Identifying Legal Rules Effectively
Learn to identify rules quickly and accurately.
When reading case opinions in law school, it’s important to be able to locate the key types of information. The most important of those is the legal rules that will endure after the case. This includes old rules that are applied in the case and new rules adopted in the case.
Looking for rules primarily involves finding the abstract, broad statements of law. But sometimes those are not obvious, especially to 1Ls. Learning the typical language of rules helps with locating rules more quickly and accurately.
A quick guide strategy guide for identifying legal rules.
Here are some of the most common phrasings used for legal rules. (There’s a downloadable chart version here.)
Words that suggest tests:
“is defined as”
“elements of ____ are…”
“means…”
“is the primary indicator”
“in order to establish”
“an essential element”
“to be liable for”
“is one which”
“where the plaintiff can show”
“sufficient to support liability”
“requirements of”
“will be determined by”
“creates the basis for”
“in order to prove”
“to determine whether”
'“can be established by”
“to establish the claim”
Words that mandate:
“must prove”
“require a showing”
“is subject to liability”
“constitutes”
“has the right”
“are required to”
“has declared”
“must rely upon”
“would entitle”
“in order to recover”
“must be available”
“must be consistent with”
“must show”
“must not only be… but also”
“must be considered”
“entitles a plaintiff”
“must be sufficient to”
Words of exception:
“need not be”
“is not also”
“cannot be said to”
“unless”
“will not suffice”
“applies only”
“plaintiff does not have to”
“will not constitute”
“cannot be considered as”
“not necessary that”
Words of inclusion:
“claims may include”
“may be liable”
“may infer”
Words of procedure:
“court reviews”
“bears the burden”
“must review”
“reviewing court”
“must file”
Sentences containing legal rules follow a basic pattern: a claim or element, words of requirement or exclusion, and usually an action.
Finally, legal rules tend to contain terms of art (more frequently than the rest of the opinion). There are many general terms of art found in any type of case. For example: Notice, constructive, presumption, burden, claim, inference, evidence, jurisdiction, and equity.
There are also subject specific terms of art (i.e. ones special to areas of law like criminal law, copyright law, etc.). It can be helpful to begin to identify these for each subject. Sentences containing these words are likely to be rule statements. Here are a few terms of art for property: Tenancy, title, entry, possession, ownership, dominion, leasehold, personalty, and realty.
If you need more direction, including property hypotheticals and rubrics, see the new book!