Recognize Legal Spectrum Words
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Recognize spectrum words (because it changes how you apply a rule to the facts).
Most students do not stop to think that a legal rule may contain a single word that entirely changes the way to approach proving the prima facie case. That is what happens with spectrum words.
Most importantly, for law students who are looking for a “right answer” or inadvertently apply their own values to the facts, it is easy to think of these words as having a clear definition rather than being spectrums.
How do you recognize a spectrum word?
A spectrum word can be modified by words of degree like “somewhat,” “a little,” “a lot,” and “very.” For instance, loud is a spectrum word in nuisance law. Something can be a little loud or very loud.
Spectrum words are quite common in legal rules. (This is related to the fact that we have a common law legal system rather than a civil law system. Within a common law system, it becomes important to distinguish between severities in a comparative way.)
What are some of the most common spectrum words in legal rules?
Risky
Dangerous
Concrete
Substantial
Tangible
Temporary
Reasonable
Appreciable
What’s special about a spectrum word in a legal rule?
A spectrum word doesn’t logically have just a yes/no answer. Logically, instead you have to ask, “how much?” or “to what degree?” Often these words do not have much of a definition in the legal rules.
How do you apply a rule that includes a spectrum word?
· If there is a definition for the word, include that rule and connect facts to this rule. (But this is rare.)
· Use the facts of other cases to make comparisons. Specifically:
o Use cases to show the breadth of the spectrum—to show the lowest and the highest.
o Use cases to compare facts that are very close to the hypothetical.
o Use cases to try to pinpoint the place on the spectrum that the court is viewing as enough or sufficient.
For example:
What is dangerous enough to be abnormally dangerous? Use the facts of cases to point to this spot on the
spectrum, where something is sufficient, but not the obvious case.
How shouldn’t you apply a rule that includes a spectrum word?
Avoid assuming that your natural, innate, or personal definition is reasonable. What is loud to you, may not be loud to someone else, or vice-versa. We have many different ideas about what is dangerous. Some people sky dive; some people think it is a sign of insanity. Avoid assuming that your personal idea of dangerous/reasonable/etc. will be what the court uses. Use case comparisons to show how the courts regard the spectrum.
Note spectrum words rarely have formal legal definitions or if they do, the definition provided is so fuzzy that it is not terribly helpful. Rely on comparative evidence to establish your case persuasively.