Do you remember your super-cool, creative writing teacher during Sophomore year of college? She was young and hip, dressing like she stepped right out of a Free People catalog. You know, the one who would sprinkle her lectures with funny truisms about life, love and the keys to getting along with a messy roommate.
Remember that first day of really nice weather during the Spring semester when she spontaneously announced: “Look, it’s too nice of a day to be inside. We’re going to hold class outside today.”? How the classroom erupted in applause and everyone bolted for the door, practically skipping down the hall on their way out of the building?
Remember how she sat everyone in a circle in the quad? The way the warm sun penetrated your favorite college sweatshirt (the one with the faded logo and holes in the wrist cuffs) and how the grass tickled your ankles?
How she instructed you to write one sentence of a story and immediately pass the paper (yeah, you still used paper back then!) to your classmate seated to your left? And how that paper continued all the way around the circle — each student writing one sentence — until it got back to you.
Then she took the paper and read the complete story aloud. The class laughed and, while others commented on the plot twists, you thought to yourself: “Someday, I’m gonna summon up the courage to ask her out for a drink and…”
WHOA! Sorry, I digressed.
Well, that exercise in the quad is very similar to what judges do when crafting common law rules.
As I explain in Law Preview, the evolution of the common law courses (e.g., torts, contracts, property, etc.) is much like a “chain novel” in which one court will write an opinion setting forth a black-letter rule that addresses certain factual circumstances; then, later, another court when faced with similar, but slightly different, facts will have to decide whether to extend (or restrict) the prior doctrine to cover the new, until then, unaddressed scenario. This process goes on and on throughout the cases you read and, therefore, much of what you’re doing as a law student is learning how the law evolved.
Throughout the semester, on a daily basis, you will review a case or two that explains a court’s holding (the black-letter legal rule or doctrine). In class, your professor will discuss the black-letter rule and, perhaps, ask you about the reasoning (the legal theory for why the court crafted the rule that it did). Then, during the discussion, your professor is likely to modify the facts slightly and ask whether the black-letter rule the court created would/should still apply — it’ll be your job to look back at the original reasoning to decide whether or not the prior rule should be extended to govern the new facts.
Then, at the end of the semester — on your final examination — you’ll be presented with a set of facts that you’ve likely never seen before. A story in which none of the black-letter rules you’ve learned up to that point in the semester can resolve the problem. Relying on the black-letter rules you’ve learned through the semester, your job is to craft arguments (using the reasoning you learned in prior cases) that support and oppose (always arguing both sides) the extension of the rule to cover the new circumstances.
It’s actually really simple once you come to terms with the reality that it’s unlikely that any of the black-letter rules you learn throughout the semester will fit neatly to the fact patterns you’ll face during exams. You’ll need to use the reasoning for the rules you learned to help shave the corners off some “square pegs” in order to make sure they fit securely in “round holes.”
Applying legal reasoning is a skill you’ll need to practice, for sure… just like creative writing.
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