English

 Law is made up of rules. A rule is a formula for making a decision.

 The rule of law determines the analysis that will take place.

 Every rule is made of elements, collectively called a test

 The rule will specify a result that occurs when all the elements are present

 However, pay attention to any exceptions that might discharge the rule, in other words, are there any exceptions that even if the elements are all met that the result is not enforced?

Welty and Lutz are students who have rented apartments on the same floor of the same building. At midnight, Welty is studying, while Lutz is listening to a Black Keys album with his new four-foot concert speakers. Welty has put up with this for two or three hours, and finally she pounds on Lutz’s door. Lutz opens the door about six inches, and, when he realizes that he cannot hear what Welty is saying, he steps back into the room a few feet to turn the volume down, without opening the door further. Continuing to express outrage, Welty pushes the door completely open and strides into the room and punches Lutz so hard that he suffers substantial injury. In this jurisdiction the punch is a felonious assault.

Is Welty guilty of common law burglary?

To answer this question, remember that a rule is a structured idea: The presence of all the elements causes the result, and the absence of any of them causes the rule not to operate.

The first step is to break the rule down into its parts.

-List and number the elements in the test

-If there is an exception, identify it

Example: Common law burglary is committed by breaking and entering the dwelling of another in the nighttime with intent to commit a felony inside.

 Before moving on to the next slide, can you identify what the elements are?

Common law burglary is committed by breaking and entering the dwelling of another in the nighttime with intent to commit a felony inside.

What are the elements?

1. a breaking

2. and an entry

3. of the dwelling

4. of another

5. in the nighttime

6. with intent to commit a felony

To discover whether each element is present in the facts, simply annotate the list:

A breaking: If a breaking can be the enlarging of an opening between door and the jam without permission, and if Lutz’s actions do not imply permission, there was a breaking.

Entry: Welty entered for the purposes of the rule on burglary by walking into the room, unless Lutz’s actions implied permission to enter.

Dwelling: Lutz’s apartment is a dwelling.

Of another: It is not Welty’s dwelling

Nighttime: Midnight is the nighttime.

Intent to commit a felony inside: Did Welty intend to assault Lutz when she strode through the door?

 A conclusion of law is a determination of how the law treats certain facts.

 In both predictive and persuasive writing you prove a conclusion of law by explaining the law and the facts in ways that convince the reader that your conclusion is the right one.

 Organizing what you say is essential to convincing the reader.

 The legal reader looks for a tightly structured analysis that makes your conclusion seem inevitable/logical.

To the reader who must make a decision, analysis is most easily understood if it is organized into the following paradigm formula — or into some variation of it.

Acronyms have been used to help students remember this kind of formula. For example, CREAC stands for Conclusion, Rule, rule Explanation, rule Application, and restated Conclusion. Another acronym is CRAC: Conclusion, Rule, Application, and Conclusion. A third acronym is CRuPAC: Conclusion, Rule, Proof of Rule, Application, and Conclusion.

The paradigm formula is a tool to help you organize.

1. State your conclusion.

2. State the primary rule that supports the conclusion.

3. Prove and explain the rule through citation to authority, description of how the authority stands for the rule, discussion of subsidiary rules, analyses of policy, and counter-analyses.

4. Apply the rule to the facts with the aid of subsidiary rules, supporting authority, policy considerations, and counter-analyses.

5. If steps 1 through 4 are complicated, sum up by restating your conclusion.

Your conclusion is the one you are trying to prove. Some examples are in the first paragraph of this section.

The rule is the principal rule on which you rely in reaching your conclusion. Other rules might also be involved, but this is the main one on which your analysis rests.

Rule proof and explanation is a demonstration that the main rule on which you rely really is the law in the jurisdiction involved. The reader needs to know for certain that the rule exists in the jurisdiction, and that you have expressed it accurately. Both can be done through citations to authority, such as statutes and precedent, together with explanations of how that authority stands for the rule as you have stated it, explanations of policy, and counter-analyses. Subsidiary rules sometimes help explain the main rule.

Rule application is a demonstration that the rule + the facts = your conclusion. Explain your logic and use authority to show that your result is what the law has in mind.

 A subsidiary rule is one that guides application of the main rule or works together with it in some way necessary to your analysis. In a criminal case, the main rule would set out the elements of the crime. Among the subsidiary rules would be the one that permits conviction of any crime only on evidence that establishes guilt beyond a reasonable doubt.

 A rule's policy is the rule's reason for being. The law doesn't create rules for the fun of it. Each rule is designed to accomplish a purpose (such as preventing a particular type of harm).

 A counter-analysis evaluates the arguments that could reasonably be made against your conclusion. Don't waste the reader's time by evaluating marginal or far-fetched arguments.

 Remember that all of your readers will be practical and skeptical people and will be reading your memo or brief because they must make a decision.

 State your conclusion first because a practical and busy reader needs to know what you're trying to support before you start supporting it  If your conclusion is mentioned for the first time after your analysis (or in

the middle of that analysis), some or all your reasoning seems pointless to the reader who doesn't yet know what your reasoning is supposed to prove.

 In rule proof and explanation, some statements about the law are complicated and others aren't.

 Depending on the situation, rule proof and rule application can be very short, very long, or somewhere in between.

 In one instance, rule proof might need only a sentence, while rule application might require three pages. In another instance, the reverse might be true. Or each of them might be four or five pages long — or four or five sentences long. How can you tell how much depth is needed?

 Don't explore an issue in more depth than a reader would need.

First, how much explanation will convince the reader that the conclusion is correct?

 That depends on the reader's level of skepticism, which in turn depends on how important the issue is to the decision the reader must make, and on how complicated the reader will think the issue to be.

Second, how much explanation will prevent the reader from studying independently the authorities you rely on?

 The second question poses what might be called the need-to-read test: you haven't explained enough if your reader would find it hard to agree with you without actually studying the authorities you've cited.

 A reader's need to go to the authorities is predicated on the context.  A reader is more likely to feel that need with a critical, difficult, or obscure

point than with a simple, peripheral, or routine one.

 A reader's need to know more is particularly great for authority that is the only support or the central basis for your conclusion.

Third, how much explanation would tell the reader those things needed to make an informed decision?

 Put another way, if the reader were to go to the authorities, would the reader be startled to find the things you've left out?

Conclusory Explanation – the rule is given without any explanation. This explanation is appropriate when there is no other possible way for the evidence to be interpreted.

Substantiating Explanation – the explanation provides more depth for the reasoning of the writer. This type of explanation is appropriate when the reader needs a little explanation to help them see the connection between evidence and claim.

Comprehensive Explanation – This type of explanation requires whatever analysis is needed in order to demonstrate the connection of evidence and claim.

Cryptic Explanation – it is not clear how the evidence connects to the claim or the discussion does not support the ultimate conclusion of the paragraph or paper.