The Foundational Skills and Methods that Unify All
- Slides: 38
The Foundational Skills and Methods that Unify All First. Year Courses Scott Rempell
Roadmap 1. Thinking like a human: schemas and categorization 2. “Doctrinal” v. LRW: schematic frameworks 3. Problems with the current frameworks: 3 examples 4. Proposed unifying conceptualization (work in progress!)
Door Horse
Follow the Steps. . .
Follow the Steps
Annie!
Cognitive Schemas
Process (Doctrinal) Study Skills Legal Analysis Identify the issue Provide the rule Class Outline Apply the rule to the facts Cases (statutes) Draw a conclusion
Writing and Analysis Courses Analyzing authority Determine governing rules (rule types and synthesis) Drafting: explaining law through rules and case illustrations (synthesis revisited) Drafting: applying law (rule-based analogical reasoning)
Writing and Analysis Courses Analyzing authority Determine governing rules (rule types and synthesis) Judicial system Analyzing law: case briefing, synthesizing, forms of reasoning Drafting: explaining law through rules and case illustrations (synthesis revisited) Drafting: applying law (rule-based analogical reasoning) Drafting macroorganization: types of rules Drafting microorganization: CREAC (identifying factors for E)
Writing and Analysis Courses Analyzing authority Determine governing rules (rule types and synthesis) Judicial system Analyzing law: case briefing, synthesizing, forms of reasoning Analyzing authority & pulling out rules Drafting: rule statement (synthesis) Drafting: explaining law through rules and case illustrations (synthesis revisited) Drafting: applying law (rule-based analogical reasoning) Drafting macroorganization: types of rules Drafting microorganization: CREAC (identifying factors for E) Drafting: rule explanation (synthesis) Drafting: Case examples Drafting: Rule application
Analytical Disconnect Examples 1. Case briefs 2. Rules 3. Synthesis
Analytical Disconnect Examples 1. Case briefs 2. Rules 3. Synthesis
Brown v. Kendall
Garratt v. Dailey
Analytical Disconnect Examples 1. Case briefs 2. Rules 3. Synthesis
Sampling of How We Categorize Rule Types • Elements, factors, balancing, defeasible, declarative, combination • Elements, exhaustive factors, non-exhaustive factors, balancing • Elements, factors, balancing • Bright-line tests, balancing tests, totality tests, checklists of requirements, and threshold tests
Typical Factor Test Child custody shall be decided in accordance with the best interests of the child. Factors to consider in deciding the best interests of the child are: • The fitness of each possible custodian • The appropriateness for parenting of the lifestyle of each possible custodian • The relationship between the child and each possible custodian • The placement of the child’s siblings, if any • Living accommodations • The district lines of the child’s school • The proximity of extended family and friends • Religious issues • Any other factors relevant to the child’s best interest.
Conceptualizing Factors • • Exhaustive list v. non-exhaustive Can be considered v. must be considered Express v. implicit Dichotomous (present or not) v. sliding scale (extent of something) • Weighted evenly v. not evenly • Not required but outcome determinative if present • Part of a general rule or aspect of broader framework
Factors: Whether to Take a Job To determine what job offer to accept, the criteria I will consider include: • • • • Salary Location Enjoyment of type of work will be doing Upward job mobility Distance to family and friends Proximity to airport Availability of public transportation Culture of the location Restaurants Aesthetics Quality of schools Cost of housing Tax rate Weather Religious institutions
Factors: Whether to Take a Job • • • • Salary Location Enjoyment of type of work will be doing Upward job mobility Distance to family and friends Proximity to airport Availability of public transportation Culture of the location Restaurants Aesthetics Quality of schools Cost of housing Tax rate Weather Religious institutions • • Gross $ after liabilities o Salary o Tax rate o Cost of housing Quality of Life o Work enjoyment o Restaurants o Aesthetics o Weather o Public transportation o Religious institutions Relationships o Ability to form new ones o Ability to stay connected to friends and family (e. g. , distance, airport location) Family o Quality of schools o Religious institutions
Analytical Disconnect Examples 1. Case briefs 2. Rules 3. Synthesis
Synthesis • The process of combining sources of law into a coherent statement of law. • Discerning an overall rule or pattern or underlying policy—or all three. • The process of relating cases to one another, by grouping cases by the rule they follow, defining the elements of an evolving claim, identifying factors that courts use—or a combination of these. • The process of finding collective meaning – what the cases as a group stand for – even though that meaning can’t be found in any one individual case. • Examining precedents to find the common principles. • The process of combining sources into a coherent statement of the law.
Synthesis Example 1 No person shall knowingly cause another to believe that the offender will cause serious harm to the person. .
Synthesis Example 1 Facts Holding Reasoning State v. Rosenby D directly threatened Yes. “Knowingly” to “take [P] to the established. grave with him. ” State v. Wentz D told person to deliver a threatening message to his mom, the P. Yes. “Knowingly” established when D directed person to deliver message to member of own family. D knew person lived with mom, asked him to deliver message, and verified that delivered. State v. Huffman D told government worker trying to collect $ that maybe he should just kill his wife, the P. No. Knowingly not established b/c not probable government worker would deliver message to former wife. Government worker did not know former wife and did not plan to report incident to police.
Synthesis Example 1 The “knowingly” element is established if the defendant (1) delivers the threat directly to the victim, (2) delivers the threat to a member of the victim’s family, (3) delivers the threat to a third party who defendant believes will “more likely than not” convey the threat to the victim.
Synthesis Example 1 The “knowingly” element is established if the defendant (1) delivers the threat directly to the victim, (2) delivers the threat to a member of the victim’s family, (3) delivers the threat to a third party who defendant believes will “more likely than not” convey the threat to the victim.
Synthesis Example 1 Facts Holding Reasoning State v. Rosenby D directly threatened Yes. “Knowingly” to “take [P] to the established. grave with him. ” State v. Wentz D told person to deliver a threatening message to his mom, the P. Yes. “Knowingly” established when D directed person to deliver message to member of own family. D knew person lived with mom, asked him to deliver message, and verified that delivered. State v. Huffman D told government worker trying to collect $ that maybe he should just kill his wife, the P. No. Knowingly not established b/c not probable government worker would deliver message to former wife. Government worker did not know former wife and did not plan to report incident to police.
Synthesis Example 2: Outrageous element of IIED Case Facts Holding Woodruff v. Miller D posted copies of warrants on a wanted board to create the impression that P had broken the law and had not been punished. Yes. Conduct was extreme and outrageous. West v. King’s Dep’t Store, Inc. A store manager repeatedly accused innocent customers of shoplifting in the presence of other store patrons. Yes. Conduct was extreme and outrageous.
D posted copies of warrants on a wanted board to create the impression that P had broken the law and had not been punished. A store manager repeatedly accused innocent customers of shoplifting in the presence of other store patrons. Common Denominators Authors Identified • Defendant made public accusations • Defendants accused plaintiffs of socially unacceptable behavior Expression of Synthesized Rule “A public accusation of socially unacceptable behavior is evidence of extreme and outrageous conduct. ”
Battery Act Intent Harmful/Off ensive Contact Harmful Offensive
Contact Direct Contact Indirect Contact Clothing/article closely identified with body Actual contact with body Cane Plate (anything holding? )
Process (Doctrinal) Study Skills Legal Analysis Identify the issue Provide the rule Class Outline Apply the rule to the facts Cases (statutes) Draw a conclusion
Process Analysis External Communication of Analysis Outline proof Synthesize the law Analyze relevant authority and other sources of information for particular objective Articulate synthesized law fully Appropriate organizational conventions Appropriate structure of analysis Appropriate scope and depth Conventions of medium and audience Final Written Product
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