The Great Change: Turning Cathy into a Lawyer

I really hate exams. Not just taking them, but having my friends take them. And most of my German friends here are in the thick of studying for the exams they need to retake in the next week or two, which makes them no fun at all... (OK, they are still fun to hang out with, but they are much less available to do so, at least without us all feeling very guilty about it.)

Tonight I did get to help one of them study though. He's really well-versed in the subject matter, but he's been having issues figuring out how to write a good exam. Welcome to my world... Intellectually I know how to do it, but in practice I think I may come up short sometimes.

But my friend was really spending a lot of time trying to get his head around this IRAC structure. Not so much what it was – that part's pretty clear – but how to actually employ it effectively in an exam. So we took a problem from a Torts review book and worked through it. Actually, it wasn't really "torts," because in Germany there's no such discrete subject. Tort liabilities exist, but they are scattered throughout the general civil code. I'm not sure that his test is really on "tort law" any more than it's a test on criminal law as well, and in fact the problem we worked on had to do with whether the subject of the fact pattern would be guilty of theft, which in the US would not be a tort per se.

In one sense it was really interesting for me, because my friend could articulate some of the legal nuances about how theft was codified in the law. Whether something is a crime in Germany depends on both objective and subjective elements. In our practice problem we only got as far as the objective elements, but, then again, if you don't satisfy those the subjective ones won't matter. In this case we were considering whether the object of the potential theft was a "foreign moveable object" and whether it had been "taken away" from its previous owner. Of course, these are rough translations of the actual German terms, which themselves have their own legal definitions. There is law explaining what "foreign" means in this sense, and whether something has been "taken away" requires a multi-layered analysis of its own.

(In this hypo a person had gone to a store wanting to buy two bottles of alcohol. He discovers that he doesn't have enough money for both, so he only puts one in his cart. However, he puts another inside his jacket, an act which was observed by a store detective. But before he gets to the cash register, he had a change of heart and puts the one in his jacket back on the shelf. The question: is he guilty of anything? Interestingly, in Germany the act may very well have met the definition of theft, or at least its objective elements, due to the way Germany considers possession and property, which seems to be different than it is in the US.)

I obviously couldn't critique my friend's understanding of the law in this area, but he seemed to be on top of its particularities. We spent some time instead working out how best to express it in an exam essay. Though German law is different than US law in terms of its doctrinal technicalities and lack of import judicial decisions have on shaping the law, German law students still write their exams much like American students do, laying out the issue (I) in contention, the rule (R) that would determine the issue's resolution, the analysis (A) tying the facts to the rule, and then a conclusion (C). So the exercise was helpful for both of us – him particularly immediately, and me for any future law school exams I may take.

I sort of wish I'd had this discussion two years ago...

Written 10/9, posted 10/10.