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AuthorTopic: Formulating a Rule  (Read 2127 times)

aristo

• Newbie
• Posts: 1
Formulating a Rule
« on: November 10, 2004, 02:40:38 AM »
Hi

I was wondering how you formulate a rule w/ two cases dealing with a similar holding?  The two cases that I have are very similar, but I want to be able to compact or synthesize a "new" rule out of the two cases.  Does anybody know how I should go about this?  Any input would be greatly appreciated.

lawgirl

• Full Member
• Posts: 38
Re: Formulating a Rule
« Reply #1 on: November 10, 2004, 06:10:22 AM »
Give an example.

aristo

• Newbie
• Posts: 1
Re: Formulating a Rule
« Reply #2 on: November 10, 2004, 10:00:38 AM »
Say that your case is battery, and you find two cases that are on point with what you need to prove your own case.  Say that the two cases are similar, but both cases present slightly new views which would strengthen your case.  So, how do you synthesize a new rule from the two battery cases, which I then can use for my case?

slacker

• Sr. Citizen
• Posts: 949
Re: Formulating a Rule
« Reply #3 on: November 10, 2004, 01:32:40 PM »
Do the "rules" in battery really change? Battery has specific elements. Do the fact pattern of the cases prove the elements? Are they differing on a single element? More than one element? Which one(s)?

For something like battery where the elements of the crime or tort (whichever this is for) are fairly well defined, it seems the differences come in the application based on shadings in the different cases.

Or, as the previous poster said, can you give an example?

zemog

• Sr. Citizen
• Posts: 305
• Evening PT 2L at a third tier toilet
Re: Formulating a Rule
« Reply #4 on: November 10, 2004, 02:56:22 PM »
Here's an example on how you would synthesize a rule based on marriage fraud, since I am currently researching something with that topic. They all talk about something specific to the statute, almost like their own interpretation, but almost expands and explains in more detail the definition.

(Statute 8 USC 1325(c) provides a penalty of five years imprisonment and a \$250,000 fine for any "individual who knowingly enters into a marriage for the purpose of evading any provision of the immigration laws.")

In one case, the court said that the defendant was guilty of marriage fraud because husband and wife did NOT intend to establish a life together.

The 2nd case, the court stated that you can intend to marry for money or a green card, and this doesn't constitute marriage fraud.

The 3rd case, the court stated that you must know of what you are doing is a violation of some immigration policy but you don't necessarily have to know what that immigration law is specifically.

So, a synthesized rule would be something like:  You will not be guilty of marriage fraud if you do not have any knowledge of violating immigration laws (from case 3) and you intention is anything but the absence of establishing a life together as husband and wife (from case 1 and 2).

This is very similar to the statute but not exactly. It's more specific to the cases than to the actual definition given by the United States Code manual.

slacker

• Sr. Citizen
• Posts: 949
Re: Formulating a Rule
« Reply #5 on: November 14, 2004, 08:53:15 AM »
Now, to get somewhat anal about all of this, did you check the status of the cases to see if they're all "good law"?

For number 2, are you intending to marry for money, but don't? (Which makes sense...thought crimes aren't yet illegal.)

The thing that I'm tripping over on the rule is the part from case 1 and 2, which is somewhat densely (as in language, not a value judgment on the writer) constructed as a negative.

For myself, I'd probably go something more like:
An individual is not guilty of marriage fraud if he or she enters into a marriage, and that marriage is not solely for the purpose of evading immigration laws, regardless of specific knowledge of those laws.

Which is, I admit, much closer to a negative version of what the statute says.

So, this says "they got married" and "not just to evade INS laws". I'm trying for an implication that the other reasons are legitimate, but that would probably have to be spelled out more completely.

I'm not sure if this helps or not, but it's certainly gotten me thinking this morning.

zemog

• Sr. Citizen
• Posts: 305
• Evening PT 2L at a third tier toilet
Re: Formulating a Rule
« Reply #6 on: November 14, 2004, 01:48:28 PM »
If you don't tie in the information about the money or green card or other immigration benefits, your synthesized rule is more a "overview" of the statute.  I agree that somehow you need to tie in the other implications some how, and my version may not be what you would use in a paper, just what I thought of, on the top of my head (so it's not perfect).

For rule #2, you intent to marry for money or green card and that's what you marry for.  It doesn't constitute marriage fraud yet it may be fraudulant.

For the cases, they are good law.
Lutwak v. U.S., 344 U.S. 604 (1953).
U.S. v. Orellano-Blanco, 294 F.3d 1143 (9th Cir. 2002).
U.S. v. Chowdhury, 169 F.3d 402 (6th Cir. 1999).
U.S. v. Taglalicud, 84 F.3d 1180 (9th Cir. 1996).
U.S. v. Vickerage, 921 F.2d 143 (8th Cir. 1990).

slacker

• Sr. Citizen
• Posts: 949
Re: Formulating a Rule
« Reply #7 on: November 14, 2004, 07:40:52 PM »
Good point on the actual prohibited behavior...I'd left that out.