5.1.4 APPLY THE RULE TO THEFACTS

After you have articulated the rule and explained it as needed, it’s time to apply the rule to the facts (some legal writers say “applying the facts to the rule” to mean the same thing).

Brief writers face a few challenges when applying law to facts. First, some brief writers mistakenly substitute analogies for application of law to facts. Second, some do not exploit the foundation that they have laid in the rule summary. Third, for issues that are “pure” questions of law — and courts of last resort often analyze questions of law — the facts may seem to be irrelevant. Finally, when analyzing statutory interpretation issues, the writers may believe that they don’t have any real “facts.” This section will address each of these challenges in turn.

a. Apply Rules, Not Cases

Begin the application section of your analysis by stating affirmatively how the rule does or does not apply to the facts. Essentially, you begin your application by saying “Phrasethat-pays equals (or does not equal) our case facts.” If your case is not controversial, a short passage might be enough:

In this case, Ms. Lamb was “committing a trespass or other criminal offense” when she was bitten. Ms. Lamb was convicted of the crime of burglary in connection with the events of January 8, and burglary is considered a “criminal offense” under Ohio Revised Code § 111.1111.

This writer showed the reader how the rule and its explanation intersected with the client’s facts by explaining that burglary “equals” a “criminal offense” under Ohio Revised Code §111.1111.

Do not begin the application by drawing analogies; analogies may support the application of law to facts, but they do not substitute for it. Thus, this sentence would usually not be an effective way to begin rule application:

INEFFECTIVE BEGINNING TO RULE APPLICATION SECTION Like the police officers in Dunn, Officer Thielen viewed the illegal activities from a legal vantage point.

Instead, begin with a direct statement that connects the phrase-that-pays to the client’s case. If the issue is at all controversial, you should be sure to provide details about the record facts⁷that support your assertion about how the law applies to the facts, as in this example (the phrase-that-pays, “plain view,” is in small capital letters for emphasis):

MORE EFFECTIVE BEGINNING TO RULE APPLICATION

In the case at bar, Officer Thielen merely observed a scene that was in plain view from his lawful vantage point. The area in which Officer Thielen stood was outside the curtilage of the apartment. While standing outside the curtilage, the officer plainly viewed Respondents’ unlawful activities. See Record E-2. While Officer Thielen did go to the common area outside the apartment window in response to the report from the informant, see Record G-11, his motivation is irrelevant. The illegal activity was in plain view regardless of Officer Thielen’s motivation.

You may expand your application section, if needed, by drawing analogies between your client’s case and the cases that you cited for authority in your explanation section:

EFFECTIVE CONTINUATION OF RULE APPLICATION

Like the officers in Ciraolo, who did not need to shield their eyes from what could be seen while traveling in public airways, Officer Thielen did not need to refrain from viewing what could be seen from the public area outside Thompson’s window.

Drawing analogies or distinctions is not always necessary; sometimes the application of the rule to the facts alone will be sufficient to make your point. Even if some analogy or distinction could be helpful, do not presume that you must analogize or distinguish each case cited in your rule explanation. When appropriate, however, analogizing and distinguishing relevant authorities can help to cement the reader’s understanding of how a rule operates and of how it does or does not apply to your client’s case.

b. Explicitly Connect the Rule Application to the Rule Summary

As noted above, the rule summary should lay a foundation for the rule application by telling the reader what the rule means and why you will succeed — or why your opponent will fail — in justifying a particular result. The best way to exploit the rule summary is to echo language from that summary at the very beginning of the rule application. Thus, the following combination of rule summary and rule application is not effective:

INEFFECTIVE TRANSITION FROM RULE SUMMARY TO RULE APPLICATION

Thus, the only way that respondents can establish that petitioners 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.

alt=00094.jpg>The rule summary ends here. When Officer Thielen arrived at the scene, he was approached by a neighbor of the respondents, who told him what he had observed through respondents’ window.... The rule application begins here.

This transition is ineffective because it does not echo concepts from the rule summary.

MORE EFFECTIVE TRANSITION FROM RULE SUMMARY TO RULE APPLICATION

Thus, the only way that respondents can establish that petitioners 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 ends here. In the case at bar, Officer Thielen merely observed a scene that was in plain view from his lawful vantage point. The area in which Officer Thielen stood was outside the curtilage of the apartment.... The rule application begins here.

This example is more effective because it uses the phrase-that-pays, “plain view,” and the term lawful vantage point, which is a crucial concept in the rule summary. By using these concepts in both the rule summary and the first sentence of the rule application, the writer makes it easier for the reader to make the connection between the rule explanation and the rule application.

c. Facts Are Relevant to Questions of Law

A legal question, or question of law, is a question about what the law should mean or how it should be interpreted. Should the law regulate all dog owners or only owners of dangerous dogs? Should the law governing “employers” include supervisors within the meaning of “employer”? Questions of fact, in contrast, ask whether the law should apply to a particular situation.

Even legal questions, however, are decided in a factual context. There is the hypothetical factual context of noting what will happen to certain categories of people and things if the case is decided one way or another, and there is the concrete factual context of noting what will happen to the parties in this particular case. Your application may focus on the broader legal question, but you may also want to include references to your case facts as a concrete example that shows a real-life impact.

In Miller v. Albright, for example, a student writing for Ms. Miller argued that 8 U.S.C. §1409 used an unconstitutionally overinclusive gender stereotype to deny foreign-born children of citizen fathers rights that are awarded automatically to foreign-born children of citizen mothers. In one section, the student argued that the gender-based distinction was not “substantially related” to the government’s objective of conditioning citizenship on close family ties. When he applied the law to the facts, he spoke both generally about the statute and specifically about Ms. Miller and her father:

GOOD EXAMPLE OF RULE APPLICATION

The gender discrimination in §1409(a) is not substantially related to the government’s legitimate goal of conditioning citizenship on close family ties. Of course, §1409(a) will certainly prevent citizenship from flowing to some children who do not deserve it. The fatal flaw in §1409(a), though, is that it is overinclusive. Section 1409(a)’s various hurdles exclude from citizenship those children — like Ms. Miller — who are deserving of citizenship under the standards of the statute due to their close family ties with their United States citizen parents.

The degree to which §1409(a) is overinclusive is a function of the degree to which the assumptions underlying §1409(a) are invalid. Thus, because the assumptions underlying § 1409(a) — that paternity is hard to establish reliably and that women and men are destined to occupy different roles — are substantially incorrect, the use of these irrebuttable stereotypes is not substantially related to the government’s objective.

This paragraph speaks generally about the statute.

The gender stereotypes underlying §1409(a) are the very sort of archaic generalizations that modern equal protection jurisprudence seeks to eradicate. This court has repeatedly recognized that the government “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females.” Virginia, 518 U.S. at 533 (citations omitted); see also Califano v. Goldfarb, 430 U.S. 188, 223-24 (1977). If we as a society have learned anything about gender in the twenty years since Fiallo was decided, it is that women and men may not be conclusively pigeon-holed solely on the basis of their gender.

This paragraph speaks generally about the statute.

The facts of this case support this rather obvious conclusion. Ms. Miller is twenty-seven years old. Although she is not a minor, and although she neither needs nor receives the financial support of her father, she and Mr. Miller have a close family relationship. By the terms of the stereotype underlying §1409(a), all men — including Mr. Miller — irrebuttably do not form close family relationships with their adult “illegitimate” children. To uphold the rationality of this irrebuttable stereotype is to deny the existence of Mr. Miller and those other men who, for whatever reason, form relationships with their children later in life. To uphold the validity of this irrebuttable stereotype is to deny reality. This Court should reject the validity of this irrebuttable stereotype and acknowledge that there is no substantial relationship between the use of the stereotype and the government’s goal of fostering close family relationships.

This paragraph speaks specifically about the impact of the statute on the client and on people like the client.

Note how the writer refers to his client, Ms. Miller, in the first paragraph, and how the last paragraph uses concrete details from the case to show the court the impact its decision will have in a specific case. Not every legal issue will need such a lengthy application section or such a detailed description of the client’s facts. A good writer, however, will look for opportunities to use client facts to make abstract legal principles vivid.

d. Sometimes Statutory Language Is a Fact

Another challenge that many student writers face when writing the application section is the problem of “no facts.” If you are analyzing a statutory interpretation issue, it may seem to you that there are no facts — there is only the statute itself. Many students think of the term facts as referring only to tangible events, like a car accident, or a murder, or even an interrogation. For a statutory interpretation issue, however, the word facts refers less often to events and more often to realities like the statutory language at issue, other relevant statutory language, or the statute’s legislative history. One guideline: If a rule speaks in terms of human or corporate behavior, it is likely that it applies to human or corporate events, and that’s where you should look for the relevant facts. In contrast, if a rule speaks in terms of legislative behavior, it is likely that it applies to legislative events — such as the language of a statute — and that is where you should look for the relevant facts.

For example, a student writer who is arguing that Title VII’s use of the word “employer” does not allow individual liability for supervisors could have several CREAC units of discourse focused on rules of statutory interpretation. One section might be focused on the rule that words in a statute should be read consistently throughout the whole statute. She would explain that rule by showing how other relevant courts had read terms consistently in statutes. In the application section, it would be meaningless to talk about the “events” of alleged sexual harassment at the center of the lawsuit. Rather, she must focus on how the term at issue, “employer,” was used in the statute as a whole, and how that use demands a particular interpretation in this case:

GOOD EXAMPLE OF RULE APPLICATION

The use of the word “employer” in other sections of Title VII demonstrates that Congress did not intend that individual supervisors like Kirkby could be held liable. In §2000e-8(c), the act provides that “every employer is responsible for the execution, retention and preservation of certain employment records.” Section 2000e-10 states that “every employer shall post and keep posted in conspicuous places pertinent provisions of the subchapter.” Interpretation of § 2000e(b) requires the court to read the word “employer” consistently throughout the act. See Holloway, 526 U.S. at 9. It is unlikely that Congress intended to impose such administrative duties on individuals in supervisory positions. It is far more reasonable to conclude that the word “employer” as used in §§2000e(b), 2000e-8(c), and 2000e-10 was intended to apply to employer-entities only.

This guideline does not mean that event-based facts are always irrelevant to statutory interpretation questions. As they can with other legal questions, event-based facts may provide helpful illustrations of how the legal policies at issue play out in concrete situations. Writers should be aware, however, that with statutory interpretation questions, they must think about the concept of “facts” more broadly: They are applying the rule of a canon of interpretation to the fact of the existing statutory language.