Legal Method Exercises to Help
New Students Gain Comfort with
Legal Uncertainty
Professor Charles Calleros
Sandra Day O’Connor College of Law at
Arizona State University
Four Exercises to Introduce Students
to Legal Uncertainty
1. Grocer’s Problem – precedent can point in two
directions if its reasoning is unclear
2. Rules for Lina – Essay question in non-legal setting
invites arguments for both sides
3. California v. Carney – a new case that lies precisely
between two precedents
4. Marriage Equality Litigation – judges reached
different conclusions based largely on their choices
between competing analytic frameworks
Under stare decisis, building a wall of case law, one
brick at a time, on foundation defined by precedent.
Policies supporting Stare Decisis:
• Efficiency • Certainty and Predictability • Fairness
But some precedents are not so well defined, so
interpretation and synthesis are uncertain.
Attorneys Can Argue in Support of
Asserted Answers to Legal Questions
And the Judge Must Give an Answer, but either of two
conclusions might be reasonable – as with most essay exams.
The Grocer’s Problem
Exercise: The Grocer’s Problem
Imagine that you work for Pat, who owns a small grocery
store in the middle of the city, with a sidewalk running
along its front.
Statutory Text
Pat, the owner, does not work at the store but has
posted a general rule in the store office:
When fresh fruits or vegetables arrive, place them in the
window display case if they would tend to attract
“impulse shoppers” into the store (people who were not
already planning to shop here). Otherwise, place the
fruits or vegetables in the interior of the store. This way,
we can increase the number of customers who enter
our store, who make purchases, and who may become
regular customers.
This is sort of like a statute, created by Pat acting as
the legislature.
Two Applications of Pat’s Rule
When a crate of unwashed
When the store manager,
Kim, received a crate of washed, carrots arrived, Kim placed
them in the interior of the store.
shiny, red apples, he placed
them in the window display
case.
New Case: Red Bell Peppers
Kim is away for the afternoon, and a crate of these shiny,
washed red bell peppers arrives. Where should you put them?
Are the bell peppers more like
the carrots or the apples? In what way?
Rules for Lina
(case analysis & synthesis, outlining, & essay exams)
online.law.asu.edu/rulesforlina/
(includes Grocer’s Problem materials – feel free to use either or both in class)
Case #1 – holding is
uncertain: which facts are
crucial to mother’s
negative reaction?
Case #3 – adds a second
branch to restriction on
social activities: firm
curfew.
Case #2 – Clarity through
synthesis: different result
on slightly different facts.
Case #4 – Exception to
curfew rule. What are its
parameters?
Essay Question
On Friday night, Lina went to the football game with a date, Pat, and then to
JJ’s Pizza Parlor. Lina had earlier informed her mother of these plans.
When Lina and Pat returned from the dance at 11:55 P.M., they parked in the
driveway at Lina’s house, within view of Lina’s mother who was sitting in
the living room and saw them arrive. While parked in the driveway, Lina and
Pat talked, laughed, and held hands for 20 minutes. After Pat kissed Lina
goodbye and drove away, Lina entered her house at 12:15 A.M.
On Saturday afternoon, Lina asked her mother whether Lina could go
with friends to the high school basketball game, to watch Lina’s brother
play in the first of more than two dozen games in the basketball season.
This first game is being played in another city, so Lina will ride in the car of
another family, which plans to go out for a snack after the game, and
probably will not return Lina to her home until after midnight. Monica’s
mother plans to attend some home games during the season, but she does
not plan to attend this first “away” game.
Fully discuss whether Lina’s action on Friday and request on Saturday
are consistent with her mother’s rules regarding Lina’s social activities.
For every issue that you identify, summarize the rule that helps to resolve
that issue, apply the rule to the relevant facts, and reach a conclusion.
Whenever possible, discuss both sides of the question. Support your
arguments with specific facts, and with policy considerations when feasible.
Issues
1. Did Lina violate the midnight curfew by entering
her home at 12:15, though she was in the driveway at
11:55?
[Does she satisfy the requirement of coming “home” by
arriving at the family property, or must she enter the house?]
2. Is the brother’s first basketball game a sufficiently
important family event to justify an exception to the
curfew rule?
Major Premise: Text of Fourth Amendment
to U.S. Constitution
U.S. Constitution, Bill of Rights
....
Amendment IV [1791]:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly
describing the place to be searched, and persons or
things to be seized.
Do Police Need a Warrant
to Search a Motor Home?
California v. Carney: Should court exclude
evidence from warrantless search?
Precedent (1925):
Carroll v. U.S.
No warrant required
to search automobile
Agnello v. U.S.
Warrant required
to search house
New Case:
California v. Carney (1985)
Officers conducted warrantless search of
motor home parked in supermarket parking lot.
Defendant was living in it, and it was fully mobile.
Competing Analytic Frameworks in
Marriage Equality Litigation
Ex. 1 – Fundamental right triggering
heightened scrutiny:
Must P prove support in history and tradition
for institution
of marriage generally (easy to prove) or
of same-sex marriage (impossible to prove)?
Competing Analytic Frameworks
Ex. 2 – Does a same-sex marriage ban
discriminate based on sex, triggering
intermediate scrutiny?
D: No, it applies equally to men and women who
wish to marry members of same sex.
P: Yes, because Gary can marry Paula, but
Mary cannot, distinguishing between Gary and
Mary solely on the basis of sex.
Competing Analytic Frameworks
Ex. 3 – Assuming same-sex marriage ban is
tested only for rational relationship:
D: State can rationally focus only on
channeling opposite-sex couples into
marriage, because they are the ones who pose
risk of casual procreation.
P: Assuming that state interest, permitting
same-sex marriage does not hinder that
interest one iota.
Competing Analytic Frameworks
Ex. 4 – Separation of Powers and Democratic
Self-Governance
D: Handful of unelected judges should not cut
short democratic deliberation in the political
arena but should defer to legislatures and
popular referenda.
P: Courts have responsibility to decide cases
before them and to protect minority rights
from oppression by majority.
Main Debate in Obergefell –
Deference to Political Arena
Majority: Court has responsibility to protect a
fundamental right while resolving a split in the
circuits, and the decades of political debate on the
issue has informed the Court’s analysis.
Four Dissents: “this Court is not a legislature”;
Majority opinion is “a threat to American
Democracy,” and a “usurp[ation of] the
constitutional right of the people to decide,” and
a means of “undermining the political processes
that protect our liberty.”
Discussion
Questions?
Comments?
Other examples of exercises designed to
introduce students to legal uncertainty?