Getting to Maybe

 This list of forks is not comprehensive but represents the bulk of issues.
 There are often more than one fork within a fact set and often forks within forks.
 Different forks are often linked to each other, be sure to notice and discuss
 Sometimes forks in law/fact will affect how the fork in fact/law is implicated… in a
concurrent or nonconcurrent manner
 When I find a fork… figure out why there is a fork and what will happen if each
respective path is taken
 Be sure to address and analyze potential arguments for the other side of the fork not
chosen (or alternative forks not analyzed because not relevant)
 Use an intro paragraph to outline the issues that will be addressed (? is this a waste
of time?

FORK METHOD: (2 FORKS)

 FORK IN THE LAW
 Rule vs. counter rule
 When a fact set contains any rule vs. counter rule examples, be sure to delve
into both. even if one rule is more commonly or should be used, discuss them
both and why one should be used and not the other. if one rule vs. the other
seems clearly dominant… I may have missed something in the fact set.)
 Watch for unidentified or imaginary jurisdictions
 Watch for jurisdiction whose law wasn’t explored in class
 Watch for modern rules that haven’t been judicially adopted yet
 Traditional rule vs. modern rule
 When multiple jurisdictions have differing rules (majority vs. minority rule)
 Common law vs. statute
 Competing interpretations of one rule
 Statutes (*pay attention to the statutory ambiguities the prof emphasizes –
variation on a hypo, new application of an old statute, new or imaginary statute,
using a statute in common law claim)
 Watch for plain meaning vs. purpose of the statute
 For purpose use legislative history, provisions to the statute, official comments,
and societal events that prompted statute.
 Most rules have more than one purpose and sometimes those purposes have
conflicts (this can create another fork)
 Pay attention to how prof describes the purpose/intent of the statute
 Watch for broad vs. narrow purposes
 Watch for multiple interpretations of the plain meaning of a word or words
(sometimes the statute will have a definitions section of the words used,
sometimes the meaning of a word changes throughout history, consider the
 commercial or specialties definition of the word, sometimes there is differing
definitions according to statute vs. common law and sometimes statutes are
written to correct the common law definition)
 Policy analysis
 Cases (applying a fact set/hypo to an existing case(s). discuss the similarities
and differences. fact sets can either be distinguished from a case, applied to a
case, or extended to a case. extending is saying that the rationale used in the
case should also be used in the fact set or be extended to the fact set.
sometimes only one case is relevant for the fact set but sometimes there are
multiple relevant cases.)
 Watch for strict rule vs. rationale for the rule
 Watch for narrow vs. broad interpretations of a case
 Watch for cases where the judges were not clear on their rationale
 Watch for multiple rationales
 Watch for when multiple cases seem to apply – sometimes I’m supposed to
pick the one that applies, other times I’m supposed to discuss the
implications/reasoning of applying various cases

 FORK IN THE FACTS

 Rule vs. exception(s)
 Sometimes exam questions will focus on situations where it is unclear whether
the rule or exception applies
 Terms in statutes often create boundaries that dictate when the statute applies.
These terms will be used to determine whether the facts fall in or out of the
statute
 Different laws are applied during different periods of a chain of events. Some
laws are relevant until a certain action is performed then another law should be
applied. The quality of the action taken can also determine whether the action
crosses into the next law.
 Facts can cause ambiguity in all elements so don’t just think I have it figured out
because I find a conflict in 1 element.
 Facts will be used to dispute abstract terms (like “reasonable person”)
 Often there will be different facts that support different sides of an issue
 Sometimes different laws will apply depending on the time frame of the events
and sometimes the facts will make the time frame ambiguous
 Sometimes whether facts are taken as a whole or separately will produce
different applicable laws / outcomes.
 How general or specific the facts are may affect which/whether a law is
applicable
 Facts will open turn on how the language is interpreted. Spoken and written
language. Words vs. action, written vs. oral, literal vs. reasonable expectations,
multiple meanings.
POLICY QUESTIONS:
 CONSIDER THESE THEMES:
 How different paths will shape society
 How the rule must be administered (w/ cost-benefit analysis)
 The fair justice but don’t get too hung up here because often the issues are
complicated (i.e. the unfairness of change/consistency, consider how other
jurisdictions both in statute and common law handle the issue, is the policy
consistent across social/economic groups)
 The role I am taking if the prof asks me to answer for a particular role (legislator,
judge, consumer, etc.)
 Whether govt should intervene in this matter.
 Themes of policy q’s: trade-offs, paradoxes of competing values, short-run vs. long
run, intents vs. effects, law in the books vs. law in action, category of law ambiguity,
meaning of words ambiguity.