legal thinking 2013
DESCRIPTION
Slides to accompany our discussion about legal thinking.TRANSCRIPT
Spring 2013
LEGAL THINKING
Miriam A. Smith
Broadcast and Electronic Communication Arts Department
San Francisco State University
Spring 2013
The Nature of Legal Thinking
What is legal thinking?
How is legal thinking different from other types of thinking?
How is legal thinking learned?
Spring 2013
What is Legal Thinking?
The way lawyers think– Lawyers carefully analyze the facts
How are the facts at hand the same or different from the facts of a particular case?
An analytical model
Spring 2013
How do Lawyers Think?
Lawyers ask many questions.– Is this a good case?– Can it be proven in court?– Is it likely to achieve the result the
client desires?– Can the client pay?
Is a judgment collectible?
Spring 2013
How are the facts at hand the same or different from the facts of a particular case?
Think it through.
Consider all the angles.
Anticipate all arguments.
Spring 2013
How is Legal Thinking different?
You tell me.
How is Legal Thinking Learned?
Spring 2013
How is Legal Thinking Learned?
Law school or by studying legal decisions.
Three most important things I learned in law school . . . – Reasonable minds can differ.– There are at least two sides to every
story.– Pigs get fat and hogs get slaughtered.
Spring 2013
What about all that legal mumbo jumbo?
a.k.a. the fine print
Spring 2013
legalese
All professions have their jargon– Terms of art– distinguish those in the profession
We will learn many legal terms this semester
We’ll try some legalese . . .
I, being of sound and disposing mind and memory, not acting under duress, menace, fraud, or the undue influence of any person or persons whatsoever, do hereby make, publish, and declare this to be my last will and testament, hereby revoking all wills and heretofore made by me, and give devise and bequeath the residue of my estate and all my earthly possessions consisting in whole of my three bags full of wool in the following manner:– a. One for the The Master– b. One for the Dame– c. One for the little boy who lives down the lane
Signed on the 11th day of June, 2002.
Last Will and Testament
Spring 2013
One more
Sentence Peter (alias Peter), known for his peculiar propensity
for the consumption of a variety of squash known colloquially as pumpkin, was in possession of a spouse who was a compulsive fugitive.
He imprisoned her within the confines of a shell from a fruit of Curcurbita pepo,
where she is now serving time under maximum security.
Spring 2013
Our Legal Thinking Model
Facts Issue Rule of Law Analysis Conclusion
Fall 2010
Just the Facts Ma’am . . .
A different set of facts will yield a different result.
One fact alone can make all the difference.
Some facts are more important than others.
Spring 2013
Issue
What must the court decide? What question or questions must
be answered?
Spring 2013
The Rule of Law
Is there a rule (i.e., law) that applies?
What is that rule (law)?
Spring 2013
Analysis
A clear, logical explanation of the reasoning of the court.– Explains the rule of law.– Considers the arguments of the
parties. Why did the court decide the
way it did?
Spring 2013
How judges think . . .
How has the rule of law been applied before?– Precedent
How should it be applied in this instance?– What is the same as and what is
different from earlier cases?
Spring 2013
– What is the rationale for the rule?
What are the primary defenses to the rule?– Do they apply?
Spring 2013
No precedent
A case of first impression . . . – Situation sense– Fairness between these parties– Public Policy
Spring 2013
Conclusion
Summary of what happened.
Decisions we read are almost always appellate decisions.
Lower court’s decision is upheld, reversed or remanded.
Spring 2013
Preliminary Facts
Supreme 1893 Nix -- merchant Hedden -- tax collector
Spring 2013
Facts
Tax collector charged tax on tomatoes
Charged “vegetable” tax
Plaintiff claims tomatoes are a fruit, not a vegetable
Spring 2013
Issue
Are tomatoes a fruit
or a vegetable?
Spring 2013
Rule of Law
Tariff Act
Spring 2013
Analysis
Considered the meaning of “fruit” and “vegetable” in the trade (and in the dictionaries)
Consumer use of tomatoes– Used as a vegetable– Not really a dessert
Tomatoes are a “fruit of the vine”
Spring 2013
Conclusion
Tomatoes are a vegetable Judgment of lower court affirmed (plaintiff loses)