist system that takes account of issue coverage and factual and logical detail, and 20-25% on my overall reaction to the exam as a whole. [These two components, by the way, tend to be substantially though less than fully correlated.]
In my experience, here are some things that are not elements of a good answer, or that detract from your writing a good answer:
- Excessive citation of course materials. As indicated above, you do not need to cite course material at all, though you may find doing so to be a useful and concise way of making a point.
- Restating the facts, without integrating them into a policy or institutional analysis. This is just a waste of space, even if you plan on referring back to the facts later in your answer. Skip the recap and just refer to the exam question.
- Lecturing on concepts in the abstract, similarly, gets you less than full credit and tends to waste space and time. Instead, when discussing concepts, you should connect them to the specific fact situation in an integrated manner.
- Regurgitating a prepared checklist of issues. Preparing a checklist and having it at your fingertips is a good way to remind yourself not to forget anything. But you should not write your checklist into your answer; this is a waste of space. For instance, if the concept of adverse selection is not implicated on a particular question, do not spend time on it. Part of what the exam tests for is your ability to judge which issues are relevant and which are not.
- Irrelevant material. Irrelevant material is not explicitly penalized, except that it detracts from the word limit. It also marginally cuts down on overall score through the 20-25% of the score that turns on my overall impressions.
- Long introductions and/or conclusions. You do want to have a brief introduction and conclusion, but remember that the length limits are very restrictive, so that the leeway for repetition (even for emphasis) is limited.
- Failing to take counterarguments seriously. If you think the answer is clear-cut or that the analysis can only come out one way, think again. Some of the issues will cut clearly in favor of one side or another, but it is unlikely that all will. Additionally, from the practical perspective of evaluating you in comparison with other students on the exam, I need you to demonstrate to me that you have mastered the ideas of the course, including those with which you disagree.
- Answering the wrong question. Be sure to read the question carefully, consider the perspective it requests you to take, and answer it as posed. For instance, on the memo assignments, a number of students were too ready to take an advocacy position when that was not the role that was requested. Similarly, while there is some room for creativity in bringing in material from outside class or from your own prior research or experience, it is a mistake to rely too heavily in your answer on such material, at the expense of the assigned readings and class discussion.
Remember, you are writing an essay. Thus, as with any essay, you should spend a significant amount of time planning out what you will say. Your essay will be shorter and more stylized than the typical term paper, but still it should have a thesis, a plan of organization, and a series of arguments that build up to a conclusion. In this regard:
- Be specific wherever possible, do not talk in generalities.
- If you feel the question lacks important information, you should say so explicitly, and indicate how your answer would depend on such information. Part of what you are being tested for is the ability to realize when you need to need to investigate the facts further.
- You are better off writing a coherent answer than trying to jam in every last point. Thus, choose your issues and explain them well, try to remain relaxed, get some sleep and adequate nourishment, and do not spend the entire 24 hours on the exam.
Finally, though you know this already, remember to keep some perspective on the role of exams in legal education. First, the exam is only a sample, taken on a given day and under variable conditions, of what you have learned and what you can do. You've spent many days on your legal studies and this is only one of them. Second, exam taking is a skill like any other, people get better at it over time. You will take something like 30 exams while you are in law school; you get other chances after this one, and things even out. Where you are now may not be where you are in three years. Furthermore, this process continues well after law school. Remember that you have 60 to 70 years of good and useful work ahead of you. Third and most importantly, based on a semester of discussions with you, I regard everyone in the class as talented, intelligent and capable, and nothing that happens on a single day can change my view in that regard. All of you have the potential to be first-rate lawyers, and to do first-rate legal work, in the area of public policy or otherwise. Don't forget why you're here, and why you came here. It wasn't to take exams, but to learn what you need to know, and in that regard you are well on your way.
Sample exams. Here is a copy of my previous RegState exams, along with a feedback memo and copies of the top student answers. In addition, you may find it useful to review old exams and top student answers from other sections of the RegState course. Accordingly, here are some old exams that were given in previous semesters by Professors Jeffrey Gordon and and William Sage. Note that these courses differed somewhat in content from ours, and the exam formats also differ form ours. Gordon's class followed the three-module format, but did not include an introductory conceptual unit as ours did, and his exams were in-class exams. Sage's class did not follow the three-module format, but instead focused largely on health policy examples, although his memo assignments and exam questions cover a variety of regulatory fields.