5.1.2 PROVIDE THE RULE
After you have focused the reader’s attention on the issue being addressed, you should articulate the rule that governs the issue. First, let’s define our terms. A rule essentially says that “if a certain condition exists, then a certain legal status results.” For example:
If you are a human being [certain condition], then you are mortal [legal status].
If you have a duty, breach a duty, and cause compensable harm [certain condition], then you are liable in negligence [legal status]. Most rules in a brief will not be stated in “if-then” terminology. However, using the if-then structure can help you to test the rules that you include in your brief.If your rule comes from a statute or a well-established common law test, stating the rule may be simple. Stating the rule can be more complicated, however, if there is controversy about which rule applies, or if you must use inductive reasoning to “find” your rule.
a. Stating Established Rules You may state the rule in a variety of ways. If the rule is derived from a statute or other enacted law, you may simply quote the pertinent language, as in this example: 26 U.S.C. §5861(d) provides that “[i]t shall be unlawful for any person to receive or possess a firearm which is not registered to him in the National Firearms Registration Transfer Record.” Similarly, if the rule is a well-accepted common law rule derived from a well-known authority, you may simply articulate the rule in its familiar language:
While a person’s home is, for most purposes, a place where he expects privacy, activities that are exposed “to the ‘plain view’ of outsiders are not protected” under the Fourth Amendment. Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
If your case is more complex, stating one rule may not give the reader enough context. Some writers articulate the rule that governs a narrow situation by providing a “rule cluster” that starts with a well-accepted general rule and moves to the more narrow rule that is the focus of that section of the argument.3The following example is from the argument section of Minnesota v.
Carter, a Fourth Amendment case. This section of the argument is focused on the narrow issue of whether the alleged intrusion by the government agents constituted a “search.” Notice how the writer moves the reader from the general rule — the Fourth Amendment — to the narrow rule at issue, which will be the focus of this section of the argument (which, by the way, will include two subsections):The Fourth Amendment to the United States Constitution guarantees “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. A search occurs only when governmental agents intrude upon an area in which a person has a reasonable expectation of privacy. California v. Ciraolo, 476 U.S. 207, 212 (1986). This Court will find that a Fourth Amendment search occurred only if two factors exist: (1) the location from which the observation occurred was within a complainant’s zone of privacy, and (2) the government agents used extraordinary measures to accomplish the observation. See id. at 213.
Thus, although the paragraph lists three rules, the writer is focusing the reader’s attention only on the last rule in the list. You may want to mentally distinguish between sentences that meet the definition of “a rule,” and those that articulate the rule you are focusing on, which you should think of as “the rule.”
b. Using a “Rule-Choice-Rule” When the Court Must Choose Among Two or More Rules Some issues are governed by well-established rules, and the court needs to decide only how, or whether, a particular rule applies to the facts of the case. Sometimes, however, a major debate between you and your opponent in the case is a debate as to which of two or more rules the court should apply to the situation. If you have to convince the court to choose the rule that you want, as opposed to the rule that your opponent wants, you must include a section in your argument devoted to proving that “your” rule is the best rule to apply.
Of course, that “rule-choice” argument must be based on a rule, as well. If a court has chosen a particular rule to apply to a situation, it has done so because it has decided that the case has certain factors or raises certain issues that the chosen rule best addresses. You might think of the basic format for a rule-choice rule as follows: “If [factors or issues] exist, then [application of designated rule] results.” Sometimes, courts state the “rule-choice rule” explicitly. For example, everyone who has taken a constitutional law course knows that when courts have to decide whether a certain governmental action is constitutional, they have at least three choices. They can apply the “strict scrutiny test” (which they apply when certain fundamental rights are implicated or the rights of a suspect class are affected); they can apply the “intermediate or heightened scrutiny test” (which they apply in a variety of situations, including situations in which laws make gender-based distinctions); or they can apply the “rational basis test” (which they apply when a law does not affect fundamental rights or make questionable distinctions). Thus, if your case is about the constitutionality of a governmental action, you and your opponent might disagree as to whether the court should apply the rational basis test or the strict scrutiny test. In that situation, your first order of business is to argue about which rule applies, using the “rule-choice rule” that governs strict scrutiny and rational basis. For example, if you believed that strict scrutiny was appropriate, that section of your argument could be based on the following “rule-choice rule”:If a statute makes distinctions based on suspect classifications, then the strict scrutiny test applies.
Of course, even if a rule-choice rule exists, you should use a CREAC unit of discourse to prove how it applies only if the choice of rule is in controversy. If both sides agree that the strict scrutiny test applies, for example, then the brief need not establish this fact through a CREAC analysis.
The writer can simply introduce the “strict scrutiny” section by telling the reader the rule-choice rule and stating that it results in the use of strict scrutiny before moving on to a CREAC analysis of the strict scrutiny test itself.Thus, if the choice of rule is not controversial, a typical argument would have one section devoted to the rule, focusing on how it should apply in the current case. If the choice of rule is controversial, however, the writer may need to include as many as three sections of the argument that address the rule-choice issue in some way. For example, in the first section, the writer might argue that the rule-choice rule requires that the preferred rule be applied. In the second section, the writer could argue that his or her client wins when the preferred rule is applied. In the third section, the writer could argue that his or her client wins even if the nonpreferred rule is applied. (Of course, if the result of applying the nonpreferred rule is uncontroversial, it need not be argued.)
If there are two or more competing rules and the courts have not yet labeled the “rulechoice rule,” your job is to find and articulate that rule. You can “find” the rule by reasoning inductively from one or more cases in which a court has made the rule-choice decision. The section that follows explains how to use inductive reasoning to find and articulate legal rules.
c. Using Inductive Reasoning to Find and Articulate Legal Rules
As many a frustrated first-year law student can attest, courts sometimes decide cases without explicitly articulating the rule that they are applying. Furthermore, sometimes the rule that they are applying can be accurately stated more narrowly or more broadly. If the cases that are analogous to your case do not contain a clear rule, or if the applicable rule as it is currently envisioned would dictate a bad result for your client, you may have to “induce” a rule. Using inductive reasoning is appropriate for finding rules of all types, not just rule-choice rules.
It is not accurate to say that you are labeling a “new” rule when you use inductive reasoning. The rule was there all along; inductive reasoning simply lets you recognize it, label it, and present it more effectively to the court.
When you use inductive reasoning to find a rule, you are trying to read between the lines of court opinions, to notice patterns or factors that always or never predict certain results, or results that occur only when certain patterns or factors are present. Authors of law review articles might observe these patterns or factors in a vacuum, but you have a head start because you know what you are looking for. In an advocacy document, inductive reasoning frequently begins when you distinguish your case from the cases that apparently apply.
For example, in the case Ohio v. Robinette, 519 U.S. 33 (1996), the issue was the constitutionality of an officer’s request to conduct a drug search of a car that had been stopped for speeding. The government argued that the defendant had been free to refuse the officer’s request, and so his consent was voluntary and constitutional. Many of the relevant cases addressing consent searches involved officers stopping people in airports and asking for permission to search for contraband. One student, writing a brief on behalf of Robinette, noticed a distinguishing factor between Robinette’s case and the so-called airport cases, and she used that distinction to help her to induce a more precise rule. The paragraphs below show her thinking as she moves from noticing the distinguishing factor (the way in which the police-citizen encounter began) to articulating a new rule:
There are two types of situations in which police request consent to search — those in which the policecitizen encounter begins consensually, and those in which the police-citizen encounter begins by an assertion of legal authority. When police-citizen encounters begin consensually, courts will find the consent request valid if there was nothing in the record to suggest “that the [citizen] had any objective reason to believe that she was not free to end the conversation [with the officers]...
and proceed on her way,” United States v. Mendenhall, 446 U.S. 544, 555 (1980) (emphasis added). On the other hand, when police request consent to search after a police-citizen encounter that began with an assertion of legal authority, the Court should use a different test, and should analyze when the defendant would have an objective reason to believe that he or she became free to end the conversation and proceed on his or her way. Because Newsome and Robinette’s encounter began with an assertion of legal authority, and because there was no clear end to this assertion of legal authority despite Newsome’s return of Robinette’s license, this Court should apply the totality of the circumstances test to this case.Courts use the totality of the circumstances test to ascertain when police behavior rises to the level of a detention. See Florida v. Bostick, 501 U.S. 429, 434 (1991) (“[t]he encounter [between an officer and a citizen] will not trigger Fourth Amendment scrutiny unless it loses its consensual nature”) (emphasis added). Courts have failed to note, however, that when a police-citizen encounter already involves legitimate force over that citizen, an inquiry as to when the encounter “rises” to the level of a detention is inapposite....
... Thus, when a police-citizen encounter begins with the police officer’s assertion of legal authority over the citizen, a subsequent request to search is part of a “consensual encounter” only if the citizen has objective knowledge either (a) that the legal detention has ended, or (b) that he or she is free to refuse consent to search.
Note that this analysis is not focused on the reader; the writer is using the process of writing to figure out, or induce, the underlying legal rule. This is an example of the “cognitive” stage of legal writing. When moving from the cognitive stage to the “social perspective” stage — the stage in which you take your readers’ needs into account — be sure to revise your writing with the readers’ needs in mind. Regarding the example above, the writer should remember that legal readers expect to hear about the rule as soon as they learn about the legal issue. The writer discovered her rule only after reviewing several cases and considering carefully how to draw lines between those cases and her case. When presenting this argument to the reader, however, the newly induced rule should be placed early in the argument:
Because the encounter between Robinette and Officer Newsome began with an assertion of police authority — and because Robinette never knew that the assertion of police authority had ended — cases in which this court analyzes “consensual encounters” are inapposite. When a police-citizen encounter begins with the police officer’s assertion of legal authority over the citizen, a subsequent request to search is part of a “consensual encounter” only if the citizen has objective knowledge either (a) that the legal detention has ended, or (b) that he or she is free to refuse consent to search. See Florida v. Bostick, 501 U.S. 429, 434 (1991); United States v. Mendenhall, 446 U.S. 544, 555 (1980).
However you find your rule, be sure to state it explicitly early within the appropriate section of the argument. In this way, you satisfy the reader’s expectations and allow him or her to understand your analysis more easily.