|
| |
| All testable Issues whether
factual or legal can be describe within a four level framework
|
| Transactional |
Basic facts that form the corner stone of all other issues
Isolate each transaction or occurrence which, under the call of the
question is legally significant
Most exams multi-Transactional
Required to recognize and label each transaction
Absolute condition precedent to demonstrating any level competence
Events or occurrences
Examples:
Separate motions in civil procedure
Distinct pieces of evidence in evidence
Each injury in torts
Every agreement in contract
Multiple parties
Example
Each separate party whose rights or liabilities
Items of property
Example:
Listed item of property |
| Theory |
Arises out of Transactional Issues
Determine what legal theories and concepts are involved in each transaction
Require legal competence
must be creative and well informed
Advanced level of competence "problem-solving" and "judgment" deals with
the capacity to prioritize among these theories
ability to assess likelihood of success
For Issue-spotting sufficient to see the possible application of a theory
so that he/she can subject it to further analysis
If a student fails to identify a theory issue, the student also loses the
opportunity to demonstrate competency on the sub-issues related to that
theory.
Questions to be answered
What Theory or Concept applies
What Cause of Action applies
What Defenses applies |
| Rule |
Arises out of Theory Issues
Determine the rule that must be applied to controversy
What rule or legal proposition must be applied to the controversy
Applicable rule of law
Alternative Rules
Unsettled or first impression = develop a rule
Example
What formulation of the felony murder rule
Questions as to the applicable rule of law are rule issues
Some legal issues have only one possible formulation
Others (felony murder rule) require that student recognize splits among
states and alternative rules
Most law school test items directly or indirectly test a student's
ability to spot and handle rule issues. |
| Element |
Arises Out of Rule Issues
Determine which elements are met/not met by the facts
Whether the individual elements of the rule are satisfied by the
facts.
Each rule can be broken down into operative element
Example
larceny is
trespassory taking
carry away of
personal property
known to be another
with the intent of permanently depriving.
Systematically examine.
May be legal or factual
Example =
carrying away = legal
personal property = legal
intent to permanently deprive = factual |
| Near
Miss Issue |
troublesome - teacher wants to see the student discuss possible points
of controversy even if it is clear that there is no legitimate basis for
dispute:
Example
Burglary - the trespassory breaking and entering of a dwelling in
the nighttime with the intent to commit a felony or larceny.
Assume every element present except one, the window was left open
while reasonable attorneys might not raise the issue of burglary,
the savvy law student knows he/she should discuss the issue of burglary
and state whey there is none in this case |
| |
|
