Help for Law Students: Common Law and Modern Law Distinctions

A common question from law students is whether they should discuss both common law and modern law on law school exam essays. My answer to that question is YES! Discuss both on law school exam and bar exam essays when there is a distinction between the rules.

For instance, when discussing burglary on a criminal law essay, state the common law rule. Note: make sure you memorize the rule for burglary. If you’ve memorized the rule, stating the rule should automatically trigger your memory of the distinctions. After you state the common law rule for burglary, mention the distinctions under modern law, i.e., it is no longer required that a defendant enter the dwelling of another, or that he enter at nighttime. A defendant may be held guilty of burglary if he enters any building with the intent to commit a crime, regardless of the time of day he enters.

Also, when discussing rape on a law school or bar exam essay, be sure to state the common law rule. Remember: memorize the rule for rape. Memorizing the rule will allow you to better analyze the question and should trigger your memory of the distinctions. After you state the common law rule for rape, briefly mention the distinctions under modern law, i.e., at common law a man could not be held guilty of rape if he engaged in sexual intercourse with his wife. However, under modern law, a man may be held guilty of rape if he engages in sexual intercourse with his wife without her consent.

Again, keep your discussion brief. The point is to show bar exam graders and your professors that you are aware of the distinctions.