PHILOSOPHY OF LAW STEPS IN ISSUE SPOTTING

Atty. Lerios
MODULE 3 The Skills You Will Need Asking the right questions- it is noticing the questions that can
be asked about a set of facts. There are 3 kinds of issues that
 DISTILLING THE LAW you will be asked to identify in law school.
-Distilling the law is getting the law out of the text. Distilling is -Issues about which propositions are relevant.
the skill of turning a long, difficult legal text into a single, well-
articulated legal concept. -Issue how those propositions should be interpreted.

The Legal Proposition -Issues about how they should be applied.

The Legal Proposition is a single concept that can be found in Sense of what matters- as a law student you have to develop
every text we encounter in law school. There are different kinds the ability to sense which issue matter and which don’t.
of Legal Propositions. SOME ISSUE-SPOTTING SHORTCUTS
Different kinds of Legal Proposition -Focus on what confuses you- confusion is a signal that there
Black Letter Law – a legal rule or legal doctrine. Black letter is an issue to be explored.
law is often ambiguous or vague. -Ambiguity is an argument waiting to happen – be on the
Facts- Proposition of facts explain how a legal rule applies to a lookout for ambiguity since ambiguity can be a source of issue.
given set of facts. -Focus on what is new- Issues can arise in what is unfamiliar
Rules- Clear and defined propositions to you.

Standards- vague and flexible propositions -Focus on your assumptions- an unquestioned assumption is
an unspotted issue.
Good law- if the rule applies in a given jurisdiction and
nobody’s overruled it yet.  ARGUMENT

Bad law- when rules no longer apply in some jurisdictions by -Argument in this sense does not imply a disagreement with
virtue of being overruled. anyone. It just means offering your analysis of the questions
you found when issue spotting.
Propositions of theory and policy- propositions that are from
other fields like philosophy, economics and political science. 4 basic kinds of things to argue about
Propositions of theory and policy provides for the purpose of a Legal texts- Legal arguments often begin with the texts.
law or the consequences for the passing of a law. When arguing about the text we are actually arguing about
Requirements for good distilling of the law what the text stands for. In effect we are arguing how the
text should be distilled.
1.) Put the propositions into your own words. (Paraphrasing)
When arguing about the text lawyers argue about 4 basic
2.) Test your understanding of propositions by applying them things.
to new fact patterns.
Text itself- plain meaning
3.) Put the propositions into context to see how they fit into the
course as a whole. Intent- what the drafters intended the words to mean

4.) Disregard the propositions that don’t matter. Purpose- What problems it was meant to solve

Which Propositions should you keep? Principles of interpretation- principles or rules of

thumb that tell courts in a very general way how to
People often ask the question what will be on the exam? This is interpret legal texts.
the wrong question. The proper question is “might I get credit
for mentioning this on the exam”. In identifying propositions Precedents- arguing about precedents, you argue why the
you should keep one must develop a HORSE SENSE. Like a present situation in your case is similar or not similar with the
wine critic a good lawyer must have good intuition one what situation in the earlier case. 3 questions to ask when arguing
legal propositions people may accept. This is Horse sense. about precedents.

 ISSUE SPOTTING -Does the court have the power to bind your court?

-Identifying the relevant legal questions presented by a situation -Was the proposition in an earlier case a holding?
and framing them in the right doctrinal language. (Issue -Was the earlier case relevantly similar?
Framing)
Policy- Policy arguments explains why the world will be a
better place if the court chooses one interpretation of the law
rather than another.
Facts- arguments about which legal category a set of facts -Accurately identifying the critical facts
falls into.
Correctly identifying critical facts requires a lawyer to
first understand the court’s reasoning. Critical facts
are germane to the court’s reasoning.
NARRATIVE IMAGINATION
-Correctly synthesizing the facts of the case
Ability to put yourself in other shoes. It is the ability to argue
and view both sides of an issue. (Martha Nussbaum) Case synthesis blends several cases to identify a
common factual denominator. The common factual
MODULE 4 The Fundamental Skill (Legal Analysis) denominator must be legally significant
 Inductive analysis and Analogical Reasoning  Deductive analysis or Rule Based Reasoning
Inductive analysis Deductive Reasoning
-Also called as reasoning by analogy, inductive analysis -Deductive reasoning allows a lawyer to deduce a
focuses on the material facts of the controlling case law. The conclusion from a stated proposition. Deductive reasoning
foundation of Analogical Reasoning is the doctrine of Stare starts with a general proposition and arrives at a more
decisis. Reasoning by analogy includes 2 types of analyses. specific or particular conclusion.
-The narrow analogy The Syllogism
-The broad analogy -The Syllogism is composed of a Major premise, a minor
How to differentiate narrow analogy from broad analogy? premise and the conclusion.

-Narrow analogy compares the critical facts of a controlling DEDUCTIVE REASONING AND LEGAL
case while Broad analogy compares the common factual ARGUMENT
denominator. -The Major premise in a legal argument is the rule or the
-Both narrow analogy and broad analogy follow a 4 part law. Usually the major premise is General and should be
argument: universally true.

a.) State the point of the Analysis- introduces the -Rules and Statutes can be considered major premises
reader to the topic of the analysis because they are immutable, they can serve a “very
truthful” major premise. Case laws on the other hand may
b.) State the narrow fact or broad comparison- not serve a very “truthful” major premises because they are
describes how the narrow fact or the broad comparison mutable.
are similar to the case at bar.
IDENTIFYING FLAWS IN A SYLLOGISM
c.) Apply the court’s reasoning to your case-
explains the reasoning of the controlling authority why -Syllogisms that are constructed correctly become strong
the comparison is significant. arguments. However syllogisms that are constructed
incorrectly are automatically flawed. Syllogisms require
d.) Conclude- Reminds the reader of the outcome of that all its premise are true.
the issue or the general demand for relief.
STRUCTURE OF A DEDUCTIVE ARGUMENT
LEGAL ANALOGY
-State the point of the analysis
A logical inference that if two or more cases in the same
jurisdiction are similar with respect to the facts and legal issues, -State the rule
they will be similar with respect to their holdings. -Explain the rule
The Three Triggers to honor Stare Decisis -Apply the law to the facts
-First a lawyer must demonstrate that the court is bound to -Conclude
follow a prior decision because they have the same
jurisdiction. CREAC
-Second a lawyer must demonstrate that the legal issue decided C-Conclusion= conclusion must be in the beginning to let
in the earlier case is the same legal issue raised in the case at readers understand the analysis better.
bar.
R- Rules= Rules must be stated in order of increasing
-Third a lawyer must demonstrate that the facts in the case at levels of specificity
bar are the same or similar to the facts in the controlling
authority. E- Explain= include all the reasons that a court used to
support its holding
Two fundamental skills for successful analogies
A- Apply= should not repeat the explanation but instead
explain the relationship between the facts in the controlling
authority to the case at bar.
C- Conclusion= state the resolution concisely, never
introduce new ideas.