Thank you so much Thane. It is amazing how I, just by taking couple minutes to read what you wrote here, learned more than by talking to so many different people at school for an entire semester. I really think you should get paid for providing such excellent advice (I already ordered your book btw I just have few more questions regarding what you said...
1)What exactly is Rule of Law? Is it just a trend created by compilation of statutes and case decisions? and how do I learn them? by reading books like E & E? Wouldn't study aids ever give conflicting information regarding the rules?
Aloha, Lovelyjj, and thank you.
[If you'd be willing to share your comments (after the year is over), I would be happy to send you the other book. I would be most interested in areas that were unclear or might use revision, correction, or wholesale shredding.]
The Rule of Law, like law itself, is both majestic and minute. Broadly, the rule of law is the idea that society has organized itself so that its affairs will be handled by a commonly-accepted set of, yes, rules. Whether these are constitutional, criminal, civil, or commercial, these rules are the road signs for civic life. We rarely stop to think about these, and we more rarely stop to appreciate them. We tend to ignore them until, as the saying goes, they're no longer there. So, life in a slum in a Third World country (sorry to be stereotypical, but in this case, it's true) is life without the rule of law. In such a world (think "Slumdog Millionaire") there are no rules that apply, other than the rules of survival and power. This is what Hobbes writes about in the "state of nature"--an apocalyptic, nightmarish landscape in which life is "solitary, poor, nasty, brutish, and short." This is why the law is important. Without it, that apocalyptic nightmare is our future.
Okay. Enough philosophy? The practical end of the rule of law is the body of actual rules, from constitutions through statutes and cases and on down to regulations, ordinances, and letters of interpretation. These are all part of the rule of law. The irony in practice is that the *lower* one is in the hierarchy, the better. In law school, however, we spend our time on the "big picture" rules. This too is misleading, especially come exam time, because the rule of law is more than just what a judge said, or many judges said. It is everything.
Among this "everything" that will be useful in the exam is a framework
: just how do these rules fit together? (Much of the section on "Getting Good" in the book is about this framework.)
This is, broadly, the outline of the law. (Sound familiar?) So, if were were to look at a commercial outline in, say, Torts, we would see the very same topics in every one. When we drill down to, say, negligence law, we will see something interesting. Old outlines will have a "majority rule" for contributory negligence, for example, plus all the ancillary doctrines (assumption of risk, last clear chance...), and also the "minority rule" for comparative negligence. We fast forward to a modern outline and what do we see? The very same doctrines . . . except they're now reversed. As a society, we didn't like the old rule; it was too strict. So, we developed a new rule. Over time, the minority rule became the majority rule, and the old majority rule became the exception. But the specific rules within that structure remain steadfastly consistent. This is why it really doesn't matter what source you use; they're all pretty much the same. It is absolutely crucial, however, to understand that framework. Without that understanding, it's all gibberish.
This is why the law exam is the law exam is the law exam. It seem crazy (and scary), and it is. But every exam is going to test the basic concepts, because it has to. (The "basic concepts" includes ALL of the rules, exceptions, and exceptions-to-exceptions. Thus, it's a combination of general and highly technical . . . just like the law.)
It also thus draws upon all the skills of crafting your own outline and working through hypotheticals (including practice exam after practice exam). This is why the conventional means of "study" in law school are inefficient at best, and often counterproductive. They're certainly exhausting and highly frustrating and quite likely to lead to burnout and excruciatingly unlikely to lead to that "A" grade.
2) What is legal reasoning? I know this sounds awefully general, but I did not really understand what you meant by what you said regarding my last question in the answer you gave me.
I have nothing against the school or traditions. But it is really frustrating if I think about it because I believe many students, like me, are confused about what is true and what is not. We hear so many different things that conflict with each other, sometimes these things we are confused about are the very basic studying method or how to approach class discussions. Yet, when I discuss these problems with others, many tell me some strange things, even the academic advisor at my school. (Like I may not be for law school or I might have some learning deficiencies or whatever). I know this sounds very emotional and not logical, but really, people who are not doing so good now may improve if they are given proper directions. (After all, how can you judge whether someone is for law school or not after only 1 semester of studying the law? assuming that person never studied law in her life?)
It is general, but in fact this is an excellent question and concern. This is one reason law students are so miserable, and misled. Hour upon hour without a real sense of what it is they're supposed to be doing, and never quite sure if what they are doing is in fact right.
Okay. "Legal reasoning" is the process of thinking through a fact pattern in light of the law
Alternatively, "legal reasoning" is the process of thinking through the law in light of a fact pattern
If you like the details of life, try the former; if the big picture, try the latter. See? We can too have fun in law school.
We can go about this in two ways. We tend to think that law school is about the law. Not exactly. Clearly there is law in law school. One would be shocked otherwise, yes? But that's not all it is. In reality, law school is about the law in light of fact patterns
. So, simply knowing a rule is nice ("in the majority of jurisdictions a plaintiff's recovery is limited under comparative negligence to the net of its non-negligence") . . . but that's not enough. To simply write that on an exam does nothing. (Or, more precisely, it's a "C" response.) What is needed is to understand how that rule affects a claim for a person in a set of facts, and defenses for the other side. So, if Plaintiff P does a, b, and c, and Defendants D, E, and F have done x, y, and z, you'll reason through (i.e., conduct a lawyerlike analysis) what happens with that claim. Or, more correctly, those claims (and defenses, and counterclaims, and counter-defenses...). Legal analysis is the process of separating all of those potential claims and counterclaims and sifting them through the sieve of the rules.
The funny thing is that, for legal analysis, it doesn't matter if it's a real case or a made up one. [!] The process of thinking through the law in light of facts requires, well, facts to look at. They can be real or fanciful. But, like numbers to an accountant, they're just grist for the legal mill. They're what we need to actually "do" legal analysis. To a practitioner, that's called a client. To a law student, it's a hypo . . . or an exam.
If we want to look at it in the reverse, Client P has a problem. Something happened. Defendants D, E, and F have done x, y, and z. Okay. What do we do? Exactly the same. We look at those facts and ask "What law applies here"? (The difference in law school being that your prof will be kind enough to give you the facts, whereas in practice you have to find them out for yourself.) In most cases, it's obvious. After we think about it a while, we'll think of more possibilities. From there, we're doing exactly the same: evaluating those facts in light of the law.
That is legal reasoning. And it really is fun.
. . . And I hope that that has been helpful.