Edition: 1 Professors Fischl and Paul explain law school exams in ways no one has before, all with an eye toward improving the reader's performance. Instead, Getting to Maybe teaches how to excel on law school exams by showing the reader how legal analysis can be brought to bear. Getting to Maybe. How to Excel on Law School Exams. Richard Michael Fischl and. Jeremy Paul. Carolina Academic Press. Durham, North Carolina. Free Download Getting to Maybe: How to Excel in Law School Exams Kindle ready Download here.
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Some states require a physical impact before permitting a plain- tiff to pursue a claim for emotional distress in which case Harry would lose for want of such impact , while other states permit plaintiffs to pursue a claim without such impact in which case Harry may well be able to succeed in his claim.
Statute Let's end this section with one more variation on rule vs. In each of tbe hypotheticals discussed thus far, the issue arises in the context of a conflict between two rules that each has its basis in the common law. But-in your course- work as well as on your exams- you will also encounter issues that arise because of a difference between a common law rule and a statutory rule.
Indeed, as state legislatures enact more and more statutes regulating matters historically governed by the common law, you are likely to confront this kind of issue on your exams with increasing frequency. Consider, then, the fol- lowing illustration: Seller replies by sending downloader an acknowledgment of order, promising to ship widgets innnediately and agreeing to the price and payment terms.
What rights, if any, does Seller have against downloader? Do you recognize the issue from your Contracts course? Although Seller's acknowledgment accurately recapitulates the description of goods, quantity, price, delivery, and payment terms stated in downloader's download order, it "breaks the mirror" by adding a term-i. As a result, the acknowledgment is not an accep- tance of the offer, and t l.
And if the statutory rule were applied in this case, the Seller's acknowledgment would operate as an acceptance of downloader's offer, thus binding downloader to the contract and preventing him from backing out.
As long as you're familiar with the particular rule vs. Yet law pro- fessors find that students- even students who have studied hard and prepared well- miss these issues with surprising frequency. Our view is that the principal reason for student error is not that students fail to see the rule vs. Counter-Rule Issues 33 In our experience, many students ignore the rule vs.
Their thinking goes something like this: There's some old rule that lets the offeror revoke even if you're halfway up the flagpole, and there's a Restatement section that fixes all that.
So who cares about the old way? The professor asked us to discuss the rights of the parties, and that must mean under the law that would apply today. Now where's my copy of the Restatement Some- times the professor has in fact constructed the question in such a way that the student will be "right" if he applies say the Re- statement and "wrong" if he applies the common law rule.
But here's an important test-taking tip: If the professor went to the trouble of teaching you about the difference between the Re- statement and common law rules governing the revocation of of- fers-and if she also went to the trouble of designing a problem that would come out one way under one rule and another way under the other- chances are pretty good that to recognize this J.
And while it's true that nself: But if you are attempting to answer a question in which the choice between rule and counter-rule seems to be that straight- forward, you ought to take this as a signal that you may be miss- ing something in your analysis of the problem.
Since lawyers can only fantasize about the dream client whose case can be resolved by the straightforward application of a single legal rule, law pro- fessors rarely give exam questions that are this simple either. In- deed, at least nine times out of ten, the professor will try to con- struct a hypothetical in which the choice between rule and counter-rule is not nearly so clear-cut.
Fortunately, such hypo theticals tend to appear in patterns too, and, fortunately for 34 Getting to Maybe those of you with the good judgment to be reading this book, we're jl9.
One common way that professO'r-s -test issues is to set the facts of an exam question in an unidentified or even imaginary jurisdiction e. When you encounter a rule vs. If, for ex- ample, your Torts course examined Florida's approach to com- parative negligence in painstaking detail, and on the final you encounter a question involving an accident that a occurred in Florida between Florida residents and b is the result of plain- tiff's negligence as well as defendant's, you'd be making a serious mistake if you saw this question as an opportunity to provide a lengthy rule vs.
The professor has taught you Florida comparative negligence and has designed a question specifically asking you to apply that law. It is therefore virtually certain that she wants you to focus like a laser beam on that task.
And while you might earn some issue-spotting points for offering a sentence or two contrasting the Florida law analy- sis with the analysis under competing approaches the professor has emphasized e.
But many law school courses-and especially the classic com- mon law courses like Contracts, Torts, and Property-examine "'majority" vs. Counter-Rule Issues 35 "modern" rules and rarely focus in on the current law of a par- ticular jurisdiction.
If you encounter a rule vs. But this attitude can lead to serious mistakes, for the so-called "modern" rule is frequently only a trend that many jurisdictions have not yet adopted and, for all we know, might never embrace. J- ',,, mentis a beautiful thing, but a it isn't a statute and b it isn't , "law" unless and until a court or some other authoritative says it is.
If an exam question places you in Jurisdiction X and your professor has stressed that Jurisdiction X has adopted the mod- ern rule on the relevant topic, then that's clearly the rule you should emphasize in your answer. But if you encounter a tradi- tional vs.
Chapter 4 Forks in the Law: Competing Interpretations of Statutes As you saw in the previous chapter, in order to test a rule vs.
Law professors mine a of "fork in the law" -we call them "com eting inter retationS"" issues-in much the same man- ner. We'll cover statutes in this chapter and cas'etaw-in the next. Does a rule that reads "No vehicles permit- ted in the park" apply to tricycles?
The answer to that question depends on the meaning of the rule, and the meaning of the rule is not nearly so clear as it might seem to someone who's never been a victim of the Socratic method.
One way to read the rule is to give the word "vehicle" its common or "dictionary" defini- tion. If we do that, the only question is whether tricycles fall within that definition and, since they probably do, we are ready 37 , But another way to read the rule is to focus on the reasons for the prohibition.
And if we read the rule that way-and conclude that the point of the rule is to reduce pollution, noise, and the risks of serious injury to pedestrians in the park-we may well decide that it wasn't designed to apply to tricycles. The first time you encounter a problem like this in law school, it is tempting to conclude that the problem is just sloppy draft- ing.
Wouldn't that fix the problem and spare the rest of us all this tedious discussion? And then she poses a question that creates a ripple of nervous laughter through the classroom: This is more than a little scary. After all, it's hard to imagine a rule that's shorter and simpler than "No vehi- cles allowed in the park. Indeed, many law schools dedicate entire courses to the prob- lem of interpreting statutory materials, and many line books and articles have been written on the subject.
So we can't reduce the subject to live or even fifty easy lessons. But what we can do is help you learn to recognize a statutory ambiguity-what we call a competing-interpretations issue-when you encounter it on a law exam.
As in the previous section, the way we'll do that is by describing the most common patterns of ambiguity and then the kinds of problems law professors design to test them.
Competing Interpretations of Statutes 39 A. Patterns of Ambiguity 1. Purposes Issues By far the most common pattern of competing interpretations is illustrated by our "No vehicles permitted in the One way of reading that rule is to focus on tJk't a "vehicle" ; another way is to focus on the ru1Q tricycles just don't pose the same threats to the park and its users as cars do. Disputes that turn on this conflict-an in- terpretation of a rule that is based on the so-called "plain mean- ing" of the words used vs.
Consider a second example: Wholesaler sends Retailer an acknowledgment of order by e- mail, promising immediate shipment of the ordered goods. Prior to shipment, Wholesaler on the deal. Retailer sues, but Wholesaler asserts that the U.
What result? Do you see the plain meaning vs.
On the one hand, an e-mail message that appears only as an electronically generated image on a computer screen may not constitute a "writing" -let alone a "signed" writing- under the plain meaning of the terms of U. For most students, it's easy to see the plain meaning of a rule: You know what words like "vehicle" and "writing" mean and, when you hit a rough one, you can always look it up.
But purposes are a different matter, and unfortunately you won't find those de- fined in any dictionary or encyclopedia. So where do purposes come from? Legislative intent The most obvious place to start in a search for a statute's pur- pose is the horse's mouth: What clues do we have about what the "authors" of a particular rule-Congress; the state legisla- ture; the city council-were attempting to accomplish?
We can find those clues in a number of places: The mass of material lawyers refer to as "legislative history" -official reports of legislative committees that drafted the bill; statements made by legis- lators during floor debates; and even testimony given to the legislative body by outsiders-may shed light on what it was the drafters were attempting to achieve by enacting the statute in question. For example, recall once again our "No vehicles permitted in park" hypothetical.
If the dis- cussion in the various committee reports focused exclu- sively on automobile and truck traffic-citing studies of pollution and noise levels; accident statistics; damage due to weight loads; and the like-you'd have a sound basis for arguing that the purpose of the rule had nothing to do with tricycles.
Another place to look for purposes is other provls-lOns of the statute in question. To continue our "vehicle" hypo, the presence of a provision that makes revocation of the operator's license the key sanction for violations of the rule would suggest that the drafters were worried about grown-ups in cars, trucks, and motorcycles- not children on tricycles- when they enacted the rule. Hy-accompanied by an "official comment" specifi- cally designed to explain the purpose of the various provi- sions.
Although the Restatement is not a statute, the "re- porter's note" serves a similar purpose in interpreting its provisions. To recall once again our e-mail under the Statute of Frauds hypo, the Official Comment to reveals that the purpose of the "signed writing" require- ment is "to afford a basis for believing that the offered oral evidence rests on a real transaction"- a purpose that may be satisfied as well by a saved e-mail message as a hardcopy document.
Frequently there is some dramatic event that prompted the legislature into action, and this too may shed light on the purpose of a statute. If, for example, the "No vehicles permitted in the park" rule had been enacted in the wake of a tragic acci- dent in which a sport utility vehicle had struck and fatally injured a group of joggers running together in the park, this would offer further evidence that the risks the rule was designed to eliminate were of the sort associated with automotive-rather than tricycle-traffic.
Am I really supposed to know the details of the legislative history and all that other stuff for every statute and every provision we read in class? The bad news is that many students will dismiss the discussion of such material as "beside the point," since they think they came to law school just to "learn the rules.
In practice, recognizing the difference between the purpose of a rule and its plain mean- ing is something you'll need to do all the time, but you won't do it very well if you don't learn to pay close attention to the ways that lawyers decode statutory purpose. Yet you'll be even worse off on an exam, for you're likely to miss altogether the issue the professor is trying to test: If you don't know the purpose of the rule, how will you be able to tell when that purpose differs from the rule's plain meaning?
Policy analysis Lawyers can't always count on having direct evidence of leg- islative intent; for many statutes, the legislative history will be too sketchy to be of much use, and the other sources we've sug- gested may be unavailable or inconclusive as well. So what do we do then? The short answer is that we engage in "policy analysis," and perhaps the best way to do that is to imagine that you are a leg- islator who is trying to decide whether to support or oppose a bill containing the rule in question.
What policy or policies is the rule designed to further? Why do you suppose your col- leagues want to see it enacted into law? What problem or prob- lems social, commercial, legal, etc. Whether you decide to support it or not, what is it that the rule is supposed to ac- complish? Your professors have pressed you to engage in this kind of thinking from the first day of law school, and while it is befud- dling at first "How would I know what the rule was designed to accomplish?
As we said in connection with our discussion of legislative intent, chances are that the professor will have thoroughly explored the policies behind any statute she thinks is worthy of testing on the final.
At the same time, most professors would be delighted to en- counter a policy analysis that goes beyond a mere parroting of points made in class. A major theme of this book is that issues and arguments appear in patterns in the law-and that studying those patterns is the best way to learn to deal with those issues and arguments-so it shouldn't sur- prise you that there are patterns to what we're calling policy analysis as well. Indeed, we've devoted an entire chapter to this topic-Chapter 10 "Czars of the Universe" -and we encour- age you to work your way through that material very carefully as you try to develop this skill.
But we bet you're already better at policy analysis than you think you are; read on, and see if you don't agree. Purposes as a Source of Statutory Ambiguity a. Competing purposes Imagine a statute that protects "whistleblowers" -employees who "disclose to law enforcement personnel any violation of the law by the employer" -against discharge or other discipline in retaliation for their "whistleblowing. The employee is re- quired to "notify the employer before disclosing the violation to law enforcement personnel.
Which of the following policies is the pre-disclosure no- tification requirement designed to further? If you picked a , b , or c , congratulations!
All three are poli- cies that might indeed be furthered by the requirement of pre-dis- closure notification, so you can relax a little bit about your ability to do policy analysis.
We told you that you were up to it! If you picked d , you have also figured out the next point we want to make: Most rules have more than one purpose. What this means is that there is yet another source--or a;;. In addition to the plain meaning vs. Consider, for example, how our whistle- blower statute would apply to the following situation: Without a word to her employer, Wanda Whistleblower con- tacts agency officials and volunteers information about a safety violation-subsequently remedied by the employer-that di- rectly contributed to Employee's death.
Silver Spoon retaliates by discharging Whistleblower, who sues for relief under the statute.
The analysis under a plain-meaning interpretation of the statute is pretty clear: Whistleblower didn't "notify the employer before disclosing the wrongdoing to law enforcement personnel. But what about an interpretation that focuses instead on the statute's purposes? The short answer is that it depends on which purposes we're talking about. If we start with a -requiring employees to fulfill a duty of loyalty by notifying the employer before "taking it outside the family" -the result may well be the same as it would be under a plain-meaning interpretation of the Competing Interpretations of Statutes 45 rule: Whistleblower loses because she didn't notify the employer first.
But if we focus instead on b , we might conclude that pre-dis- closure notification was not necessary in this case. After all, the employer was already aware of the violation and has already corrected it, so those reasons for pre-disclosure notification are moot.
Similarly, at the time of the disclosure, the employer was already facing an investigation by law enforcement personnel, so policy c -avoiding unnecessary agency proceedings-is beside the point as well. Note, by the way, that we've identified two "forks in the road" in this problem. We started with a plain meaning vs.
We call this a "twin fork," and we'll have more to say about twin forks in Chapter 7. An examination of legislative intent-through legislative history and the like-will also frequently reveal competing purposes.
One obvious reason for this is that there may be as many differ- ent purposes as there are legislators; another is that any given legislator may be moved by multiple purposes. These differing and multiple purposes will frequently surface during the course of legislative deliberations. Consider once again the problem of applying our "No vehi- cles permitted in the park" rule to tricycles. It may be clear from the committee reports and the floor debates that the legislators were concerned about many things, and most of them-pollu- tion, noise levels, wear and tear on the park roads-may have nothing to do with tricycle traffic.
That part of the record sug- gests that permitting tricycles in the park is perfectly consistent with the statute's purposes. But assume that the legislative history is also rife with con- cerns about the park's role in enhancing the qualiry of life for el- derly people who live in the surrounding apartments.
Perhaps a representative of an advocacy group promoting the interests of 46 Getting to Maybe the elderly was a key witness before the committee that drafted the bill; perhaps one of the catalysts for the statute's enactment was an incident in which a teenager on a bicycle struck an el- derly couple. You get the picture. To the extent that "protecting the elderly users of the park" is viewed as one of the statutory purposes, the case for applying the prohibition to tricycles will be much stronger.
In the end, our point is that you should avoid the trap that be- falls many law students. Having discovered that the purpose of a rule may provide a way of interpreting it that is different from a mere application of plain meaning-and having decided that this is a pretty neat trick -they stop thinking and rely on the first purpose they see in the legislative history or through policy analysis.
Our advice: Don't forget to push on those purposes, for there is frequently more than one! When lawyers argue about the interpretation of a statute, one side will fre- quently speak in terms of the "broad" purposes behind the statute and the other side will describe its purposes as relatively "narrow. W purposes issues come in at least two versions. I ,, Spin vs. One way to think about broad vs.
Imagine the "spin control" that each group might attempt at a press conference on the day the statute is enacted. Typically, the supporters will declare vic- tory in the most sweeping terms, whereas the critics will put the best possible face on defeat by acknowledging only a minor set- back. If, for example, the statute in question is a federal environ- mental protection act, the supporters might portray its enact- Competing Interpretations of Statutes 4 7 ment as a great victory that "marks a dramatic shift in our Na- tion's environmental priorities" that will "forever change the way America does business.
Thus, lawyers defending the strict standards will declare that the statute's purpose was to "mark a dramatic shift" in en- vironmental policy that was obviously intended to force many firms to "change the way they do business. In a second version of the broad debate, a broad purpose is invoked to dif- fuse or weaken the effect of a statute, whereas a narrow pur- pose is invoked to sharpen its focus and effect.
To return again to "No vehicles permitted in the park," if the purpose of the prohibition is stated in the most broad and general terms- "to protect the park-. But if the purpose is stated narrowly- "to protect the elderly, the infirm, infants and their stroller-pushing nannies, and other fre- quent users of the park" -the threat from tots-on-trikes may well loom larger.
Competing purposes issues frequently fall into this pattern, with one side offering a broad and the other a narrow account of the purposes of the statute in question. Learn to recognize the pattern, and you'll "know it when you see it" on an exam.
Competing Meanings A moment ago, we urged you not to stop your search for is- sues with the first purpose or policy that comes to mind.
The same advice applies when you are focusing on the plain meaning of a rule, for-quite apart from the rule's purposes-the "meaning" of the language used frequently isn't very "plain" at all. We've assumed all along, for example, that a tricycle fits the dictionary definition of "vehicle," but the Oxford English Dic- tionary offers six definitions of the term, only one of which is relevant here. To train you for this kind of work, law professors frequently draft exam questions that involve competing interpretations of the words used in rules and statutes.
What follows are some of the "dictionaries"-besides Black's and the old-fashioned one- that you must learn to consult. The dictionary of statutory context. We frequently can look elsewhere in the statute to shed light on the meaning of disputed terms. In the easiest case, the legislature has actually provided its own dictionary and included a section in which various terms used in the statute are defined.
In other cases, a bit of detective work may be necessary. Consider once again our vehicle hypo- thetical. Competing Interpretations of Statutes 49 "light trucks and vans"; and then larger "trucks" with increas- ing numbers of wheels. This suggests that when the word "vehi- cle" is used elsewhere in the statute, it should be given that nar- rower meaning, rather than its broader "plain meaning.
It's and "hardcopy" has been completely eliminated from most forms of human communica- tion-partly due to the proliferation of electronic communica- tions media and partly due to the fact that we have finally run out of trees. The members of the committee charged with revis- ing Article II of the U. As a consequence, the U. Thus, a lawyer arguing that an e-mail message is a "writing" may well simply be stating the obvious, and the party responding that is not satisfied by e-mail will have to cite "the dictionary of history": At the time of its enactment, "writing" meant printing, or typing, or handwriting on paper or a similar medium producing "documents," and the prospect of communication via e-mail wasn't even contemplated by most folks.
Precisely because today's "plain" meaning frequently becomes tomorrow's "historical" meaning, issues pitting historical mean- ings against other interpretations- based on current meanings or on statutory purpose-are extremely common in law practice and on law exams. Indeed, you are even more likely to en- counter issues pitting historical meanings against other interpre- tations in the context of Constitutional Law than in the context of statutes.
The dictionary of commercial context. Imagine a municipal ordinance requiring restaurants to install and maintain two flush 50 Getting to Maybe toilets "for every 40 seats. Stools at the bar? A bench at the "take-out" counter? Rocking chairs out front? These are all "seats" under a plain-meaning interpretation of the rule, but to someone doing business in the restaurant indus- try, "40 seats" as in a "seat facility" may have a more spe- cialized meaning and refer to "seats available for meal service.
The dif- ference could also be worth a lot to a patron whose child has waited until the last moment to announce the need for a bath- room! Disputes that raise this issue-i. When dealing with such a statute on a law exam, then, watch for terms that may have a specialized meaning in the commercial context in question. The dictionary of the common law. We've saved the hardest for last, so fasten your seat belts. Statutes frequently use terms like "tenant" or "independent contractor" that had a well-de- veloped meaning at common law.
With equal frequency, statutes are enacted for the purpose of changing the common law. What happens when the same statute does both of these things at once: A concrete example may help you see the potential statutory ambiguity: An upscale tobacco merchant sends a signed letter to a group of selected customers announcing bargain prices on a list of rare cigars and expressly guaranteeing those prices for a two- week period.
Three days later, one of the selected customers attempts to download two cigars from the list, but the mer- chant refuses to honor the price guarantee. What legal rights does the customer have against the merchant? You may recall that, at common law, the merchant's promise would have been unenforceable for want of consideration, under the famous rule of Dickinson v.
Dodds, 2 Ch. Competing Interpretations of Statutes 51 You may also recall that the "firm offer" provision of the U. In pertinent part, that section provides: An offer by a merchant to download or sell goods in a signed writ- ing which by its terms gives assurance that it will be held open is not revocable, for lack of consideration, during the time stated.. Is our merchant's letter a "firm offer" under this rule? It's clear that we have a "signed writing" from a "merchant" that "gives assurance" -indeed, in the language of our letter, guarantees- "that it will be held open" for two weeks, and our customer turned up at the shop well within that time period.
But what's not clear is whether the letter is also an "offer," and the answer de- pends on what we mean by that term. On the one hand, if "offer" keeps its common law meaning, the merchant's letter may fail under the common law rule that treats price lists, advertisements, catalogs, and the like as mere invitations to deal and not offers.
But on the other hand, the purpose of is to hold merchants to commitments they make and deprive them of technical objections that are the com- mon law's equivalent of "but-Simon-didn't-say-I'd-sell-cigars-at- those-prices! As the foregoing suggests, issues that present a conflict of this sort- between the common law meaning of a term and a mean- ing based on statutory purpose-can be subtle and more than a little complex. But in a world where statutes are ever more fre- quently enacted to "displace" the common law, you should ex- pect to encounter issues of this sort often, in legal practice as well as on your exams.
Fact Situations To Watch For Most law professors try to test what they teach, so the best way to enable yourself to recognize competing-interpretations is- sues is to pay careful attention to the statutory ambiguities your professor emphasizes. If she stressed one or more of the issues we've discussed-the tension between the plain meaning of some statutory provision and its purpose, say, or between the different policies underlying a particular statute-chances are that those issues will show up somewhere on the final.
Beyond that, our experience suggests that there are several factual situa- tions that law professors routinely use to test competing inter- pretations of statutes, so it's a good idea to become familiar with them.
Variation on a hypothetical examined closely in class. One fact pattern to watch for is the scenario that presents a slight variation on a hypothetical that was closely ana- lyzed in class. If the professor devoted substantial time and attention to analyzing the "No vehicles permitted in the park" rule and its application to tricycles, watch for skateboards, wheelchairs motorized and otherwise , and golf carts on the final!
New application of an old statute. Watch for the scenario in which a statute that's been around for awhile is in- voked in a factual setting that was unimaginable at the time of enactment-like the Statute of Frauds applied to a transaction memorialized via e-mail or voice-mail. New or imaginary statute. Professors who want to test their students' ability to engage in statutory interpretation rather than just the capacity to regurgitate arguments from class discussion may design a question asking you to apply a statute you've never seen before-a recently Competing Interpretations of Statutes 53 enacted statute, perhaps, or even one that the professor has invented out of whole cloth.
When you encounter a problem like this, don't freak out. Indeed, you should count your blessings, for this is one setting in which the professor won't expect you to know anything about leg- islative history! A statute making a cameo appearance in a common law claim.
Finally, watch for the setting in which a statute is in- voked in the context of a common law claim or defense- for example, a tenant who withholds rent on the basis of the landlord's violation of the housing code, or a defen- dant in a negligence suit who offers compliance with a reg- ulatory statute as proof of reasonable care. Professors fre- quently invent statutes for use in settings like these, and in our experience students miss competing-interpretations is- sues because they focus like a laser beam on the common law and pay too little attention to the statute.
For ex- ample, consider a hypothetical in which an owner is taking her cat on a commercial flight, and the cat escapes from its cage and bites another passenger; the passenger sues for negligence, and the owner defends on the ground that the cage complied with pertinent FAA regulations. The "B" exam will identify and analyze the tort law issue-does statutory compliance establish reasonable care?
Are the FAA regulations designed to protect passengers from the prospect of feline attack? If so, compliance with those reg- ulations may be relevant to the issue of the owner's reason- able care.
But if the regulations are merely intended to pro- tect cats from unnecessary discomfort during turbulence and to ensure that cages fit unobtrusively in the space be- neath a seat, then their relevance to the duty of care with respect to fellow passengers is substantially diminished.
Chapter 5 Forks in the Law: Competing Interpretations of Caselaw A now-famous law school classmate once aptly described the experience of reading your first judicial opinion as a lot like "stirring cement with your eyelashes. Believe it or not, the law exam may be just the compass you need to help you negotiate this challenging terrain. For when it comes to testing your understanding of the cases you've studied, an exam problem typically asks only one question and expects only one answer.
The question is "'should you 'follow' the case? The typical exam question involves a scenario that is a varia- tion-it may be a slight variation or it may be a dramatic one- on the facts of a case you've studied in class.
The parties may be arguing over the "capture" of oil deposits rather than wild ani- mals, for example, or about the regulation of the Internet rather than broadcast television. The scenario thus presents you with another instance of what we've been calling a "fork in the law.
But if you don't follow the precedent- if in- stead you "distinguish" it-your analysis may come out the other way. Post and to another if we that case. Just as the "forks in the law" we studied in the last chapter depend on how you interpret a statute, the choice between fol- lowing and distinguishing a precedent depends on how you in- terpret the earlier case.
And in the same way that statutory am- biguities appear in patterns you can study and learn to recognize-plain meaning vs. After a few more words about following and distinguishing cases, we'll devote the rest of the chapter to exploring those pat- terns. When To Follow Precedent Let's say your Constitutional Law teacher asks you to evalu- ate an imaginary statute that outlaws human cloning.
The chal- lenge may be brought by an infertile person who seeks to clone himself. Not as far-fetched a scenario as it was when we used this problem a short while ago on an exam! You have read every case for the course six times, and you're sure you have never read anything about cloning.
So your first reaction is: This isn't fair. I studied so hard, and she asks me about something we never learned. As usual, however, you know more than you think.
Odds are very good that you have read Planned Parenthood v. Casey, U. Suppose that instead of viewing the case in the narrow terms of abortion rights, you were to describe Casey more broadly as guaranteeing a right to control one's own "reproduction.
Now you have an argument that your course included a case about cloning, even though you didn't see it that way at first. Competing Interpretations of Caselaw 57 You can challenge the anti-cloning statute on the ground that Casey protects "reproductive freedom" and your client is being denied the freedom to "reproduce" himself. This challenge will generate a debate over the meaning of Casey, just as our discus- sion of statutes involved a whole set of debates over the meaning of statutory provisions.
There are two things to notice about this debate. First, it is easy to see how a vigorous and interesting controversy about Casey could occur before a court even got to the question of cloning. So, to use our terminology, there is a "fork in the law" about what Casey protects "abortion rights" vs. The categorization issue- as you might have gathered- involves a "fork in the facts," a topic to which we will return in the next chapter.
Second, the debate over the meaning of Casey is emblematic of perhaps the most common pattern of ambiguity in caselaw: What varies in the different ways of looking at Casey is the "level of generality" at which the holding is stated. The low level of generality makes the case sound as though it's only about "abortion.
Searching for Distinctions that Make a Difference Some exam questions force students to struggle to find the analogy between a case they have read and the fact pattern the exam presents. Many students, for example, may simply miss the similarity between "abortion" the case they know and 58 Getting to Maybe "cloning" the exam issue.
But students who spot the similarity right away face an equally grave danger. For it is just as much a mistake to zero in on similarities and forget to explore the differ- ences. And where the similarities are hard to see comparing cloning to abortion , the differences should stick out like a sore thumb. Indeed, one more clue to "finding Waldo" is to remem- ber that your professors are trying to build variations on cases you already know.
So there will almost always be similarities and differences. If you can spot one easily, look for the other. Most of the time, it will be hiding there somewhere. When it's the differences you are focused on, remember that mere identification is good, but what will really move you to the head of the class is explaining why those differences should mat- ter-why they are significant enongh to justify a result different from the one reached in the precedent.
Consider, for example, the following problem, taken from a real exam. A visiting scholar is renting a house for a year and hoping to renew the lease in May. The house's owner, however, has the house on the market in December. The owner tells the scholar he can renew only if the house isn't sold by May.
The scholar's time in the house has alerted him to certain defects basement flood- ing after big rains, loud parties every Thursday night in the house across the street, sparking from the electrical outlets. He decides, however, to tell neither his landlord nor prospective downloaders about these defects, because he hopes that last-minute discovery will spoil a deal and give him a chance to renew.
What happens instead is that the defects aren't discovered until after the closing, when new owners move in. The new owners are fu- rious and bring suit not only against the sellers who knew noth- ing of the defects but also against the scholar who was present and silent when the house inspections took place.
The question asks for an evaluation of the scholar's liability. Really opens up your eyes to the world of what law exams are supposedly like. Spot the issue. Identify all the legal questions which arise out of the hypothetical fact pattern given by the professor. Identify the number of ways in which each issue can be addressed.
Sometimes, there will be a "fork in the law. Or should a statute apply? Should the court consult a Great book. Should the court consult a more traditional rendition of a rule pertaining to, say, torts, or should it look to the modern Restatement? Other times, there are "forks in the facts. Most of the time, these factual and legal forks will be intertwined. Argue a side. Argue the way in which you think the case should be resolved under the relevant law.
Which side of each of the forks has the most compelling arguments in its favor? Don't stop there, however. Present the shortcomings of your chosen argument and the difficult aspects of the problem which will have to be resolved.
This venture was about the power of one. No one leader could be identified. Getting to Maybe analyzes how such changes happen and tries to answer the question, "How can the impossible become possible? The authors say that "there is no road map for social innovation; it is not a route that can be mapped step by step.
Yet, the book talks about vision, a sense of calling, developing possibilities and the need for intense interactions, networking and information exchange. These factors, mixed with talent and skill in identifying and removing barriers, the authors say, will get you to "maybe. For example, by reading about the post-World War II Dutch emigration movement, I was shown a direct path of social innovation that was repeated family after family and year after year. The book To All My Children, by Albert Van der Mey Paideia Press , demonstrates emigrants' motivations, their often uninhabitable beginnings, their resolve to build a better life, their commitment to community and social fabric and their passion and resolve.
These qualities were the foundation of their economic and social success that evolved not many years later. There was a clear path, one often repeated by subsequent waves of immigrants. There was no maybe. The authors get to "maybe" because that, it appears, is what they set out to do.