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Legal Analysis
Walter Wm. Hofheinz
Table of Contents
- The process of legal analysis
- Step 1: Determine the area of substantive law
- Step 2: Understanding "Black Letter" Law
- Step 3: Apply the known facts of your problem to the black letter law
- Step 4: Determine needed additional black letter law or facts
- Step 5: Policy Analysis and Application
- Step 6: Evaluate probable outcomes
- Step 1: Determine the area of substantive law
Legal Analysis
The process of legal analysis
Legal analysis is not magic (although sometimes incantations seem to help!). Legal analysis does not require intuition, although it may be of assistance to the creative analysis that the best lawyers consistently display. Legal analysis is a skill. It is a skill which is difficult—but possible—to master, since it requires that you fundamentally change the way in which you answer questions.
There is almost never a "right" answer in the legal analysis of a problem. There is a correct process for analysis. Generally described, it is the following:
1. Determine the area of substantive law in which the problem falls.
2. Understand the applicable black letter law and the questions necessary to apply the facts to that black letter law.
3. Apply the known facts of your problem to the black letter law.
4. Determine needed additional legal and factual information.
5. Determine the policy consideration which may be relevant to the outcome of the problem.
6. Based on the foregoing, determine likely or preferable outcomes.
Each of these steps are discussed in detail in material which follows. Carefully keep in mind, however, that each step is but one step in the whole process. It is also important to remember that only after the analysis process is complete should you proceed to communicate your analysis, whether orally or in writing.
Step 1: Determine the area of substantive law
Over its development the legal system has developed names for types or groups of problems to which similar rules apply. These are called "substantive areas" or "areas of substantive law." Your initial introduction to substantive areas is through the classes in law school typically included in the first year curriculum: property, contracts, torts, constitutional law, criminal law, and civil procedure. Generally in law school classes are organized by substantive area (there are, of course, exceptions). Upper level courses are typically focused on narrower substantive areas, some of which are subsets of the basic areas, and some of which are intersections of the sets of problems contained in the most general substantive areas.
Correctly determining the area of substantive law applicable to a problem provides an entry point for understanding the "black letter" law governing your problem and the questions which must be asked to evaluate the likely outcome to the problem. In course work, course names and chapter titles in textbooks frequently provide the name of the relevant substantive area. In the "real world" many problems arise which require analysis and application of multiple substantive areas taught in law school as separate courses.
Step 2: Understanding "Black Letter" Law
As discussed in "Preparing for Class," the first step in preparation for class is understanding the "black letter" law. What is black letter law? It is simply the rules applicable to a particular area of the law, stated (often in outline form), without application to the particular facts and circumstances of a hypothetical or real legal problem, plus the pattern of questions necessary to apply those rules in a logical manner.
Understanding black letter law serves several functions. First, it allows one to determine which set of legal rules and principles should be applied in determining likely outcomes to a problem, what facts are material to the application of those rules and principles, and when there is no applicable rule directly and unambiguously determining the likely outcome. This group of functions involve deductive reasoning. Second, it provides a substantive context which may be applied by analogy to the particular facts and circumstances of the problem under analysis. This function involves analogic and inductive reasoning.
You will find that understanding the black letter law is a necessary but not sufficient predicate to the analysis of each legal problem with which you are presented. Only rarely will there be a rule that directly and unambiguously determines the outcome of the problem presented. Seldom will the applicable black letter rule (precedent) have been determined in a case with identical facts and circumstances and near in time ("on all fours") to the problem under consideration. Seldom will legislation or regulations unambiguously determine the outcome of problems which arise.
Reasonable people can differ regarding the outcome which should arise from particular facts when no rule unambiguously determines the outcome. It is essential that you be able to determine the differences between your analysis, and that of another choosing a different outcome. The questions you develop to apply the facts to the black letter law can enable you to identify agreement and disagreement in analysis and focus your attention on resolving disagreement.
Understanding black letter law has two parts: first, identification and synthesis of rules and principles; second, construction of a question set. In the first part of this step you identify the rules and principles (whether judicial, legislative, or constitutional) which governed the resolution of prior problems. This is the process necessary for basic case analysis and briefing. You must identify the holding of each case dealing with a similar problem, and each black letter rule or principle relied upon by the court in reaching the holding. Synthesis into general statements reflecting the decisions follows, and is commonly organized into a topical outline of such statements. In the second part of this step you must create a question set which requires each fact relevant to evaluation of the outcome (called "material facts"), logically structured to allow efficient analysis of a new problem presenting new facts.
Several methods may be used to begin the identification and synthesis of the rules and principles of the substantive area applicable to a particular problem—different combinations may work best for different people. For most areas that we will consider in this class, there is a concise statement of the applicable black letter law in the text. Other methods include restatements, legal outlines, treatises, hornbooks, and legal encyclopedias. It is important to remember that the information to be gained through use of these tools is not an answer to your problem. What may be gained is an overall, general understanding of the principles, rules, and question structure relevant to the area, and prior answers to those questions which have been incorporated into the black letter rules, either in the form of court decisions or statutes. Such a general understanding will assist you in determining the sequence in which questions must be asked in order to correctly analyze a problem.
For the purpose of this course, the materials available to determine black-letter law are limited to the text and supplemental materials provided. This is "Textbook Jurisdiction." We arbitrarily limit our consideration to these materials to make possible a specific definition of the substantive domain of this course. While I do not forbid the use of supplemental materials, I strongly discourage their use since they add substantial complexity and possible confusion to your task with little or no benefit.
The second part of understanding the black letter law is creating a structured set of questions, each of which require only one material fact to answer, which allow the efficient analysis of a particular problem. This type of structured process of asking questions is called an algorithm. The optimal algorithm will at each step ask the question which if negative eliminates the most remaining possibilities, and which step by step asks for each material fact necessary to support the legal conclusion that a particular black letter rule or principle applies or does not apply to the problem presented.
It is helpful to be aware of the difference between material and relevant facts. Material facts being those dispositive of the outcome under current law. Relevant facts are those contextual facts which might be useful to consider if the result indicated by the material facts is not preferred, or if the case is one of first impression and policy analysis is appropriate.
Thus if the black letter rule for the substantive area applicable to the problem states that if A, B, and C are true, Y is the result, and if A, D, and E are true Z is the result, the algorithm developed might be the following (note that by convention yes answers move analysis in one level of detail, no answers drop analysis down to the next question at the same level of detail):
Is A present in the fact pattern?
If yes, is B present in the fact pattern?
If yes, is C present in the fact pattern?
Then Y is the result.
If yes, is D present in the fact pattern?
If yes, is E present in the fact pattern?
Then Z is the result.
If no, then black letter rule does not apply.
Step 3: Apply the known facts of your problem to the black letter law
Only after you have an understanding of the rules, their structure, and their sequence (in other words, have created the appropriate question set or algorithm) will you be able to ascertain the particular rules which affect the analysis of your problem and evaluate the probable outcome of application of that rule. To do so, you need simply determine which particular facts and circumstances found in the problem to be analyzed are relevant (that is, affect the answer) to the sequence of questions which must be answered, and answer the questions one by one in order.
Step 4: Determine needed additional black letter law or facts
By this point in the process, you will have determined one of three things: that there is a black letter rule which completely determines the analysis of your problem and that you have knowledge of all material facts; that closer analysis of the questions which need to be answered to apply the black letter rule is needed; that you need additional, specific facts to answer a question; or that there is no black letter rule which determines of the analysis of your problem and that you have what appear to be all the material facts.
If you have sufficient factual information and there is a black letter rule which determines the outcome of your problem you may proceed to Step 6 and evaluate the outcome of the problem.
Sometimes you will discover that your question as initially posed really requires more than one fact to answer or is ambiguous given the particular facts of the problem presented. In this case you will need to return to Step 2 to refine your understanding of the black letter law and develop a more complete question set.
Sometimes you will find that a fact required to answer the question is not known; then you will need to return to Step 3 to identify the missing fact and obtain it, or evaluate outcomes based on either possible answer to the question.
If you have sufficient factual information and there is not a black letter rule which determines the outcome of your problem ("a case of first impression"), or for purposes of this class you are attempting to understand why a rule has been created, you should proceed to a policy analysis of your problem.
Step 5: Policy Analysis and Application
The fifth step in understanding material to be considered in this class and reaching a principled evaluation of probable outcomes of a problem presented is the analysis of the policy considerations embodied in the particular rules and principles of law, application of that understanding through consideration of whether cases presented are decided appropriately or inappropriately, and interpolation of how those policy consideration should affect application of the principles to different fact patterns.
Policy considerations reflect the consensus in our society about what is important in formulating the rules by which we agree to live. Sometime this consensus is very broad and explicit, reflecting almost universal agreement. For example, most citizens of the United States would agree that individual economic decision making is preferable to collective economic decision making. Sometime the consensus is general, but the meaning may be ambiguous— "there should be separation of church and state." Sometime the consensus is not explicit, but may only be inferred from patterns of decision.
The scope of such consideration in the context of this course is arbitrarily limited to allow us to focus on the process of analysis. The five areas of concern we will consider are:
- Certainty—
Does the legal principle or rule under consideration promote certainty on the part of future actors as to what the legal consequences of a particular action will be? - Economic effects—
Does the legal principle or rule under consideration reward or penalize productivity?
Does the legal principle or rule under consideration promote or inhibit economic efficiency?
Does the legal principle or rule under consideration promote the internalization of the non-legal and legal consequences of an action, or does it promote treatment of such consequences as externalities?
Does the legal principle or rule under consideration decrease or increase transaction cost?
Does the legal principle or rule under consideration enhance or reduce the concentration of wealth? - Simplicity—
Is the legal principle or rule under consideration simple and cheap to administer? - Fairness—
Is the legal principle or rule under consideration as fair as any alternative?
Does the legal principle or rule under consideration enhance or diminish the opportunities of traditionally disadvantaged citizens? - Force of habit—
Does the legal principle or rule under consideration accord with the force of habit (or nature)?
As we work through the application of these factors in class, it will become clear that these factors are inter–related. Sometimes all of these considerations will suggest that a particular rule is appropriate or inappropriate. Sometimes, however, advantages and disadvantages of the legal principle or rule under consideration must be balanced in coming to a principled conclusion regarding the appropriate decision. There simply is no "right" answer in making these trade–offs.
To hone your skills, I suggest that you analyze all of the material we cover in class through the framework of these considerations. In addition, observe whether the court’s opinion explicitly recognized one or more of these factors, implicitly relied upon a consistent policy analysis, or is apparently completely oblivious to policy considerations.
Step 6: Evaluate probable outcomes
After answering all questions contained in the algorithm for analysis, analyzing the policy underlying the application of rules, and considering the known factual information, you may evaluate the probable outcome of the problem presented.
The process of legal analysis
There is almost never a "right" answer to a problem. There is a correct process for analysis. Generally described, it is the following:
1. Determine the area of substantive law in which the problem falls.
2. Understand the applicable black letter law.
3. Apply the known facts of your problem to the black letter law.
4. Determine needed additional black letter law or facts.
5. Determine the policy consideration which may be relevant to the outcome of the problem.
6. Based on the foregoing, determine likely or preferable outcomes.
The process is iterative and recursive. Additional information may change your view of the appropriate substantive, black letter framework for analysis. Relevant policy considerations may suggest that analysis within a different substantive framework, or a subset of the framework initially chosen, would be more appropriate. Additional information may be essential to completing the analysis.
By application of this process, however, you will have identified with particularity information needed to fully evaluate the likely outcome of the problem, will have identified those issues which are pivotal in the outcome of the problem, and will have specifically identified any areas of disagreement with others analyzing the problem.
