Frank Abagnale, the anti-hero of Catch Me If You Can, forged a transcript and passed the bar exam never having attended law school. Eight weeks of study, apparently, was enough for him to pass the exam on his third try. People I’ve heard discuss the film often cite this fact as evidence of Mr. Abagnale’s unusual gifts. I, too, was astounded by Mr. Abagnale’s resourcefulness and adventures, but I didn’t find it at all exceptional that he was able to pass the bar. You see, law is just not very hard.
Any reasonably intelligent person can fairly quickly learn enough about law to understand its practice and to make legal arguments. A very thin volume explaining legal concepts is all that it would take to turn a competent engineer, doctor, writer, scientist, mathematician, or other analytically-minded individual into a decent lawyer. While I’m not yet ready to draft such a volume, I thought I would try out some of what it would contain here, in a series of posts to which I’ll return from time to time.
Let’s get started
For many outsiders, law is a discipline seemingly steeped in obscure methods and arcane procedures. Most of my beginning law students think that a lawyer’s training is in knowing what the laws are. They believe they will be expected to master a list of laws in each subject and that lawyers are people who know these lists. The way we often teach it, coming as case after case illustrating discrete types of laws and disputes, may initially reinforce this assumption. But it could not be more wrong. As with most fields, expertise in law lies in knowing how to learn more of it, not in an encyclopedic knowledge of all its details. There are concepts and methods that, once acquired, allow you to do law: to read it, understand it, criticize it, and make it. Put simply, becoming a lawyer is about learning a set of concepts and a language, not a list of laws or even where to look laws up.
Here’s as good a starting point as any: What is a legal argument? This question leads us to ask what a law is. At its most basic, and sweeping some philosophical problems under the rug for the moment, the body of law is a set of information that will be part of the basis on which a court will decide whether to compel a private citizen to do something he wishes not to do. Susan wants John to do something, and the rest of society, acting through a court, will force him to do it if there is a law that says he must. A legal dispute involves a set of facts, one or more laws, and the things the court may order if it finds, from the facts, a violation of the law.
The undesired thing that the defendant is fighting to avoid might be paying money to another private citizen or the state, or serving a prison sentence, or ceasing to operate a factory. And the court’s judgment will come in the form of yet more information that may serve as part of the input for future judgments.
The law itself consists primarily of statutes (acts of legislatures), administrative rules (acts of governmental agencies), contracts (acts of private parties), common law (the collected acts of courts that have made law to decide cases). They constrain behavior, stating that if some class of facts occurs, then some judgment should follow. No matter how long or convoluted, all primary laws boil down to: If X occurred, then a court should order Y. The trick is translating the typically vague or ambiguous text in which a law is encoded into this simple form. The opinions of courts in other cases (or the informational outputs of other institutions) can and sometimes must be used when deciding among possible translations.
(Note: In a later post, I will discuss two special sets of laws that do not conform to this simple pattern. These laws govern (a) how primary laws can be made and what they can and cannot do and (b) how law can be enforced. I call such secondary rules, or meta-laws, Constitutional Law and Procedure, respectively. For example, the First Amendment prohibits Congress from making laws that abrogate the freedom of speech. This secondary rule, a rule of Constitutional Law, limits the scope of primary laws. It’s not the basis for ordering another party to do something it wishes not to do.)
The facts of the case are the third bit of information that may be contested. In the above formulation, whether X occurred, even if we don’t disagree about what the law means by X, might be uncertain. We may agree that someone shot the victim at point-blank range. But the defendant is only guilty of murder if, among other things, she was the one who killed the victim. To show a law violation is to show that the law’s criterion is satisfied by the facts to a given degree of certainty, called the standard of proof. For example, we must put on evidence that convinces us “beyond a reasonable doubt” that the criteria for murder, which include the fact that it was the defendant who caused the victim’s death, have been met in order to conclude the murder law was violated by the defendant.
A legal argument
The job of the lawyer, in the end, is to identify the relevant informational inputs, law and facts, and to argue about how they constrain the possible output (the judgment). “Your honor, facts x, y, and z occurred here. And law A says that if those three things happen, then the defendant must pay the plaintiff damages.” Or: “Your honor, the law says that a fine of $100 must be paid by anyone driving between ten and twenty miles per hour above the speed limit on state highways. Here, radar shows the defendant was driving seventeen miles per hour above the posted speed limit of state highway four. Therefore, he must pay $100.”
A basic legal argument goes in several parts:
- separate the dispute between the parties into separate possible grounds for liability, i.e., the separate possible law violations;
- for each possibly applicable law, parse the law to determine the criteria, X, under which it will be found to be violated; and
- argue that HERE, X should or should not be found BECAUSE (apply the facts to determine whether the criteria have been met).
Again, separate the overall dispute into component legal issues; for each issue, formulate criteria that will suffice to find violation; apply the facts to determine whether the criteria were met.
Your job is first to bring order to the stream of facts relating to a dispute (and, believe me, aggrieved parties will deliver an uncoordinated jumble of facts and outrages, and they will argue that all this means they should win a bunch of money). Identify the separate complaints that an aggrieved party is making, and match these with potential grounds for liability, whether based on contract or publicly made laws. This involves some, very minor, skill in being able to search and sift through laws. Fear not, I’ll return in a later post to why it’s not all that hard to understand law’s sources and to figure out, without studying a complete list, what the law probably is and where it is probably recorded.
I use an archery analogy with my students to explain how they should think about making a legal argument. One by one, for each law, set up the target by explaining what the criteria are for proving a violation. This may involve acknowledging ambiguity or disagreement among other courts that have applied the law. Next, reach into your quiver (the set of facts) and fire arrows at the target. That is, explain why the law is or is not violated using the facts of our case.
The most basic legal argument goes: Plaintiff argues that Defendant is liable for violating law A. Law A is violated if criteria X is satisfied. HERE, X is (or is not) satisfied, BECAUSE the facts do or (do not) satisfy X. Identify the law that applies. Identify that law’s criteria. Apply the law to the facts.
I have found that the archery analogy, emphasizing order, law identification, and deployment of facts, helps them to understand what makes for a good argument - or at least a good exam answer. For concrete examples of good and bad arguments, see Orin Kerr’s post from a few years ago on exam answers over at the Volokh Conspiracy.
Law is, to the contrary, hard
What I’ve discussed is just the most basic part of the basic skill of arguing about law. Law itself is, to me, an intensely fascinating subject. I study it as the set of rules we use to govern ourselves. It could hardly get more interesting than to think deeply about why we have decided to rule ourselves this way and whether we could do a better job of it. These questions call for the full use of other areas of knowledge: psychology, economics, statistics, sociology, physics, and just about every field you can think of that grapples with what is really going on inside of and between us humans.
Even though I’m trying in this series of posts and in the abstract theory that guides them to argue that law is easy, there is an important sense in which I’m wrong. While it’s indeed easy to understand how we go about law, getting law right is very hard indeed. In fact, it’s the piece of advice I got in law school (from Mark Kelman) that I continually turn over and keep at the forefront of my mind: “Make the easy problems hard.”
That is, in the context of this little blog post, it may be easy to learn how to make a legal argument:
Parties are fighting about something. Law A speaks to that thing and has criteria X. Here X is met or not met because of the facts.
But to make a really great argument, we need to appreciate why the parties are fighting, what justifies their positions. It’s in understanding, deeply, the strength of the intuitions justifying your opponent’s position, that you can understand what law A really concerns, and why figuring out and applying criteria X is, in fact, a hard problem that may divide courts. My point here is only that it’s easy to be able to undertake this very hard work.