Multiple Choice

The entire section i s basedon Michael Josepheson, Evaluation and Grading in Law School, AALSSection on Teaching (1984).

Introduction

• Wrong options are called distracters or foils
• Distracter is something which compellingly and confusingly attracts inthe wrong direction.
• Foil is something which services to set off another thing to advantageor disadvantage by contrasting with it.
• Game is played this way:
  • Test knowledge and reasoning
  • can't be obvious
  • cant' use tricky devices or puzzling language
  • uses distracters and foils
• All the options are given a look of superficial plausibility. Must readcarefully.

Incomplete definitions andarguments

• No: Murder is the unjustified killing of a human being.
• Yes: Murder is the unjustified killing of a human being with maliceor forethought.
• Don't complete the definition or argument in your mind and conclude thatit is correct.

Deal with the facts

• Assume nothing in addition to what has been established or given

• Prosecutor proves that John shot Mary and that Mary died an hour later.Is John guilty of Murder?
• No: Must also prove that John's bullet caused Mary's death

Don't ignore facts!

• Assume that you have been taught that an intoxicated person is not capableof driving her car in a reasonable manner. The root say that after Marydrank two quarts of whiskey, she was driving her car in a reasonable mannerwhen she collided with Paul. Was Mary Negligent!
• No: Negligence is unreasonable conduct, since you were told that shewas driving her car in a reasonable manner, you must conclude that shewas not negligent.

Common errors

• Wrong options are often based on common errors made by law students:
• Misunderstanding about the significance of legal expressions
• Plaintiff goes to sleep in the middle of the road and is struck by defendantwho sees her in time but fails to take reasonable steps to avoid strikingher.
• Defendant wins because plaintiff had the "last clear chance"
• No: Doctrine of "Last Clear Chance" Applies only to plaintiff

Overlooking the obvious

• Sometime the option is so obviously correct that there is no rational excusefor missing it.

Plausible Creations

• ignore meaningless garbage: Post Hoc Ergo Propter Hoc
• after which, therefore because of which
• name given to the error in reasoning
• It always rains after I wash my car, so washing my car makes it rain.
• Double talk
• a plaintiff could not be the holder of a certain easement because "an incorporealhereditament lies only in grant"
• Doctrine or Rule never heard of = probably incorrect

Unfamiliar phrases

• may use familiar concepts in non traditional words
• Instead of saying: "John owed Mary a duty of reasonable care only if hecreated a foreseeable risk to her.
• May say: John had no obligation to Mary unless it appeared that John'sconduct would injure her.
• Remember substance is more important than form.