1

FORKS IN THE LAW

1. Rule vs. Counter-rule

Traditional Rule vs. Modern Rule

Example: contributory vs. comparative negligence
Different strokes for different folks (philosophical/regional/political differences)
TYPICALLY majority rule vs. minority rule
Example: emotional distress- physical impact required or not
Common Law v. Statute
Example: mirror image rule v. UCC 2-207
ON EXAMS WHAT TO WATCH FOR/HOW Rule v. Counter Rule Tested
Fake jurisdiction
Jurisdiction that wasnt covered in class (other state)
Traditional v. modern, where modern rule hasnt been adopted

2. Statutory Interpretation

Plain meaning v. Statutory Purpose

Sources of Purpose/Ambiguity
Legislative intent- history, other provisions, official comments, real world events/catalysts
Policy analysis
Competing purposes
Broad v. Narrow Purpose
Spin vs. counter-spin
Floodlight v. Laser beam
Language as a Source of Ambiguity/Competing meanings
Dictionary in the statute (definitions section)
Dictionary of history
Dictionary of commercial context
Dictionary of Common law
Example: No vehicles in the park
Plain meaning/Language- tricycle is a vehicle
Purpose- public safety- rule only applies to cars, not tricycles
ON EXAMS WHAT TO WATCH OUT FOR
Variation of in-class hypo
New application of old statute
New/imaginary statute
Statute making an appearance in a common law claim

3. Caselaw Interpretation
-

Desperately seeking similarity/Following precedent

Searching for distinctions that make a difference

ON EXAMS WHAT TO WATCH FOR

The case says so

Rule vs. Rationale
Levels of Generality- Narrow v. Broad
Example: Dont drop toys on the floor
Narrow: b/c dad is cranky
Broad: no toys in living room
Broadest: Pick up after yourself
Finding rationale in the case language (sometimes)
Multiple rationales
****TRY TO EXTEND A CASE, NOT APPLY IT!!****
____________________________________________________________________________________________

FORKS IN THE FACTS

1. Rule vs. Exception (look out for things that are in the grey area)

Example: general rule is that landowner can exclude strangers from his property.
Exception: if lets general public in (gambling at a casino), then has to let people in that he doesnt want to let in (leafletters, etc.)

2. Statutory Boundaries

Example: places of public accommodation

Country club vs. community reading group at private home

3. Sequential Categories

Example: preliminary inquiry (Are you selling your watch?) vs. offer (Id like to buy your watch)
Crossing the line
Harmless office flirting vs. unwelcome sexual advances

4. Running the Gantlet/Categories as Elements of Legal Rules

Example (Torts): Duty/Breach/Cause/Harm

Prof will create facts that put each element into doubt!!
Or Adverse Possession on a Deserted Island

5. Open-Ended/Evaluative Categories

Good faith (Contracts), Reasonable Person (Torts), Substantial harm (Torts)

6. Facts on Both Sides of the Category

Use language to argue both ways.

Ex: Unrenovated loft used as a music studio. (Commercial or residential?)

7. Differing Standpoints

Ex: Preliminary sketch- beginning performance or mere preparation?

8. Differing Timeframes

Ex: No duty to aid another unless potential rescuer caused harm to victim
But Profs will write facts that point to both the long and short timeframes

9. Different Ways to Make Sense of the Facts

Take things one thing at a time or view them as a totality

Ex: Contracts hypo- Offeror- Id really like to buy your watch. If I were to buy that watch Id probably around
$300. I have your $300 right here.
One at a time, these statements are not offers. But taken together, maybe its an offer.

Lenses of generality

Ex (Torts/Property/L&T): LL fails to provide hot water. Tenant boils water on stove to pour into bathtub for child.
Tenant slips and falls, spills hot water on child, who gets severe burns.
Were the childs injuries proximately caused by LLs breach of the warranty of habitability?
Argue for Tenant- This kind of accident was the type to be expected when Tenant had to get by without hot water.
Argue for LL- The type of accident that occurred was not a foreseeable outcome for failing to provide hot water. The
burns were too remote for the LL to foresee as a result.
Linguistic ambiguity
Borderline cases- Property- house fixtures vs. chattels that owner can take with him. Two-ton bathtub that sits in the
pool house next to the built-in pool.
Words vs. actions- Employment law- contract says 6 month probationary period. Boss buys her new furniture,
business cards, etc. Employee is offered a job with another company, and she refuses it. Boss fires her on the sixth
month, says her work is no good. Breach of contract claim?
Literalism vs. Reasonable expectations- Mortgage letter (3 pages), first line says youve been approved. In 3 page
letter, theres a clause that says house has to have appraised value of at least 250K. House was appraised for $200K,
week later, sale is off. Is the mortgage company liable?
Multiple sources of meaning- Is a dozen 12, or a bakers dozen, which is 13?
____________________________________________________________________________________________

TWIN FORKS
I.

Linked Forks: One Good Fork Deserves Another

A. Hypo: Patron offers Arlene Artiste $10k to paint a portrait. Artiste says her other commitments make it impossible to
promise completion by a particular date, Patron says, I dont want your commitment. I just want the portrait. Artiste
spends hours doing preliminary sketches, but before starting the actual portrait, Patron revokes offer. Artiste finishes
the portrait, but because of Patrons revocation, refuses to sign it. Patron rejects delivery of portrait, Artiste sues for
breach of contract.
1. Fork in the law:
a) Common Law- offer to make unilateral K may be revoked at any time before acceptance
b) 2nd. Rest. 45- offeror may not revoke once offeree begins performance.
2. Fork in the facts: Is the sketch beginning of performance (s. 45) or mere preparations before performance was
actually begun?
a) If the sketch is beginning of performance, then Patron cannot revoke.
3. Second fork in the facts: Under Rest. 45, is Patrons duty to pay for the portrait conditional on completion of the
invited performance in accordance with the terms of the offer?
a) If yes, Patron is liable to Artiste for the promised $10,000
b) But if Artistes refusal to sign the portrait violates the terms of the offer, then Patron is not liable, until Artiste signs
the portrait.

II.

Reciprocal Forks: Back-and-forth between Law and Facts

4
A. Hypo: Wholesaler receives order from Reba Retailer for audio gear fo 20K. Wholesaler sends Retailer email
acknowledgment of order, promising immediate shipment of goods. Prior to shipment, Wholesaler retracts deal.
Retailer sues, but Wholesaler says that UCC Statute of Frauds bars the claim.
1. Fork in the law: Is email a signed writing under UCC 2-201?
a) Interpretation: plain meaning or purpose-based
(1) Plain meaning- email not signed writing. Its not written, its electronic.
(2) Purpose-based- purpose of UCC 2-201 is to avoid testimonial disputes about existence and terms of a contractual
commitment, through a verifiable record of transaction (like an email).
2. Fork in the facts- how do you characterize an email?
a) If we follow plain-meaning:
(1) Email message on a computer screen is far away from ink on paper.
(2) BUT, email is generated by typing, and can be printed onto paper!
3. Fork in the law- What is the meaning/definition of a writing?
a) Dictionary meaning of writing- UCC has been applied from handwriting to laser-printing, and the meaning has not
changed, arguably
b) Commercial meaning- people do business deals through email in modern times.

III.

Concurrent Forks: Straddling a Statutory Boundary

A. Bookbinder and Larry have a contract to bind Larrys appellate briefs, with his name in 24 point font on leather
binding. Bookbinder delivers briefs on time, but with 22 point font. Larry refuses delivery. Bookbinder sues for
breach of K.
1. Facts Fork: Is this a UCC sale of goods or is it a service, governed by common law?
a) Sale of goods- leather and custom work to fit Larrys needs- UCC
b) Service- Binding Larrys briefs- Common Law
2. Law Fork: Right to reject volumes- UCC or common law?
a) Can reject under UCC, perfect tender rule (has to be 24 point, exact product)
b) Cannot reject under common law, substantial performance. Since its a slight defect, not a material breach.

IV.

Proliferating Forks: Competing Domains (Concurrent Fork+Reciprocal)

A. Examples where topics in a class blend together

1. Contracts: Consideration/promissory estoppel hybrid
2. Employment law: Public-sector employees protected against discharge in retaliation for exercising free speech,
employment at will doctrine for private sector free speech retaliatory discharge.

V.

Hidden Forks: Dodging the Statute

A. Hypo: Corporation wants to purchase land it is leasing from a farm family of modest means. Family has refused to
sell, wants a better price. Roof leaking would cost $30k to fix. Corporation cites the leak, invokes L/T statute to
excuse further rent payment.
1. Purpose of statute/history- lobbying by groups of low income tenants
2. Is a corporate lessee the type of tenant the statute wanted to protect?
a) Caselaw against you, argue the purpose of the statute isnt met here.

VI.

Background v. Foreground: Variations on the Twin Forks Theme

A. Making seemingly contradictory arguments for each side

INCORPORATING FORKS INTO OUTLINING/NOTES

1. Find statutes discussed in class, identify the purposes. Put examples of situations you create where
the multiple purposes compete, think how a court will resolve these situations.
2. Find areas of the course that fit a gantlet, elements of law structure. Put examples where its not
clear whether each of the elements is met.
3. Read over cases, and figure out what is left open in the law, what is NOT clear.
4. Outline course around forks in the law, and forks in the facts. Write policy arguments that convince
the court toward one doctrine or another. How far can you broaden or narrow a case?
5. Inconsistencies between two cases are highly testable, particularly when they are brought out in
class discussions. Pay attention to ambiguity and inconsistencies, when others tune out!
6. Disputes about doctrine are usually linked to big-picture stuff mentioned in class!
7. Professors re-use forks in old exams!
EXAMS TECHNIQUE

Elements of legal claims, along with forks, and each partys perspective on the exam.
Find the forks, and then explain why each fork is there.
Make arguments for each side, and counter the other sides arguments.
Test will probably be written with some facts/law on one side stronger.
**BUT YOU HAVE TO COUNTER WITH THE WEAK SIDES ARGUMENTS!!***
Focus on disputed issues
Focus on issues that matter/those emphasized by prof in class.

CZARS OF THE UNIVERSE/POLICY WIZARDS

1.
2.
3.
a.
b.

Shaping society- how would a rule of strict liability affect the housing market?
Administering policy- how will the legal system administer a rule?
Fairness/doing the right thing/consistency
Unfairness of change/consistency over time
Treat like cases alike
i.
consistency throughout jurisdictions
ii.
consistency across social categories/economic class
1. meritocracy vs. egalitarian

Property/Pierson v. Post Policy Chart

Category

Keep Capture Rule

Pursuer Earns Ownership

Shaping

Encourages competition

Reward investor

Shaping

Promote freedom

Protect security

Administrability

Clear rules reduce quarrels

1. Old rule not so clear

2. Unfair rules breed disputes

Do the Right Thing

People have relied on rule

Trend toward flexibility

What Kind of Czar

Change is for legislation

Courts change common law

Non-Interference

Keep govt out of hunting

Dispute-resolution role inevitable