4.4 – Clear Rules Versus Gray Areas


Clear Rules versus Gray Areas

I want to focus on some distinctions that I think are relevant to how you read cases and how you think about the law. The distinction I want to focus on here is what I call a distinction between clear rules versus gray areas in the law. You're going to read some cases that explain or lay out some legal rules, but no legal rule is perfectly 100% clear all of the time. Every legal rule has a little bit of ambiguity. It has some situations where how it applies is really obvious and it has a number of situations where it is less obvious. To really understand the kinds of rules that you're learning in law school, you need to be comfortable distinguishing between situations where the law is clear, and where the law isn't clear.

Understanding Where Law Is Less Clear

You need to know how to deal with that, you need to know how to play in those gray areas. I want my students to be able to understand the difference, to be comfortable saying, "Yes, the law is clear here."

Be comfortable saying, "No, the law is less clear here." Then to be able to try to reason through their way to an answer in the cases where the law is less clear. Think about some legal rule. Let's just take the example of first-degree murder. In many jurisdictions, there are statutes that say, "First-degree murder or some higher degree of murder requires the government to establish that the murder was deliberate and premeditated."

What exactly deliberate and premeditated means varies from jurisdiction to jurisdiction, but there are some jurisdictions that say, "You need some opportunity to reflect and form an attempt to kill." Let's take that rule. There are going to be easy cases with that rule, for sure. Imagine this, imagine someone spends a month meticulously planning a murder, has a detailed diary, where they talk about how much they want to kill the victim, and so forth. Then, finally, at the end of that month, does, in fact, kill the victim. Is that a hard case for whether it falls within premeditated and deliberate murder? No, that seems like it's a pretty clear case where the government is not going to have a lot of difficulty. Likewise, imagine a fact pattern where someone accidentally runs someone over with their car.

Is there an argument that that is deliberate and premeditated murder? That seems like that's going to be a pretty hard argument for the government, seems like that's a pretty clear case where it shouldn't be within the ambit of premeditated and deliberate murder. Then there's going to be fact patterns that look a little different. What about someone who gets really mad at the victim, and runs into another room, opens up a safe, pulls a gun out of the safe, comes back, and then shoots the victim? There, we would say the person had the intent to kill. The question would really be, are those seconds or minutes the person took going in the other room, getting the gun, is that enough to form premeditation?

Some jurisdictions might say, "Yes." Some might say, "No." There's a little bit less of a clear answer there. Guess what? Being a lawyer, being able to deal with situations like that, it involves being able to say, "Yes, this is an easy case," or "No, this is a harder case." Doing well on your exams means that you have to be able to know the difference between the easy and the hard issues, and be able to deal with them both. Think about an issue-spotter exam. An issue-spotter exam could have a dozen or more issues, some of which are designed to be easier than others, and you have limited time, you might have limited space, if there's a word limit on your exam.

Developing ability to identify hard and easy legal issues

To be able to deal with that exam effectively in a limited amount of time, you need to be able to budget. You need to be able to spend less time on the easy issues, and just get to the answer, and more time on the harder issues. Often, what a professor is looking for on those exams is a short analysis for the easy issues, and a lengthier analysis on the harder issues. You might have to argue both sides, and really show why the issue is close, even if you ultimately think one side or the other side has the better of the argument. When you read cases, another thing you should be asking yourself, "Is this one a close call or not? Is this a clear application of the rule, or are we in more of a gray area?"

How long of an excerpt did your professor give you? Is this a longer case or a shorter one? Is there a dissent or not? When there's dissent, that's often a clue that this was a particularly hard issue and that the court itself couldn't even decide about how the rule should apply. Look at whether other cases you read come out differently based on the same facts. When I'm teaching in class, I'm often trying to do two things at once. I want to make sure people understand the basic framework of the rules, and how they apply in easy situations, but then I also want to spend some time exploring the gray areas.

I think students sometimes get confused because they think, "I really just want to learn the rules. Why are we spending so much time on these fuzzier gray areas of the law?" The answer is law just isn't mathematics, rules are never perfectly clear. They're clear in some fact patterns, but no legal rule doesn't have some gray areas. Being able to really understand the rules also means being comfortable with situations where the rule is less clear and knowing how to deal with those. These examples of gray areas can come up a lot in note cases, sometimes in cases where there'll be a short note case, or a squib, or maybe a little problem, and then a question.

The book doesn't even tell you how the case comes out. With a case like that, don't assume there's actually a right answer. Don't assume that the book is trying to tell you that there is a right answer. Assume that maybe there's no clear right answer and what the book or the professor wants you to do is really think through, "How would I deal with this? How would I argue through this?" If you're confronted with a fact pattern like that, and we'll talk about this more a little bit later in this course, which is just a preview, how do you deal with it? What are you supposed to do when you're in the gray areas rather than when you're in the situation where you can just apply a clear rule?

You're going to use a lot of tools with the law, lots of tools of legal argumentation. One thing you might do, though, is make some arguments that sound not just in legal rules, but also in policy arguments. That's what I'm going to talk about in the next lesson.

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