Education Moulds

Introduction

The hypothetical (or "hypo") is so familiar to anyone who has received a legal education in the United States that you might ask, "Can there possibly be anything of theoretical interest in the hypothetical?" And in the same vein, "We all know what hypos are."
The purpose of this post is to reflect on the "hypothetical," with the
special purpose of equipping law students with an interest in legal
theory for the task of thinking rigorous and analytically about
hypotheticals, what they are, what they can and can't accomplish, how
to construct them, and how to maneuver around them.

What is a hypothetical?

Merriam-Webster defines hypothetical as "being or involving a hypothesis : CONJECTURAL," and hypothesis
as "an assumption or concession made for the sake of argument" or "a
tentative assumption made in order to draw out and test its logical or
empirical consequences," from the Greek from hypotithenai, "to put under."
In
American law schools, the pure hypothetical is a counterfactual
variation on the fact pattern of an actual case. The hypothetical plays
an important role in the Socratic style of law school teaching.

Here is a very simple example. If the actual case involved a
contract between Ben and Alice, in which Alice agreed in writing to fix
Ben's roof, and Ben agreed to pay Alice $100, Alice did not perform,
and Ben had to pay $200 to another roofer, we might get hypos like the
following:

• What if the agreement had been oral instead of in writing?
• What if the contract price had been $300?
• What if Alice had been a minor?
• What if the contract had not specified a price?
• What if Alice did the job, but the roof still leaked?
• And so on.

The Purposes of Hypotheticals

Why do law professors use hypotheticals?

• As a tool for the explication of legal doctrine.

  
  

• As a tool for exploring the moral underpinnings of legal rules

  
  

• As a tool for exploring the consequences of legal rules.

Law students quickly become familiar with the first of the three
kinds of hypotheticals. They read a case and learn a rule. The
professor then poses hypothetical variations on the case to test the
student's knowledge of the rule. Typically, the hypo is followed with a
question like, "What result?" But legal education is also about the
normative analysis of legal doctrine, and hypotheticals can also be
used to explore our intuitions about the morality of the law. Such
hypos are frequently end with, "What should the result be?" And the
follow-up question, "That's the rule, but do you think that is the right
result?" Finally, contemporary legal education incorporates a healthy
dose of economic analysis. So, we can add information about prices to
hypos and then ask what consequences a rule will produce if the various
actors are "rational" in the economic sense.

"Beware the hypothetical, my son. The laws that catch, the facts that bite."

Hypos
can be fun, but many law students don't have a good time, when they are
led to contradict themselves by a series of hypos. Having learned not
to contradict yourself, you may then find that by remaining consistent,
you can be led, step by step, to an answer that is consistent but
absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride.
Socratic dialog is not a game, and law professors actually need
students to make certain common mistakes in order to get certain points
across. However, there are a number of techniques that law students can learn to become more effective at the hypothetical game.

Lesson Number One: Fight the hypothetical, lose the war!

The
first and most important lesson to learn about hypotheticals is that
you can't get anywhere by fighting the set up. (I will modify this rule
of thumb later on.) One of the first ways that law students begin to
fight back against hypotheticals to resist the "hypothesis." One way to
do this is to fight the facts. "That wouldn't happen." Or "In the real
world, it would happen differently." Fighting the facts only delays the
inevitable. At the worst, you simply get asked the same question again,
"O.K., but for the sake of argument, assume these facts." At the best,
you get another version of the same hypo that works around your factual
objection." As a general rule, don't fight the facts.

Lesson Number Two: Watch for Slippery Slopes

Every
law student learns to recognize the following pattern: the Professor
starts with a fact pattern, where the conclusion is obvious. Then one
fact is varied by degrees. There doesn't seem to be an logical stopping
point, so if the student wants to be consistent, they are lead to an
absurd conclusion. We have a contract between Alice and Ben. Is $100
valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn?
1/100th of a peppercorn? A speck of dust. The atoms that are expelled
when Ben says, I agree? You are on a slippery slope, and you
desperately want to get off! Usually, you will realize that you are on
the slippery slope early on in the sequence of questions. Here are some
ways to get off: (1) Say, "I see were are on a slippery slope here."
Then just go along for the ride, and when you read the bottom, just
say, "Well, I see we are at the bottom of the slippery slope now!" You are playing along with the game, but also showing that you are smart enough to see what is happening.
Or (2) When you start to feel a twinge about the hypo, say, "My answer
is still "Yes, but we are starting to enter the gray zone." (If you
want to be fancy, say ". . . but we are starting to enter the penumbra
of the rule." When you think that you've hit a truly hard case, say
"Now, we are definitely in the gray zone. It's really a judgment call
which could go either way." And then when you get to the bottom of the
slippery slope, you can say, "Now, it's clear, the answer is no." This
second strategy is simply the way to make the point that there are
lot's of legal rules that require a "Yes" or "No" answer (they are
bivalent), when the real world is a matter of degrees. Slippery slope
hypos are simply the law professor's way of getting you to see this
phenomenon.

Lesson Number Three: Watch Out for Cold Rules and Hot Facts

This
is a favorite law professor trick. You take a case where the rule is
settled, and then come up with facts that have accidental features that
make the application of the rule morally unattractive. "Starving
babies" are a common device. But should Alice have to pay Ben damages
if Alice has a "starving baby!" Of course not, you say to
yourself, but in fact whether or not Alice's baby is hungry is probably
irrelevant to the legal question whether Alice is liable to Ben for
breach of contract. Again, there are several ways to play this. Here is
the simplest: (1) Simply point out the divergence between your legal
and moral intuitions. "Well, morally speaking, it seems repugnant to
make Alice pay, but I don't see how her financial needs provide her
with a legal defense." Here is another alternative: (2) Try to find the
legal category that fits your moral intuition. In criminal law, the
moral problem may provide the basis for a defense of "necessity."
Obviously, these two strategies can be combined: "Well, morally
speaking, it seems repugnant to make Alice pay, but I don't see how her
financial needs provide her with a legal defense. Maybe, should could
argue that there is a defense of "necessity" to actions for breach of
contract."

Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:

Easy cases
involve a straightforward application of a legal rule. Most hypos are
easy cases. You may make a mistake and learn something about the rule,
but there is nothing funny going on here. Easy cases are the bread and butter of legal education.

Hard cases
involve a genuinely difficult legal problem. Sometimes there is a black
letter rule that covers the facts of a hypo, but sometimes there isn't.
Why not? Many reasons, including: (1) In a common-law system,
there are simply many issues that have never been decided–"novel
questions" where not precedent or rule is binding; (2) Rules sometimes
have "gaps," places where the law simply is unclear because the rule
was not formulated with that sort of case in mind; (3) Rules sometimes
conflict with one another, and unless the conflict has already been
resolved, the result is a "hard case." When you get a hypo that
involves a genuinely hard case, your job is to figure out what the law
should be. In a way, the whole point of the first year of law school is
to give you the tools necessary so that you can argue both sides of a
hard case on your own, without any help from professors, outlines,
treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:

(1)
Arguments of fit. You can argue for a rule or result on the grounds
that it best fits the legal landscape. Arguments of fit are about
consistency or coherence. Frequently, you make arguments of fit based
on analogies between the rule in situation A (that is settled) and the
rule that should obtain in situation B (where the law is unclear).

(2)
Arguments of principle. You can argue for a rule or result on the
ground that it is fair or that it respects the rights of the parties.
It is fair that Y should recover damages, because Y has a moral right
to the integrity of her body.

(3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good?
Deep question! But most people will agree that (1) economic efficiency,
(2) health, (3) savings lives, and (4) human happiness and the absence
of human suffering, are all goods that should be promoted.

Hard cases are the meat and potatoes of law school.

Wild Cases
involve fanciful fact patters or bizarre legal rules. Suppose that on
Mars, the rule is that crime-of-passion murders aren't punished at all,
because the chances of recidivism are so low. Suppose that everyone
over the age of 34 is killed by a mysterious virus, can a 32 year serve
as President, even though the Constitution sets a minimum age of 35.
Wild cases are frequently constructed to serve as "intuition pumps."
That is, the wild case is constructed so as to generate a particular
reaction–an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases.
On the one hand, the intuitions pumped by a wild case can be
illuminating–they can help you to an insight that you would otherwise
have difficulty grasping. On the other hand, intuition pumps can be
misleading. The set up of the wild case may be cleverly (or
accidentally) designed so that a legally or morally irrelevant feature
of the case is doing the work–pumping the intuition. When you are
questioned about a wild case, you should simply give your
reaction–your gut instinct. But it is also fair to qualify your
answer: "My answer is yes, but this case is so wild that I really don't
feel very sure about my intuitions." Wild cases are the desert of law school.

Conclusion

There is a lot more to learn about hypotheticals (perhaps in a second installment in the Legal Theory Lexicon, but these four lessons should get you started.

(Last updated on March 29, 2009.)

Source: Lawrence Solum

Jeremy Waldron (New York University – School of Law) has posted Who Needs Rules of Recognition? on SSRN. Here is the abstract:

I argue against the idea (made popular by H.L.A. Hart) that the key to a legal system is its "rule of recognition." I argue that much of the work allegedly done by a rule of recognition is either done by a different kind of secondary rule (what Hart called "a rule of change") or it is not done at all (and doesn't have to be done). A rule of change tells us the procedures that must be followed and the substantive conditions that must be satisfied if law is to be changed legislatively; and a judge "recognizes" changes simply by using this checklist. In common law, there is no clear rule of change (because we are profoundly ambivalent about judicial lawmaking). But we get by without one, and without a determinate rule of recognition that would tell us precisely how to infer rules from precedents. It is quite liberating, really, to abandon the idea of a rule of recognition. Apart from anything else, it relieves us from having to participate in endless debates about whether the US Constitution is (or contains) a rule of recognition for American law. The Constitution contains rules of change; that's what matters.

Recommended!

Source: Lawrence Solum

Harry G. Hutchison (George Mason University – School of Law) has posted Putting the World Back Together? Recovering Faithful Citizenship in a Postmodern Age on SSRN. Here is the abstract:

Archbishop Chaput's book, Render Unto Caesar, signifies the continuation of an impressive and persistent debate about what it means to be Catholic and how Catholics should live out the teachings of the Church in political life in our postmodern society. Render Unto Caesar provides evidence that America's identity and future are endangered by trends reifying radical human autonomy and choice. New threats surface in the form of legislation and judicial interpretations permitting choices that were once considered criminal to be accepted. This trend has been accompanied, if not facilitated, by U.S. Supreme Court decisions that have contributed greatly to the privatization of religion. In light of the emergence of such trends, and given the likelihood that some Catholics, guided by an ongoing process of assimilation, have failed to contest adequately these developments, Archbishop Chaput offers a splendid reply to Aristotle and Professors Scaperlanda and Collett's dense interrogation: how ought we to live together. Such questions are complex because the acceleration of trends favoring individual singularity in our own age signals that many humans prefer to distance themselves from a community and a tradition representing shared values. Instead of accepting the real world of human history they see themselves as an abstract instance of the human species, an autonomous being that remains the epicenter of the universe.

Against this inclination, and venturing to engage a nation that is exemplified by a diversity of incommensurable values and world-views, Charles Chaput stresses the special responsibility of Catholic public officials in sorting out the good and calls upon all Catholics to refrain from self-censorship regarding issues that ought to concern them. But in a postmodern society, the inevitable effect of modern liberalism is that some will view religion as "a private eccentricity" rather than as a central and formative element of the nation. This viewpoint is commonplace because giving religious voices space in the public square as a singularly important aspect of a believer's life locks in both society and individuality to the past from which modern liberalism seeks to deliver us. While Render Unto Caesar provides a laudable foundation that might enable Catholics to properly influence America's ongoing debate about public policy, the common good and the nation's identity, such a foundation must confront the insistent demands of modern liberalism, and the likelihood that Catholics themselves have been incubated in, and have accepted as normative, a process of equivocation and self-censorship. Given this outcome, the likelihood that American Catholics will surrender to Archbishop Chaput's persuasive intuition is remote.

Source: Lawrence Solum

Chad M. Oldfather (Marquette University – Law School) has posted Error Correction (Indiana Law Journal, Vol. 85, 2010) on SSRN. Here is the abstract:

Under most accounts of appellate review, error correction stands with law declaration as the core purposes of the process. Yet while a vast amount of scholarship addresses the process of judicial law creation, error correction has received comparatively little attention. Indeed, there appears to be a consensus that it is straightforward and settled, and that the lack of attention is warranted.

One goal of this article is to challenge this understanding. To be sure, the architecture of our judiciary reflects a worldview in which legal questions have correct answers and courts' role is simply to find them. On that understanding there is nothing for appellate courts to do but correct error. We no longer inhabit that world. Instead, as the saying goes, "we are all Realists" in that we accept the indeterminacy of legal standards and recognize that courts must often make (rather than merely find) law. This jurisprudential shift has significant implications for error correction. Simply put, it is no longer meaningful to speak of trial court "error" in many cases, leaving the precise nature of the appellate role undefined and likely indefinable if we continue to conceive of it as involving a search for error. That, in turn, creates the possibility that appellate courts can implement the error correction function in widely divergent and inconsistent ways, and that this procedural malleability creates an opportunity for judicial irresponsibility.

The article's second goal is to suggest a way out. Rather than attempting to achieve greater conceptual clarity with respect to the nature of error, the article advocates conceiving of the error correction function as involving "derivative dispute resolution." On this view the appellate role involves not a relatively unconstrained search for "error," but rather the task of resolving a second-order dispute between the parties concerning the propriety of the trial court's handling of the case. Such a view, the article contends, provides a way to harness the instrumental genius of the adversary system to provide greater judicial accountability and legitimacy.

Cool paper. Of course, there is another diagnosis–that our understanding of error correction is correct and that it is our realism that is "in error."

Source: Lawrence Solum

Eric Segall (Georgia State University – College of Law) has posed Lost in Space: Laurence Tribe's Invisible Constitution (Northwestern University Law Review Colloquy, Vol. 103, p. 434, 2009) on SSRN. Here is the abstract:

For over two hundred years, scholars, judges, and constitutional theorists have debated whether the American people possess fundamental rights and liberties beyond those derived from the explicit text of the United States Constitution. Now, one of the most prominent constitutional lawyers of our generation and our chief legal doctrinalist, Laurence Tribe, has tried to contribute to this discourse with his book The Invisible Constitution. Unfortunately, where the book is transparent, Professor Tribe doesn't cover new ground in suggesting that much of our constitutional doctrine cannot be gleaned from the text of the Constitution. Many scholars have emphasized our unwritten Constitution and Professor Tribe's substitution of the word "invisible" for "unwritten" does not advance the debate. Where Professor Tribe tries to break away from conventional analysis, he employs unhelpful space metaphors, obscure drawings and new labels for constitutional analysis that are opaque and difficult to understand, even for the sophisticated reader. Although Professor Tribe is no doubt correct that our Constitution stands for much more than is in its text, his new book fails to illuminate the implications of that reality or to help us discern the contours of what he calls the Invisible Constitution.

Source: Lawrence Solum

John Oberdiek (Rutgers University School of Law, Camden) has posted Philosophical Issues in Tort Law (Philosophy Compass, Vol. 3/4, pp. 734-748, 2008) on SSRN. Here is the abstract:

The union of contemporary philosophy and tort law has never been better. Perhaps the most dynamic current in contemporary tort theory concerns the increasingly sophisticated inquires into the doctrinal elements of the law of torts, with the tort of negligence in particular garnering the most attention from theorists. In this article, I examine philosophically rich issues revolving around each of the elements constituting the tort of negligence: compensable injury, duty, breach, actual cause, and proximate cause.

Highly recommended. Download it while its hot!

Source: Lawrence Solum

Lyrissa Barnett Lidsky (University of Florida – Levin College of Law) has posted Nobody’s Fools: The Rational Audience as First Amendment Ideal on SSRN. Here is the abstract:

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called “core” speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the “marketplace of ideas” metaphor, which has long been a target of criticism amongst First Amendment scholars. Now, however, cognitive psychology and behavioral economics provide empirical evidence that the assumptions of the rational audience model are demonstrably false in some commonplace settings. This Article nonetheless contends that behavioral economics has not yet made the case for jettisoning the rational audience model in the realm of core speech. As the Supreme Court has recognized, a legal test that looks at the “actual effects” of speech would be cumbersome and expensive to apply, and would therefore chill speech. But there are even more compelling reasons to adhere to a test focused on the “reasonable interpretation” of core speech. Because speech and expression are closely linked to individual autonomy, government constriction of core speech-particularly political speech-undermines the foundation of a self-governing democracy. Moreover, the rational audience model prevents public discourse from being reduced to the level of the least educated or least sophisticated audience member. The model calls on citizens to raise their cognitive capacities to meet the demands of public discourse, and it serves as a check on the government’s increasingly powerful ability to drown out other speakers in that discourse. This Article concludes that the rational audience model represents a flawed but worthy ideal.

Source: Lawrence Solum

Michael Waggoner (University of Colorado School of Law) has posted How and Why to Tax Carbon (Colorado Journal of International Environmental Law and Policy, Vol. 20, 2009) on SSRN. Here is the abstract:

Increased concern about possible global warming due to rising levels of greenhouse gases such as carbon dioxide (“CO2″) suggests the need to control emissions of CO2. This article explores a system of revenue-neutral carbon taxes as a supplement or alternative to other CO2 control systems such as subsidies, regulation, and cap-and-trade. A system of carbon taxation should be, the Article suggests, sufficiently fairer and simpler and more efficient than the other possible systems of CO2 control and that it merits serious consideration. Because the carbon tax that is suggested would be revenue neutral, it should be politically acceptable. Problems with a carbon tax such as regressivity, possible disruption of international trade, and impact on other societal values are explored.

The carbon tax, it is suggested, should be enacted along with a Value Added Tax (“VAT”) for two reasons. First, the carbon tax should start low (so as not to disrupt the economy) and increase steadily (to create substantial incentives to reduce CO2 emissions). Revenue from the carbon tax will rise initially as the rate increases, but eventually the expected reduction in carbon use will cause carbon tax revenues to fall even though rates remain high and even increase. To keep the carbon tax revenue-neutral, other taxes will have to fall as carbon tax revenues rise, then rise as carbon tax revenues fall. To avoid upsetting the expectations that underlie long-term investments and planning, it may be desirable to have relatively stable income tax rates, and thus it would be best to have the variation occur in the VAT rates. Second, the carbon tax will be regressive, so it should be accompanied by some form of rebate or income maintenance program for people with low incomes. The carbon tax initially will generate too little revenue to justify creating such a program, but the VAT will be similarly regressive and from the start it can generate enough revenue to justify and fund such a rebate program.

Source: Lawrence Solum

Andrew P. Morriss (University of Illinois College of Law) has posted The Next Generation of Mobile Source Regulation on SSRN. Here is the abstract:

In the U.S. we have reached the point where further reductions in per-mile emissions from individual mobile sources of criteria pollutants will be both tiny and expensive. In addition, as population grows, total mobile source emissions in developed countries are likely to increase as our ability to engineer reductions on a vehicle-by-vehicle basis reaches its technological limit and is overwhelmed by the rising numbers of miles driven. Mobile source emissions world-wide will climb as greater wealth in the developing world fuels the demand for mobility. This article examines the demand for transportation and the regulation of transportation fuels and then assesses the possible steps for future regulation. As to pollutants where the issue is total loading in the atmosphere (e.g., CO2), the author argues that it will be cheaper and more effective to buy offsets in the developing world than to attempt to reduce emissions only within the developed world. The author further argues for incentives to induce changes in individual driver behavior in place of command and control measures and for changing anti-trust regulation to allow for tighter integration of fuels and engines to reduce mobile source emissions. Even with these measures, however, the author argues that stationary source regulation is going to have to pick up a larger portion of future gains in air quality.

Source: Lawrence Solum

Tung Yin (University of Iowa – College of Law) has posted Boumediene and Lawfare (University of Richmond Law Review, Vol. 43, p. 865, 2009) on SSRN. Here is the abstract:

One reason that the Bush Administration persistently resisted giving Guantanamo Bay detainees access to courts and to lawyers was the belief that they would use such access to engage in "lawfare," or "the use of law as a weapon of warfare." Discovery of a purported al-Qaeda training manual in a safehouse in Great Britain reinforced this concern, particularly given the manual's exhortation to its readers, if captured, to make false claims of torture and to use attorneys to pass information to the outside world. Yet, the Supreme Court's decision in Boumediene v. Bush appears to discount the concern over lawfare by implying that the detainees are constitutionally entitled to representation by counsel. In this Essay prepared for the Allen Chair Symposium on "Detaining Suspected Terrorists: Past, Present, and Future," I discuss reasons to believe that lawfare — as practiced by lawyers for detainees — can be adequately controlled by existing tools available to the government: security clearance requirements for counsel, and monitoring of privileged conversations. These tools are not without controversy, and I do not mean to suggest that they should be used lightly, but their very intrusiveness makes them particularly effective at impeding lawfare. Thus, I conclude that it is unpersuasive to argue that Bouemdiene will endanger Americans by enabling detainees to engage in effective lawfare through the use of lawyers.

Recommended.

Source: Lawrence Solum