Thread by @OrinKerr

A common problem 1Ls have with their exams (and therefore their grades) is not understanding the role of analysis in answers. They often won't entirely get what analysis is, and why it's the most important part of an answer.

I thought I would explain how I see it. (Thread.)

First, some context. 1Ls are taught that there is analysis step in an exam answer for an issue-spotter question. Students often hear about IRAC – “Issue, Rule, Analysis, Conclusion.” But exactly what “analysis” is – and why it’s so important -- isn’t obvious.

Your prof may see it differently, so YMMV. But here’s how I see it.

“Analysis” is the real guts of the answer. It’s an explanation of how the facts and the law match up. It requires detailing a thought process based on a nuanced and complete understanding of law and fact.

That’s surprisingly hard to do. When we think of how the law applies to a set of facts, we normally want to know, “who wins?” Our brains naturally focus on the overall result of who should win, not breaking down the mental process of exactly how to get there.

But issue-spotters aren’t testing you on who wins. Most are written so there isn’t an obvious winner. The professor may not have any idea who wins, or care which side you say wins. The point of the Q is to reveal your mental process of how you reason through the problem.

(As an aside, that's the point for a very good reason: Issue-spotters are testing your skills at legal analysis, so the big question is how you think. You show that by describing the journey, not just pointing to the destination.)

To do analysis well, you need to keep asking, 'why?'

You need to show you know exactly what that test means, and what specific facts are relevant & why. It requires delving into the problem, and showing your mastery by taking a really close look.

For example, say an exam question is testing you on whether an action was "reasonable." You need to first show you know what that legal test means in that context (as the term "reasonable" has different meanings in different doctrinal contexts.)

And then you need to point to the specific facts in the fact pattern that relate to it. And then comes the real analysis -- tying it together. Why exactly do those facts show that the action was/wasn't reasonable?

Say our specific law being tested is a speeding law: A person cannot drive at an "unreasonable speed." In the fact pattern, someone is driving 65 mph in the rain.

The analysis part is explaining the common sense relevance of those facts. On speed: The faster you go, the less time you have to react to other cars, or something in the road. On rain: Rain reduces visibility and the effectiveness of your brakes, so you need more time to react.

And the fact pattern would probably have details about the road, how busy it is, time of day, etc., all of which have similar common-sense effects on how safe it is to drive at that speed -- factoring into whether it's a reasonable speed.

The common trap is to just look at the facts, reach your intuitive answer, and then announce that is or is not an unreasonable speed. But analysis requires looking at the specific facts, and explaining *why they matter* given the legal question.

If you can do that, you're showing you really understand the law and have truly mastered the facts (as you see what facts are relevant to the legal standard and why). In my experience, at least, that's often the key to doing well on issue spotter exam questions.

So you can use IRAC if you want, but remember: It's the "A" that gets you the "A". (Or at UC Berkeley, 3 smiley faces, or a gold star, or whatever the grading system is here that I will never understand.).

P.S. I'm reminded I had this blog post in 2007 that tried to get at this, too. volokh.com/posts/11683820…

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