MAKING FIRST YEAR LAW
STUDENTS COMFORTABLE WITH
THE UNCERTAINTY OF THE LAW
2015 ALWD Biennial Conference
June 13, 2015
Robert D. Brain
Aimee Dudovitz
Loyola Law School, Los Angeles
All That We Do
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Case briefing
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Court system structure
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Common law process
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Reading statutes
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Weight of authority
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Holdings vs. dicta
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Primary authority
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Secondary authority
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Mandatory authority
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Persuasive authority
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Issue statements
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Rule development
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Applying law to facts
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Analogies and distinctions 
Synthesis
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Reasoning
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Large-scale structure
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Small-scale structure
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Manual legal research
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Ethics
Point headings
Thesis paragraphs
Questions presented
Brief answers
Writing fact statements
Citations
Proper attribution
Writing for an audience
Oral argument
Plagiarism
Stare decisis
Outlining
Rhetorical theory
Office memos
Standard of review
Developing a theory of
the case
Updating authorities
IRAC
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Online legal research
 Predictive writing
 Persuasive writing
 Client letters
 Opinion letters
 Demand letters
 Motions
 Points and authorities
 Appellate briefs
 Arguments
 Counterarguments
 Rebuttals
 Implied rebuttals
 Procedural history
 Self-editing
 Peer editing
 Proofreading
 Paragraph structure
 Conclusions
 CRAC
Why Discuss in LRW?
We want to see our students do well in their
doctrinal classes.
 Many doctrinal professors don’t focus on this
and hope it transmits to the students by
osmosis.
 It helps students read cases better.
 It helps students in their analysis.
 It shapes their legal research.
 It helps students write better, especially
cutting down on conclusory analysis.
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Experiences
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The lesson will become apparent by the “it
depends” answer.
- Students think what it “depends” on is the
facts. That upon a certain set of facts, there is an
answer.
The lesson will become apparent when it’s pointed
out that we won’t know the answer until an
appellate court decides a case on those facts.
- Again, it suggests there is an answer. Doesn’t
stress that the argument is what they need to be
comfortable with.
Experiences
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Find a situation where, e.g., the trial court goes one
way; a unanimous appellate court affirms, and it’s
overturned by 5-4 Supreme Court, showing more
judges saw it one way, but result was different.
Cases where result changes after new members of
court appointed.
- Students find it interesting, but it doesn’t
make them more uncomfortable with their
conclusions. “It’s politics.”
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Sometimes Discomfort with Uncertainty
Comes up Organically . . .
After draft of first memo, ask how many came out
one way or another.
- Students believe the other guys get it wrong.
- Often ask at the end of the memo process,
“Professor Brain – what’s the right answer?”
A “factor” analysis
- Not always done.
- Again, the other guy is wrong.
A “reasonableness” analysis.
- Has some promise.
Opportunities to Add an Exercise to the
Curriculum:
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1L Orientation
During Objective Writing
During Persuasive Writing
RULE:
DOGS MUST BE ON A LEASH.
SO WHO GETS A TICKET?
WHY?
Jones v. State Exercise
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Arguments both ways based one 1 statute and 4
short cases
Hypo: Jones, the driver of a fuel truck, is charged
with driving on the left side of a two-lane
highway. He said that he did so to avoid a large
and unexpected patch of ice. It was rush hour.
No one was forced off the road.
State statute provides: “It shall be a misdemeanor
for any person to drive in the left lane of a twolane highway.”
Lefkowitz v. Great Minneapolis
Surplus Store, Inc – 86 N.W.2d 689 (1957)
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General Rule:
Restatement (Second) § 24: “An offer is the
manifestation of willingness to enter into a
bargain, so made as to justify another person in
understanding that his assent to that bargain is
invited and will conclude it.”
Lefkowitz v. Great Minneapolis Surplus
Store, Inc – 86 N.W.2d 689 (1957)
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An offer is the manifestation of willingness to enter
into a bargain, so made as to justify another person in
understanding that his assent to that bargain is invited
and will conclude it.”
Lefkowitz v. Great Minneapolis Surplus
Store, Inc – 86 N.W.2d 689 (1957)
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But . . . Ads are not offers. They are
solicitations for offers. Restatement (Second) §
26, Cmt. b:
Advertisements of goods by . . . newspaper [is] not
ordinarily understood as [an] offer() to sell.
Ill. 1: “A, a clothing merchant, advertises overcoats
of a certain kind for sale at $50. This is not an
offer, but an invitation to the public to come and
purchase.”
Why?
Lefkowitz v. Great Minneapolis Surplus
Store, Inc – 86 N.W.2d 689 (1957)
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The following advertisement appeared in a
Minneapolis newspaper:
Saturday 9 A.M. Sharp
3 Brand New Fur Coats Worth to $100.00
First Come First Served $1 Each'
Court says, “Where the offer is clear, definite, and
explicit, and leaves nothing open for negotiation, it
constitutes an offer, acceptance of which will
complete the contract.”
Lefkowitz v. Great Minneapolis Surplus
Store, Inc – 86 N.W.2d 689 (1957)
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1.
Time
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Place
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Price
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Specific Quantity
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First Come/First Serve
This solves the inventory problem – that’s what it
means that it is clear, definite, and explicit and leaves
nothing open for negotiation: If you are one of the first
guys there at 9AM, you can accept the offer to buy a
coat for $1; and there are only 3 of them, and if they are
gone, they are gone.