Legal thinking 2011

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Legal thinking 2011

  1. 1. Spring 2011<br />LEGAL THINKING<br />Miriam A. Smith<br />Broadcast and Electronic Communication Arts Department<br />San Francisco State University<br />
  2. 2. Spring 2011<br />First - legalese<br />All professions have their jargon<br />Terms of art<br />distinguish those in the profession<br />We will learn many legal terms this semester<br />
  3. 3. We’ll try some legalese . . . <br />I, being of sound and disposing mind and memory, not acting under duress, menace, fraud, or the undue influence of any person or persons whatsoever, do hereby make, publish, and declare this to be my last will and testament, hereby revoking all wills and heretofore made by me, and give devise and bequeath the residue of my estate and all my earthly possessions consisting in whole of my three bags full of wool in the following manner:<br />a. One for the The Master<br />b. One for the Dame<br />c. One for the little boy who lives down the lane<br />Signed on the 11th day of June, 2002.<br />
  4. 4. Fall 2010<br />BAA BAA Black Sheet<br />Last will and testament<br />
  5. 5. Spring 2011<br />One more<br />Sentence<br />Peter (alias Peter), known for his peculiar propensity for the consumption of a variety of squash known colloquially as pumpkin, was in possession of a spouse who was a compulsive fugitive.<br />He imprisoned her within the confines of a shell from a fruit of Curcurbita pepo,<br />where she is now serving time under maximum security.<br />
  6. 6. Spring 2011<br />Peter, Peter, Pumpkin Eater<br />Had a wife and couldn’t keep her<br />He put her in a pumpkin shell<br />And there he kept her very well<br />
  7. 7. Spring 2011<br />The Nature of Legal Thinking<br />How is “legal thinking” different from other types of thinking?<br />How is “legal thinking” learned?<br />
  8. 8. Spring 2011<br />How is Legal Thinking Learned?<br />Law school or by studying legal decisions.<br />Three most important things I learned in law school . . . <br />Reasonable minds can differ.<br />There are at least two sides to every story.<br />Pigs get fat and hogs get slaughtered.<br />
  9. 9. Spring 2011<br />What is Legal Thinking?<br />The way lawyers think<br />Lawyers carefully analyze the facts<br />How are the facts at hand the same or different from the facts of a particular case?<br />An analytical model<br />
  10. 10. Spring 2011<br />How do Lawyers Think?<br />Lawyers ask many questions.<br />Is this a good case?<br />Can it be proven in court?<br />Is it likely to achieve the result the client desires?<br />Can the client pay?<br />Is a judgment collectible? <br />
  11. 11. Spring 2011<br />Our Legal Thinking Model<br />Facts<br />Issue<br />Rule of Law<br />Analysis<br />Conclusion<br />
  12. 12. Spring 2011<br />Just the Facts Ma’am . . .<br />A different set of facts will yield a different result.<br />One fact alone can make all the difference.<br />Some facts are more important than others.<br />
  13. 13. Spring 2011<br />Issue<br />What must the court decide?<br />or<br />What question or questions must be answered?<br />
  14. 14. Spring 20211<br />The Rule of Law<br />Is there a rule (i.e., law) that applies?<br />What is that rule (law)?<br />
  15. 15. Spring 2011<br />Analysis<br />A clear, logical explanation of the reasoning of the court.<br />Explains the rule of law.<br />Considers the arguments of the parties.<br />or<br />Why did the court decide the way it did?<br />
  16. 16. Spring 2011<br />the Court will consider . . .<br />How has the rule of law been applied before?<br />Precedent<br />How should it be applied in this instance?<br />First Impression?<br />
  17. 17. Spring 2011<br />What is the rationale for the rule?<br />What are the primary defenses to the rule?<br />
  18. 18. Spring 2011<br />In the absence of precedence - <br />Situation sense<br />Fairness between these parties<br />Public Policy<br />
  19. 19. Spring 2011<br />Conclusion<br />Summary of what happened.<br />Decisions we read are almost always appellate decisions.<br />Lower court’s decision is upheld, reversed or remanded or some combination of these actions.<br />
  20. 20. Using FIRAC<br />Nix v. Hedden<br />149 U.S. 304 (1893)<br />Spring 2011<br />
  21. 21. Spring 2011<br />Preliminary Facts<br />Where – When - Who<br />U.S. Supreme Court<br />1893<br />Nix -- merchant<br />Hedden -- tax collector (Collector of the Port of New York)<br />
  22. 22. Spring 2011<br />Facts<br />Tax collector charged tax on tomatoes<br />Charged “vegetable” tax<br />Plaintiff claims tomatoes are a fruit, not a vegetable<br />
  23. 23. Spring 2011<br />Issue<br />Are tomatoes a fruit<br />or a vegetable?<br />
  24. 24. Spring 2011<br />Rule of Law<br />Tariff Act of March 3, 1883<br />
  25. 25. Spring 2011<br />Analysis<br />Considered the meaning of “fruit” and “vegetable” in the trade (and in the dictionaries)<br />Consumer use of tomatoes<br />Used as a vegetable<br />Not really a dessert<br />Tomatoes are a “fruit of the vine”<br />
  26. 26. Spring 2011<br />Conclusion<br />Tomatoes are a vegetable<br />Judgment of lower court affirmed<br />(plaintiff loses)<br />

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