Thinking Fool

Main

June 10, 2005

Maybe I should Write Questions for the Bar

The second day of the bar exam features 200 Multiple Choice Questions on the following subjects: Torts, Property, Criminal Law and Procedure, Constitutional Law, Contracts, and Evidence. (Sounds fun, doesn't it?) Unsurprisingly, part of studying for the bar involves doing numerous multiple choice questions. Although many have interesting fact patterns, the following Torts question is hands down the best question I've seen thus far!

During the Miss Metropolis competition, the judges announced that Wilma was first runner-up and that Kerry was the winner. As the auditorium quieted for Kerry’s acceptance remarks, Wilma said loudly, “You only won because you slept with all of the judges, you slut!” Kerry immediately slapped Wilma forcefully in the face.

Wilma brings an action for battery against Kerry. Who will prevail?

(A) Kerry, because she was provoked by Wilma’s comment.

(B) Kerry, because a reasonable person would have slapped Wilma under the circumstances.

(C) Wilma, unless Kerry’s slap was totally spontaneous.

(D) Wilma, because Kerry intentionally caused an offensive touching.

Think you know the correct answer? It will be revealed below.

During my final semester of law school, I taught two street law classes. One class was comprised of teenagers and took place at a juvenile detention facility in Northern Virginia. The other class consisted of adult felons (all male) and took place at a D.C. Halfway House. One night, my teaching partner and I decided to teach the men about the different theories of punishment (i.e. why do we punish people? If you are wondering, here are the reasons: (1) to deter others as well as the individual criminal from committing crime in the future, (2) to perform an act of retribution against the criminal (i.e. eye-for-an-eye), (3) to incapacitate the criminal (i.e. keep the lunatic off the street so it is impossible for him to commit more crimes), and/or (4) to rehabilitate the criminal (if I have to elaborate on what this last one means, you really ought to ask your mom or dad if it's okay for you to be surfing the Internet all by yourself).).

The basic method of teaching in the Street Law program is to get students to learn by doing and by thinking, not by the teacher telling. (Sometimes you have to tell students various information. For example, when I gave the students the number for Legal Aid, I didn't say, "Let's play a guessing game. Who can guess the first digit in the telephone number for the local Legal Aid office?" Obviously, it would be ridiculous to waste time having students guess telephone numbers like they were playing some whacked out version of The Price is Right. Though now that I think about it, such a game might have been quite entertaining.)

To get students thinking about why we punish people, my teaching partner and I distributed ten short hypothetical fact patterns that consisted of some sort of crime being described and then asked the students what kind of sentences they would hand out if they were judges. By doing this, the idea was that when we debriefed the exercise, the students would have to give reasons for their sentences and would start enunciating the different theories of punishment (if not by their formal titles, at least by their concepts). For example, if Doc (yes, we had a student named Doc and he actually hit me up for five bucks on the subway one morning. He was holding a huge piece of luggage, even bigger than the bag that the female football player brought to class the other day and asked me for some money. After I gave Doc five dollars, I thought, “Hmm, I wonder if he’s in the process of ‘escaping’ from the Halfway House right this minute? If he is escaping, can I be held liable for ‘aiding and abetting’ a felon?" Turns out Doc was not escaping and had actually been released that morning....Anyway, back to the example. If Doc) said he sentenced a burglar to ten years for breaking into a person’s home, we'd force him to enunciate a reason for his sentence. If he said something like, “Man, if you don’t make a lesson out of him, you’re going to have a ton of people committing burglaries,” Doc would have just enunciated the concept of deterrence (we'd fill in the formal names at that point and talk a little bit more about the concept).

One of the hypotheticals that we used was something like the following: “Charles gets in an argument with his girlfriend; so he goes to his closet, takes out a baseball bat, and hits his girlfriend in the head several times with the bat. The girlfriend ends up being in a coma for two months before being released from the hospital. If you were the judge, what sentence would you give Charles?” This is your chance to shine. Play street law student for a minute and think about what sentence you would give Charles if you were the judge.

I’ve asked this question to several people (who were not Street Law students) and have received answers ranging from, “Twenty years, anger management control, monetary restitution, and lifetime parole” to “One year and castration.” Most of the answers seemed quite sensible to me and were what I was expecting to be generated by the men at the Halfway House. To the contrary, do you want to know what the most frequent response was to the scenario in which the boyfriend beat the girlfriend in the head with a baseball bat? Simple. “What the hell did she do to him?” Lovely. Absolutely lovely. If that happened to be your first thought, you too might enjoy life at a Halfway House one day.

As promised, the correct answer to the “Beauty contestant slapped her competitor after being a called a slut” question is (D)! The contestant who got slapped will win the lawsuit because the slapper intentionally caused an offensive touching. To put it another way (which might have a little more street cred), “Wilma's gonna have to pay because she bitch-slapped the ho!”

Posted by fool on June 10, 2005 04:11 AM

Comments

Posted by: Marshall at June 10, 2005 08:43 AM

Posted by: The Attractive Nuisance at June 27, 2005 01:25 PM