The Rule of Law - In Depth
Legal reasoning starts with the rule of law. Most professors will downplay the importance of rules - telling you that analysis and issue spotting counts more in your grade rather than knowing the rule verbatim. While this is true, you need to understand the rule in order to spot the issue and analyze effectively.
First year students should attempt to extract and restate the rule of law for every case that they read. This process puts the rule into a format that makes analysis and outlining easier. Extracting and restating the rule can be done within your brief. However, try to use the techniques described below in "Restate the Rule."
The easy way to extract the rule is, of course, to go to the commercial outlines and look the rule up. To learn the skills you'll need in your first years as a lawyer, however, it's best to try and extract the rule out of the cases yourself. Furthermore, often the commercial outlines won't state the rule with all of the nuances that you get from parsing through the casebook. Good professors know the differences between commercial outlines and the casebook. Commercial outlines and secondary sources are best used as supplements in this instance if you are having trouble extracting the rule.
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Taxonomy of Rules
Rules of law break down into three main types:
- Common Law: The courts have developed common law over time based on principles of justice, equity and the morals and ethics of the time. Scholars collect the common law into volumes called the Restatements.
- Statutory Law: Congress or state legislatures write statutes, which results in laws that are primarily influenced by special interest groups. A body of law is sometimes collected in a model code or uniform statute, such as the Uniform Commercial Code or the Model Penal Code.1
- Constitutional Law: Constitutional law flows from the U.S. Constitution as interpreted by the Supreme Court.
In your first year of law school, you'll primarily be focused on the common law. Common law is judge-made law. Judges base their decisions on principles that have developed over time within the judicial system. The rule itself is really just a series of definitions. If the facts of the case fit within the definition, then the rule applies.
1 The model codes are an attempt by the legal scholars and the federal government to have consistent laws between different states. The state legislature may adopt the model code as its base, then amend it to conform with the common law traditions in that state.
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Form and Function of Rules
Rules, whether as part of the common law or in statutes, can be broken down into three types - declarative rules, conditional rules and exceptions. The way you state a rule depends, in part, on its form.
Declarative rules merely state something that must always be true. For instance, in contract law it can be said that: All contracts require a bargain. There is no exception to this rule, and the converse is also true. The converse of the rule above is that: If a bargain isn't present, then no contract has been formed.
Declarative rules are also sometimes called bright-line rules. The rule is a bright line because anyone can tell where a rule holds true and where it does not. For instance, most highways have a 65 mile an hour speed limit. If you're caught over the limit, then you're on the wrong side of the bright line, and you lose.
Conditional rules, however, state that a rule applies only when a series of conditions are met or proven to be true. To follow our example:
A bargain requires:
- an offer AND
- acceptance AND
A variation on this type of rule would set forth a list of alternative conditions where any one of them can be present in order for the proposition to apply. In this case you would apply the word "OR" instead of "AND" to the list.
Exception rules are just the flip side of condition rules. Instead of listing conditions in order for the rule to apply, you list an exception to where a rule does not apply. Exception rules are used when the list of conditions is so great that it's easier to state the rule as a declarative rule then tell judges when the rule doesn't apply - i.e. the proposition holds true most of the time except for some circumstances.
In our example above, we need a definition of consideration to satisfy the third element of a bargain. Consideration is generally defined as either a promise or actual performance. However, consideration can't be a promise to make a gift. The reason for this is that the person receiving the gift is bound to give anything in return. Consequently, you can't have a contract to give someone a gift because there is no bargain. However, there's an exception to the rule. Here's how it works.
A promise to make a gift is not good consideration thus no contract is formed
UNLESS there is reliance on the promise.
Courts have carved out an exception to the rule that you can't have a contract to give a gift when the person who would receive the gift relies on the promise that the gift will be made.
Often a more complex rule will not fit into any of these broad categories. Instead, the rule mixes conditions together with exceptions. Your goal is to develop a method for stating the rule that makes it easy to identify the elements.
Terms of Art
You can see in our example that as you step through the rules, each rule brings up a term that needs further definition. In this example, we could continue to examine the rule by defining the term reliance. These elements are often known as terms of art.
Terms of art are simple words like "consideration," "reliance," "intent," "reasonable," or "causation" that carry greater significance in the legal context than they do in ordinary speech. For example, for lawyers the word "reasonable" changes according to the "standards of an ordinary and prudent person in the same or similar circumstances."
2 In contract law, consideration is the term used to indicate what is being exchanged between the parties. For instance, in a contract to sell a car for $1000, the seller's consideration is a promise to deliver the car for $1000. The buyer's consideration is a promise to tender $1000 in exchange for the car.
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Extracting the Rule
There are three steps in rule extraction.
Step 1: Identify the rule in case law.
Step 2: State the rule in your own words and list each element that needs to be proven.
Step 3: State the public policy behind the rule.
Step One: Identify the Rule
Look for a declarative sentence that addresses the issue the court is trying to resolve.
Some language that identifies the rule:
- "As a matter of common law...."
- "In this jurisdiction..."
- "The more modern rule is..."
- "Contracts are void when..."
- "The present case is controlled by..."
Sometimes, however, it's not so easy. There are two situations that give first year students difficulty. In the first situation, the judge doesn't explicitly state the rule. In the second situation, the judge gives so many different rules that it's hard to know which rule applies. In this second situation, the judge often traces the development of rule from the common law and talks at length about how other jurisdictions differ in the application of the rule.
The solution in either situation is to ferret out the rule as implied by the holding. You identify the rule by looking at how the court resolves the issue. You generalize and form a rule that takes into account the facts of the case by making an inference from the holding of the case.
Facts: Two dogs were fighting, and a man tries to separate the dogs with a stick. He is seriously hurt in the process and sues the owner of the dogs for negligence.
Holding: The court rules that "no reasonable person in those circumstances would have assumed the risk of separating the dogs without knowing that he might be hurt. Thus the owner of the dogs is not liable."
Extracting the Rule: The court has not stated a rule but has given you a holding or judgment of the case. You can infer several principles from that holding. Such cases are judged by the following principles: 1) the circumstances, 2) what a reasonable person would do and 3) assuming a known risk means you can't hold another party liable for damages.
Step Two: Restate the rule.
Most students just copy the rule from the casebook verbatim into their notes. The more astute student restates the rule in her own words in order to get a clearer sense of what has to be proven in order to apply the rule.
Stating the rule is a two-part process.
Part 1: Restate the rule in your own words in order to clarify that you understand it and remember it better.
As with any course of study or in any form of communication, when you restate what someone else has said in your own words, you are making sure that you understand the nuances of everything they have said. In a way, you are creating your own mini-Restatement of the law in the words of a 21st century lawyer. You can then compare what you have said with the case law to see whether you have understood all of the elements correctly.
Part 2: Break the rule into elements that must be satisfied in order for the rule to apply.
Breaking the rule into elements makes it easier for you to analyze the rule in a given set of circumstances. This is a crucial step in organizing your analysis and in outlining. By breaking the rule into elements - i.e. its terms of art - you will be better able to scan your notes easily to get the gist of the principle when studying for an exam.
Formatting the Rule
When breaking the rule into elements, put each element on a separate line. This helps you to visually absorb the rule. For some people, this type of formatting appears awkward and interferes with learning the law. They prefer to see the rule written out as a sentence. If you do write the rule as a sentence then be sure to highlight the elements by underlining or italicizing the key elements.
I prefer to take rule extraction a step further. I use a computer programming approach and break the rule into its logical components in order to see the flow. The old computer programming language BASIC uses logical commands to construct rules that the program would then follow. In the same way, you can program legal rules into a neat sequence of logical statements that are constructed as IF-THEN statements.
IF (condition is true)
IF you run a stop sign
THEN (result is true)
THEN you've violated a traffic law.
However, if there's one truism in the law, it's that the law is seldom as simple as an IF-THEN statement. There are nearly always multiple conditions that have to be met and exceptions to the rule for unusual circumstances.
Consequently, the simple IF-THEN statement also needs lots of other commands. One of the mind-boggling aspects of the law is how easily rules seem to contradict themselves.
The IF-THEN statement is made more complex with the operators AND, OR, BUT, NOT, UNLESS. These are known as Boolean operators and are familiar to anyone who has searched for information in a database (such as Lexis or WestLaw) or used one of the Internet search engines.
Boolean operators can be used with the traditional IF-THEN statement or can be combined with declarative rules with similar results. Use the technique that seems most understandable to you.
IF-THEN Structure with conditions
Declarative Structure with conditions
THEN (result is true).
(Result is true) IF
The UNLESS operator can be used in this system of stating the rule to list defenses to a particular rule when one party might be liable or guilty.
EXAMPLE of Declarative Rule with Conditions
The tort of intentional infliction of emotional distress exists IF the defendant
- acted with either extreme OR outrageous conduct
- AND intended to cause severe emotional distress to plaintiff
OR behaved with reckless disregard to emotional state of plaintiff
- AND the acts were the actual or proximate cause of the distress
- AND severe emotional distress actually occurred.
You can see that there are four conditions that have to be proven in order to find a defendant liable for intentional infliction of emotional distress.
CAPITAL letters are used with conjunctions (AND/OR), conditions (IF) or exception (UNLESS) in order to signal a connection between ideas. Use italics, underlining or boldface on key words to help identify key concepts and ideas quickly in an exam. We'll see in the next chapter how highlighting terms of art in the rule helps organize the next step of analysis.
Operators that help create a rule
- IF - THEN
- AND, OR
- BUT NOT
As you can see, this type of flowcharting can quickly get out of hand. So much of the law is interrelated, you can quickly start a long flowchart that becomes incomprehensible because there are so many conditions that have to be met. It is important to break off the rule at some point that makes sense so that you have discrete chunks of rules to follow that are easily grasped and then put together.
Sometimes you won't need the Boolean operators to make sense of a rule. However, you will still want to separate each element that needs to be proven in order to easily and visually see that each condition must be satisfied in order to apply the rule.
A party is guilty of common law burglary IF there was
- a breaking
- and entering
- of a dwelling
- at night
- with the intent to commit a felony therein.
Here, it's unnecessary to add the word "AND" to every line. It messes with the flow of the rule and would be visually unattractive. Use the Boolean operator with discretion in order to facilitate your understanding of the rule and to indicate a logical change in the conditions.
Step Three: State the Public Policy behind the Rule
The final step is to state the underlying public policy or doctrine behind the rule. Answer the question: Why does this rule exist? What societal goals, if any, are furthered by this rule? Is the rule merely one of fairness or equity or is there some economic justification for the rule?
Policy plays a key role in analysis. Sometimes, the particular facts of a case may satisfy the elements of the rule but the result is not consistent with the underlying doctrine. It's likely that the court would then consider that particular set of circumstances as an exception to the rule. By noting the policy, you integrate the policy into the rule as a condition that must be satisfied. In general, a rule will be true only if it's policy is furthered by the application of the rule.
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