I have a “thing” that I call my “Cardinal Rules of Legal Analysis.” I teach my students that these six concepts are the necessary components of any thorough legal analysis. I developed this list over time with doctrinal colleagues, prompted by my question: “What do you see students do wrong on essays?” I took my colleagues’ answers, consolidated them a bit, and created the following list: (1) L+F=A (“Law + Facts = Analysis”); (2) Use Specific Facts; (3) Don’t Jump to Conclusions; (4) Argue Both Sides (when appropriate); (5) Keep Issues Separate; and (6) Follow the Call of the Question.
In other words:
L+F=A
USF
JTC
ABS
KIS
COQ
In recent years, though, I have focused also on another problem that hinders students’ analysis before they even get to the CRLA: Simply articulating the rule imprecisely. Although I have not yet added this to my CRLA (a very serious decision), I see this mistake in Essay #1 every year in my 1L Spring academic support course. I address this in the bi-weekly meetings I hold with each student with the CRLA-like abbreviation of “RP” for “Rule Precision.”
Here is how the Rule Precision problem presents itself. Essay #1 is on adverse possession (because all students in my course just covered it in their respective Property Law courses). The hypo is, of course, based upon various Simpsons characters invading the land of other Simpsons characters. (This is kinda my thing.) I wrote the fact pattern such that one of the most contested issues is “actual possession.” The proper definition of actual possession requires that the adverse possessor physically occupy the land in a manner “consistent with AN actual owner.” However, I have many students who write a manner “consistent with THE actual owner.” This is the rule precision problem.
This error allows me to reinforce something important to my doctrinal colleagues. Students ask about professors: “Why are they so ridiculously picky about every … single … word”? My classroom answer, probably in the voice of Homer Simpson, is “because little changes to rules make big changes to the rights of parties.”
In the case above, for instance, if the rule is “THE” actual owner, then Troy McClure must have possessed Action Land in the same way as Ned Flanders. He would have had to run a hiking/ zip-lining/ spelunking adventure park. But that is not what “actual possession” requires. That element requires only that Troy act like A true owner. In other words, he must merely act towards the land in a manner that generally demonstrates dominion. There are a lot of different ways to do that which have nothing to do with how Ned possessed the land.
To bring that point home, I ask students: “Changing our fact pattern, what if Troy built a Ritz-Carlton hotel on the property?” Would we have any doubt that Troy met the actual possession requirement? Of course not. But under the rule that the student wrote, i.e., that the adverse possessor (Troy) must act like THE owner (Ned), Troy suddenly does not satisfy actual possession even though he built a fifteen-story building on the property, welcomed 300 guests a night, and made millions of dollars annually off of the land. After all, Ned did not build a hotel; he ran an adventure park.
The point is that when we make one little change to the rule, by changing the word “an” to “the,” we take millions of dollars away from Troy because he now cannot claim adverse possession and thus has to tear down the Ritz. For exam purposes, this means that changing one little word can throw one’s analysis widely astray. So understood, this helps students appreciate why I make them suggest that they outline throughout the semester instead of trying to jam all these little details into the short-term memory ten days before exams.
So, in summary, the Simpsons are the cause of – and answer to – all of a law student’s problems.
Louis Schulze, FIU Law
