Conference on New Ideas for Experienced Teachers

June 9–13, 2001
Calgary, Alberta, Canada

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Outline for Professor Charles Calleros’s Demonstration of Introductory Concepts of Common Law Method and of Indeterminacy in Legal Rules, for New Law Students

1. Introduction - Need for the Exercise
   1. Discomfort with Uncertainty

      Many new students have difficulty dealing with ambiguity and indeterminacy in legal analysis. They crave certainty, looking for definite “answers,” rather than focusing their attention on identifying issues, developing competing arguments, evaluating policy considerations, and comparing alternative approaches.

   2. Nonlegal Context

      One effective way to shift the students’ focus is to use a familiar, nonlegal context in which a nonlegal question--but one analogous to a legal question--is employed to illustrate the process of case analysis and to demonstrate the fallacy of looking for certain answers in cases in which general standards and previous conduct provide only partial guidance.

   3. Demonstration with Props

      The exercise is made concrete and colorful by using props to illustrate the hypothetical, or even by getting an assistant to help act it out in skit form. For a description of such a skit, see Charles R. Calleros, Using Demonstrations in Familiar Nonlegal Contexts to Teach Unfamiliar Concepts of Legal Method to New Students, forthcoming in 7 Legal Writing: the Journal of the Legal Writing Institute 2001.

2. The Hypothetical
   4. The General Standard

      A grocer announces that she places produce in the window if it would tend to draw impulse shoppers into the store; otherwise, she places it in display bins within the store.

   5. The Precedent

      The grocer has applied this general standard in two previous cases. In one, she placed red apples in the window display box; in another, she placed bunches of carrots in a product bin near the back of the store.

   6. The Current Case

      Before leaving for the afternoon, the grocer instructs a stock clerk to place produce in appropriate bins as soon as it comes in. A case of red tomatoes arrives. Should it go in the window display case or in bins in the produce section?

   7. The Students’ Task

      The grocer’s general standard does not indisputably supply a certain answer. Even the precedent fails to provide a solution without further analysis. Students should see the benefit of discovering the grocer’s rationale, of determining why the grocer concluded that the apples satisfied the general standard of attracting shoppers but the carrots did not. Armed with that rationale, the students might be better able to apply the rationale to the new case and to analogize or distinguish the precedent.

3. Class Discussion and Analysis
   1. The Question Posed

      Because the grocer has not explained her reasoning in the previous two cases, the instructor asks students to develop a plausible rationale that explains the outcomes in the previous cases, assuming consistent application of the general standard.

   2. Typical Responses

      Among other responses, some student will invariably explain the previous cases on the basis of visual appeal: the apples satisfied the general standard because, if placed in a window display case, their bright red color would tend to attract the eyes of passers-by and lure them into the store; the carrots, unwashed and dull in color, would not be so visually attractive and would best be placed in the interior of the store, to be selected by shoppers who had already planned to enter the store.

      Another student invariably will explain the previous cases on the basis of “snackability” and the relative appeal of apples and carrots to hungry passers-by who would be attracted by the prospect of entering the store for a quick snack (and perhaps would be persuaded to buy other things once inside). The apple lends itself to such impulse shopping, but an unwashed carrot does not, thus explaining the precedent.

   3. Application of Rationales to Current Case

      These competing explanations of the previous cases, although equally plausible, point to different results in the current case. The first would suggest that the tomato satisfies the general standard because of its visually attractive shape and color, but the second would suggest that it would not satisfy the standard because most (not all) persons would not be drawn into a store by the prospect of buying a tomato to munch on as they continue walking down the street.

   4. Lessons

      This demonstration introduces students to elements of common law analysis: stare decisis; the application of a general standard to facts in deductive reasoning; use of analogy and distinction in comparing previous decisions to a new case; and the benefit of understanding the reasoning in a previous application of the general standard to reduce (but not eliminate) the ambiguity in applying the general standard to the new case.

      Students also learn to accept ambiguity and uncertainty and to understand why an instructor may not supply a definite “answer” to a legal question or hypothetical. At the least, they are on their way to defining a different search: not one for certain answers so much as for issues, reasoning in precedent, and competing arguments.

      With further faculty direction, students can be encouraged to question fundamental assumptions of the hypothetical, such as a general standard that bases the location of produce on its tendency to lure impulse shoppers into the store.

4. Follow-up Exercise

   Later in the first semester, an instructor can use a series of hypothetical cases, in the familiar nonlegal context of parental rule-making, to provide an overview of the case analysis, case synthesis, reorganization and outlining of course material, and exam techniques that students have been practicing, are encountering, or are preparing to master. This exercise helps students to see the “forest” at a time when they may be lost among the trees, and it helps introduce them to the frightening prospect of exams in a non-threatening manner that builds confidence.

   We will not have time to demonstrate this exercise at the AALS meeting, but it is described in Charles R. Calleros, Using Demonstrations in Familiar Nonlegal Contexts to Teach Unfamiliar Concepts of Legal Method to New Students forthcoming in 7 Legal Writing: the Journal of the Legal Writing Institute 2001. For a videotape presenting the hypothetical cases in skit form, send an e-mail request to charles.calleros@asu.edu.