5.1.3 EXPLAIN THE RULE

After you have articulated the rule, you must provide your reader with any needed explanation of the rule. Before you explain the rule, however, you must decide which part of the rule you are focusing on in the particular subsection of your argument.

Identifying a phrase-that-pays for each section of your document is important because it helps you to focus your writing: Once you have identified the phrase-that-pays, you can test the analysis in each section of the formula to make sure that it relates somehow to that phrase-that-pays. In the explanation section, for example, you should define the phrasethat-pays, explain its meaning, or show how it has been interpreted in earlier cases.

After you have identified the phrase-that-pays, you should use the “rule explanation” to explain the phrase-that-pays in appropriate detail. Doing so helps the reader to understand how the rule works. In persuasive documents like briefs, it is often useful to end the rule explanation by providing a “rule summary.” The rule summary nails down exactly what you want the reader to take from the rule explanation, and it prepares the reader for the rule application.

a. Deciding How Much Rule Explanation Is Needed

When deciding how much explanation to provide for the phrase-that-pays in any particular section of your argument, consider two questions: (1) How ambiguous is the language of the phrase-that-pays? (2) How controversial is the application of the phrasethat-pays to the facts of this case? The more ambiguous and controversial the phrase-thatpays is, the more detailed your explanation should be.

Presumably, all of the issues analyzed in a brief will be controversial; if they were not controversial, they would not need to be analyzed.⁴When a phrase-that-pays is ambiguous, controversial, or both, you should “explain” its meaning, usually by illustrating how it has been applied in one or more authority cases. In the example below, the writer is arguing that an officer’s behavior did not violate the Fourth Amendment because the observed activities were in plain view. The writer explains the rule by showing how the concept of “plain view” — the phrase-that-pays — has been interpreted in other cases. Notice how the writer has used the phrase-that-pays (in small capital letters in this example) in each paragraph to help the reader understand how the paragraph connects to the analysis of the legal issue:

2. No Fourth Amendment search occurred because the apartment interior was in plain view from the officer’s lawful vantage point.

Because Thielen was located outside the curtilage of the apartment, he was free to observe any scene in plain view.Respondents’ activities within the apartment were in plain view from Thielen’s lawful vantage point. Thus, Thielen’s observation violated no reasonable expectation of privacy and did not constitute a Fourth Amendment search.

Note statement of conclusion here.

The Fourth Amendment protection of the home “has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares.” California v. Ciraolo, 476 U.S. 207, 213 (1985). While a person’s home is, for most purposes, a place where he expects privacy, activities “that he exposes to the ‘plain view’ of outsiders are not protected.” Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

Note statement of rule here.

Illegal activities in plain view from outside the curtilage are not protected even if the police observation is specifically directed at identifying illegal activity. United States v. Dunn, 480 U.S. 294 (1987) (holding that an officer’s observation into a barn was not a Fourth Amendment search, and stressing it was irrelevant that the observation was motivated by a law enforcement purpose); Ciraolo, 476 U.S. at 212, 213. In Ciraolo, the defendant was growing marijuana in a 15-by-25 foot plot in his backyard. He surrounded the yard with a 6-foot outer fence and a 10-foot inner fence. Id. at 209. Officers flew over the defendant’s house in a private airplane and readily identified the illegal plants using only the naked eye. Id. The government in Ciraolo argued that the observation was analogous to looking through a knothole or an opening in a fence: “If there is an opening, the police may look.” Id. at 220. This Court agreed with the government, holding that the observation was not a Fourth Amendment search. Id. The airspace was outside the curtilage of the apartment, and the Court reasoned that the scene would have been in plain view to any member of the public flying in the same airspace. Thus, the officers had violated no reasonable expectation of privacy. Id. at 213-14.

Note that the rule explanation begins here.

The length of your explanation will vary depending on how abstract and/or controversial the rule is. Probably the best way to fully illustrate the meaning of a rule is to use at least one authority that illustrates what the rule does mean in the context of acts that are similar (or nearly similar) to the facts at bar, and at least one authority that illustrates what the rule does not mean in the context of facts that are similar to the facts at bar.⁵In the previous example, if the writer had found a case in which the court had held that certain activities in a home were not within plain view, the reader would have a fuller understanding of why this case must fall within the definition.

Illustrating what the phrase-that-pays means and does not mean sets the boundaries of the phrase-that-pays, and gives the application of law to facts more validity. Chapter Six includes a discussion of how to use authority cases effectively in your explanation section.

b. Writing the “Rule Summary”

After you have shown the reader how courts have applied the phrase-that-pays in the past (or explained the rule in some other way), your reader should have a good idea about how the rule operates. Because a brief is a persuasive document, however, you may want to be sure that the reader understands the rule the same way you do. Thus, it is almost always effective to end your rule explanation with a brief “rule summary” that drives home what you were trying to teach the reader with the rule explanation.⁶In the rule summary, you should not merely restate the rule as you articulated it in the beginning of the argument. The following, for instance, would be an ineffective rule summary for the example above:

BAD EXAMPLE OF RULE SUMMARY Thus, while a person’s home is a place where he expects privacy, activities exposed to the plain view of outsiders are not protected.

This rule summary merely restates the original rule. Instead, you should consider the facet of the rule that you were trying to expose or to emphasize, and make that aspect of the rule the focus of the rule summary. In the example above, for instance, the writer was trying to emphasize that any vantage point outside the house — even one as unusual as an airplane — is a legal vantage point for purposes of the plain view doctrine. This perspective highlights an important facet of the rule about plain view. To emphasize that facet of the rule, she might write a rule summary that focuses on the vantage point of the viewer rather than on the bald statement of the plain view doctrine:

GOOD EXAMPLE OF RULE SUMMARY Accordingly, the vantage point of the viewer is crucial to the plain view determination: If the viewer sees the activities from a lawful vantage point, the viewer is not violating Fourth Amendment rights.

The good example above is essentially a generic rule summary, appropriate for a writer using an educational writing style for the brief. Some writers might want to make the rule summary more argumentative, and focus explicitly on what they want the court to find, or on the burden that one side or the other must carry in this case:

GOOD EXAMPLES OF RULE SUMMARY Thus, the only way that this Court can find that petitioner violated the plain view doctrine is if it finds that a public area outside the window of a garden apartment is part of the curtilage of the building.

Thus, the only way that respondents can establish that petitioner violated the plain view doctrine is if they can show that Officer Thielen observed respondents’ activities from an unlawful vantage point. Respondents cannot meet this burden.

The rule summary helps the writer to lay a strong foundation for the rule application. The writer can use the phrase-that-pays, and perhaps crucial facts, to create an expectation in the reader that the writer has an easy task, or that the writer’s opponent has a difficult task. The writer can then fulfill that expectation in the rule application.

A rule summary may not be needed if your rule explanation is relatively short and straightforward. I advise, however, that you routinely draft a rule summary. If you decide that it appears overly repetitive, you can delete it. If, however, your rule explanation has advanced a more nuanced understanding of the rule, a rule summary can help the rule explanation have a greater impact.