Deconstructing Legal Analysis: A 1L Primer by Peter T. Wendel, ISBN-13: 978-0735584754

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Deconstructing Legal Analysis: A 1L Primer by Peter T. Wendel, ISBN-13: 978-0735584754

[PDF eBook eTextbook]

• Publisher: ‎ Aspen Publishers (September 30, 2009)
• Language: ‎ English
• 224 pages
• ISBN-10: ‎ 0735584753
• ISBN-13: ‎ 978-0735584754

Peter T. Wendel has taught academic success workshops at over thirty-five law schools throughout the country. In Deconstructing Legal Analysis: A 1L Primer, he provides a variety of time-tested techniques including a unique model for visualizing legal analysis to teach students how to think like lawyers and take law school exams.

Deconstructing Legal Analysis: A 1L Primer features: a unique, visual pedagogical method that illustrates a relational analysis of facts, rules, and public policy an interactive approach that consistently encourages students to write down their answers to carefully guided questions a great teaching case, Pierson v. Post, showing how a layperson reads a case as compared to how a lawyer would read the same case useful templates and methods for legal analysis and essay-exam writing, such as IRAC and IRRAC exam-taking tips and guidance that emphasize flexibility, rather than a formulaic approach If experience is the best teacher, then Deconstructing Legal Analysis is an essential for academic success in law school.

Table of Contents:

Title Page

Copyright

About Wolters Kluwer Law & Business

Dedication

Summary of Contents

Contents

Preface

PART I DECONSTRUCTING LEGAL ANALYSIS: LEARNING HOW TO

THINK LIKE A LAWYER

Chapter 1 Introduction

Chapter 2 The Traditional “Darwinian” Approach

A. Introduction

B. “Swim”

C. Pierson v. Post

D. Read, Analyze, and Be Prepared to Discuss

1. Read

2. Analyze

3. Be Prepared to Discuss

E. Case Briefing

F. Conclusion

Chapter 3 The Evolution of a Case from an Analytical Perspective

A. The Genesis of a Case

B. The Role of the Lawyer

C. The “Vertical” Analytical Evolution of a Case

1. The Factual Plane

2. The Rule Plane

D. Pre-Trial

E. The Trial

F. The Appeal

Chapter 4 “Thinking Like a Lawyer”

A. A Conceptual Understanding

B. Ranking the Planes

1. Which Plane Is the

Most Important?

2. Which Plane Is the

Second Most Important?

3. Which Plane Is the

Least Important?

Chapter 5 Re-analyzing Pierson v. Post

A. Appellate Opinion = Question of Law

B. Find the Answer—the Rule of Law

C. Find the Rationale for the Rule: The Public

Policy

1. Did the Court Get It

Right?

2. Justice and Fairness

D. The Holding

E. The Rationale for the Holding

1. Analyze Each Element

2. See Both Sides

F. Recap

G. Get Comfortable with the Rule

1. The Scope of the Rule

2. The Sharpness of the

Rule

H. Conclusion

Chapter 6 Briefing a Case from an Analytical Perspective

A. Introduction

B. Typical Brief

C. Why You should Brief Your Cases

D. How to Brief

1. Identify the Case

2. The Facts

3. Procedural Posture of

the Case

4. Issue

5. Rule Statement

6. Public Policy

Considerations

7. Holding

8. Rationale

9. Critique/Analysis

10. Dissenting Opinion

E. Conclusion

Chapter 7 The “What if …” Game

A. The Socratic Approach

B. The “What If …” Game

1. “What if …”—First

Hypothetical

2. “What if …”—Second

Hypothetical

3. “What if …”—Third

Hypothetical

4. “What if …”—Fourth

Hypothetical

C. Conclusion

Chapter 8 Introspective Legal Analysis: Russian Dolls

A. Introduction

B. Adverse Possession—Background

C. Howard v. Kunto

D. Analyzing Howard v. Kunto

1. The Evolution of the

Case

2. The Question of Law on

Appeal

3. The Larger Analytical

Process

4. Issues Within the Issue

5. Visualizing the

Application Process

6. The Spectrum: Bright

Line Rules vs. Soft, Fact-

Sensitive Rules

7. Howard v. Kunto—

Application of Adverse

Possession

8. Analysis of Typical

Student Analysis

E. Legal Analysis—It Depends

F. Conclusion

PART II THE EXAM TAKING PROCESS

Chapter 9 Complete the Circle: See the Big Picture

Chapter 10 Writing Style: Write Like a Judge

Chapter 11 How to “Analyze” an Issue: IRAC vs. IRRAC

A. Introduction

B. See the Relationship between Your Outline

and the Exam

C. IRAC vs. IRRAC

D. Writing Your Analysis

E. Different Types of IRRACs: Variations on a

Theme

1. Split in the Jurisdictions

as to the Rule

2. Split in the Jurisdictions

as to the Element

F. Competing Rules

1. Affirmative Defenses

G. Writing Your Outline

H. The Quality of Your Analysis vs. The

Quality of Your Writing

Chapter 12 The Circuitry Behind Issue Spotting

A. Issue Spotting—Why?

B. Issue Spotting—How?

C. The Triggering Fact

D. Triggering Facts vs. Set-Up Facts

Chapter 13 The Macro Organization of Your Exam Essay

A. Introduction

B. “Sliders”—The Parallel “Legal” World

C. General Rule—Take the Issues in

Chronological Order

D. Call of the Question: “Would” vs. “Should”

vs. “State of Nirvana”

Chapter 14 Multiple Choice Questions: Mini-Essays

A. The Analytical Options

B. Analyze as If It Were an Essay

C. Use the “Other” Answers to Check Your

Analysis

D. Watch Your Time

Chapter 15 Post-Exam Blues: How to Self-Diagnose Your Exam

Performance

A. Introduction

B. Typical Professorial Feedback

C. There Are Only Two Ways You Can Lose

Points on an Exam

D. Diagnosing Your Exam Writing Style

E. Issue Spotting Exercises—Triggering Facts

F. Compare Your Multiple Choice vs. Essay

Grades

G. Don’t Kill the Messenger, Instead Spend

Some Time with Him or Her

PART III TIME TO TAKE OFF THE TRAINING WHEELS: VARIATIONS

ON THE LEGAL ANALYSIS THEME

Chapter 16 Extrospective Legal Analysis: Case Synthesis

A. Conceptual Overview

B. Referencing a Prior Case

1. Citing to a Case

2. Discussing a Case:

Binding vs. Persuasive

Authority

3. Same Case vs. Different

Case

C. Case Synthesis

D. Example of Case Synthesis: Kelly v.

Gwinnell

E. Analyzing the Court’s Opinion

1. How It Is Written

a. Issue Statement

b. “Question of First

Impression”

2. How the Court

Analyzed the Issue—Case

Synthesis

a. Overview

b. The Backdrop

c. Articulating the

Public Policy

Consideration

d. Transitioning Back

to the Legal Plane

e. The Analytical

Steps Inherent in

Case Synthesis

3. Recap of Case Synthesis

in the context of Kelly v.

Gwinnell

4. Case Synthesis: Skill or

Art?

F. What If …

1. First Hypothetical

2. Analysis of First

Hypothetical

3. Second Hypothetical

4. Analysis of Second

Hypothetical

Chapter 17 Legal Analysis and Statutory Construction

A. Introduction

B. Theoretical Perspective

C. More Practical Perspective

D. The Legislative Intent Approach

E. The Textualist Approach

F. The Realist/Pragmatic Approach

G. The Three Planes

PART IV CONCLUSION

Chapter 18 Miscellaneous Law School and Exam Taking Tips

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