Property II Final Exam, Spring, 2002 Date - Southwestern Law School

MEMORANDUM 1 

To: 

From: 

Property II Students 

Professor Ira L. Shafiroff 

Subject: Property II Final Exam, Spring, 2002 

Date: May 22, 2002 

I have prepared this memorandum to assist you in better understanding your 

performance on the Property II final examination. The memo contains five parts. The first 

part details common mistakes that students made on the essay portion of the Property II 

final examination. The second part is an annotated model answer. The third part is a selfdiagnostic 

that will enable you, in conjunction with the grading sheet that is enclosed 

with your bluebooks (essay examinations, bluebooks, and grading sheets are available in 

the front lobby; I do not return the multiple choice questions or the answer sheet), to 

enable you to critique your work through active learning. The fourth part of this memo 

are miscellaneous observations about your exam performance. The fifth and final part of 

this memo are my concluding remarks on the Property II examination. 

COMMON MISTAKES 

The number of mistakes made were significantly less than on the Property I exam. 

Nonetheless, there were still a significant number of common mistakes made on the essay 

portion of this examination. These mistakes cost students valuable time and 

consequently, directly or indirectly consequently, raw points. 

Failure to Write any Issue Statement 

As I stated in my essay writing lecture, the memo to the Property I exam, and the 

last day of class in Property II, I award two points for the issue statement: one point for 

the legal issue and one point for the facts that are triggering that issue. More than a few 

students failed to write any issue statement, especially near the end of the exam. Perhaps 

this was due to running out of time. In any case, however, students who failed to write 

issue statements forfeited two points per issue. 

Failure to Write an Original Issue Statement 

1 Copyright © 2002 by Ira L. Shafiroff. All rights reserved. 

No part of this material may be copied, stored, printed, reproduced, transmitted, or distributed in any 

manner or format without the express written consent of the author. 

1

Some students merely copied my interrogatories, especially for the first part of the 

exam (“If Abel seeks to prevent Westmoreland from acquiring title to Blackacre, what 

legal theories, if any, can Abel raise”). As I have stated previously in class and on your 

past memo, I do not give points for copying. I give points for creative thinking only. 

Failure to Write a Specific Issue Statement 

Quite a number of students made an attempt at writing a correct issue statement, 

but did not get full credit because the issue statement they wrote was not precise, either 

legally or factually. For example, in the first interrogatory, some students wrote, “Can 

Abel raise constitutional arguments to stop Westmoreland from acquiring Blackacre” 

This is too vague an issue statement because it fails to state the precise constitutional 

argument that Abel may raise. Some students stated, “Can Abel raise a Fifth Amendment 

theory to stop Westmoreland from acquiring Blackacre” This is better, but it still lacks 

the facts that are triggering this issue: that Westmoreland is not going to use this for the 

people of Westmoreland, as in a public park, but is going to turn Blackacre over to a 

corporation wherein only a relatively few people will actually use the property. 

Quite a number of students combined issues, especially in the second 

interrogatory: “Did the decision to prevent Abel from building his project go to far 

because it was an economic wipeout, did not substantially advance an important 

government interest, and interfered with his investment backed expectations” By 

lumping several issues together, these students typically jumped back and forth in their 

analysis and often failed to give both sides of the argument. Thus, for example, a student 

who wrote a multi-issue statement (“Did the decision to prevent Abel from building his 

project go to far because it was an economic wipeout, did not substantially advance an 

important government interest, and interfered with his investment backed 

expectations”), often just gave one side of the argument for each issue. Thus, the student 

would write why there was an economic wipeout, and fail to discuss why there was not a 

wipeout; the student would discuss why the Westmoreland decision did not substantially 

advance a legitimate government interest, but failed to discuss why it did. 

As I stated in class on numerous occasions, and in previous memos which I gave 

out, fully discuss one issue at a time, issue by issue. When you combine issues, you 

confuse both yourself and me. 

Failure to State a Correct Issue Statement 

Many students wrote an issue statement, but it was fully wrong. Of course, I could 

not give any points for writing on a legally irrelevant issue. For example, in the first 

interrogatory, some students wrote, “Can Abel stop Westmoreland from acquiring 

Blackacre because Westmoreland is not paying just compensation to Abel” This was 

absolutely not an issue because the facts state that Westmoreland is to “acquire Blackacre 

for the fair market value of $500,000.” This fact precluded any discussion relating to the 

just compensation requirement of the Fifth Amendment. 

2

Similarly, some students wrote out issue statements for covenants, easements, and 

exactions. 2 None of these were issues on the exam. 

Failure to State a Correct Rule of Law 

Some students stated a proper issue statement, but failed to state a correct rule of 

law. For example, in the second interrogatory, some students stated, “Did 

Westmoreland’s decision to deny Abel permission to develop the sandy area of 

Greenacre constitute a regulatory taking because the decision went too far in that it did 

not satisfy the middle-tiered scrutiny test of Lucas” This was a proper issue statement. 

When it came to stating the rule of law, however, some of these students stated the rule 

for minimal scrutiny: “For a denial of a building permit to pass constitutional muster, the 

denial must be rationally related to a legitimate government purpose.” Of course, this is 

not the rule for a middle-tiered level scrutiny analysis. As the court stated in Lucas and in 

other cases, a regulation or decision regarding land use must be substantially related to 

accomplish a legitimate/important government purpose. Obviously, I could give no points 

for an incorrect rule of law. Moreover, as I have stated before, if a rule is incorrect, the 

analysis which follows will almost certainly be incorrect, too. 

Similarly, some students properly raised the issue of conceptual severance, but 

failed to define exactly what conceptual severance is. Without a clear definition of this 

term—and you should always define terms of art—the student could not analyze the rule 

in light of the facts. As a result, the student received no points for the rule and few or no 

points for the analysis. 

Failure to Analyze 

This was a major problem for many students. A good number of students were 

able to state the issue and the relevant legal doctrine, but fell down in the analysis. Such 

students received full credit for the issue and rule, but only little or no credit for the 

analysis. The reason for this is that these students merely repeated the facts. A mere 

repetition of facts, coupled with a conclusion, is not analysis. As I have stated often in 

class and in my past memos, analysis is your reasons for why the rule or element of the 

rule exists on the facts at hand, and why the rule or element of the rule does not exist on 

the facts at hand. While it is important to use the facts as the foundation for your analysis, 

the facts by themselves will give you no credit. This is because the facts by themselves 

are inconclusive as to whether the rule/element exists or does not exist. For example, in 

the first interrogatory, many students correctly identified the issue and stated the rule for 

a physical taking: that the property must satisfy the public use requirement, which means 

that the property must have a public purpose. Stating, “Because only 24 students will 

make use of the school, the public purpose requirement is not satisfied,” is consclusory 

and earned no points in the analysis. Why does a school for only 24 students not satisfy 

the public purpose requirement Why does it not As I have explained in the past, by 

answering the question “why” fully, you will use the facts in your analysis, but not repeat 

2 A good number of students wrote about exactions and the Nolan-Dolan tests. There was no issue of 

exactions on the essay portion of this examination. I discuss this matter in greater depth in the section 

dealing with non-issues. 

3

them. What does that mean It means that the facts will be the foundation of your 

analysis, but the heart of your analysis is your creative argument—and the basis for your 

getting points. 

Likewise, many students wrote, “Because Westmoreland relied on a report that 

stated Abel’s plan would contribute ‘somewhat’ to beach erosion, the decision was not 

substantially related to a legitimate government interest.” But why What are your 

reasons Without reasons (which could be based on social policy, economic policy, legal 

precedent, etc.) your analysis is nothing but a conclusion attached to a set of facts. 

Argument is what gets points, and that is something that many of students need to work 

on and strengthen. 

Discussing Non-Issues 

Many students discussed quite a few non issues. For the first interrogatory, some 

students discussed the non-issues of just compensation and nuisance. The facts precluded 

a discussion of just compensation because the facts expressly state that Westmoreland 

was prepared to pay fair market value for the property. As to nuisance, which a few 

students discussed, there were simply no facts to trigger any nuisance issue. For the 

second interrogatory, many students discussed the issue of exactions and the Nolan- 

Dolan tests. There was, however, no issue of exactions. Recall what I had stated in class 

many times: that Nolan-Dolan applies only in exaction cases. Indeed, the City of 

Monterey expressly held this to be the law. Further, an exaction is defined as something 

that the government wants from the landowner in consideration for letting the landowner 

build. In Nolan, the government let the landowner build, but only if the landowner 

granted the public an easement across the subject property. In Dolan, the government let 

the landowner build, but only if the landowner dedicated some of the subject property for 

a flood plain and bicycle path. In a prior exam that I gave and which is on file, the 

government let the landowner build, but only if the landowner donated money to some 

fund. In the exam question that you just took, however, there was no exaction because the 

government did not condition approval of Abel’s project with Abel granting something to 

the government or the public. Rather, the government simply stated that Abel could not 

build on the sand area of Greenacre. This calls into play not Nolan and Dolan, but Lucas, 

Pennsylvania Coal, Penn Central, Palazzolo, and Lake Tahoe. I did not take off points 

for discussing exactions and the Nolan-Dolan tests, but too many students wasted 

precious time on this clear non-issue. Indeed, for quite a number of students, the issue of 

exactions was the largest part of their exam. As a result, these students did not have the 

time to devote to the real issues that had to be discussed. 

Quite frankly, I was most disappointed that exactions was discussed at all. Not 

only were there no facts to trigger such a discussion, but we spent so much time on the 

material, not to mention the outline that I handed out. It seems to me that for too many 

students, rules were memorized but little thought went into the writing of the exam. 

As a side-note, the rules stated by students for exactions were too often 

incorrectly stated. In any event, and for obvious reasons, I could give no credit for a 

discussion of the law of exactions, any more than I could have given credit for a 

discussion of the Rule Against Perpetuities. Just as there were no facts to trigger a 

perpetuities problem, there were no facts to trigger an exaction problem. 

4

Ping Pong 

There was improvement over last semester’s exam. Nonetheless, some students 

continued this back-and-forth, back-and-forth style, which is difficult to read and even 

harder to grade. “Abel will argue. . . Westmoreland will counter-argue. . . . Abel will 

counter this by arguing. . . . Westmoreland will counter this by responding. . . . ” makes 

for a difficult time, for me and you. Again, while I was pleased to see that this ping-pong 

was less than last semester, no one should write an analysis in this manner. As I stated in 

class and in your last memo: give all your reasons for one side, then give all your reasons 

for the other side. Do not go back-and-forth, back-and-forth. 

Handwriting 

Most of you wrote legibly. Some of you did not. I do not understand how even 

one of you could write illegibly, in light of what I have previously told you, both in class 

and in your past memo. Your professors and bar exam readers have an obligation to read 

what you wrote, not decipher it. In the future, if your handwriting is poor, consider 

typing. Of course, if you have to ask me if your handwriting is legible—then it is not. 

Part 1. 4 

MODEL ANSWER 3 

3 I state here exactly what I stated in the model answer to the fall, Property I examination: Although I have 

labeled this as “Model Answer,” the student should be aware that it is not my choice of words. The term 

model connotes perfection, and nothing done by human hands is perfect. Certainly, this answer is not 

perfect. Nonetheless, this is a good answer and you should compare it to your own. In this way, you may 

better understand what is expected of you and why your received the grade that you did. Of course, this 

answer is probably more complete than your answer. Remember four important points as you read this 

material, however: First, I did not write this model answer under the stress of exam conditions. Second, I 

created the exam. Third, I have been teaching this subject since 1986. Fourth, I did not have to be 

concerned about a time factor (if you are interested, it took me approximately four hours to write this model 

answer, including the time necessary to prepare these annotations to the model answer; additional time was 

spent going through a second draft to clean up typographical errors, etc.). As in everything in life, 

perspective is important. Still, a good essay exam will share common characteristics with this answer. To 

facilitate your learning, I have added a commentary to the answer. This commentary is found in the 

footnotes to the answer. Although I generally have answered the question in the “IRRAC” format that I 

discussed in the essay writing class, the point you must always keep in mind is that all good answers must 

do three things: (1) identify the legal problem, (2) state the doctrine that may be used to solve the problem, 

(3) and solve the problem with the doctrine stated. IRRAC or IRAC or any other acronym is just an 

organizational tool, and ultimately, is itself quite secondary to substance. One last, but important, point: 

When it comes to the analysis, many of you will undoubtedly feel that other reasons could have been given 

(especially when you are thinking about this in your home, and not under the stressful conditions of an 

exam). Remember, ten people can come up with ten different reasons why there was an economic wipeout, 

as per Lucas, and all can be correct. The point is that every good answer has analysis. 

4 You should always number your interrogatories. This is especially necessary if you go out of order and 

start with question #2, for example. Of course, it is not advisable to begin with anything other than question 

#1, but if you must go out of order, number your interrogatories. Some of you began by answering the 

second or third interrogatory and did not bother to number it as such. Doing so throws off the professor. By 

5

Abel v. Westmoreland: 5 Public Use Requirement of the Fifth Amendment 6 

Can Abel prevent Westmoreland from exercising its eminent domain power 

regarding Blackacre because the public use requirement may not be satisfied if 

Westmoreland transfers title to a small private school 7 

The Fifth Amendment to the Constitution provides that if government takes land, 

it must provide compensation and the property in question must be taken for a public 

use. 8 The United States Supreme Court stated in Hawaii Housing Authority 9 that where 

the exercise of the eminent domain power is rationally related to a conceivable public 

purpose, 10 the public use requirement is satisfied. 11 

the way, if your professor thinks it is smart to begin with question #1, don’t you think that you should start 

with question #1, too 

5 I use a heading. Headings are not necessary. They do help to focus the professor and student in on the 

problem, but they are not at all required. I begin my heading with the parties. In this exam, it clearly was 

not necessary to state the parties in the heading because there were only two actors: Abel and 

Westmoreland. Nonetheless, if there were more than two parties, it would be a good idea to state them in 

the heading, if you chose to use a heading. 

6 The heading states the legal issue that I will discuss: the public use requirement of the Fifth Amendment. 

7 This is the issue statement, which includes the parties, the legal issue involved, and the key facts that 

trigger that issue. My issue statement is in the form of a question. Others may prefer an affirmative 

statement. The key is substance, not form. Remember, that if there are no key facts to discuss an issue, 

there is no such issue. Thus, because there are no facts to trigger an easement issue or nuisance issue (some 

students actually discussed this; of course, such a discussion made no sense), you cannot discuss easements 

or nuisances. 

8 This is the rule of law, or the first “R” of the IRRAC method that I taught you in the first semester writing 

lecture. Of course, it is important to remember IRRAC or IRAC or any other acronym is simply a tool to 

help you organize your thoughts in a logical manner. No acronym is a substitute for thinking, however. 

Remember that every good essay will state the legal problem, state the doctrine that can be used to solve 

the problem, and use the doctrine stated to solve the problem. IRAC by any other name is still IRAC. When 

some teachers tell you not to “IRAC” your exam, I believe they mean that they do not want the words 

“Issue,” “Rule,” and “Analysis” on your paper. In such a case, just state the issue, rule, etc., without stating 

what you are going to do, as I have done in this model answer. On the other hand, as I stated to you last 

semester in the essay writing class, if you have a teacher who states that he or she does not want you to use 

IRAC (identify the legal problem, state the doctrine, and use the doctrine stated to solve the problem), then 

you need to go to that teacher and ask what that teacher wants. 

9 In this answer, I regularly cite to relevant United States Supreme Court cases. Was that necessary As I 

told you in the essay writing class, in my property class (and this may or may not apply to other classes), 

one does not have to cite to a case unless the case is not just a case, but rather a doctrine. I told you in that 

class that in the first semester (Property I) you do not need to cite to any cases, but that you will probably 

want to when we get to the takings cases in the second semester (Property II). As you now know, the 

takings cases are not just cases, but doctrines. Hence, it would be most helpful for you to cite to relevant 

cases. Many of you did. I did not downgrade anyone, however, for just stating the relevant rule in the 

absence of cases. Quite frankly, I was pleased to get just the correct doctrine, which too many of you were 

not able to state. 

10 The United States Supreme Court stated in Hawaii Housing Authority that “the public use requirement is 

coterminous with the scope of a sovereign’s police powers.” Some students stated that the rule was strict 

scrutiny, which is not the case. While it is true, as a few students stated, that the Michigan Supreme Court 

in Poletown Neighbord Council has indicated that there must be “substantial proof” that the public is 

primarily benefited, that case was, of course, simply for purposes of comparison to the federal standard: to 

get complete credit, a student would have to indicate, as we discussed in class, that the federal requirement 

is only minimal scrutiny, but that the states can provide a greater protection to the landowner than the 

federal government does. 

11 This sentence is the second “R” of IRRAC: it lets the professor know what element is in dispute by 

defining that element. The element in dispute was public use. More than a few students wrote on the just 

6

Because Blackacre immediately will be transferred to a small private school, 

which will charge parents significant tuition, 12 the public use doctrine was not satisfied 

because the purpose would necessarily be to directly benefit an exceedingly small 

number of wealthy students and the people who draw salaries from Best School, which is 

not anywhere even close to benefiting the public at large. 13 As a matter of policy, 14 the 

use of taxpayer money—which is where the $500,000 will come from—to benefit a small 

number of wealthy people is something that the framers of the Constitution probably 

never intended. Indeed, even in the Hawaii Housing Authority, 15 the number of people 

benefiting from the state’s exercise of the eminent domain power was quite large. Here it 

is quite few. It is bad enough for taxpayer money to subsidize foolish projects; it is even 

worse when government has to subsidize foolish projects for the wealthy few. 16 

On the other hand, 17 just because only 24 students will be enrolled, 18 that does not 

in any way defeat the public use doctrine requirement: Because these students are not 

able to attend public schools, 19 society must find a place to put these students. 20 If not 

here, society will have to put them somewhere else. 21 Moreover, when even a few people 

get an education, however they get it, society benefits. 22 Indeed, using the Supreme 

Court’s minimal scrutiny test in Hawaii Housing Authority, 23 Westmoreland could 

hypothecate that having 24 troubled students off the streets and out of trouble will free up 

the police to do other things, which would certainly serve the public purpose of having a 

compensation requirement. But this could not have been an issue because of a preclusion fact that I gave 

you: that Westmoreland was to pay Abel “the fair market value of $500,000.” Hence you were precluded 

from raising just compensation as an issue. 

12 This now begins my analysis. Remember what analysis is: the reasons why the element is satisfied and 

the reasons why the element is not satisfied. More specifically, I shall state why the public use doctrine has 

not been satisfied on these facts; then, in a new paragraph, I shall state why the public use doctrine has been 

satisfied. Before I go into the analysis, a few comments are in order. First, notice that what I have stated so 

far is just the facts. What follows is my argument. Too many students simply repeated the facts, apparently 

believing that such recitation will suffice for an analysis. Thus, for example, many students wrote, 

“Because Westmoreland will transfer Blackacre to a private school benefiting only 24 students, the public 

use doctrine was not satisfied.” But why Why is it that on these facts the public use doctrine was not 

satisfied Remember what I stated in the essay writing lecture in the fall semester: If you can intelligently 

ask the question why, you have not given your reasons and, therefore, have not done an analysis. (Recall 

also that virtually all of my issues are open ended, meaning that a cause of action or an affirmative defense 

does not definitely exist. There is a purposeful ambiguity as to one or more elements.) Consequently, a 

student who merely restated the facts and added a conclusion on to those facts did not perform an analysis. 

Rather, such a student was, as we say, conclusory. Of course, such an answer could receive no credit. 

13 Here is my analysis, that is, my creative argument why the pubic use doctrine was not satisfied on these 

facts. 

14 Here, I continue with my argument. Notice that I draw on public policy as the heart of my reasoning. 

15 As part of my argument, I attempt to distinguish the key facts in the Hawaii Housing Authority case, 

which equated public use with public purpose. 

16 I continue with my argument, again, focusing on public policy. 

17 I use words of transition to let the professor know that I am switching sides. 

18 These are the facts that I am given. What follows are my reasons for why this condemnation is consistent 

with the public use doctrine. 

19 Still the facts. 

20 Here is my argument. 

21 My argument continues. 

22 More argument. 

23 Using case law to buttress my argument. 

7

safer society. 24 Further, that Best School is a non-profit organization is relevant in that 

such designation indicates that the school is already serving the public, and the transfer of 

the property to Best School—for which Best School is paying fair market value—only 

assists it in serving the public even more. And serving the public is necessarily congruent 

with the public purpose. 25 

Therefore, Abel will fail in his eminent domain challenge. 26 

Part 2. 27 

Abel v. Westmoreland: Regulatory Taking 28 

Can Abel challenge the Westmoreland decision to bar his building on the sand 

area of Greenacre on the ground that the action by Westmoreland “goes too far” 29 

A regulation or decision regarding land use is a taking under the Fifth 

Amendment when, as per Pennsylvania Coal, the regulation or decision “goes too far.” A 

regulation or decision can go too far when there is an economic wipeout of the whole or a 

wipeout of a conceptual part, the decision is not substantially related to an important 

government interest, interferes with distinct investment backed expectations, or is 

improper nuisance control. 30 

Abel v. Westmoreland: Economic Wipeout 31 

May Abel challenge Westmoreland’s decision denying any building on the sand 

area of Greenacre on the theory that such a decision acted as an economic wipeout of the 

whole 

24 Still more argument. 

25 Here I weave into the argument the fact that Best School is a non-profit charitable organization, which 

concept we discussed in class when we covered Hill v. Community of Damien of Molokai and City of 

Edmonds v. Oxford House, Inc. 

26 My conclusion, short and to the point. Remember, your conclusion lacks reasons because your reasons 

are—or should be—the heart of your analysis. 

27 It is helpful to let the professor know which interrogatory you are next going to discuss. Some of you did 

not do this, and proceeded to discuss an economic wipeout. That is fine and good, except when I realized 

that a few of you discussed this in the context of the eminent domain (part 1) issue. This really added to my 

confusion. The moral: it is best to identify each interrogatory. 

28 A heading, indicating the parties and the legal issue. Again, headings are not necessary, but they are 

helpful to focus the teacher and the student on the matter at hand. 

29 My issue statement. 

30 This entire paragraph is the rule, but it is far too unwieldy discuss in one “IRRAC.” Consequently, what I 

shall do is break down each rule into a separate IRRAC (or IRAC, or anything else that is a logical, 

concise, and precise way of presenting your thoughts). In fact, if all that the student wrote so far was this, I 

would award little or no points. This is because so far, all that I have is little more than a statement of 

abstract legal principles. The heart of the essay is what follows. For this reason, if a student skipped this 

introductory part of part 2, and went directly to the material that follows, that student would be given full 

credit. What I have done is simply put out a roadmap of sorts, to let the teacher know what I will discuss. 

Remember, this is a so-called model answer, and while it is not “perfect,” it is good and provided to you for 

understanding (as well as to future students for study). As I have stated so many times in class and in this 

and other memos: there are many ways to write an A grade answer. But all good answers have several 

things in common: stating the legal problem, stating the doctrine that can be used to solve the problem, and 

then solving the problem. IRRAC (or IRAC) by any other name is still a good answer. 

31 My heading, with the parties. As previously stated, you do not need headings to get an A on the final 

examination, but they can be helpful to the student and the reader. 

8

Per Lucas, 32 a governmental land-use decision which denies a landowner all use is 

an economic wipeout and in violation of the Fifth Amendment as a regulatory taking. 33 

By preventing Abel from developing the sand area, 34 Westmoreland might just as 

well have denied all building on Greenacre because without developing the sand area, the 

project cannot be profitable. It does a landowner no good to develop land that will drain 

his bank account and not result in any cash inflow. 35 A decision which assures a 

landowner of a business loss is just as much a wipeout as if the government physically 

seized the property without paying compensation. 36 

Nonetheless, 37 as the court in Lucas made clear, a regulatory taking based upon an 

economic wipeout must totally eliminate all rights to the land, as the landowner in Lucas 

suffered. 38 Here, while Abel will suffer an economic loss, his rights to all of Greenacre 

have not been demolished; only 10 percent has been, leaving 90 percent that can be 

developed, if not commercially, then residentially. 39 The point is that even if we look at 

Abel having suffered a wipeout for the sand area, that is only 10% of his fee and 

represents a mere “diminution in value,” and which the Supreme Court, in Penn Central, 

Lucas and in Lake Tahoe, 40 has stated is not compensable under the Fifth Amendment. A 

mere loss of value is not a taking because, if it were, every zoning ordinance which limits 

a landowner in the use of his land would be a taking. 41 

Thus, the decision to deny building on the sand area was not a wipeout and 

taking. 42 

32 I cite to a United States Supreme Court case. As stated previously, it was not critical in my class; it might 

be in some other professor’s class. 

33 Here is my rule of law. Note that this is the second “R” in my IRRAC formula, the first “R” being the 

rule stated in the introductory paragraph. Alternatively, you could just say that this rule (“Per Lucas, a 

governmental land-use decision which denies a landowner all use is an economic wipeout and in violation 

of the Fifth Amendment as a regulatory taking”) cannot be broken down any further, and so we just have 

one “R.” The key is to remember that IRRAC or IRAC or anything else you use for an organizational tool 

is just that—a tool and not a substitute for thinking. 

34 These are the facts that I am given. What follows is some more facts, plus my all important and critical 

creative argument. 


36 A final argument. One last point: Are there other arguments Of course. The point is, as I have often 

stated, 10 people can come up with ten arguments, and all can get full credit. 

37 I use words of transition to let the reader know that I am switching sides. 

38 Here is my argument. Notice that I cite to Supreme Court doctrine, not necessary for the award of points 

in my class, but certainly impressive from a teacher’s perspective. 


40 I have cited to two important Supreme Court cases on the subject. Necessary No. 

41 My argument continues. Notice that this last point is based upon public policy. Notice also, as I have 

stated so often, that there can be many different arguments. This is mine. Yours can be different, and we 

can all get full credit. The key is to think creatively, within the bounds of the rule. 

42 My conclusion: short and to the point. Of course, as I have often stated, your conclusions are not 

important to me; your reasoning is. 

9

Abel v. Westmoreland: Conceptual Severance 43 

Assuming Abel fails in an attempt to convince the court that there was a wipeout 

of the whole, 44 could he prevail on the more limited ground that a decision denying his 

building on the sand area was a total wipeout of that part via conceptual severance, for 

which the state must pay compensation 45 

As the Supreme Court implied in Pennsylvania Coal, a wipeout may be found 

through conceptual severance. 46 Conceptual severance occurs when government 

decision-making denies a landowner all use of a distinct part of an estate in land. 47 

Initially, 48 it may be argued that the sand area arguably is a distinct and separate 

part of the whole because of the unique nature of beachfront property. This includes its 

scenic beauty, high cost, and erosion problems, and, in this specific case, the “division,” 

such as it is, from the grass area of Greenacre. 49 As such, it may be said that a refusal to 

let Abel build on the sand was a destruction of a complete estate, no different than the 

separate estate—the support rights—that was found in Pennsylvania Coal. 50 Moreover, 51 

while the Supreme Court has seemingly repudiated the idea of conceptual severance in 

Penn Central. Bituminous Coal and, most recently, in Lake Tahoe, the fact is that 

Pennsylvania Coal has never been expressly overruled. Moreover, in Lucas, the Court 

43 Many students could not see this issue and how it tied into the previous issue. The point is really quite 

simple: Abel should contend that the action by Westmoreland acted as a complete wipeout. Failing that, 

however, he should next contend that there was a partial wipeout, based upon conceptual severance. Many 

students did not see this relationship. Of course, I suppose it would have made the most sense for Abel to 

argue regulatory taking of the whole via (1) total wipeout; then arguing (2) the Westmoreland decision was 

not substantially related to accomplishing an important government purpose; next arguing (3) the 

Westmoreland decision violates Abel’s distinct investment backed expectations; next arguing (4) that the 

Westmoreland decision was improper nuisance control; and finally arguing (5) conceptual severance. The 

reason for this is that if Abel wins on points (1), (2), (3), or (4), Abel gets Westmoreland to pay him for the 

time the property was left unimproved during his ownership (per First English), which payment would be 

based upon 100% of the whole. If Abel prevails on point (5), he gets compensation, but only based on a 

smaller denominator. Your thoughts certainly could have been presented in such a logical manner. For 

purposes of this model answer, however, I present the conceptual severance argument next, because it does 

tie in with the idea of an economic wipeout. Many students took this approach, and that, of course, is just 

fine. Again I state: the form is not important; the substance is. 

44 Never cut yourself off from points just because of a prior conclusion. More specifically, assuming Abel 

won on the preceding point (a total economic wipeout), he would not argue that there was a partial wipeout 

based on conceptual severance. But what if he lost on that point (and on the other points, discussed later in 

the model answer) Would Abel not at least try to secure some payment from Westmoreland The answer, 

of course, is in the affirmative. Hence, the next issue. 

45 Here is my issue statement. 

46 My rule of law, the first “R” of IRRAC. 

47 The second “R” of IRRAC. Of course, I could have combined this sentence with the preceding. 

Remember, the key is substance, not form. 

48 Here begins my argument for why there is a taking based upon conceptual severance. Note that it is a 

two-part argument. First, the sand area is a separate “estate” (to use the term in Pennsylvania Coal), and 

second, that there was a wipeout of that estate. Most students who spoke of this issue did not clearly make 

the point that the sand was a separate interest or entity and, second, that it was wiped out. 

49 Here is the first part of my argument. 

50 Here is the second part of my argument. 

51 My argument continues. Notice how I use case law to support my reasons. As I have stated in class, 

sometimes argument (analysis) may be based on logic; sometimes on public policy grounds; sometimes on 

economic aspects of the problem; and sometimes based on precedent, as I have done here. Of course, you 

may take a different approach, and we can all be right. That is the nature of analysis or argument. 

10

stated that the Court has never made it clear what the “denominator” was to be, and 

reiterated this in the recent case of Palazzolo 52 Moreover, even the Lake Tahoe case, 

which seemed to disavow conceptual severance, might well be read for the proposition 

that conceptual severance is disavowed, but only in the case of “temporal” severance, 

which was at issue in that case. 53 Finally, 54 assuming that the sand is a separate estate, it 

was wiped out because Abel cannot build on it, and without building, it is wiped out just 

as much as the estates in Pennsylvania Coal and Lucas were wiped out. 55 

On the other hand, 56 Pennsylvania Coal dealt with a separate and distinct estate 

that was recognized by statute, which does not exist in our hypothetical; as such, the idea 

of conceptual severance should not be applied here. To the extent that Lucas and 

Palazzolo spoke equivocally about conceptual severance, it should be noted that the latest 

Supreme Court decision dealing with it was Lake Tahoe and, as such, we should 

acknowledge that the Court has not looked favorably on the entire theory. Of course, 

while it is possible for the state to give landowners greater protection than the federal 

government provides, uniformity in land use and not wanting to unduly tie the hands of 

government officials warrants Westmoreland to adopt the federal position on the matter. 

Finally, assuming that the sand is a separate estate, it was not wiped out because Abel can 

use the property for other uses. Indeed, it may well be that he can build something on it, 

such as a cabana; all that we know is that Westmoreland will not let Abel build a 500 

room hotel on the sand area. In any case, Abel needs to exhaust his administrative 

remedies first: Let Abel secure permission to build anything else on the sand, and let 

Westmoreland deny it. Then and only then would there be an issue of a wipeout of that 

part. Right now, all that we know is that Westmoreland will not allow a hotel to be built, 

and that, by itself, is not a denial of all use. 

Therefore, there was no wipeout based upon conceptual severance. 57 

Abel v. Westmoreland: Middle Tier Level of Scrutiny 58 

May Abel challenge Westmoreland’s decision denying any building on the sand 

area of Greenacre because of a concern that construction will “somewhat” 59 contribute to 

beach erosion and that such a decision does not comport with a middle tiered level of 

scrutiny 60 

52 These are my arguments why, based on conceptual severance, the denial on the sandy area could be 

considered a taking of the sandy area. Again, is it possible to create other arguments Of course. Are my 

arguments the best Absolutely not. Remember, this answer is good, not a perfect. Keep this in mind as 

you go through this model. 


54 I now proceed with my argument why, assuming that the sand was a separate estate, it was wiped out by 

the Westmoreland decision. 

55 My argument is based upon comparing the landowners in Lucas and Pennsylvania Coal to Abel: all 

could not build, therefore the holdings in these cases should be followed in Abel’s situation. 

56 I let the professor know that I am switching sides by using words of transition. My argument will be two 

fold: First, the sand is not a separate estate, and second, even if it were, there is no wipeout of that estate. 

57 My conclusion. 

58 Here is the next issue that I shall discuss: that the Westmoreland decision was not substantially related to 

accomplishing an important/legitimate government purpose. 

59 As to the significance of “somewhat” contribution to beach erosion, see discussion, infra. 


11

Under a middle tiered level standard of review, and as stated by the Supreme 

Court in Lucas, 61 a land use regulation or decision will act as a regulatory taking and 

require compensation if the regulation or decision does not substantially advance a 

legitimate or important 62 state interest. 63 Such a level of review is tighter than a mere 

rational basis standard, but somewhat looser than a strict scrutiny standard. 64 

While avoiding erosion of the beach is clearly a legitimate government interest 

and within the state’s police power, 65 and it is also probably an important government 

interest as well, 66 it is doubtful that a study finding that construction of a hotel would 

“somewhat” 67 add to erosion is sufficiently connected to the ends to sustain a middle 

tiered level of review. 68 This is because the term “somewhat” could be interpreted to 

mean that a relatively few grains of sand will be lost in the course of constructing the 

hotel, and if that is the case, the prohibition against building would not substantially 69 

advance the government interest in avoiding erosion. Indeed, 70 while such a standard 

61 As I have stated earlier, it was not necessary to cite to cases in my class. Nonetheless, I have made 

reference to these cases in this model answer for the benefit of those who have taken this exam, and for 

those in the future who will study this exam. 

62 Recall that sometime the Supreme Court uses the term “important government interest” and sometimes 

uses “legitimate government interest.” 

63 Here is my rule of law. 

64 Here is the second “R” of IRRAC. Was it necessary No. I added it only for completion. Remember, as I 

have stated so many times: the form is not important; the substance is. 

65 Beginning my analysis, I concede that preventing beach erosion is a legitimate government interest. 

66 I concede that it may also be an important government interest. I do this because I want to spend my 

limited time on the means aspect, not the ends. Thus, I will argue that while the ends are legitimate or even 

important, the means do not sufficiently advance those ends. 

67 As to the use of the term “somewhat” in my analysis, the following should be noted: Very few students 

worked with the fact that the study found that Oscar’s construction would “somewhat” add to the erosion of 

the beach. As a matter of exam taking skills, when a word or clause is in quotation marks, it is a sign that 

you need to work with it, as it is almost always either triggering an issue and/or can be used in your 

analysis. Rarely will it be a so-called red-herring. (A red-herring is something that looks like an issue, but it 

is nothing, and is designed to trick students into writing about nothing. I rarely have given students redherrings.) 

In this case, the word calls into doubt whether Westmoreland’s decision to deny Abel the permit 

to build is substantially related to advancing the legitimate or important government interest of preserving 

the beach. The word “somewhat” triggered the issue here, and also is to be used in the analysis. Again, few 

students dealt with it. 

68 So far, I have not given any creative argument. Al that I have done is set up my argument. Many students 

left their “analysis” at this point and went on to something else, apparently believing that they had 

performed an analysis. But think for a moment: What reasons have I given in this sentence to show that the 

means do not sufficiently advance the ends The answer is, there are none. All that I have here is an 

assertion of facts and a conclusion. There are no creative reasons given. Those reasons follow in the next 

sentence. Yes, I know: I stated in class that one should never have a sentence of pure fact in the paragraph 

dealing with analysis. The point is that I needed to deal with the ends before I dealt with the means. The 

moral: Let IRRAC or IRAC or any other organizational tool guide you for the order that you will present 

your thoughts, but do not become a slave to these tools. Again, one more time: the key is substance, not 

form. 

69 Is it necessary to underline Generally, except for use in headings or case names, the answer is no. I do 

so here only to address the question of underlining. The fact is that you should strive to write so that every 

word is important—and if every word is important, then no one word can be singled out for emphasis. In 

any event, it certainly does no harm to underline a critical word here or there. Some students underline 

quite often, and the effect is to diminish the importance of the underlined words. Again, as in life in 

general, reasonableness and common sense should be your guide. 


12

would pass constitutional muster under a minimal scrutiny standard of review because 

that standard allows government officials to hypothecate, this “if I can imagine it, its 

constitutional” approach will not work when the means must have a closer fit to the end, 

as is required in regulatory takings law. 71 

Alternatively, 72 a court should not routinely or be inclined to so readily second 

guess those government officials whose duty it is to protect the public’s interest in the 

beach, which is a most valuable asset, 73 especially when it is stipulated that the 

government gave Abel “due consideration.” Governmental officials are in the best 

position to determine the adverse effects of construction, not the landowner who has 

selfish interests at stake. In this regard, as to the relationship between the construction 

and its “somewhat” adding to the erosion problem, 74 courts should be deferential to the 

Westmoreland study and the deliberative process and find, as a matter of policy if not 

fact, that the construction will adversely effect erosion. After all, this is not a case of 

personal liberties, but economic development, and while a higher level of scrutiny is 

mandated by Lucas, that does not mean that government decisions and their reasoning 

process cannot be afforded significant weight. 75 

Therefore, Westmoreland’s decision comports with a middle tier level of 

review. 76 Abel v. Westmoreland: Interference With Distinct Investment Backed 

Expectations 77 

Did Westmoreland’s decision interfere with Abel’s distinct investment backed 

expectations when Westmoreland denied Oscar twenty years earlier and Abel 

subsequently received Greenacre as a gift from Oscar 78 

71 My argument here effectively states that while such a report may well sustain a decision using a rational 

basis test, it will not support a decision that must use a substantial relationship test. Of course, other 

arguments could well be made. These are mine, and your arguments may be different. The key, however, is 

you must give a creative argument when the cause of action or affirmative defense is satisfied, as is the 

case here. 

72 I am switching sides at this point. 

73 While my argument in support of Abel’s position was based on the law, my argument in support of 

Westmoreland’s decision is based upon public policy. Could you have taken another approach I am 

certain that such could have been done. The point is, ten people can take ten different approaches, and we 

can all be right. 

74 Again, very few students worked with the fact that the study found that Oscar’s construction would 

“somewhat” add to the erosion of the beach. It was not easy to work with it from Westmoreland’s 

perspective, but I give it my best in my analysis for why Westmoreland’s decision comports with the 

substantial relationship test. Are there other arguments Certainly, but it is interesting that few students 

worked with it. Was the failure to work with it because it is difficult Perhaps, but that is what the law is 

about at times: representing your client who finds himself in a tough legal bind. When that happens, you 

must do your best with the facts that you are dealt, as I have tried to do, and as you should have attempted. 

75 Note that my argument weaves together law and policy. 


77 Here is the next issue that I will address. 

78 Here is the issue statement. Note that it has the key facts (Oscar being denied a permit and giving the 

property to Abel as a gift) and the legal issue. While many students wrote on distinct investment backed 

expectations, few discussed it relative to the facts that Oscar had previously been denied and Abel did not 

pay for the property. The point is whether Abel can have any distinct investment backed expectations on 

those facts. As I just indicated, many students discussed the issue, but without these critical facts they 

13

In Penn Central, 79 the Supreme Court stated, without elaborating, 80 that a taking 

goes too far when it interferes with a landowner’s “distinct investment backed 

expectations.” 81 In Palazzolo, the Court held that acquisition of title after the effective 

date of regulations did not bar a regulatory taking claim, 82 although Justice O’Connor’s 

concurrence, given great weight in Lake Tahoe, stated that the timing of a regulation’s 

enactment relative to the acquisition of title is not necessarily immaterial to the Penn 

Central analysis. 83 

Because Abel knew or should have known that Westmoreland denied the identical 

plan many years earlier, and because Abel did not pay for the property, 84 he cannot be 

heard to complain: if a person neither is not out of pocket nor frustrated in an 

expectation-like manner, a court should be hard pressed to know how government action 

frustrated the landowner. Put another way, if one is out neither money nor time, there can 

be no basis for complaint since that is what makes the world go around: time and money. 

Moreover, while Justice O’Connor’s concurrence in Palazzolo stated that the timing of a 

regulation’s enactment relative to the acquisition of title is not necessarily immaterial to a 

Penn Central analysis, in conjunction with a lack of payment, it may well be that these 

two factors together could defeat a takings claim. 85 

On the other hand, 86 the fact that Abel received the property from his father as a 

gift, who himself was denied a permit for the same building plans, should be 

immaterial: 87 To hold that an after acquirer who pays no money cannot raise a takings 

ended up just discussing it in the abstract. Of course, I could award only very few points for such an 

abstract discussion. 

79 Again, I make reference to the case which articulates the doctrine in question. It was not necessary that 

you do so in my class, but it would have helped you, I think, to stay focused. In any case, I add it here for 

completeness and for the benefit of those students who follow you who will study this exam in later years. 

80 I add the clause, “without elaborating,” because the Supreme Court to date has never precisely defined 

what this term is. 

81 Here is my rule of law. 

82 Here is an elaboration on the rule, what may be looked at as the second “R” of my IRRAC approach. 

83 A third “R” Is this IRRAC, or is it IRRRAC Could I have handled Justice O’Connor’s concurrence as a 

“counter-rule” of sorts, and include it in yet another and distinct IRAC The answer is, of course. But 

remember, either way is appropriate, so long as you discuss it in some logical way. Handle it anyway you 

want, so long as it is logical and reads easily. Again I say, the key is not form, but substance. 

84 These are the key facts, upon which I shall now proceed to build my analysis. Note, however, that this 

clause by itself is not argument. Thus, of the students who did tackle this issue and did so in the context of 

these facts, some simply stated, “Because Abel knew or should have known that Westmoreland denied the 

identical plan many years earlier, and because Abel did not pay for the property, he did not have any 

distinct investment backed expectations.” This is just a conclusion, supported by the facts, but lacking in 

creative argument. Argument is necessary here because it is simply not clear if, on these facts, Abel’s 

distinct investment backed expectations were frustrated. 

85 For purposes of having to draw the line somewhere, I purposefully have neglected to deal with the 

following words of Justice O’Connor in her concurrence, beginning at the very last word on page 643 of 

the official reporter: “We also have never held that a takings claim is defeated simply on account of the 

lack of a personal financial investment by a postenactment acquirer of property, such as a donee, heir, or 

devisee. . . . Courts instead must attend to those circumstances where are probative of what fairness 

requires in a given case.” The point is that one cannot address every point on an exam, nor even in a socalled 

model answer. Nonetheless, with the time allotted, you still can get a good grade by discussing the 

major points—and I can still prepare a good model answer by doing likewise. 

86 Changing sides. 

87 These are the facts upon which I shall now build my analysis (argument). 

14

claim is to relegate such a landowner to second class status vis-à-vis others who have 

paid consideration for the property. 88 Society should not create such differences, which 

can have a socially detrimental effect by allowing some landowners more rights than 

others and thereby dividing our society into protected classes. 89 It is not in society’s 

interest to create different levels of landowners who enjoy gradations of rights, depending 

upon how and when property was acquired. There should be only one class of 

landowners and not discriminate against those who pay versus those who do not pay, 

those who acquire property before a decision and those who acquire it afterwards. 

Thus, Abel can assert an interference with his distinct investment backed 

expectations. 90 

Abel v. Westmoreland: Improper Nuisance Control 91 

Assuming that Westmoreland’s land use decision denies Abel all use, 92 Can Abel 

challenge Westmoreland’s adverse decision denying him a building permit on the ground 

that its action was improper nuisance control 93 

Assuming that governmental land use decision denies a landowner all use of land, 

government can still avoid a takings claim if it establishes that the that the prescribed use 

was not part of the landowner’s title. 94 What is not part of a landowner’s title is a 

common law nuisance. 95 

As the Supreme Court stated in Lucas, building a house is not a traditional 

common law nuisance. 96 Consequently, a hotel, just a larger version of house where 

people eat, sleep, and relax, should not be deemed to be a nuisance, either. 

However, as the Supreme Court stated in Village of Euclid, 97 “A nuisance may be 

merely a right thing in the wrong place—like a pig in the parlor instead of the 

barnyard.” 98 It may not be a common law nuisance to build a house on a beach, as in 

Lucas, but it may well be that a 500 room hotel is another matter, with hundreds of 

people converging on a beach is a common law nuisance, especially in conjunction with 

88 Again, note that my argument is based on public policy grounds. 

89 My argument continues, here and in the next few sentences. 


91 Here is the next issue. Only a few students addressed this issue. It is based upon the holding in Lucas: 

government can avoid a takings claim by asserting nuisance control, but government must be attempting to 

control something that is not within the landowner’s bundle of rights, such as common law nuisance. Is 

building a structure something that would be a common law nuisance In and of itself, probably not, but in 

conjunction with the effect of beach erosion, the answer—at least in my mind—is not abundantly clear. 

92 This is an assumption that is necessarily antecedent to raising the improper nuisance control issue. 

Remember, as mentioned earlier, never conclude yourself out of raising issues—and getting points. 


94 Here is the rule of law. This may be looked at as the first “R” of my IRRAC approach. 

95 This sentence tells the reader what use is not part of the landowner’s title. This may be looked at as the 

second “R” of my IRRAC approach. But remember, the key is substance, not form. 

96 In this sentence and in the next I have my argument as to why this hotel construction should not be 

considered a nuisance. 

97 Citation to a key Supreme Court case, which, as I have already stated, is not at all necessary in my class, 

but can be helpful and, at the least, make a good impression. 

98 Do you have to quote a case on an exam Not at all. Paraphrasing would be fine, too. In any event, this is 

one memorable line (“a pig in a parlor”) which many people know, albeit not the source. Again, you could 

have received an A grade without even making any reference to the Village of Euclid case—as some A 

students did. 

15

the beach erosion that it will cause. In any case, the fact is that the common law did not 

know of sea-side resorts, and if it had, it may well have decried this construction plan is 

one which will create a nuisance. The law does not remain immobile. Rather, it changes 

as times dictates. As such, even if a beach front hotel was not found to be a common law 

nuisance, it should be deemed to be one for regulatory takings purposes on these facts. 

We recognize constructive possession in the law of property; so, too, we should 

recognize constructive nuisance if that is what is necessary to protect public use of 

beaches. 99 

Abel v. Westmoreland: Transferable Development Rights (TDRs) 100 

Assuming that there has been a regulatory taking in whole or in part, can 

Westmoreland avoid paying compensation to Abel on the theory that it has given him a 

TDR 101 A TDR gives a landowner a right to develop property where he otherwise would 

not be allowed to. The Supreme Court has indicated in Penn Central that such rights may 

meet the Fifth Amendment’s requirement of just compensation. 102 

Because Westmoreland gave Abel the right to construct valuable R-2 housing on 

Whiteacre, which is zoned R-1, he was given, if not money, then a money equivalent. As 

such, his net worth is greater than it previously was, and so long as what he was given 

equals what was taken, Abel should have no complaint. 103 

On the other hand, the constitution requires “compensation,” which implies 

payment in money, not so-called “funny-money” that does not cost the government 

anything out of pocket. To allow TDRs is to essentially allow local governments to print 

their own money, something that the Constitution forbids (see Article 8). Further, the 

purpose of the just compensation clause is to restrict government exercise of the eminent 

domain power. If government does not have to cut a check for such exercise, there is little 

standing in the way of government interference with landowner’s rights. 104 

Therefore, assuming that there was a regulatory taking, Westmoreland’s TDR will 

not satisfy the just compensation requirement. 105 

SELF-DIAGNOSTIC 

99 My analysis. Notice that in my analysis, I come up with creative reasons why a hotel should be 

considered a common law nuisance, or, in the alternative, even if it is not, why it should be deemed to be 

one. 

100 My last issue. Assuming that there has been a taking in whole or in part (the conceptual severance 

issue), can Westmoreland get out of paying compensation because it has given Abel a right to build in an 

area where he would otherwise not be allowed to build That is the question, and the answer, as with 

everything on this exam (and almost every issue for all my exams), is unclear. 

101 My issue statement. 

102 My rules of law. Of course, I could just as easily have combined these two sentences in to one rule. The 

key, yet again, is substance, not form. 

103 My argument why the TDR satisfies the just compensation requirement. 

104 My reasons why the TDR does not satisfy the just compensation requirement. 


16

I provide you here with the same self-diagnostic that I provided to you in the 

memo regarding your Property I examination. I state here exactly what I stated in the 

previous memo to you. 

To assist you in learning how to improve your thinking skills, I have prepared this 

self-diagnostic. If you complete this diagnostic, you will gain greater insight into what is 

expected of you on a law school exam and learn from your mistakes and omissions by 

active learning (as compared with passive learning, an example of which is reading a 

commercially prepared outline). 

Step 1: Read the Property Question 

The first step to diagnosing your own weaknesses is to read the property essay 

question again. This is necessary because by now it has been a full month since you took 

the exam. Too many students read their essay exam and do not read the question. This is 

foolish. So be certain to read the exam question over. 

Step 2: Read Your Answer 

Through the years I have had students come to me to review their exams without 

them taking the time to read their answers first. Such a waste of time (mine and theirs). 

Read your answer. Yes, it is painful, but you must read your answer if you are going to 

understand why you received the grade that you did and improve your performance. 

Step 3: Read My Grading Sheet 

As you read your answer, you must also read the grading sheet that I used to 

award the raw points to your essay. When you do so, try to see why you received only 

one point for an issue statement instead of two. Make an attempt to understand why you 

earned little or no credit on your analysis. 

Step 4: Read the Model Answer 

After you read your essay, read the model answer that I have provided for you. In 

this way you will start to get a better sense for what is expected of you, and what you 

failed to do. 

Step 5: Study the Model Answer 

After you read the model answer you must next study the model answer. This 

means you must engage in active learning and ask yourselves questions: Why did the 

professor raise this issue Why did he frame it in the way that he did How did he phrase 

the rules of law What makes his analysis strong 

Of course, these are only suggestions and certainly not the only questions that you 

should ask yourselves. The point is that you must learn to start to think on your own, and 

when you ask yourselves these and other kinds of probing questions, you are facilitating 

that objective. 

17

Step 5: Study Your Answer 

You should next study your answer. Please note how I choose my words. I stated 

that you should now study your answer, not just read your answer (which you have 

already done). Mere reading is a passive activity and is inferior to active learning, where 

the student is not an observer, but a participant. Consequently, I ask you to study your 

answer. Think as you read. Ask yourselves why you raised a particular issue, why you 

framed it in the way that you did, why you stated the rule as you did, and why you wrote 

out your analysis in the manner that you did. 

Step 6: Mark Up Your Answer 

With this step you will really be getting into the active learning phase. What you 

must do in this phase is take a red pen and make believe that you are me and start 

marking up your answer. For example, if you believe that an issue statement is poorly 

written because it does not have the key facts within it, then you should take your red pen 

and write the following comment next to the issue statement in big red letters, “Omitted 

Key Facts.” If your rule of law is incorrect (feel free to check with a hornbook, as 

necessary), then you should write, “Incorrect Law.” If your analysis is a mere repetition 

of the facts given, you must write, “Conclusory.” Whatever problems you see, you must 

note them in big red letters. 

Some of you may be wondering: How can I correct my own work To this, my 

answer is: You must start to learn now, because you have no other alternative. If you 

expect only your professors to give you commentary on your exam (another example of 

passive learning), what are you going to do the next time you take an exam Your 

professor will not be available during the exam. Moreover, when you wrote your 

appellate brief, did you think that your first draft was also going to be the final draft Of 

course not. You revised it on your own, and each time you made a revision, it was better. 

The point is that you get better at doing something when you do it, not when someone 

tells you how to do it. It is for this reason that if you want to improve, you must annotate 

your exam in the manner that I have stated. If you do what I have told you to do, you will 

learn much, more than I can ever articulate in a memo. 

Step 7: Re-Write Your Exam 

The next step is also part of active learning: re-write your exam. By now you 

know the issues and the rules of law. Put this knowledge into action by seeing how much 

you can improve. When you re-write your exam, remember that my arguments are not 

something to be inserted between Numbers and Deuteronomy. There is nothing special 

about my analysis. You may well think of other arguments, or even better ones. That is 

fine. Indeed, that is what I desire and expect. 

Step 8: Study Your Re-Write a Day Later and Answer These Questions 

18

After you have written out your re-write, put it down for at least a day. Thereafter, 

read and study it. After you study your re-write, answer the following questions (I mean 

this literally, not figuratively; print or type out the answers on a separate sheet of paper): 

(1) How do the issue statements in your re-write differ from the issues statements 

that you wrote out on the exam Be specific. 

(2) How do your rules of law in your re-write differ from the rules of law that you 

wrote out on the exam Be specific. 

(3) How does the analysis in your re-write differ from the analysis that you wrote 

out on the exam Be specific. 

(4) How else does your re-write differ from the exam Be specific. 

Step 9: Write Out Your Questions 

If you have come this far, you have undoubtedly learned much. If you have 

additional questions, write them out and come and see me. I will be pleased to discuss 

them with you. 

MISCELLANEOUS OBSERVATIONS 

At this point, I present you with sundry observations and information that I think 

you will find interesting and helpful. 

Multiple Choice and Essay Performance 

There were 33 multiple choice questions on the exam. Each multiple choice 

counted 2.121 points. Therefore, the total points available on the multiple choice was, 

rounding off, 70 points. The total number of points available on the essay was 70 points. 

(On every exam, I have a section titled, “other issues,” in case a student writes on an 

issue which is valid but which I did not previously consider. For your exam, no students 

received points for this category.) Therefore, the total number of points available on the 

exam was 140 points. 

For the multiple choice, the average score was approximately 14 correct, which 

was also the median. The highest score was 19 correct. The lowest score was 7 correct. 

For the essay, while I do not have any analysis available (this is not fed through a 

computer, as the multiple choice is), I estimate that the median grade on the essay was 

approximately 20 points. Consequently, the median total points earned for exam was 49- 

50. Some of the exams were excellent. Others were quite poor. 

Students who do not do well on the multiple choice do not know the law very 

well. While essays test broad concepts (takings, for example), multiple choice test on 

narrow concepts, such as a particular element of a rule. 

19

As I stated in the memo to your fall exams, there were a few students who did 

poorly on the essay (receiving only a handful of raw points), but did exceptionally well 

on the multiple choice. The explanation, I believe, is this: Such a student knows the law 

well enough to identify the correct answer, but does not know the law well enough to 

construct an answer. These students need to work on knowing the law well enough to 

construct an answer. 

“I Have a Writing Problem” 

What I stated in the memo to the fall exam, I repeat here: Some of you will be 

tempted to say, “I have a writing problem.” Let me assure you that if you can put a noun 

and a verb together, you do not have a writing problem. Rather, the student who says he 

or she has a writing problem actually has either a deficiency in understanding the law or a 

thinking problem, or both. 

If a student does not know the Supreme Court’s tests for a non-exaction 

regulatory taking, he or she cannot answer a question on non-exaction regulatory takings. 

It is that simple. The solution is to learn the law and the legal (read thinking) process. 

This you do by reading and briefing your cases (I know from observing you in class that 

a good number of you stopped briefing before Thanksgiving), participating in class, 

preparing your own outlines (don’t just copy your notes; outlining is true active learning 

and an integral part of the learning process), and writing out complete practice exams 

(and then going through the diagnostic that I have given you in this memo and critiquing 

your own work). 

Yes, I know that this is a lot of work. But remember, there are no shortcuts to 

success. If there were, everyone would be successful. 

Exam Review 

If after you have performed the nine-step diagnostic you still have questions, 

write your questions out and come and see me. I will be in only infrequently during the 

summer, but I will make the time to see you if you wish to meet with me. Of course, you 

also can come into see me during the fall semester, when I will have regular office hours 

(to answer your exam questions, or to talk about politics, life, religion, etc.). I will be 

pleased to discuss any of these questions with you. 

If there was a mathematical error on your exam (it does not happen often, but it 

does happen), you do not need to go through the nine-step diagnostic. Just call me on the 

telephone. I will then be able to determine if the change in points will result in a grade 

change. If so, I will then ask you to mail me a photo-copy of your exam and grade sheet. 

Of course, I urge everyone to go through the nine-step diagnostic because you will learn 

so much about the law school thinking process if you do. 

CONCLUDING REMARKS 

I conclude with words of congratulations, encouragement, and perspective. 

20

Some of you did quite well. Congratulations! Your hard work has paid off. 

Continue working hard. You have earned your success. 

Many of you passed your exams, but did not do as well as you wanted to do. To 

those of you in this category, I ask you to study this memo and understand why you did 

not do better. It may be—and I say this just as an observation, not as a criticism—that 

you just need to put in more time. Remember, you cannot cram for law school exams. 

To those of you who did poorly, you are undoubtedly in great distress. You have 

put in money and time, all seemingly for nothing. I also understand that my words will 

not assuage your pain. Nonetheless, I ask you to consider the following, not to remove 

your pain, but to help put it in perspective. 

All of us are here for a purpose. What that purpose is no one knows for sure. 

Perhaps when we are about to leave this existence we can have a better understanding of 

such things. But right now, this much I do know: The results on this set of exams for 

some of you indicates that right now, it was not the right time to go to law school. For 

some of you, this does not mean that you will never be lawyers. It only means that you 

will not be a lawyer in three years. For others, it may well mean that your destiny is not 

law, but something else. 

It is also good to remember that no successful person has ever gone through life 

without struggle. Moreover, every successful person has had many failures attached to his 

or her name. As it is written in the Book of Ecclesiastes, “To everything there is a 

season.” 

It has been my pleasure to teach you this year. I wish all of you health, happiness, 

and prosperity, all the days of your life. 

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Property II Final Exam, Spring, 2002 Date - Southwestern Law School

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