5.6 – Flagging Rule Variations and Grey Areas


Flagging Rule Variations and Grey Areas

In the process of going back through the material in your casebook, other material that you were assigned, and going back through your notes, some of the time you're going to find that maybe you can distill things really, really simply. As I talked about in the previous lesson, you might read a case that's several pages long, and just say, "This case stands for one really straightforward rule that I can summarize in a sentence and I can really boil that down to a really short part of the outline," but there's some areas where you need to be extra careful and pay close attention.

One is, there are situations where there are multiple competing rules. In some classes, this is going to happen all the time. For example, in criminal law, you often learn the common law rules, the judge-made rules that courts have been using for hundreds of years, in addition to learning the Model Penal Code, which is a set of criminal law rules that were created by the American Law Institute about 60 years ago. Often, professors like to teach both and they like to test both.

While outlining, flag multiple competing/similar rules and areas.

In that context, when you're outlining, you are going to want to have, for any distinct legal issue, you're going to want to flag both possible rules. Common law rule is, and then summarize, Model Penal Code rule is, and summarize, but that's going to be true in other classes too, in a lot of the common law classes. In some areas, there will be rules that every court follows, but in other areas, there will be what we call a majority rule, where more courts follow one rule but a smaller number follow a different rule, or there may be just multiple competing rules no one of which commands a majority.

You might read multiple cases, each one illustrating a different rule, or you might read a case that illustrates one rule, but then after the case, we'll say, "Here are the other possible rules." Whenever that happens, you want to make sure you flag that in your outline. The outline really makes clear, "This is one rule possibility, but here are the other rule possibilities." Part of that idea here is you're working backwards from what might be on exam. An exam might really want you to know the different possible rules.

Your outline is really going to be designed to make sure that you're flagging those areas, but that's not the only place you might need to pay particularly close attention.

Another area that aren't situations where you've learned competing rules, but maybe an area where you've learned some rule, but it's a little fuzzy, or they're what I call grey areas of the law. Maybe the courts haven't ever addressed one particular set of facts or maybe the courts have provided a rule, but the rule itself is really vague and it's unclear how it's going to apply in new situations.

Devote more time and length to hard issues.

Some rules are really easy and some rules are more complex. Again, using this idea of working backwards from what you'd want to be able to do on an exam. A really good exam answer, and I'll talk about this more a bit in the next couple of classes, a really good exam answer is one that knows how to differentiate between easy issues and hard issues. Easy issues are easy and, therefore, they can be dealt with quickly on an exam.

Hard issues are hard and, therefore, they require more discussion, more thought, more analysis, and your outline should reflect that and it should correspond to whether issues are easy or hard or in these grey areas. How do you know if you're in one of the grey areas? Different things to look for. Sometimes your professor will just say, "Here's what the court has said. I think this other issue is still undecided or unresolved."

Maybe your professor in cold calling will ask a lot of questions that are just designed to show it's really unclear how the rule that the court is announcing would apply to a different set of facts. You might also read an opinion that has a lot of reasoning and then has maybe a dissent that's included and maybe even a particularly lengthy dissent. Those are situations where maybe the rule in the case is a really close question, or maybe there are situations where the court's ruling was really dependent on the specific facts at issue in that case.

If you tweak just a few things, the whole thing would look different. If you find yourself in a situation like that, you probably are not going to serve yourself well by just boiling down, let's say, a ten-page Supreme Court case about a very fuzzy legal standard with a five-page dissent really going into all the different issues in the case. You're probably not going to want to boil that one down just to one sentence, "The rule is X."

Sometimes you can do that, but sometimes that's a signal that this is actually a really hard, nuanced, close question. In that situation, you might want to spend a little bit more time on your outline. You might want to include a lengthier summary of the key facts to the case because if it turns out that the precise holding of that case really turned on the nuanced facts, you need those in there because, again, work backwards, imagine how a professor might use that.

Maybe there's a case that the court announces a five-factor test and then the court says, "We weighed all the factors and we think it just barely tips in favor of the defendant here." Then, your professor might write a fact pattern that looks similar to that case, but maybe tweaks a few of the facts in different directions. A really good answer is going to be able to not just state whatever the rule was the court gave, but really go through the analysis carefully and show how it might lead to the same result or a different result as the earlier case you read.

That is, in those situations where you're really more in the grey areas, you might need to do a little bit more of analogizing and distinguishing of a case that you read rather than just treating the case as secondary to the rule that it states. In those situations, if you think, "This is a close question. We really spent a lot of time talking about the contours of this rule," maybe summarize a bit more, maybe go into a little bit more detail in your outline about the rule and about the different kinds of factors that go into the rule, and maybe flag some of the things that the dissent noted. Again, you can't do this for every case.

I'm not telling you to go into a huge amount of detail on every case you read. Far from it. I think you have to make some hard choices and you have to figure out, "Okay, this case was really just there to illustrate this really simple rule and there's not a lot else to say about it," but you need to make those choices and figure out, "Okay, this is really more in one of the grey areas, and this is the place." Think from your professor's perspective. Maybe this is the kind of thing that a professor would want to test on, and you want to be prepared in your outline if your professor decides to do that.

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