Legal Reasoning SLIDES ONLY

TRIAL COURT - RESOLVING THE ISSUES

"Anything on which the parties do not agree, assuming it is relevant to resolving the dispute, is put as issue" and must be "decided" by the court. [KV, 19-20] • Issues "will be decided either upon motion of a party or by trial." [19] • Issues of fact ("what is the situation to which the law must be applied?" [20]) "can be resolved only by trial." [21] • Issues of law ("what are the rules of law governing the dispute?" [20]) are decided by the judge, generally after a motion by a party. • Issues requiring the application of law to fact (mixed questions of law and fact) - "what rights and duties exist between the parties under governing law in this situation?" [20] "Mixed questions of law and fact are typically resolved by juries." Black's Law Dictionary, Brian Garner, Ed. in Chief (7th ed. West Group 1999). For exceptions, see KV, 25.

Protect makers and sellers from indeterminate liability

"If we go one step beyond [the contracting parties], there is no reason we should not go fifty." Alderson in Wright v. Winterbottom, quoted in intermediate appellate decision in Coughtry v. Globe Woolen Company, ¶ 5.

The Character of Legal Reasoning

"[A]lthough the legal reasoning process in form is structured as if it were based on logic, in reality . . . it is a process of constructing arguments that a set of rules should be read to impose certain rights and duties" in light of "the policies, that is, the values, underlying the law." [KV, 3-4] • Deciding what the law requires a person to do always involves a process of reasoning or argument. "In some cases, the argument for a particular result is so convincing that it will not even be perceived as an argument, but will merely be seen as an obvious application of the rule. In other cases, arguments will be vigorously contested, and even the ablest lawyers will disagree over which argument should prevail." [KV,

Rules applying a more general rule

"[O]ne rule may state the manner in which a more general rule applies to a specific situation." [KV, 59] • Rule Defining Battery: • If (1) Person A touches Person B and (2) the touching was intentional and (3) B did not consent to the touching and (4) the touching causes offensive bodily contact, then A "commits a battery . . . ." • In Cerilli v. Kezis, 790 N.Y.S.2d 714 (2nd Dept. 2005), a doctor whom a patient authorized to cauterize the site of an injury also performed a biopsy although patient had told the doctor not to do a biopsy. • The court held: "The plaintiffs' allegations that the defendant doctor performed a biopsy over the express objections of the injured plaintiff . . . state a cause of action sounding in battery." • Source: NY Pattern Jury Instructions: Intentional Torts, Battery

ANALYZING STATUTES - A FIRST CUT KV 37-40

(1) Identify the statutory provision you wish to analyze. • (2) Translate the provision into an "If ___, then ___" statement. • (3) Identify policies relevant to the statutory provision and scenario: • (i) Does the broader statutory scheme of which the provision is a part have a section identifying its purposes. If so, what are they? • (ii) Does the legislative history or broader context reveal policies (for example, the "mischief") that led the legislature to pass the provision? If so, what are they? • (iii) Does the provision implicate broader social or legal values? If so, what are they? • Compare the "If ___" part to the facts of your scenario. • (i) If the facts clearly fit the "If ___" part, a court is very likely to apply the "then ___" part. • (ii) If the facts clearly do not fit the "If ___" part, a court is very unlikely to apply the "then ___" part. • (iii) If it's debatable whether the facts fit the "If ___" part, a court should apply the "then ___" part if doing so advances the policies relevant to the provision and scenario.

Settings of Legal Reasoning

Backward looking- what legal rights or duties does the client have now based on what happened in the past (i.e., based on existing facts)? Forward looking - how can the client get where she wants to go

SCENARIO 3

Conclusion: Lisa acted unlawfully. • Major premise: An owner of an apartment building who refuses to rent an apartment to someone because of their marital status acts unlawfully. • Minor premise: Lisa, who owned an apartment building, refused to rent an apartment to Jill and Jack because of their marital status.

SCENARIO 3 LISA LESSOR

Conclusion: Lisa did not act unlawfully. • Major premise: An owner of an apartment building who refuses to rent an apartment to someone because of their marital status acts unlawfully. • Minor premise: Lisa did not refuse to rent an apartment to Jill and Jack because of their "marital status."

Method of legal reasoning

Five steps 1- identify sources of the law 2-analyze the sources to derive rules 3-synthesize the structure of applicable rules 4-research the facts 5-apply the structure of rules to facts

Protect from harm

High probability, severe harm. Thomas v. Winchester, ¶¶ 10-13.

5. Apply Structure of Rules to facts

How would the structure of rules apply to these facts? • The driver was commuting to work • The car was going 62 miles per hour • The posted speed limit was 65 miles per hour • The temperature was 29 degrees Fahrenheit and snow was falling at a moderate rate. • It was 7:20 a.m. on a major highway coming into Buffalo (i.e., rush hour, so the traffic was heavy) • There were ice patches on the road. • The depth of the tread on the tires was 4/32 of an inch.

District Court - Discovery

Interrogatories • Request for admissions • Request for production of documents or things • Deposition of a witness • Purposes of Discovery • Obtain evidence about what happened • Learn what arguments the other party likely will make • "Prevent a party from changing its arguments at trial" [KV, 19]

TAKEAWAY PT. 1

Legal Reasoning •Identify relevant legal rules [the major premise] • Apply to facts [the minor premise] • To infer legal relations [the conclusion]

MAP OF CONCLUSION

MAJOR PREMISE MINOR PREMISE I I LEGAL AUTHORITY FACTS: I Evidence

One Response to Indeterminacy: The Special Rules of Statutory Interpretation

Plain meaning - McBoyle v. United States • Anti-redundancy (Give effect to every word) - McBoyle v. United States • Ejusdem generis - McBoyle v. United States • Specific statute over general statute • In pari materia • Absurdity canon • Ambiguous statute construed against government - McBoyle v. United States These special rules of interpretation themselves sometimes are indeterminate either because they are vague or ambiguous or because two special rules appear to apply and give different answers. [KV, 99-100]

The Setting of Legal Reasoning

Sometimes lawyers engage in legal reasoning to identify the consequences of an existing scenario (that is, the lawyer reasons about events that have already happened). • This is what we just did when we looked at the method of legal reasoning to ask whether the driver broke the speed limit. • Sometimes lawyers engage in legal reasoning to identify a set of hypothetical facts (that is, facts the client can try to make happen) that will bring about a set of legal relations the client desires. • How could the driver in the example we just did get where she wants to go without subjecting herself to liability for speeding?

Examples of the method of legal reasoning

Suppose the question is whether someone has broken the speed limit. What steps would you take to get the answer?

Conclusion : From 2.1 & 2.2

THEREFORE, Driver breached the applicable speed limit

NY VAT § 1231

Traffic laws apply to persons riding bicycles or skating or gliding on inline skates. Every person riding a bicycle or skating or gliding on inline skates upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title, except as to special regulations in this article and except as to those provisions of this title which by their nature can have no application.

Delegation of Power to Define Statutory Terms Fair Labor Standards Act

U.S Code 213 - Exemptions a. Minimum Wage and Maximum Hour Requirements - The provisions of sections 206... of this title shall not apply with respect to- 1. Any employee employed in a bona fide, executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools) or in the Capacity of outside salesman( as such terms are defined and delimited from time to time by regulations of the Secretary . . . .); Or (

4. Research the Available Facts

What facts be relevant in light of the structure of applicable rules?

District Court Pleadings

• The trial court is the first step in judicial resolution of a legal dispute. • Complaint - Plaintiff alleges facts that entitle the plaintiff to relief from the court. • Motion - Defendant moves to dismiss on some legal ground. • Answer - Defendant responds to allegations in the complaint. • Deny, admit, or unable to respond to alleged facts. • Assert affirmative defense. • Defendant may counterclaim against plaintiff or cross-claim against another defendant.

Holding

• What holding does Winchester seek in the case? • What holding does Thomas seek? • How do these potential holdings compare to the legal rules behind these potential holdings? • What is the holding in the case? \AND disposition

2. Analyze the sources to derive rules

"In general," Vandevelde observes, "rules of law have the form of 'if X, then Y,' meaning that if these facts occur, then this legal right or duty arises." [KV, 31] • In other words, rules of law can be stated in the form of a conditional like this: "If these facts occur . . . , then this consequence [a legal right or duty or whatever] will result." [KV, 31] • How might we translate subsections 1180(a) and 1180(d) into the form of a conditional? • How about these as translations of the rules? • 1180(a): If an individual drives a vehicle, that individual may not (has a duty not to) drive faster than is reasonable and prudent in light of the existing conditions, including any actual or potential hazards. • 1180(d)1: If an individual drives a vehicle, that individual may not (has a duty not to) drive in excess of the posted maximum speed.

The syllogism Model

"Most people do not think in an orderly way. Thoughts do not traverse the mind like a military parade, four abreast in neat rows and columns; they race in and out of consciousness from every direction and in no obvious order. Not surprisingly, most people argue the way they think-haphazardly, without clear structure, and often without recognizing or consciously understanding the logical connections between their own arguments and contentions." Gardner & Bartholomew, 3.• The syllogism model is a tool. It gives you an organized framework for analyzing reasoning and argument.

Case Law

"The courts resolve disputes concerning the application of law to particular factual situations." [KV, 15] • Courts apply enacted law. • Where there is no enacted law (for example, common law fields such as tort law and some parts of contract law) or where the enacted law is indeterminate, courts make law when they decide a case because the decision becomes a "precedent" for future cases.

Legal Syllogism

"The major premise is a statement of the law" usually in the form of "a general proposition of general applicability." • "The minor premise . . . is a proposition concerning the application of the law to the particular circumstances of the case at hand." • The conclusion is implied by (follows from) the major and minor premises. • Gardner & Bartholomew, 7

IDENTIFYING APPLICABLE LAW

"The process of determining which law applies is really a process of winnowing out the law that could not plausibly apply." KV, 28 • A. Choice of law winnows out the law of governments that do not have power over "the persons or transactions involved in the situation." • B. Rule analysis winnows out laws that do not apply to the subject matter (what is going on) in the scenario. • C. Constitutionalism winnows out law that does not apply because it conflicts with "a law created by another entity of superior authority." KV, 34

deduction basic model

"When using deduction, the lawyer determines whether the facts of the situation are or are not described by the factual predicate of a rule and thus whether the legal consequence imposed by the rule does or does not apply to the situation." [KV, 91] Syllogism • Major Premise: All dogs are mammals (which implies the conditional statement: "If X is a dog, then X is a mammal.) • Factual predicate = "If X is a dog"; Consequence = "then X is a mammal." • Minor Premise: Fido is a dog. So we can see that Fido is described by the factual predicate ("is a dog") of the major premise. • Steps in inference to the conclusion: Since Fido is described by the factual predicate of the major premise, we can substitute Fido for X in the consequence, "then X is a mammal," which gives the Conclusion "then Fido is a mammal." • If Fido is not a dog, can we infer that Fido is not a mammal? No. Maybe Fido's a cat Major Premise - General Rule Defining Battery: If a person X (1) performs a voluntary act (2) that causes a touching of person Y (3) with the intent to touch Y and (4) the touching is offensive, then X "is liable for battery." [KV, 94] • Assume these facts: Ralph was angry at Tom, so while Tom was sleeping, Ralph hit Tom with his fist and knocked out three of Tom's teeth. [See KV, 94] • Minor Premise: (1) Ralph performed a voluntary act. (2) Ralph's act caused a touching of Tom. (3) Ralph intended to touch Tom. (4) The touching was offensive. • Conclusion: • If the "If __" statement "describes" the facts, then the legal consequence DOES apply. • If the "If __" statement does not "describe" the facts, then the legal consequence DOES NOT apply. • The "If __" part of the rule defining battery describes the facts in the scenario, so the consequence - "Ralph is liable for battery" - follows.

Key Points in Gardner & Bartholomew, pp. 3-10

"[E]very good legal argument is cast in the form of a syllogism." • A syllogism is made up of a major premise and minor premise that together imply a conclusion. • "The major premise is a statement of the law; it is, like most major premises, a general proposition of general applicability." • "The minor premise of a legal syllogism is a proposition concerning the application of the law to the particular circumstances of the case at hand." • "The conclusion . . . derive[s] from the major and minor premises." All quotes on G&B, p. 7

Rules cumulative to another rule

"[O]ne rule may . . . describe a different right or duty than another rule" or "a different set of facts that will give rise to the same right or duty." [KV, 62] • Rule Defining Battery: • If (1) Person A touches Person B and (2) the touching was intentional and (3) B did not consent to the touching and (4) the touching causes offensive bodily contact, then A "commits a battery . . . ." • Rule Defining Tort of Assault: • If (1) Person A acts in a way that causes Person B to reasonably apprehend that A will cause a harmful or offensive contact to B and (B) A's act was intentional, then A commits the tort of assault. • Remember that you will be synthesizing rules that appear to (and perhaps do) apply to the same situation. That means the rules you are synthesizing likely will refer to some of the same facts even though they may describe some of those facts in different terms. • Suppose A knocks B down. • Rule Defining Battery: • Suppose A did not mean to knock B down. A just wasn't looking where A was going. Might A be liable for an injury to B? • What is the relationship between another rule making A liable for knocking B down and the rule defining battery?

Rules contradicting another rule

"[O]ne rule may contradict another." [KV, 64] • Possible Responses to Rules that Contradict: • (1) One rule supersedes the other. • (2) "[T]reat[] one rule as a limitation on, or exception to, [the other]." • For example, self-defense is a limitation on the general definition of battery. • Or imminent dangerousness is an exception to the privity requirement. • (3) "[T]reat neither rule as the general rule but regard[] them as applicable to mutually exclusive sets of circumstances." • If the person on my land is an invitee, then my duty is A. • If the person on my land is a licensee, then my duty is B (less stringent). • If the person on my land is a trespasser, then my duty is C (even less stringent)

CHOICE OF LAW THEORY - HORIZONTAL

"[T]o the extent that state law applies, the applicable state law is usually the law of only one state. The laws of different states, generally, are mutually exclusive, meaning that they re not applied simultaneously to the same transaction." [KV, 29] • What about situations in which more than one state has contacts with a case? • Choice of law clauses [KV, 30] • Choice of law doctrines [see handout] • Lex Loci • Contracts - Lex loci contractus - "the law of the place of the contract" • Torts - Lex loci delicti - "the law of the place of the wrong" • The NY "center of gravity" approach to horizontal choice of law applies the law of the government that, by virtue of its contacts with the scenario, "has the greatest concern with the specific issue raised in the litigation." Babcock v. Jackson, 191 N.E.2d 279, 283 (N.Y. 1963)

Goal of legal reasoning

"identify the rights and duties that exist between" the parties.

The Meaning of Right and Duty [KV, 53-54]

"must be careful to characterize correctly the precise rights or duty created." [53] • "rights and duties should be understood as types of legal relationships among persons or entities" [53] • "Duty" - "generally refers to a legal relationship that requires a person to take some action" or to refrain from taking some action. [KV, 53] • "Right" - (1) "refers to a legal relationship that entitles a person or entity to take some action" (for example, voting in an election). (2) "refers to a legal relationship that entitles a person or entity to action from another" [KV, 53] (3) power to change legal rights and duties (for example, make a contract or give property to someone else) • "Right" may refer to a collection of more specific rights and duties." For example, various "rights" of property owners. For example, decide how the property is used, transfer ownership to others, take steps to exclude non-owners from using the property [KV, 54]

Three Characteristics of Rights and Duties

(1) "identify the persons among whom the relationship exists." [KV, 54] • Contracts create rights and duties among parties to the contract. [in personam] • Ownership creates rights in the owner and duties "against all people." [in rem] • (2) "identify . . . subject matter, that is, the type of conduct that the right or duty governs." [KV, 54] • For example, regarding "property," who may decide how the property is used, who must stay off the property, etc. • (3) "identify . . . the nature of the relationship, assessing whether the relationship is mandatory or permissive." [KV, 54] • A mandatory relationship requires conduct. This may be either positive (You must . . .) or negative (You must not . . .) • A permissive legal relationship permits conduct (You may but are not required to do or not do something).

1. Identify the Applicable sources of law

-NY Vehicle and Traffic code & 1180 provides as follows a- No person shall drive at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing d-1. Except as provided in subsection (g) of this section, whenever maximum speed limits . . . . have been established as authorized in [list of sections authorizing particular entities to set speed limits] no person shall drive-in excess of such maximum speed limits at any time. • Note - Section 1180 includes other provisions that might come into play here. I left them out to keep it simple.

Two Types of Synthesis

1. "determine the relationship that each rule bears to the others." • "creates an outline of the applicable rules, with more specific rules categorized under more general rules." • 2. "the synthesis of a single rule from a number of holdings to govern a situation not within the factual predicate of any prior rule or holding." • All quotes [KV, 57]

Two types of synthesis

1. "determine the relationship that each rule bears to the others." • "creates an outline of the applicable rules, with more specific rules categorized under more general rules." • 2. "the synthesis of a single rule from a number of holdings to govern a situation not within the factual predicate of any prior rule or holding." • All quotes [KV, 57]

ANALYZING APPELLATE CASES

1. FACTS 2. Procedural History 3. Questions Presented 4. Rule of Law to Fact 5. Application of Law to Fact 6. Holding 7. Disposition

Major Premise :

A person who drives a vehicle in excess of the established maximum speed limit breachers the applicable speed limit If an individual drives a vehicle that individual may not ( has a duty not to) drive in excess of the posted maximum speed.

Analyzing Statutes

AL Employer Liability Act • When a personal injury is received by a servant or employe [sic] in the service or business of the master or employer, the master or employer is liable to answer in damages to such servant or employe [sic], as if he were a stranger, and not engaged in such service of employment, in the cases following: . . . • 5. When such injury is caused by reason of the negligence of any person in the service or employment of the master or employer, who has the charge or control of any signal, points, locomotive, engine, switch, car, or train upon a railway, or of any part of the track of a railway. Legal Rule (stated in conditional form) • If an employee is injured as a result of the negligence of a co-employee who is in charge or control of a car or train upon a railway or any part of the track of a railway, the employees' employer is liable as if the injured employee were a stranger. That is, the employer is vicariously liable.

U.S Constitution, Art. 1, Section 1

All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a senate and House of Representatives Section 8 The Congress shall have power, To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

Character of Legal Reasoning

Although the legal reasoning process is form is structured as if it were based on logic in reality . . . it is a process of constructing arguments that a set of rules, should be read to impose certain rights and duties" in light of "the policies, that is, the values, underlying the law."

THE PROBLEM OF GENERALITY

An order tells a particular person or persons to do something. • A rule tells people as members of a generic grouping or class (drivers or physicians, etc.) what they may do, must do, or must not do. • "A few rules of great generality are more efficient to write and research and are usually thought to reduce the prospect of unequal treatment, since all persons are subject to the same rule." [KV, 34] • But even seemingly clear words are vague at their edges. • Is a physician-patient relationship created whenever a doctor at a cocktail party answers a question about a medical issue? If not, what conduct triggers the existence of such a relationship ? • What conduct counts as "the rendering of a medical service"? • Courts consider the policies and values behind a rule when they define the boundaries of the rule's application. For more, see Vandevelde, pp. 37-40.

Can Carroll recover against GSRR

Carroll: Yes, because Alabama law (the Employer Liability Act) applies. • GSRR: No, because Mississippi law (the fellow servant rule) applies. • So, which state's law applies? Possible Legal Rules • Lex loci contractus - If the litigation involves a contract, then apply the law of the place where the contract was made. • Lex loci delicti - If the litigation involves a tort, then apply the law of the place where the injury occurred. • "Center of gravity" approach - If there is litigation, then apply the law of the jurisdiction which, by virtue of its relationship or contacts with the scenario involved in the litigation, "has the greatest concern with the specific issue raised in the litigation"

Stare decisis

Certainty - Deciding new cases "in a way that is consistent with prior cases . . . promot[es] certainty in the law. Vandevelde, 51. ◼ Flexibility - "stare decisis permits change when the underlying policies seem to require it." Vandevelde, 5

Liability (because the defendant owed a duty based on considerations of policy and safety)

Chemist (Thomas, ¶ 11) - A chemist who mislabels a poison is guilty of manslaughter if someone dies as a result of the error. ◼ This is based on the more general rule that a person whose "carelessness or negligence" "contribute[s] to the death of another" is liable for the negligence. Nurdin, Illidge v. Goodwin (Thomas, ¶ 12) - Owner leaves horse and cart unattended and an accident occurs. Loaded gun (Thomas, ¶ 12) - Owner gives child a loaded gun, which discharges, injuring someone.

SCENARIO 4 : PROSECUTION

Conclusion: Florian is guilty of assault in the first degree. • Major premise: A person who intends to cause serious physical harm to another person and who causes such injury to that person by means of a dangerous instrument is guilty of assault in the first degree. • Minor premise: Florian intended to cause serious physical harm to Brian and caused serious physical injury to Brian by means of a dangerous instrument.

SCENARIO 4 FLORIANS LAWYER

Conclusion: Florian is not guilty of assault in the first degree. • Major premise: A person who intends to cause serious physical harm to another person and who causes such injury to that person by means of a dangerous instrument is guilty of assault in the first degree. • Minor premise: Florian did not cause serious injury to Brian by means of a dangerous instrument.

SCENARIO 2 PROSECTUTION

Conclusion: Pat Smith should be fined or imprisoned for a period of not more than 10 years. • Major premise: A person who transports a motor vehicle in interstate commerce knowing the vehicle to have been stolen shall be fined or imprisoned for a period up to 10 years. • Minor premise: Pat Smith transported a motor vehicle in interstate commerce knowing the vehicle to have been stolen.

SCENARIO 2 PAT

Conclusion: Pat Smith should not be fined or imprisoned for a period of not more than 10 years. • Major premise: A person who transports a motor vehicle in interstate commerce knowing the vehicle to have been stolen shall be fined or imprisoned for a period up to 10 years. • Minor premise: Pat Smith did not transport a motor vehicle in interstate commerce knowing the vehicle to have been stolen.

SCENARIO 5 BUSYTOWN

Conclusion: Selden is liable to pay a fine of $100. • Major premise: A person whose barking dog creates a noise disturbance across a residential property line is liable to pay a fine of $100. • Minor premise: Selden's dog created a noise disturbance across a residential property line.

SCENARIO 5 SELDEN

Conclusion: Selden is not liable to pay a fine of $100. • Major premise: A person whose barking dog creates a noise disturbance across a residential property line is liable to pay a fine of $100. • Minor premise: Selden's dog did not create a noise disturbance across a residential property line.

Respondent Superior Liability in CARROLL

Factual statements from Carroll • GSRR employees are liable to Carroll for his injury. • GSRR employees were acting in the scope of their jobs when they performed the acts that made them liable for Carroll's injury. Legal Rule: Respondent superior liability • If an employee acting within the scope of his job commits negligence, the employee's employer is vicariously liable for the injury. • Alabama Employer Liability Act says an injured co-employee is treated like an injured stranger (see details in statute). Plug the facts into the rule and what do you get? • GSRR is vicariously liable to Carroll for his injury.

Negligence liability in CARROLL

Factual statements from Carroll • Employees of GSRR owed their co-employees (including Carroll) a duty of care. • Some employees breached their duty to Carroll when they failed to discover a defective link in a link-and-pin coupler. • The failure to exercise due care actually and proximately caused Carroll's injury. Legal Rule: Negligence liability • If (1) V suffered an injury and (2) A owes a duty to persons like V to be careful not to cause the sort of injury V suffered and (3) A breached the duty and (4) the breach actually and proximately caused V's injury, A commits negligence against V and is liable for V's injury. [Goldberg & Zipursky, Torts, p. 72] Plug the facts into the rule and what do you get? • GSRR employees are liable to Carroll for his injury

Fellow Servant Rule in Carroll

Factual statements from Carroll • Carroll's injury was caused by actions of his co-employees at GSRR. Legal Rule: Fellow-servant rule • If an employee is injured as a result of the negligence of a co-employee, then the employer is not vicariously liable for that injury. Plug the facts into the rule and what do you get? • GSRR is not vicariously liable to Carroll for his injury. • What this means is that Carroll cannot recover against GSRR unless he can prove negligent conduct by GSRR that caused his injury. • Does this requirement create a really big problem for Carroll?

Safety

Flywheel (Loop v. Litchfield) - Defendant made a flywheel with a defect and sold it to A, who used the flywheel for five years with mishap. Loop came into possession of flywheel. While Loop was using the flywheel, it flew apart and he was killed. Scaffold (Coughtry v. Globe Woolen) - The defendant (the owner of building) has its employees build a scaffold for use by employees of construction company while installing a cornice. Scaffold collapses and plaintiff (an employee of the construction company) is killed.

Relationships among rules

For any two legal rules, we should be able to specify a relationship between the rules. Vandevelde identifies a small number of possible relationships among rules . • 1. A rule may define an element of another rule. • 2. A rule may apply a more general rule. • 3. A rule may limit the scope of application of another rule. • 4. A rule may be cumulative to another rule. • 5. A rule may contradict another rule.

QUICK REVIEW OF RULE ANALYSIS

Form - Rules may be written as "If __, then __" statements in which the "If __" part of the rule states facts that provide a test for when the rule applies and the "then __" part specifies the legal relationship that arises when the rule applies. If a plausible argument can be made that the facts in the "If __" part of the rule are present in the scenario under analysis, you should further analyze the rule to determine whether it applies. • Substance - Legal rules are adopted to advance policies and values. A rule reflects a balancing or compromise among the policies relevant to the circumstances in which the rule applies. "The elements of the rule define exactly the situation in which the policies favoring the right or duty [created by the rule] prevail." [KV, 33] • The Problem of Generality - Rules are often written in "broad, generic language" that leaves it unclear whether the rule applies to a situation. Before you eliminate a rule from consideration, you should make sure that it is clear that the rule does not apply. That is, that there is no plausible interpretation of the rule under which it would apply to the scenario.

Key facts of CARROL

GSRR (Alabama corporation) hired Carroll (Alabama resident) in Alabama. • Certain employees of GSRR owed Carroll a duty to exercise due care. • One or more of these employees breached their duty to Carroll and failed to discover a defective link in a link-and-pin coupler. • Carroll was injured when the defective link broke. • The actual and proximate cause of Carrol's injury was his co-employees' failure to discover the defective link. • The train on which Carroll was injured traveled from Birmingham, Alabama to Meridian, Mississippi. • The negligent inspection of the link-and-pin coupler happened in Alabama. • The coupler broke and Carroll was injured in Mississippi.

WHERE WE AT

Goal of Legal Reasoning - Identify legal relationships arising in a particular scenario. • Method of Legal Reasoning - Identify legal relationships by applying legal rules to the facts in the scenario. In order to do this, the lawyer must • (1) Identify sources of law that appear to be applicable to the scenario; • (2) Analyze the apparently applicable sources of law to identify legal rules; • (3) "[S]ynthesize the rules into a coherent structure in which the more specific rules are grouped under the more general ones" [KV, 2]; • (4) Fully research the factual scenario; and • (5) Apply the structure of rules (from (3)) to the facts (from (4)) to identify the legal relations (rights, duties, etc.) among the parties in the sc

Basic legal reasoning model

Goal of legal reasoning that aims to synthesize a new rule: • The lawyer represents a client in a particular scenario. • The lawyer wants a court to hold that a particular legal relation (a right, a duty, etc.) applies in the client's scenario. • No statute or past judicial decision has held that this particular legal relation exists under the facts of the client's scenario. • The lawyer may be able to persuade a court to hold that this legal relation exists in the facts of the client's scenario if the lawyer can • (1) find past cases with facts similar to the client's scenario in which a court applied the legal relation the lawyer wants to apply to the client's scenario and • (2) use these cases as evidence of a legal rule broad enough to cover the client's scenario.

5(.2) Apply the Structure of Rules to the Facts

How would the structure of rules apply to these facts? • The driver was rushing her child to the hospital because the child had ingested a poisonous substance • The car was going 82 miles per hour • The posted speed limit was 65 miles per hour • The temperature was 74 degrees Fahrenheit • It was 7:20 a.m. on a Saturday morning on an empty stretch of a four-lane highway in excellent condition • There were no other cars around • There was not a cloud in the sky • The car was new and in perfect operating condition How would the structure of rules apply to these facts? • A person on a motorcycle was riding through a school zone at 8:00 (so kids are walking to school) • The motorcycle was going 23 miles per hour • The posted speed limit in the school zone was 15 miles per hour • What if it were a bicycle rather than a motorcycle?

Linen drawing

Line drawing happens when a rule must establish a boundary between situations in which the rule applies and situations in which it does not apply, but the situations close to the line are so similar that the place where the line is drawn seems arbitrary. • Example: Think of the scaffold in Devlin v. Smith [90 feet], the platform in Swan v. Jackson [6 feet], and the scaffold in Mauer v. Ferguson [8 feet]. The Devlin court held the scaffold was imminently dangerous. The Swan and Mauer courts said the platforms in those cases were not imminently dangerous. These were pretty easy cases. The hard question is: At what precise point is a platform so high that negligence in making the platform is imminently dangerous? • Suppose we say 20 feet. Then the question arises: Do the policies behind the rule creating a duty of care to users of the scaffold justify treating a scaffold that is 20 feet and ½ inch high differently than a scaffold that is 19 feet and 11 ½ inches high? • No. These two situations are not materially different in terms of the policies behing the rule. They are treated differently because a rule has to draw a line someplace even when the policies behind the rule cannot justify drawing the line at any specific point.

Key legal rules in CARROLL

Negligence liability: If (1) V suffered an injury and (2) A owes a duty to persons like V to be careful not to cause the sort of injury V suffered and (3) A breached the duty and (4) the breach actually and proximately caused V's injury, A commits negligence against V and is liable for V's injury. [Goldberg & Zipursky, Torts, p. 72] • Respondeat Superior: If an employee (acting in the scope of their job) commits negligence against a person, the employer is vicariously liable for the injury. • Fellow-Servant Rule: If an employee is injured by a co-employee's negligence, their employer is not vicariously liable for the injury. • Alabama Employer Liability Act: If an employee is injured by the negligence of a co-employee who is in charge or control of a car or train upon a railway or any part of the track of a railway, their employer is liable as if the injured employee were a stranger

KEY LEGAL RULES IN CARROLL

Negligence liability: If (1) V suffered an injury and (2) A owes a duty to persons like V to be careful not to cause the sort of injury V suffered and (3) A breached the duty and (4) the breach actually and proximately caused V's injury, A commits negligence against V and is liable for V's injury. [Goldberg & Zipursky, Torts, p. 72] • Respondeat Superior: If an employee (acting in the scope of their job) commits negligence against a person, the employer is vicariously liable for the injury. • Fellow-Servant Rule: If an employee is injured by a co-employee's negligence, their employer is not vicariously liable for the injury. • Alabama Employer Liability Act: If an employee is injured by the negligence of a co-employee who is in charge or control of a car or train upon a railway or any part of the track of a railway, their employer is liable as if the injured employee were a stranger.

Rules limiting a more general rule

O]ne rule may serve as a limitation on the scope of another rule, which means that one rule may specify situations in which another rule does not apply." [KV, 60] • Rule Defining Battery: • If (1) Person A touches Person B and (2) the touching was intentional and (3) B did not consent to the touching and (4) the touching causes offensive bodily contact, then A "commits a battery . . . ." • Rule for Self-Defense - If a person is attacked, the person "has a right to use 'sufficient [but not excessive] force to repel the assault . . . .'" • Source: NY Pattern Jury Instructions: Intentional Torts, Battery • Suppose the more general rule is, "If A & B & C & D, then E." • A rule limiting the more general rule will add this to the general rule: "but not if F." So we have "If A & B & C & D, then E but not if F." • Here is a puzzle: Is absence of consent an element of the rule defining battery or is consent an exception to the rule defining battery. • On page 197, KV discusses consent as an exception to the general rule defining battery. So the rule and exception is: If one person "intentionally touches another in an offensive way," the toucher "is liable for battery" but not if the person touched consented to the touching. [Quotes, 58-59] • New York law treats consent differently. The NY rule includes the absence of consent as an element of the general rule: If (1) Person A touches Person B and (2) the touching was intentional and (3) B did not consent to the touching and (4) the touching causes offensive bodily contact, then A "commits a battery . . . ." • Source: NY Pattern Jury Instructions: Intentional Torts, Battery

Courts fact finding and the rule of law

People who initiate a proceeding in a court are usually asking the government to use coercion or the threat of coercion to change how things are. • In civil cases, the plaintiff wants a court to coerce the defendant to do something the defendant doesn't want to do - e.g., pay money to the plaintiff. • In criminal cases the prosecution wants a court to coerce the defendant to go to prison, pay a fine, etc. • The idea of the rule of law requires that government should not coerce a person arbitrarily. There must be a good reason that justifies the coercion. • Court procedures (procedural law, KV, 9) require the person (plaintiff or prosecutor) who wants the government to coerce another person (defendant) to give a good reason for government to coerce the defendant. What counts as a good reason for government to coerce a person? • Usually the person initiating government action (plaintiff or prosecutor) will tell a story that involves (1) the defendant's having breached a legal duty to the plaintiff or to the government so that (2) the government must coerce or threaten to coerce the defendant to set things right. • To show that the defendant breached a legal duty, the plaintiff/prosecutor will have to show that the defendant had a duty and that the defendant breached the duty, both of which require applying legal rules to facts. • So if courts are to ensure that government does not coerce people unless it has a good reason, the courts will need to have procedures for verifying the facts relevant to the plaintiff's or prosecutor's claims. • Today's class aims to provide a general introduction to those procedures.

Determining Your conclusion from your position

Presumptive positions are assertions "with the potential to help the advocate win." [G&B, 12] • Alignment - • "[A] plaintiff is always for anything that leads to the liability of the defendant." • "[T]he defendant is always against anything that leads to liability." • Legal principles are what a court will apply to decide what to do. • Actual positions are the positions the lawyer actually advances. • Ultimate relief is the declaration or order the plaintiff wants the court to issue.

RULE ANALYSIS - SUBSTANCE

R]ules create a right or a duty not for its own sake but in order to further a public policy." In other words, legal rules are understood to advance policies that reflect social values. [KV, 32] • What is more, legal rules "are usually not based on a single policy but represent compromises among sets of opposing policies." • How do maximum speed limits balance opposing policies? • School zones • How do the environmental laws balance opposing policies? • How do laws regulating the safety of consumer goods balance opposing policies? [KV, 32] • You need to always keep in mind policies and values when you analyze and apply legal rules.

GARNER V. BURR ILLUSTRATES KV'S POINT ABOUT RULE ANALYSIS

Rule (Form) - If certain facts apply (using a "trailer" on a road), then a legal relationship (a duty to comply with the regulations for trailers) arises. • Rule (Problem of Generality) - In Garner there was a reasonable argument to be made that an empty poultry shed mounted on iron bogie wheels WAS NOT a vehicle and also a reasonable argument that it WAS a "vehicle"? • Rule (Substance) - Because the question whether the poultry shed was a 'vehicle' and, thus, a 'trailer' could go either way, the appellate court used the policies behind the Road Traffic Act (RTA) to decide which answer to choose. In light of the RTA's policy of protecting the roads [¶ 7], it made sense to require an emptry poultry shed being pulled on a road to comply with the regulations for trailers. [¶ 8] Accordingly, the appellate court gave "a generous [i.e., broad] construction" to the term "vehicle" [¶ 11] and held that the shed was a "vehicle" and, thus, a "trailer."

Rules defining an element of a more general rule

Rule Defining Battery: • If (1) Person A touches Person B and (2) the touching was intentional and (3) B did not consent to the touching and (4) the touching causes offensive bodily contact to B, then A "commits a battery . . . ." • Rules Defining Elements of Battery: • Rule Defining "Touching": If Person A "set[s] in motion [a] force" and "that [force] causes a contact" with Person B, then A has touched B. • Rule Defining "Intentional": If Person A touches Person B "intend[ing] to make an unauthorized bodily contact or . . . to make a bodily contact that a reasonable person would find offensive, then [A's] touching was intentional • Source: NY Pattern Jury Instructions: Intentional Torts, Battery • Suppose the more general rule is, "If A & B & C & D, then E." • A sub-rule defining an element of the more general rule will have the form: • "If [factual elements of the subrule], then [a component element of the more general rule]. In other words, the consequent of the subrule will be A or B or C or D or E."

combining policy judgements to decide cases

Rules distinguish between a class of situations in which the rule DOES establish a legal relation (situations described by the factual predicate of the rule) and a class of situations in which the rule DOES NOT establish that relation (situations not described by the factual predicate of the rule). • We understand rules to have purposes or policies behind them, i.e., rules are supposed to promote important values and goals. [See KV, 32-33] • The values and goals behind rules may apply (i.e., be worth promoting) in all circumstances. For example, it is always good to prevent injury. [KV, 102] • Legal rules specify legal relationships (rights, duties, etc.) that provide for an appropriate balancing of relevant values and goals in "most cases" [KV, 105] described by the factual predicate of the rule. • For example, the speed limit is higher in a school zone when school is not in session than when school is in session. The fact that school is in session creates a different set of risks than when school is not in session, so the balancing of values and goals calls for a slower speed limit. • Line Drawing (focuses on the classification) • The line will often seem arbitrary. • How deep must a pit be before the landowner owes a warning? • How far away from a school does a school zone begin? • Why is the BAC for DUI .08% rather than .07%? In Sweden it is a crime to drive with a BAC of .02%. What policies account for a rule so different from the U.S.? • Note that the dividing lines may treat different people arbitrarily. Some people are pretty drunk at .08%, while others are hardly affected at all. • Finally, the rule may create a desirable balancing of policies in "most cases" it identifies [KV, 102] but the rule may give a bad outcome in individual situations. Example: U.S. ex rel. Portada v. Day. • Balancing (focuses on the individual case) • "[T]he lawyer is weighing the value of [one] particular act of suppression [of speech] against the value of [that] particular instance of speech." [106]

The Court of Appeals

Standards of Review • De novo - The Court of Appeals makes its own decision about the issue on appeal. [VK, 26] • Clearly erroneous - With respect to findings of fact in a bench trial, the Court of Appeals "defers" so that it overturns the trial court's verdict only if the verdict is very clearly wrong. [27] • Not supported by substantial evidence - With respect to findings of fact by a jury, the Court of Appeals "defers" so that it only overturns the verdict if it is "not supported by substantial evidence." [27] • Abuse of discretion - Another deferential standard of review. [27]

The legal significance of what may seem like the same right or duty may vary from one situation to another.

Suppose A has a right and B has a duty. What are some possible legal effects of the relation. • 1. Even before B breaches the duty, A may be able to take actions ("self-help") to prevent B breaching the duty. • 2. Even before B breaches the duty, A may be able to get a court to order B not to breach the duty if it looks like B may do so. [See KV, 55 for journalist example] • 3. After B breaches the duty, A may be able to take actions ("self-help") to address the breach. E.g., an auto lender may repo a car if the borrower fails to pay. • 4. After B breaches the duty, A may be able to get a court to order B to pay compensation to A for a loss caused by B's breach. [E.g., KV, 55 - journalist example, Thomas v. Winchester] • 5. After B breaches the duty (e.g., by stealing A's car), B may be subject to a fine or imprisonment.

Minor Premise - 3.1, 3.2 & 3.3

THEREFORE Driver drove a vehicle in excess of the established maximum speed limit The applicable speed limit was 65 mph - driver drove 77 mph - 77 > 65 (Both ticketing officers statements)

Problem of indeterminacy

The Form of Legal Rules: If [factual predicate], then [right, duty, etc.]. • Two decisions: • (1) "selecting the facts to include in the factual predicate of the rule" [KV, 71] • (2) "choosing the level of generality at which to state the rule" [KV, 69] • There is indeterminacy because the lawyer has options about (1) which features of past cases to include in the factual predicate and how to describe those features [69-70] and (2) the level of generality at which to state the terms in the predicate and the legal relation that arises under the rule. [70-71] • In general, the more features of past cases that are included in the rule, the fewer situations the rule will cover. [E.g., Thomas - negligence as criminal] • In general, the more broadly a new rule is formulated, the fewer the number of factual elements the lawyer must specify in the predicate of the rule. [E.g., Thomas, ¶ 13 "negligence imminently dangerous to the lives of others."] The Form of Legal Rules: If [factual predicate], then [right, duty, etc.]. • Two decisions: • (1) "selecting the facts to include in the factual predicate of the rule" [KV, 71] • (2) "choosing the level of generality at which to state the rule" [KV, 69] • There is indeterminacy because the lawyer has options about (1) which feature of past cases to include in the factual predicate and how to describe those features [69-70] and (2) the level of generality at which to state the terms in the predicate and the legal relation that arises under the rule. [70-71] • In general, the more features of past cases that are included in the rule, the fewer situations the rule will cover. [E.g., Thomas - negligence as criminal] • In general, the more broadly a new rule is formulated, the fewer the number of factual elements the lawyer must specify in the predicate of the rule. [E.g., Thomas, ¶ 13 "negligence imminently dangerous to the lives of others."]

Precedent and Stare Decisis

There is an excellent discussion of precedent chapter 3 of Frederick Schauer's book, Thinking Like a Lawyer: A New Introduction to Legal Reasoning. Vertical Precedent • Appellate courts in a governmental unit are superior to the trial courts below them. • The highest appellate court in a governmental unit (e.g., the U.S. Supreme Court or the N.Y. Court of Appeals) is superior to all other courts in that governmental unit. • When a lower court considers the same issue a court superior to it has addressed in the past, the lower court must follow the lead of its superior. Stare decisis (also called horizontal precedent) [KV, 50-53] • When a court considers the same issue that same court has addressed in a past decision, the court should resolve the issue in the same way unless exceptional conditions exist that warrant overruling the prior decision. • Precedent and stare decisis come into play when a legal issue in a present case is the same as an issue addressed in the past. What does it mean for an issue a court is dealing with today to be the same as an issue addressed in the past?

CHOICE OF LAW THEORY - VERTICAL

Vertical Choice of Law Analysis • Federal and state laws often coexist - for example, minimum wage laws • Federal minimum wage = $7.25 • New York minimum wage = generally $12.50 or $15 per hour depending on location. See https://www.labor.ny.gov/workerprotection/laborstandards/workprot/minwage. shtm • Federal law sometimes overrides state law - for example, regulation of employeebenefit plans • The Employee Retirement Income Security Act of 1974 overrides most state laws that "relate to" employee-benefit plans covered by the Act. • State law once in a while trumps federal law - for example, insurance regulation • The federal McCarran-Ferguson Act provides by statute for state law generally to prevail over federal law in the sphere of insurance regulation.

Cases finding no liability without privity (because the defendant did not otherwise owe a duty) -

Wagon Maker (Thomas, ¶ 7; Loop, ¶ 2) - Wagon maker (A) negligently constructs wagon and sells wagon to B, who sells it to C, who "hires it to D." D is injured when the wagon overturns as a result of A's negligence in making the wagon. Smith (Thomas, ¶ 8; Loop, ¶ 2) - Smith negligently shoes horse. Owner lends horse to someone who is thrown from the horse because the horse was negligently shoed. Winterbottom v. Wright (Thomas, ¶ 7; Coughtry (lower court), ¶¶ 2-5) - Defendant made and contracted to maintain in good repair a wagon provided to the Postmaster General. Plaintiff was injured when wagon collapsed due to poor construction or maintenance. Longmeid v. Holliday (Thomas, ¶ 13; Coughtry (lower court), ¶ 6) - Defendant was a lamp maker who sold a lamp to the husband of the victim. Lamp exploded and severely burned the victim.

COUGHTRY

What ultimate relief does the plaintiff seek? What rule provides the major premise for this relief? On what grounds does defendant argue that this relief cannot be given? According to plaintiff, what rule implies that Coughtry was owed a duty? According to plaintiff, what rule implies that Coughtry was not owed a duty? What is the argument that the rule favored by plaintiff applies? What is the argument that the rule favored by defendant applies?

Loop

What ultimate relief does the plaintiff seek? What rule provides the major premise for this relief? On what grounds does the defendant argue that this relief cannot be given? According to the plaintiff, what rule implies that Loop was owed a duty? According to the plaintiff, what rule implies that Loop was not owed a duty? What is the argument that the rule favored by plaintiff applies? What is the argument that the rule favored by defendant applies?

Identifying Void Rules

When different legal rules conflict with one another, we need criteria to decide which rule wins. Constitutional law "determine[s] the hierarchy of authority among different sources of law." • The U.S. Constitution "prevails over all other law, federal or state." [KV, 34] • Under the Supremacy Clause, federal law generally "preempts" state law when they conflict. (One important question is what does it mean for two laws to "conflict" with each other?) • Legislative rules prevail over judge-made law. • Courts have the power of judicial review of the constitutionality of legislative rules. • Statutes enacted by a legislature "prevail over contrary administrative regulations." [KV, 35]

3. Synthesize rules into Coherent Structure

what is the relationship between the two rules we derived in step 1? • Does a driver have to comply with both rules at the same time or does the driver just have to satisfy one of them?

Rule Analysis - Form

• "In general, rules have the form 'If X, then Y,' meaning that if these facts occur, then this legal right or duties arises." [KV, 31] • "If X" is the factual predicate ("antecedent"). • "then Y" states the legal consequence, specifically, a legal status or a relation among individuals, legal entities, or individuals and legal entities. • Example: "a physician performing medical services for a patient has a duty to exercise reasonable care to prevent injury to the patient." [KV, 31] • Rule stated as a conditional: • If a physician has a physician-patient relationship with a person and renders medical services to that person, then the physician has a legal duty to exercise reasonable care to avoid injury to the patient. • So, a rule applies to a scenario if the facts in the factual predicate match the facts of the scenario. [See carryover paragraph on pages 31-32]

problem of indeterminacy

• "Legal reasoning is indeterminate because the elements of the factual predicate [of a seemingly applicable legal rule] are stated in such general terms that the lawyer cannot determine with certainty whether [the elements of the predicate] include the facts of the client's situation. Thus, it is often possible to characterize the facts of the client's situation in more than one way and thereby derive two or more alternative minor premises." [KV, 95] • Try these facts: "[R] . . . was standing in front of the microwave oven" in the breakroom at his workplace "holding a [$10] bill loosely in his hand" when M walked in. "[M] approached [R] from behind and, without touching [R], quickly snatched the . . . bill out of [R]'s hand. [R] immediately spun and faced [M]. [M] then stated, 'That was too easy,' and returned the . . . bill to [R]." Reynolds v. MacFarlane, 322 P.3d 755 (Utah Ct. of App. 2014) • Can R state a claim for the tort of battery? • Did M "touch" or make "contact" with R?

Identifying Applicable law - Feb 25th

• "The process of determining which law applies is really a process of winnowing out the law that could not plausibly apply." KV, 28 • A. Choice of law winnows out the law of governments that do not have power over "the persons or transactions involved in the situation." • B. Rule analysis winnows out laws that do not apply to the subject matter (what is going on) in the scenario. • C. Constitutionalism winnows out law that does not apply because it conflicts with "a law created by another entity of superior authority."

Building and Attacking Legal Syllogisms

• 1. What does the complaining party want the court to do? This is the ultimate relief. • 2. What is the defendant's presumptive position regarding ultimate relief? • 3. What major premise (proposition of law) supports the plaintiff's claim for ultimate relief? • 4. What is the defendant's presumptive position about this major premise? • How might the defendant attack the major premise? • 5. What minor premise (application of law to facts) supports the complaining party's claim for ultimate relief? • 6. What is the defendant's presumptive position about this minor premise? • How might the defendant attack the minor premise?

The Significance of the Three Characteristics

• A right or duty (a legal relation) appears as the consequent of a legal rule. • In other words, in the "then ___" part of an "if ___, then ___" rule. • If the facts in the "If ___" part are present, then the legal relationship in the "then ___" arises. [See slide 5 for an example from Thomas v. Winchester.] • A complication: The legal effect of what seems like the same right or duty may vary from one context to another. [See slide 6 for examples.] • The facts in the "If __" part and the legal relationship in the "then ___" part may be described at different levels of generality. • In general terms, a landowner may exclude others from her property. KV, 56. • More specifically, a landowner may be able to build a fence, dig a trench, etc. • In chapter 3, we will see that you can infer a broadly stated right or duty from particular cases involving narrowly stated rights or duties. E.g., the court in Thomas v. Winchester infers from instances involving a gun or a wagon left untended to a broadly stated duty of care that required Winchester to exercise care to avoid mislabeling a poison.

Trial Court - Resolving the Issues

• Bench trial versus jury trial • Motion to dismiss for failure to state a claim upon which relief can be granted • The defendant argues that the plaintiff will the case even if all facts the plaintiff alleges are true. • Motion for summary judgment • The moving party claims the nonmoving party cannot win on some material issue(s) of fact because there is insufficient evidence to support a verdict in favor of the nonmoving party on the issue(s).

SCENARIO ABC MANU

• Conclusion: ABC is liable to pay a penalty not exceeding $250. • Major premise: A person who disturbs the peace, quiet, and order of the Town by making unusual noises of any kind is liable to pay a penalty not exceeding $250. • Minor premise: ABC made unusual noises that disturbed the peace, quiet, and order of the Town.

SCENARIO 1 CONTINUED

• Conclusion: ABC is not liable to pay a penalty not exceeding $250. • Major premise: A person who disturbs the peace, quiet, and order of the Town by making unusual noises of any kind is liable to pay a penalty not exceeding $250. • Minor premise: ABC did not make unusual noises that disturbed the peace, quiet, and order of the Town.

Rules of law + application of law to fact

• In Thomas v. Winchester, what is the relationship between the question presented and the rules of law discussed in the case? • What rule of law does Winchester say should apply? • What rule of law does Thomas say should apply? If the rule of law favored by Winchester applies, what reasoning or argument would you follow to resolve the case? • If the rule of law favored by Thomas applies, what reasoning or argument would you follow to resolve the case?

Basic model continued

• Induction - From observations in the past (or reports of past observations), a person infers a generalization about future observations. • Lawyer's method is similar to induction - The lawyer looks for past cases with facts that (1) resemble the facts of the client's scenario and (2) apply the legal relation the lawyer wants the court to apply in the client's scenario. The lawyer reconceptualizes the past cases as applications of a general rule that will cover the client's scenario. [KV, 68-69] • Lawyer's task - The rule the lawyer develops must cover the past cases the lawyer is using to develop the new rule and also cover the client's case. In other words, the past cases and the new case all must fall within the predicate (the "If ___" part) of the new rule the lawyer synthesizes. [KV, 71- 72]

1.(2) Identify the Applicable sources of law

• NY Vehicle and Traffic Code § 1180 provides as follows: • (a) No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. • (d)1. Except as provided in subsection (g) of this section, whenever maximum speed limits . . . . have been established as authorized in [list of sections authorizing particular entities to set speed limits] no person shall drive in excess of such maximum speed limits at any time. • Note - Section 1180 includes other provisions that might come into play here. I left them out to keep it simple.

FACTS - PROCEDURAL HISTORY - QUESTION PRESENTED

• Note the discussion of dispositive facts on pages 44-45. These are the facts that make a difference in the court's legal reasoning. Procedural history should state "the precise nature of the decision in the lower court that has been appealed." This "determines the standard of review on appeal," which, in turn, "determines . . . the effect that the appellate decision will have on future cases." [40-41] • Where in Thomas v. Winchester does the court describe the procedural history? Where in Thomas v. Winchester does the court state the question presented? • What is the question presented?

Using rule synthesis as an advocate

• Supporting the New Rule • 1. "generalize from as many cases as possible" [73] • 2. Rule should include "only those facts with counterparts in the current case." [73] • 3. "formulate the rule in the most general terms possible, without overreaching." [74] • Swan/Mauer (Plaintiff) - it's a "fall from a scaffold" with no mention of height . • Opposing the New Rule • 1. "restrict the number of cases on which the generalized rule may be based." [74] • 2. "identify dispositive facts in the prior cases that are not present in the novel situation." [75] • Loop - points to the criminal character of the negligence in Thomas. • 3. "formulate the rule as narrowly as possible" so it doesn't cover the current case. [75]

addressing indeterminacy through through policy judgement

• The policies relevant to the cases guide a lawyer in selecting which features of past cases to choose and how to describe those features. • (1) The lawyer has to pay attention to which features the past decision identifies as important and how the court described those features. [71] • (2) If the past case is unclear about how important some feature of the past case was, the lawyer can use policies to decide whether to include that feature in the rule and, if included, how to describe the feature. [71] • (3) In determining the level of generality in the proposed rule, the lawyer must make the rule general enough to include all the past cases and the new case but not so general that the proposed rule would cover past cases that did not impose the legal relation the lawyer wants the court to impose or hypothetical cases in which the rule seems to give a wrong answer (don't overreach). [71-73] • Example - Thomas: Negligence as manslaughter. Loop, ¶ 4. Why not in Devlin?

March 30th

• Vandevelde's synthesis from general to specific involves organizing rules so you can more quickly and accurately determine which rules apply to a factual scenario. • There are 5 general relationships between rules: (1) define an element of another rule; ( 2) apply a more general rule; (3) limit the scope of a rule; (4) cumulative to another rule; (5) contradictory to another rule. • The synthesis starts at the most general level, categorizing rules in terms of the elements in their predicate (the "If ___" statement). • As we move down in the synthesis (see pages 65-67), the rules become increasingly narrow and more precise.