Categorizing Rules by Structure to Understand How They Work

[For more help with 1L, see the new book with practice hypotheticals and rubrics for self-grading.]

Think about how the rule is designed.

1Ls read very slowly. Very, very slowly. Everything seems new. Jargon abounds. Every rule and issue is a new creature to behold.

It’s a little like being an alien on a new planet. Every animal, tree, and plant is new. But if you want to understand where you are, it can help to start to put things in categories. Then every tree isn’t a new tree—it’s another kind of evergreen or another kind of shrub.

Although students meet new tests virtually every day or few days in law school, the vast majority of the basic tests fit into four categories.

1. All elements required

2. Alternative elements required

3. A hybrid of all and alternatives

4. Balancing or factors

Let’s look at each of these in a little more detail and with some examples to make it clearer.

1. All elements required

   In this test, the court gives a list (usually short) of a few things that must be proven for the plaintiff to succeed. You can’t pick and choose from the list. It’s not a buffet. You must establish all of them.

   For example, to prove a trespass to land you need establish an entry into real property. There must be both an entry and a real property that was entered. If either is missing, it isn’t a trespass.

   Trespass = [Entry] + [Real Property]

2. Alternative elements required

   In this type of test, the court gives options. You can prove one thing or another. There is no need to prove both. Either alone is fine.

   For example, with personal property to prove delivery, you can prove an actual delivery or a constructive delivery (circumstances that count as delivery without actually doing it). Either is fine.

   Delivery = [Actual Delivery] or [Constructive Delivery]

3. A hybrid of all and alternatives

   In this type of test, you have to prove all of a group of elements, but for some elements there are options of how to prove it.

   For example, to prove a gift of personal property, you prove intent to create a present interest, delivery (either actual or constructive), and acceptance of the gift.

   Gift = [Intent] + [(Actual Delivery) or (Constructive Delivery)] + [Acceptance]

4. Balancing or factors

   In this type of test, the court gives you a list of options for proof. You don’t have to prove all of them. You’re probably in trouble if you can only prove one of them. But you might win with mediocre proof of more than half of them. Or fantastic proof of 2 of 5. It’s hard to tell how much it takes in these cases. However, while in law school, this is not your problem! No need to win, just apply the rule for exam success.

   For example, a regulatory takings tests are described by the courts as “essentially ad hoc, factual inquiries.” That means balancing a list of factors. For a regulatory taking, the court considers “the economic impact of the regulation on the claimant,” interference with “distinct investment-backed expectations,” and “the character of the governmental action.”

   Regulatory Taking = [Economic Impact]/[Investment-backed Expectations]/[Character of the Governmental Action]