Law's Not That Hard, 3: Lawsuits

This is the third in a series of posts laying out the basics of the operations of legal systems. I’m a believer that law is not nearly as complex as many lay people assume. A little abstraction actually makes the whole thing accessible to anyone with some facility for analytical thinking. I’m using the blog to begin sketching out a way to present the core ideas. In the first post, I explained the mechanics of making a legal argument.

In the last post, I argued that legal systems have an underlying, simple structure: Contract, Tort, Criminal Law, and a small set called Parens Patriae. The differences between these areas of the law stem solely from who makes the law and who enforces it. Privately made, privately prosecuted law is called Contracts (where individuals make the contracts that govern them and sue if they’re violated). Publicly made, privately prosecuted law is called Torts (e.g., lawsuits for injuries in accidents or violations of fair housing laws). Publicly made, publicly prosecuted law is called Criminal Law (where government attorneys will prosecute for violations of statutes, whether seeking fines for traffic violations or prison time for burglary). My academic work on this model is free for anyone to download … as many times as you wish!

This time, I’m going to get to some nuts and bolts. How do legal actions work? Every suit, no matter the area, has the same form. There are discrete, but not air-tight, steps to convincing a court that the defendant should lose — meaning, be coerced to pay money or otherwise do something he or she wishes not to do. Here they are: Duty, Breach, Causation, Damages, Defenses. Whether it’s Contract, Tort, or Criminal Law, liability is established by showing that there existed a duty, established by a law, that the defendant breached, causing harm to the plaintiff, as to which there are no relevant defenses.

If you know this legal workflow, and you understand the institutional differences between the areas of law, you’ll have an easy time learning how the steps are a little different in each area, and you’ll be able to move between areas with relative ease. That’s the power of abstraction and why it’s worth the effort. Rather than learn a large catalog of skills and procedures for accident law and a completely separate set for lease agreements, we learn the general structure for all lawsuits and how the institutional definition of an area might affect how the general principles are made into specific requirements. If we also know how to formulate legal arguments about these steps, see the first post, we’re off to the races. In this post, again just a first shot at explaining law, I will only lay out these steps. I won’t endeavor to explain, yet, how to make each particular to its area.

Duty

The very first question we must address is what the duty, if any, of the defendant was. Duties are what we might casually think of as “the law,” the things you must do or not do. Duties can be created in statutes by legislatures or administrative bodies (think speed limits and nearly all criminal laws), by courts refining the “common law,” or by private individuals in contracts. Each institution will have different rules governing how it can make duties and what kinds of duties it is permitted to create.

For contracts, we examine whether the group of private entities that will be bound by the terms of the contract consented — usually by looking to see whether someone made an offer of terms that the others accepted. If so, the contract operates very much like a statute, specifying that one of the parties is under a duty, say, to deliver a car and that the other is under a duty to remit payment. There really isn’t much difference between this kind of duty, to deliver a car under a contract, and a duty to obey a speed limit under a public statute or regulation. Both are “laws” that courts will back up with coercion, though possibly using different remedies.

Courts explicitly create duties in certain areas not governed by legislation and do so by deciding cases. Historically, Tort, private lawsuits to recover for violations of publicly made law, has been composed primarily of judge-made duties. Suits for injuries sustained in various types of accidents, for example, are the bulk of what first-year students study in tort classes, and these are often governed by the body of prior cases courts have decided. Today, numerous legislatively enacted statutes also provide for and govern private lawsuits. For example, the Civil Rights Act, among other things, creates duties on public accommodations owners and employers not to discriminate against customers and employees on account of race, and it gives private individuals rights to sue if these duties are violated.

(Also note, and I may return to this trans-substantive idea in later posts, that many duties prohibit conduct only if accompanied by a particular mental state, or mens rea in the dead language lawyers sometimes use. So, I’ve only violated the duty contained in a certain murder statute if I purposefully or knowingly kill another human being.)

No matter the source, the question is what conduct the law requires or prohibits. That is duty.

Breach

Just because the law imposed a duty on the defendant does not mean the defendant violated the law by breaching that duty. The question, here, is whether the facts show that defendant did something or failed to do something the law required. So if the law imposed on me an obligation when driving to operate my car with the care of an ordinary, competent driver under all the circumstances, whether I breached the duty would turn on an analysis of the facts and an interpretation of the duty. Perhaps the court will compare my facts with those in other driving cases to see whether courts have further specified what kinds of driving fall short of the general duty of care.

Same thing under Contract and Criminal Law. Regardless of the source, we look at the duty the law imposes and then at the facts of our case to see whether that duty was breached — by not performing a contract or by committing a crime, for example.

As a matter of practice, the act of comparing a contractual, statutory or judge-made duty with the facts will sometimes lead to a refining of the duty. The case in front of you may not clearly fall on one side of the violation/no-violation line, forcing you to look more carefully at what the duty is and perhaps sending you back to step one to restate, refine, or amend the duty. This can involve “making new law” either through interpretation — deciding what a written formulation of a duty “really” means — or through judicial amendment.

Consider this example. Maybe some other states have decided, on similar facts to the ones in your case, that the duty of accountants to perform analyses like “reasonably prudent accountants” would, a judge-made tort duty, does not extend to plaintiffs who lack a contractual relationship with the accountant. Still other states have allowed people that the accountant should have foreseen would rely on his or her work to sue. This is a question of duty, and we’re forced to consider more carefully the ambit of the duty (violation only if you also have a contract with the accountant or any foreseeable reliers — or something else?) as we apply the facts to see if there is a breach.

Another example: In a contract for the sale of goods, suppose I receive the goods but pay you less than you think you are owed. The contract contemplated payment but failed to include an explicit price term. Did I violate (breach) a duty established by the contract? We need to go back to the first step and figure out what, specifically, I was obligated to pay. Under the law of most states, I’d be on the hook for a reasonable price at the time of delivery. Whether I breached that implicit obligation depends on what that duty is. So we’ll litigate it, offering evidence of what was reasonable to establish what our private law required me to pay.

Causation

Even if I “break the law,” I’m often not liable unless my actions caused a result specified by the law. This is sometimes tricky, because in the law we often use the concept of causation to serve both logical and policy ends. Logically, causation is straightforward to understand, if not always to apply. If I’m under a duty to operate a car non-negligently and I breach that duty, I’m only responsible to someone injured in a crash if I caused his or her injuries. At the very least, my breaching the duty the law established must be a but-for cause of the injury. That is, but for my breach, the injury would not have occurred.

Sometimes this is called “actual causation” or “cause in fact,” instead of “but-for causation.” The problem is that it’s greedy, in computer-nerd speak — it sweeps in lots of conduct that we probably don’t think of as causal. So, if I injure someone in an auto accident, and but for my negligence the person would not have been injured, it’s also the case that my parents are a “but-for” cause of the injuries. After all, no parents, no me. No me, no breach by me.

The law’s solution to this is to require something more than but-for causation. We will insist that the defendant’s conduct was a proximate cause or substantial factor in producing the injury. The language and exact analysis vary, but the idea is to restrict liability to violations that are connected in a fairly direct way to the injury. This is a matter of policy rather than logic.

In both tort and contract law, the ability of the breaching part reasonably to foresee the injury is the key. They differ, though, in the kind and timing of the thing foreseen. Traditionally in tort, if you should have foreseen, at the time of the breach, damage of the kind that occurred, you will be liable for the damages caused even if you couldn’t foresee their magnitude. In contract law, the famous case of Hadley v. Baxendale decided that a defendant who breached a contract to deliver a crankshaft was not responsible for lost profits that were not foreseen (contemplated) at the time of the contract and were not otherwise a “natural consequence” of the breach.

The important thing to note for the moment is that, whatever the limits, they are policy determinations, allocating responsibility for avoiding losses in ways thought best to serve the public interest. Because it’s a policy issue, the extent to which we permit plaintiffs to travel down the but-for path could also be understood as a definition of the scope of the duty the law has created. Consider, for example, the accountant’s liability to third parties. One could characterize the question as going to whether the accountant was a “direct enough” cause of their injuries or to whether we desire, as a matter of policy, to create a duty on an accountant enforceable by foreseeable reliers not in contract with him or her. The practical consequence of this distinction, between duty and proximate cause is that the definition of the duty is in the hands of the judge for such torts. But the question of causation is given to the jury. These distinct ways of seeing the same problem were the subject of the famous torts case, Palsgraf v. Long Island Railroad Co..

Also note that causation can sometimes be difficult to prove. Summers v. Tice is a tort case in which the plaintiff was shot in the face by at least one of two negligent hunters, Dick Cheney-style, but where it was unclear which shooter caused which injury. The court shifted the burden from the plaintiff to each hunter to prove that he was not the cause, lest the plaintiff be stuck unable to prove to a greater than 50% probability that a particular one of them had caused his injury.

Damages and Defenses

This entry has already gone on a bit too long. I’m aiming ultimately for a thin volume, after all. But the final elements of a lawsuit are showing that there were damages, calculating them, and also examining any defenses the law may provide. Your intuition will get you a long way here. But there are some subtleties, and so the nature of remedies will get its own post.

Defenses are generally policy-based limitations on a positively stated duty. They, like other aspects of the lawsuit, could easily be collapsed into the definition of the duty. For example, while it might generally be a violation of a publicly created duty to go onto another’s land without permission, I will not be liable for doing if my entry was to save a life. This is the defense of necessity. One could as easily say that a trespass is defined so as not to included necessary entries.

Conclusion

Obviously, there is much more one could talk about. My goal here is not to convey the information necessary actually to litigate a case or pass the bar. Rather, I want to provide the framework that will permit a reader to develop intuitions about what the law probably is and what it should be. Key to this is understanding legal argument, understanding the general atlas of the law, and understanding how law violations are proved. We now have at least have a sketch of these.

Law's Not That Hard, 2: Legal Sytems

In the first part of this series of posts, I argued that understanding how law works is not very difficult, that it’s easily accessible to people with basic analytical ability. I started out with an explanation of the basic skill of making an argument by connecting a law with the facts of a case. Like an archer, you set up a target (the law relevant to an aspect of the dispute), and you then fire your arrows (the facts of your case) case, arguing that they either do or do not hit the target BECAUSE (insert your argument for why the facts do or do not meet the criteria established by the law here). Rinse and repeat for each law applicable to the dispute. That’s the core mechanic at the heart of litigation-oriented practice.

But how do we know what the laws are? And what kinds of arguments count as good “BECAUSE arguments”? There are three basic elements essential to a solid understanding of legal systems. First, you need to know how the legal system works so that you can tell what the laws are, what they should be, and how they are enforced. Second, you need to know, mechanically, how to make an argument (first introduced in the last post). And third you need to know how to judge the quality of an argument, that is what kinds of arguments are in bounds.

In this post, I’m going to show you what the basic areas of a legal system really are: Tort, Contract, and Criminal Law, all governed by Constitutional Law and Procedure. This subject arrangement is not arbitrary and knowing how to derive it will help you learn how to develop intuitions for what the law should be in any give case.

First Things First

Let’s talk about legal systems. How do we know what the laws are or should be? You no doubt have some familiarity with contracts, “lawsuits,” prosecutions, and the like. You surely know, as well, of wills and gifts. All these things seem like possible subjects of court cases, all of them laws of one kind or another. How do we make sense of this jumble of things a court might have to deal with? I’m now going to take a crack at explaining a way of understanding legal systems that I advanced in a recent article. Please, download the article early and often! (Why that’s helpful and why the fact that it’s helpful is absurd will be the subject of another post.)

It’s easiest if we go back to first principles, and so you’ll need some patience with abstraction. Start by thinking not of formal, developed legal systems, but of random collections of people. “In the beginning,” suppose we have a group of people who decide that life will be easier if they work together. This group decides it will undertake certain joint projects and has some ability to coerce its members to cooperate. Maybe all they can do is kick you out. Maybe they can beat you, imprison you, make you pay a fine, or make you compensate someone else in the group.

A legal system is the set of rules, call them “laws,” for figuring out how this group, or “public,” will deploy whatever coercion it can muster. So we see that a legal system is an attribute of just about any collective you can think of: a nation state, a corporation, a fraternity, or your local PTA. They all have legal systems, and, guess what, all of these systems have the same, basic structure. Let’s turn to what that foundational structure is. (Aside for law profs: I know this sounds like Austin, unreformed by Hart, but this is immaterial at the moment. For now, all that matters is that I’m defining something. And you can call that thing something other than a legal system if it bothers you.)

Classifying the Laws

One of the very first things any “public” must decide is how its laws should be made and enforced. And the most basic element of each of those decisions is who should do so. You see, the business of law is the creation and transmission of information. For example, a legislature may draft a law, pass it, transmit it to the chief executive, who signs it, publishes it, and then a court reads it, interprets it, and creates information in the form of a judgment, which is then the basis for action by others. So a legal system can be conceived as a set of rules to manage the creation and passing of messages among various groups within a public. (If you’re a computer programmer and are starting to think this sounds like object-oriented programming, yes, the connections are deep, because both endeavors are code-based efforts to manage complex systems.)

To proceed further, we need a convenient term to describe subgroups within the public that will be making and passing on legal information. I’ll call these groups institutions. The Congress is an institution, with many sub-institutions. A corporation is an institution. They’re all over. But to understand the basic structure of legal systems — and to construct a simple atlas of the laws — we only need to talk about the two fundamental types of institutions: public and private. Public institutions, like legislatures, presidents or city councils, are established by the collective to work on behalf of the collective. Private institutions, like a corporation, a single individual, or contracting parties, are the creations of private individuals meant to serve the interests of those individuals , even if those interests are altruistic or publicly minded.

So here it is, an atlas of the legal system: law can be made by either (a) private institutions or (b) public institutions and prosecuted by (a) private institutions or (b) public institutions. By “prosecute,” I mean, roughly, who controls whether a cause of action is brought. Can you go to court and sue, privately prosecuting, or does the decision whether to enforce a law and prosecute rest with a public official, a public prosecutor? (The full article contains a bit more detail.) Setting this out in a chart, we have the following:

	Privately Made	Publicly Made
Privately Pros.	Contracts	Torts
Publicly Pros.	Parens Patriae	Criminal Law

These are the basic legal areas: Contract (privately made, privately prosecuted), Tort (publicly made, privately prosecuted), Parens Patriae (privately made, publicly prosecuted - and almost, but not quite, an empty set), and Criminal Law (publicly made, publicly prosecuted). Beware, these are my own labels. Gifts are part of Contract Law in my atlas, and civil rights statutes giving individuals a right to sue violators are a part of Tort Law. Other academics and practitioners might not use these same labels, but our goal is understanding legal systems in general. Once you know that, then learning the particulars of our own system or some others is just picking up jargon.

So why is this a useful map? For one, it helps law students understand why they take Contract, Tort, and Criminal Law as foundational, first-year courses. In doing so, you’re functionally covering the whole legal system. For us, it will help to understand, in broad outline, why laws come from the institutions they do and what the limits on such laws should be. Put simply, the constraints on a contract, statute, or other type of law almost always come back to the characteristics of the institutions that made it. And so if you’re trying to argue that a law/contract/regulation is valid, invalid, should be interpreted in a particular way, or anything else, the right kinds of arguments will be found in thinking hard about the characteristics of the law’s drafter. Just a little more about this…

A Functional Atlas

The above is a classification of the laws of a legal system. But legal systems have rules, sometimes called secondary rules, that specify how a law must be made, how far it can go, how it should be interpreted, and how it should be enforced. Constitutional Law is what I call the set of rules governing which institutions can make which kinds of laws (so-called structural rules, like voting rules, age requirements, and the like) and what the permissible contents of laws are (which you can perhaps lump together as “rights,” such as that the law may not abridge the freedom of speech). Similarly, the rules governing who can bring and how they can bring actions to enforce law, I call Procedure. Here’s the full map of arbitrary legal systems:

		Constitutional Law
		Privately Made	Publicly Made
Procedure	Privately Pros.	Contracts	Torts
	Publicly Pros.	Parens Patriae	Criminal Law

To re-emphasize: Constitutional Law are the (secondary) laws governing the making of laws. Procedure is the (secondary) law governing the prosecution of law violations. There is a public and private Constitutional Law — and Procedure. One of the goals of my academic work has been to exploit this symmetry to show how these areas of law — the private Constitutional Law of Contracts, comprising offer and acceptance and contract doctrines like unconscionability, and the public Constitutional Law, often with more rule-like procedures for law enactment and with rules of due process and other substantive constraints — nicely mirror one another, with the differences owing precisely to the generic difference between public and private institutions.

The key advantage to learning law in these terms is that we can develop intuitions and arguments about what the law should be based on the qualities of the institution at hand. For example, individuals typically act in their own self-interest. If we’re going to allow them to make a law that binds others, we should probably only do so if all those others consent. And, indeed, the basic structural provision of what I call the Constitutional Law of Contracts is consent: that a privately made law may only come from a unanimous private group containing all those who would be bound. Public agents are expected, in contrast, to act in the public interest. And our secondary rules governing the public making of law are tuned to trying to ensure good agency (by looking to see that proper and usually detailed procedures were followed and scrutinizing more closely than we do with contracts the fit of a law with our more basic norms - freedom of speech and equality, e.g.).

Next Steps

Importantly, we now have in hand a map of the legal system, Contract, Tort, Criminal Law, governed by Constitutional Law and Procedure. We’re going to need to go over some examples to see how the public or private identity of the institution plays a primary role in the content of Constitutional Law and Procedure. That will give us an abstract understanding of legal systems, a set of expectations about how laws are probably made and governed.

Then, we can begin to look at how our system, in particular, is constituted. What are the public institutions? What kinds of legal information does each produce, and how does information flow among institutions?

Once you know these things, you’ll be able to take a dispute or an issue and know where to look and how to think about what the law is and what the law should be. Should we leave this issue to parties to contract over? Should we pass a law that creates rights to sue? Should we create a criminal law? What kinds of sanctions should there be? If you know what the law should be, then, because the law very often is what you think it should be, you’ll know where to find it and how to argue about it.

And finally, in this series, we’ll take a tour through the various “tools” deployed in legal arguments — principles like precedent, economic efficiency, justice, and the like. But for now, whew, thanks for staying with me.

Law's Not That Hard

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:

1. separate the dispute between the parties into separate possible grounds for liability, i.e., the separate possible law violations;
2. for each possibly applicable law, parse the law to determine the criteria, X, under which it will be found to be violated; and
3. 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.