LAW & LIT
"More coffee, please."
Model for Case-briefs
Tentative Syllabus for
Copyright -- Summer 2014
Legal Writing III -- Summer 2014
Office: My office is
room 456 in the library, located on the 4th floor
along the north wall. My office hours are by appointment, and sending me an
email at the address above is probably the best way to set up an appointment.
Here for a Message from Professor Hughes
Horace, Epistles 1.2.1-31
While you have been studying law at Rome, Lollius, I have been here at Palestrina, rereading the author of the Trojan War. Homer describes better, and more plainly, what is proper conduct, what is morally debased, what expeditious, and what is not than does either the Stoic or the Academic philosopher. Listen to why I have come to believe what I've just said, unless something else has your attention.
That story, in which is pictured the mobilization of Greece and the long war caused by the adultery of Paris, that story reveals the heated passions of the unlearned (both kings and commoners alike). Antenor suggests cutting away the very cause of the war. But how does Paris react? He says that he cannot be forced to give up Helen, even on the promise of securing peace and happiness! Meanwhile Nestor works to settle the quarrel between Achilles and Agamemnon, each of them burning: one in anger and the other in lust. Whatever acts the leaders commit in their delirium are in turn visited on the troops as a whole. Sedition, deceit, dishonor, in addition to lust and anger --all are practiced both within and without the walls of Troy.
In his second tale Homer sets forth Odysseus as an exemplar to illustrate the power of virtue and wisdom. It was Odysseus who conquered Troy and then saw many cities, investigating the customs of men far and wide. In navigating his men (and himself) homeward he suffered much adversity yet remained unsinkable despite the opposition of the waves and of fate. You know the voices of the Sirens and the magic potions of Circe. If he had been unmindful and incontinent enough to drink them in with his cohorts, he would have become crazy and devoid of reason, living as would a filthy dog or a pig covered in mud, under the power of a duplicitous mistress.
We today, however, are a of different sort. We are the unproductive suitors to Penelope, born only to consume the fruits of the earth. We are the Phaecacians, engaged in nothing so much as our manicures, for whom right conduct is sleeping until noon and forgetting our duties while the music plays and then softly fades away....
Vita regulae applicatio
As the cost of legal education has increased and the competition for starting positions (and salaries) has intensified, students seem to be more and more focused than ever before on their grades qua grades, and less and less on the actual knowledge or skill that the grades supposedly evaluate. The quest for good grades often is no longer conceived as the reflection of one’s efforts and abilities in trying to master a certain discipline but rather as the primary goal of the whole enterprise. (I sometimes wonder what my students would do if I were to offer them all a grade of “A,” provided that they promised not to learn anything at all in the course!) What this means for law teaching is that students tend to want to continue to do what they have done in school before, without stopping to think about whether that behavior is very well suited to the task at hand: viz., becoming a competent lawyer, that is, an expert in the law.
Did the judge take fifteen pages to write an opinion just to make more work for her readers unnecessarily or did she actually think that fifteen pages was the bare minimum needed to cover the ground of the decision? What then are we to make of a text-book that edits her fifteen pages to three? What of a student's outline that seeks to capture the opinion in four sentences? What's wrong with this picture? On what planet does this process constitute "education"? What does it take to become good at something? What does it take to become an expert?
I was like "Oh My God"!
The stabilizing influence of print, that is to say, of literacy, helped both to slow the rate of linguistic change and therefore to create a more solid process to signify and to transmit meaning. In some sense, it made "meaning" itself more concrete and hence more possible. To be sure this "reifying" power of print has often been misused, especially by academics. One need not look any further than the lists of courses in modern universities to find putative academic disciplines, the substance of which seems to be wholly embodied in the words that describe them. One may search in vain for their referents as for the proverbial emperor's new clothes. But my point is not that the power of print has been overestimated and thus made to serve Sophists but rather that it has been underestimated and allowed to fall into desuetude.
While Empson was surely correct that "ambiguity is richness," the efficient superintending of everyday affairs often requires unambiguous communication. Our post-literate society is, however, returning again to a more rapid period of linguistic change--I will resist the urge to say "devolution"--in which the speaker's attitude about the communication as evidenced by his or her voice's intonation seems to be more important than the content of the communication as articulated by an exact and extensive vocabulary. When there are fewer symbols used to communicate and when those symbols that are still used are made ever more inexact by wider extension, then everyone can communicate with roughly the same skill. No one need feel inadequate! When one expects the use of words to be shallow and delimited, one rarely needs to look below the surface for the history and the beauty of those symbols. Perhaps after many years of such narrow verbal band-width, one cannot even see below the surface?
"Dude! You got a tattoo!"
"What's it say?"
"Sweet! What about mine?"
"Dude! But what's mine say?"
"Sweet! But what about mine?"
"Seriously! Dude! What does mine say?"
"Sweet!. . . ."
(Dude, Where's My Car? was written by Philip Stark and directed by Danny Leiner.)
The importance of briefing cases
There are at least three reasons that law schools still attempt to teach students how to “brief” cases. First and most important, the format of a case-brief forces fledgling students to confront a checklist of basic items or facets in each case. The need to create a written brief forces a student to spend the requisite amount of time on these facets that is required for a minimal understanding of that case, especially in the first few months of law school. This is where much of the real “learning” actually takes place--not in the classroom! Second, the case-brief also serves as
a mnemonic device to refresh the student’s complete recollection of the case in class. Third, the case-brief then becomes a short record of the case that is ready-to-hand as the student studies for exams. These three reasons have been presented in descending order of importance, yet many students mistakenly believe that it is only the third reason that is important! That view is not only a mistake, but it is a mistake that is incredibly difficult to overcome once it has been made.
Given the many demands that are made on students’ time, it is understandable that they might mistakenly conclude that using someone else’s briefs or buying commercially-produced briefs might help them get ahead of the game, especially if they are only focused on preparing for exams instead of on truly understanding the course-materials fully, in depth, and by heart. Isn’t it the brief itself that is important? No, not really. The truly important thing is that the student learn to make complete and accurate case-briefs for herself. The goal is to develop one’s own skills, so that one begins “to think as a lawyer,” that is as an expert in the law thinks. The only real way to become an expert at something is to practice it over and over again. Buying someone else’s work is the opposite of practicing one’s own skills. It may save time on the front end, but it does not help one develop one’s own abilities. Whom would you want to hire: the lawyer who worked steadily and diligently to develop her own skills or the lawyer who bought someone else’s work?
What is the Cause of Action?
"Facts do not often exactly repeat themselves in practice;
but cases with comparatively small variations from each
Oliver Wendell Holmes, THE COMMON LAW 99
(Belknap Press 1963) (1881).
Students spend most of their time in law school examining what happened in the past, but they will spend most of their time in practice trying to influence what will happen in the future. In our adversarial system legal research is the search for relevant authorities upon which a decision can be based. That search does not begin in a vacuum but is set in motion by a real client’s factual circumstances at a specific time in a specific jurisdiction. While the common law may at one time have limited the scope of relevant authority to past judicial decisions, our increasing reliance on legislative enactments, especially in the last 200 years, and our creation in the 20th century of a vast administrative apparatus have produced many more potentially relevant primary authorities for every legal question.
When identified and analyzed, primary authorities, according to most legal thinkers, yield legal rules, which are both the building-blocks of legal argument and the landscape of legal advice. Traditionally
the "recognized" rules of law were termed "causes of action." Today
a cause of action may arise from a common law rule, from a legislative
enactment, from an administrative decision, from a court rule, from a
constitutional provision, or from a combination of any of these.
But primary authorities, while certainly the most important authorities, are not all
there is to consult on any given legal topic! An attorney must not only be familiar with the main triad of primary authorities outlined above: statutes, cases, and administrative pronouncements (including one way or another constitutions and court rules) but also with secondary authorities that interpret them, such as the restatements, treatises, and law review articles, etc. The relevant legal rules, the reasoning behind them, and the manner in which they have been used in past decisions must all be carefully distilled from the authorities. The legal rules and their embodiments in past decisions--the
causes of action-- are present in all legal documents, whether plainly visible on the surface or hiding amid the welter of detail. It is those rules – which ones must or should be given force, what they mean, and the result they produce for the client’s specific context – that are the essential starting points of all legal work. And the life of a given rule is its application to different sets of facts: vita regulae applicatio.
(Yes, I do realize that the Bluebook does not use quotation marks with "block quotes"!)
The Late Professor John Mattingly on Translating and Ambiguity
"All words are, from a semantic point of view, more or less ambiguous. The dictionary provides a semantic analysis of the possibilities. The choice is made in the light of what appears to be the optimal probability in the light of the probable meaning of the sentence as a whole."
"The great principle for the resolution of ambiguity is the following: Every ambiguity of whatsoever sort is caused to disappear by some specific word or phrase subsequent to the ambiguous word but within the sentence. If this is not true, the ambiguity in question is not verbal ambiguity but sentence‑ambiguity and is, therefore, pathological, i.e., it is a fault of style."
"Objective" does not mean "neutral"!
First, since an attorney enters the fray with a client, legal research is always tendentious. The attorney-researcher never strives to be “objective” in a neutral sense, that is, in the sense most people ascribe to the word; the stance of neutrality is reserved for the judge. Yet the attorney does seek to make the arguments that he or she creates appear to be “objective,” at base to make their adoption by the judge as seamless as possible. When an attorney seeks to assess “objectively” the client’s case, he or she is still seeking to make the client’s case, if possible, that is, still seeking to put the client’s case in the best possible light that the law will allow. To be sure, an important aspect of counseling any client is determining that a case cannot be made, but that conclusion comes only after one has sought to make it zealously within the bounds of the law. Because of the systemic duty to represent the client fully and with all one's power within the bounds of the law, an attorney never is not allowed the luxury of a neutral starting point.
One might perceive a tension between the need to make one’s arguments appear “objective” for ready acceptance by the judge into the body of law and the duty to advance the client’s interests over those of the opposing party. If such a tension exists, however, it is soon transformed by familiarity with legal argument into a kind of acumen of assessment–-a knowledge of the appropriate kinds of arguments that must be made in each kind of case. (Yet one perhaps at times still can feel the public’s distrust of a system [and of its attendant functionaries] which makes the conclusion to an adversarial struggle appear afterward as the only possible outcome.)
Consciousness as a glacier reflected on the surface
of a mountain lake.
Copyright 1999-2012 by D. A. Hughes,
It’s no use Mr. James!
It’s turtles all the