OVERALL

The law begins with conflict

Link issue recognition to client objective (s)
American law values and protects all parties rights so it is only natural that the law will contain that will
point in various directions (forks)
The vast panoply of law school exam questions are no more than a formalized representation of the
variety of human conflicts that occur in our complex society
Keep in mid the human dimension of legal conflict

GENERAL GUIDELINES FOR ISSUE-SPOTTING
1) FOCUS on how each ambiguity in the question will or will not affect the ultimate outcome of a
potential legal dispute
Identify each of the ambiguities and analyze the difference the resolution of those ambiguities
might make to the rights and obligations of the respective parties
2) IDENTIFY forks in the law and forks in the facts
Fork: an issue presents you with a choice between two or more paths leading in different
directions
3) THE MOST IMPORTANT issues are the ones that the professor stresses in class
FORKS IN THE LAW PATTERNS
-DISCUSSION OF DIFFERENT RULES AND INTERPRETATIONS-
~RULE AND COUNTER-RULE: Multiplicity of rules tested (hypothetical can be resolved in one way by
Rule X and in another way by Rule Ythe difference b/t the rule and counter-rule was probably analyzed
in the course of class discussion)
A) Traditional Rule v. Modern Rule (i.e. contributory v. comparative negligence)
B) Majority Rule v. Minority/Nonconformist Rule (Massachusetts rule v. other states rule)
C) Common Law v. Statute
********sometimes, the professor constructs the question in such a way that it seems as if the student
will be right to apply the restatement and wrong to apply the common law rule. HOWEVER, if the
professor went to the trouble of designing a problem that would come out one way under one rule and
another way under the other, chances are high that she expects you to recognize this difference and is
ready to award issue spotting points to the students who do*********
*******If you are attempting to answer a question in which the choice b/t rule and counter-rule seems to
be very straightforward, you are probably missing something in your analysis of the problem. Watch out
for:
-the imaginary or unidentified jurisdiction: when the facts of an exam are set in an unidentified or
imaginary jurisdiction, you can be sure the prof expects you to analyze the facts at hand under
both the rule and counter-rule since the choice b/t the two is up for grabs
-the jurisdiction whose law was not explored in the course: Sometimes, you will encounter an
exam question set in a jurisdiction whose law you do know. When that happens, your job is to
apply that law and move on to other issues (i.e. if your torts course examined Floridas approach
to comparative negligence in painstaking detail and, on the final, you encounter a question
involving an accident that occurred in Florida b/t Florida residents and is the result of plaintiffs
negligence as well as defendants, you would be making a serious mistake if you saw this
question as an opportunity to provide a lengthy rule v. counter-rule analysis of the difference b/t
comparative and contributory negligence)
-traditional v. modern rule issues where the modern rule has not been judicially adopted: the
modern rule may be a trend adopted by members of the American Law Institute. It may have even
inspired a black-letter formulation in the Restatement of Law BUT the restatement is NOT a
statute and the rule is not a law unless and until a court or some other authoritative body says it is

~COMPETING INERPRETATIONS OF A SINGLE RULE

a) Plain meaning v. purpose: Statutory and case-law ambiguity

One interpretation focuses on the language or plain meaning of the rule (tricycles are
vehicles and therefore forbidden). *****adding motorized vehicles to the statute does not
make the problem go away. What about motorized wheelchairs? Statutory ambiguity lies in
the words themselves; adding more or different words doesnt change the issue******

The second interpretation focuses on the rules apparent purpose (tricycles do not pose the
same kinds of dangers in public parks that automobiles do). The rule may come from any one
of a number of sources (statutes and cases)

Most rules have more than one purpose. Policy analysis may reveal competing purposes (i.e.
whistleblower example on pg. 44). Examination of legislative intent may also uncover
competing purposes.

Legislative Intent: Purposes come from legislative intent, which is derived from legislative
history, other provisions of the statute, official comments, and real-world catalysts (pg. 40)
If a prof is going to test you on the purpose of a statute, then she will probably teach you
about it EXPLICITLY in the course. Many students will dismiss such discussions as beside
the point. Thus, when discussion turns to a close reading of a Senate Report or a careful
analysis of the umpteenth Official Comment, PAY ATTENTION

Policy Analysis: Direct evidence of legislative intent may be lacking or inconclusive. If this is
the case, then engage in policy analysis (imagine you are a legislator who is trying to decide
whether to support or oppose a bill containing the rule in question. What policy or policies is
the rule designed to further? Why do you suppose your colleagues want to see it enacted into
law? What problem(s)social, commercial, legalare they worried about and why do they
think this rule will fix them? What is it that the rule is supposed to accomplish? ) Chances are
that the prof will have thoroughly explored the policies behind any statute she thinks is
worthy of testing on the final. A policy analysis on an exam must go beyond mere parroting
of points made in class. Sometimes, you will be tested on rules and statutes you have never
seen before

Statutory Ambiguity

PURPOSE:

*do not focus on ONE purpose. Frequently, there is more than one*

-Broad v. Narrow Purposes: Come in two varieties
1) Spin v. Counter-spin: Enthusiastic supporter pitted against most outspoken
critic. Imagine the spin that each group would attempt on the day the statute is
enacted.
2) Floodlight v. Laser beam: broad purpose is invoked to weaken or diffuse the
effect of a statute (i.e. make the threat posed by tricycles de minimis relative to
noise, pollution, etc.). narrow purpose invoked to sharpen focus and effect (i.e.
to protect the elderly, the threat of tricycles may loom large
LANGUAGE/COMPETING MEANINGS:
Professors draft exam questions that involve competing interpretations of the
words used in the rules and statutes. Learn to use the following:

1)The dictionary of statutory context: if there is a section of the statute that prescribes
different penalties for different vehicles violating the rule and the specific vehicles are
listedmotorcycle, truck, etc.this suggests that when the word vehicle is used elsewhere
in the statute, it should be given the narrower meaning rather than the broader one
2)The dictionary of history: todays plain meaning becomes tomorrows historical
meaning. Issues pitting historical meanings against other interpretations are very common in
law practice and on law exams
3)The dictionary of commercial context: terms may have specialized meanings in the
context of statutes designed to regulate a particular industry, profession, or trade
4)The dictionary of the common law: See pg. 50. Common law meaning versus meaning
based on statutory purpose
******WATCH OUT FOR*******
-statutory ambiguities emphasized by professor AND
-variation on a hypothetical examined closely in class
-new application of an old statute (a scenario in which a statute that has been around for a while is
invoked in a factual setting that was unimaginable at the time of enactment, such as the Statute of
Frauds applied to a transaction memorialized via email)
-new or imaginary statute (come up with statutory purposes on your own, no legislative history to
depend on, watch out for issues that involve policies pitted against one another and/or against the
plain language)
-a statute making a cameo in a common law claim/defense (See pg. 53) Dont focus just on
common law. Focus on competing purposes of the statute, as well
Case Law Ambiguity
-Discuss similarities and differences b/t precedent and current case. Elaborate as to why the differences
are significant enough to justify a result different from the one reached in the precedent (tenant v. owner,
abortion rights v. cloning)
Watch For:
a) The case says soyou need to pause and discuss a fact in your exam that differs
from the facts in the case discussed/read in class WHEN the case tells you (pg. 59
we hold that the seller of a home is liable for failing to disclose hidden defects the
professors will delight in writing exam questions that feature someone like a seller
a tenant with a financial interest in the salebut who is not a seller in order to force
you to discuss whether the precedent should apply or be extended to cover the new
situation
b) Rule v. rationale or Broad v. Narrow HoldingFacts of case are covered either by
the holding itself or by the rationale of the holding
***Rationale can be found in the case holding itself, policy analysis, etc. There
may also be multiple rationales***
***Know the difference b/t applying and extending a case***
FORKS IN THE FACTS PATTERNS
-QUESTIONS HOW THE LAW APPLIES TO A PARTICULAR CASE-
Lawmakers cannot imagine every situation that might occur in advance and establish a rule for it. So, the
law groups activities into broad categories and establishes rules covering each (which is supposed to lend
predictability and reduced bias to the law).
CATEGORIES:
~Rule v. Exception: A particular area of law is governed by a general rule to which exceptions exist (i.e.
plain view doctrine). A standard exam technique is to generate a situation in which it remains unclear
whether the general rule or the exception applies
~Statutory Boundaries: terms in the statute constitute categories that determine whether the statute applies
( Article I of the UCC applies to the sale of goods) There are few more common exam techniques than
requiring you to read statutory language carefully to determine whether the facts at hand fall within or
outside of the categories established by the statute
~Sequential Categories: Many categories of law are organized based on a sequential chain of events. At
some moment in the chain, events will have proceeded far enough that the law will shift the transaction
from one category to another (i.e. preliminary negotiations in contract law versus an offer OR a man
plotting to kill his wife versus an overt act toward committing the crime). Writing facts that leave you in
doubt about which is a classic exam technique
~Crossing the line: Point of no return (i.e. sexual harassment cases force courts to distinguish b/t
harmless office flirting and impermissibly unwelcome advances). Expect to find questions that ask you to
spot issues like which side of the line the defendants behavior in on
~Elements/Running the Gantlet: Many areas of law require one party to prove several elements to make
out a case in which the absence of one spoils the stew (in torts, duty, breach cause, and harm). Your prof
could write an exam question where there is doubt about each of the several elements of a particular
doctrine. BUT run the gantlet.if you see an ambiguity in one part of the story, do not assume that you
have scoped out the whole question. Doctrines structured as a series of elements provide multiple
opportunities for hard issues to be discussed. See Pg. 74 for example questions.
~Open-ended/Evaluative: Argue whether the evaluative label applies or not (was conduct in good
faith). What you will need to do is ask yourself which facts in the question support a claim that the action
was in good faith and which facts cut the other way.

AMBIGUITIES/WHY CATEGORIES DONT SETTLE THINGS:
-facts on the both sides of the category: the professor will take two well-established legal categories and
write a story in which some facts point in one direction and some point in another. Your job is to see how
the exam facts reflect the ambiguity and make the arguments for one characterization as well as the other
-differing standpoints: the facts look different from the standpoint of different actors. Even when the facts
themselves are undisputed, the different perspectives of the party make unclear whether the facts fall into
one category or another
-the bigger picture: a farmer is strolling his grounds and hears a child screaming from the bottom of a well
into which a child has fallen. From a narrow perspective, this appears a classic case in which the farmer is
under no legal duty to rescue the child. However, the exam writer may include facts that reveal the well to
be on the farmers property. It may be noticeably marked with a danger sign and as carefully shielded
from accidents as reasonable. Yet, the farmer may have seen children too young to read or otherwise
appreciate the danger playing nearby. The broader perspective suggests that the farmer may have a duty
to aid. On an exam, your prof will want you to present the case both ways
-differing ways to make sense of the facts:
a) totality of circumstances versus single circumstance: facts can be viewed in isolation
or as a whole. Even if a modern view totality of circumstances test or well-established
rule exists to settle the debate, discuss as single facts and as a whole. See pg. 80
b) lenses of generality: paying attention to how certain facts can be presented differently
thru different lenses (puffery v. unlawfully deceptive) See pg. 81
c) linguistic ambiguity: words v. actions, written v. oral statements, multiple sources of
meaning (lay v. legal), literalism v. reasonable expectations. See pg. 85
TWIN FORKS
~Relationships among forks/Issues within issues~
Patterns to recognize:
-Reciprocal Forks: back-and-forth b/t law and facts