GATMAYTAN CHAPTER 1 ● LM does not concern itself with principles, doctrines

Generating Legal Issues and rules comprising a jurisdiction’s substantive law

● Most things we do implicate the law (e.g. accident, BUT with the METHODOLOGY EMPLOYED,
student being expelled from school, running a business) principally by courts to create, elaborate and apply that
● Laws govern the acts of government leaders and substance.
regulate conflicts among branches of govt. ● Development of LM in America's legal parent, 17-18th
● Leila de lima v Arroyo: shows conflict between 2 century England, Harold Berman and Charles Reid
branches of govt -> secretary of justice prevented defined the subject of their study as "a systematic body
former president from leaving the country despite SC’s of knowledge generated by the law itself, defining its
TRO suspending the operation of Secretary’s “hold functions and the ways in which it operates.”
departure order” ● Courses that teach this material include 3 components
o These events generate number of questions that can o Case law
be resolved by the laws (e.g. Consti, statues, etc.) o Statutory interpretation
● Judicial and quasi-judicial bodies engage in these tasks o Administrative process
on a daily basis; they analyze facts giving rise to ● Subjects of LM
disputes then determine the law applicable. -> there is o Basic functions of each lawmaking body and
a process arriving at the answers to legal questions = interaction with others
LEGAL METHOD o Process by which law is created in three forums and
later applied by courts and agencies
Legal Method ● The challenge for the Legal Method teacher is to teach
● Terms in US: legal writing, lawyering skills or legal continuously and systematically on multiple levels:
process jurisprudential, conceptual, definitional,
● Its Basic: how to read & think about the law, how to do methodological, procedural, linguistic, and analytical.
legal research and legal writing ● His narration on how he teaches the subject:
● Defined as intro to legal analysis, research techniques, o goal is to prepare students to think on their own and
rules of legal construction and other aspects of legal to get them ready for the final exam that finds them
process back at home with a problem, a statute and a stack
● NOT CONCERNED with principles, doctrines and of legislative materials, all involving a subject
rules of substantive law BUT ON methodology used, totally fresh to them.
principally by courts o Their job is to identify the statutory issues,
● Controversies of LM formulate them professionally, and utilize the
o Disappearing bc of intellectual politics statutory text and history to resolve them.
o Feminist theory questions the neutrality of LM o The long-term goal is to capacitate them for a future
o Mechanism for indoctrination (e.g. stare decisis as a in which ready-made solutions are not handed to
mask for judges to have enormous discretion) them.
● Different from statutory construction (process of ● THEME: Current generation of American law students
discovering and expounding the meaning and intention is being deprived of a body of critical knowledge,
of the authors of the law w/ respect to its application to hindering its ability to function with sophistication in a
a given case, where that intention is doubtful, by world of courts, legislatures and agencies, and of
reason of the fact that the given case is not explicitly precedents, statutes and regulations.
provided for in the law.” -> only one aspect of legal
method II. The Survey
● Different from LegBib which is development of skills A. “Ups” and “Downs” of Legal Method
in the use of legal materials and law library ● During the 1960s and 1970s, Legal Method was being
taught, usually as a mandatory course, in a substantial
DISAPPEARANCE OF LEGAL METHOD number of American law schools.
(CAPPALLI) ● To ascertain the current status of Legal Method courses:
● American legal education, in worshiping rules, o Gathered and studied 1995-1996 or 1996-1997
practicalities and other lesser gods, fail to inculcate in catalogs from 174 American law schools.
their students the methodology needed o Survey reveals that only a small nucleus of twenty-
● Schools are not offering intellectual tools lawyers need two schools continues to teach LM in the way it was
to perform for handling competently source materials - created in the 1950s and 1960s what the author calls
> Result: student without needed skills as “Full Form”
● Defects to American legal education o Full form is comprised majorly by those from “East
1. Disappearance of its teaching as a discrete subject of Mississippi” – why? Bec. Of the commitment of
– distinct decline in the teaching as either a Cornell and Columbia schools which produce large
mandated first-year course or an upper-class number of law faculty
elective
2. Pursuit of substantive rules and information in
casebooks to the sacrifice method – legal
materials are ripped apart from the books, cutting
especially those that will understand how courts
handle primary legal material.
3. Assumption that the subject is easy to teach and
can be done in quick introductions
● Alan Watson’s “Intro to Law for 2nd year law students”
share Cappalli’s views that legal operations,
competently done, are rarely simple, as what law
schools have us believe.
● Cappalli’s school doesn’t teach Legal Method -> why
teach it separately when it is intrinsic to all courses?

I. Subject of Legal Method

B. New Offerings 1. Bec. Of doctrine of legislative supremacy, enacted
● Discusses the legal subjects that have "replaced" Legal law binds the courts. Case law however may be
Method in the mandatory portion of legal curricula. changed by a court with sufficient justification
o “core materials” – civil procedure, contracts, 2. Enacted law is cast in authoritative language
criminal law and procedure, property, torts, meaning precise words are clear and fixed until
constitutional law and research and writing such time it is modified. Case law by contrast can’t
be captured by a single, authoritative and
III. Causes of the Decline uncontroversial formulation
A. Casebooks and Legal Method: The “Pervasive Result – application of case law is MORE FLEXIBLE
Argument” than that of enacted law; application of enacted law tends
to involve interpretation of the text of the statute whereas
1. Delusion application of case law involves subtle refinements of
● Demonstrates how casebooks currently in use in prior articulations of the law.
American law schools are inadequate for the teaching
of Legal Method. I. Sources of American Law
● The books collect random assortments of appellate A. Enacted Law
opinions ("cases"), thereby disabling case synthesis. - Supreme law in the American legal system is the
Those who choose to teach from these books cannot, US Consti which sets down principles of law
except through monumental supplementation, instruct binding on all branches of the federal and state
on how courts make and apply the law. governments.
● Faculties think, it appears, that in the process of - Consti was drafted in 1787 by a convention in
studying constitutional law, contracts, torts, criminal Philadelphia
law, property, and procedure, students instinctively are - Establishes 3 branches of the federal government
absorbing Legal Method. This is what is typically called – legislative, executive and judicial.
the "pervasive" instructional method. - The federal legislative branch are elected
and empowered by the consti to enact
2. “Book X” on Civil Procedure statutes.
● Book X is the book that the author uses in teaching civil - The executive branch is headed by
procedure; although it fails to concern itself with LM, elected president and is composed of
he still chose to teach using that book for its “positive various agencies responsible to the pres.
values in providing numerous well-conceived problems - The judicial branch, Congress, enacts
to be solved under the rules and in offering extensive statutes that establish only the very
factual info about America’s procedural systems.” general principles of law. Their
● Still, I often wonder whether this neglect of method and regulations define the terms of the
misinformation about it, which occurs in courses like statutes and explain how to apply.
civil procedure, washes away our attempts to teach - As long as congressional statute
proper methodology in a distinct course. is consistent with the consti, the
● Results to: statute shall bind all persons
- Lost Opportunities under US jurisdiction, as the
- Miseducation executive and judicial branches
are obligated to apply and
3. Other Courses, Casebooks, Teachings enforce.
● In sum, the composer of a civil procedure casebook will B. Case Law
have to work harder than others to select materials and - Federal judicial branch is composed of federal
create problems that teach both procedure and judicial courts, which creates rules of law and resolves
method. disputes concerning applications of the law,
● Some students and I have studied casebooks and which have federal judges appointed for life.
teachings in property law, torts, and contracts -> these a. District Court
areas may offer better teaching of LM - The court resolves a dispute by
a. Property identifying the issues and then
b. Torts – perhaps where LM comes to life deciding them.
c. Contracts - Parties have a number of areas of
agreement, with the core of the
THINKING LIKE A LAWYER: AN INTRO TO dispute concerning the
LEGAL REASONING (VANDEVELDE) application of the law.
i. Identifying Issues
Part One: Basic Legal Reasoning 1. Issues of Fact
a. What is the
Identifying Applicable Law situation to
● First step to legal reasoning is to identify the law that is which the law
potentially applicable to a particular situation must be
● 2 types of law applied?
1. Case Law – referred to in American Courts as 2. Issues of Law
“common law” ; created by court for the purpose a. What are the
of deciding a specific dispute rules governing
2. Enacted law – laws adopted, usually by a this situation?
legislature of elected body, not to decide a single 3. Issues Requiring
dispute but to stand as general rules of conduct ; Application of Law to
e.g. consti, statues, treaties, E.O. and admin Fact
regulations. a. What rights or
● Differences b/w these 2 are important. Why? duties exist
between the
parties under the
 governing law predicates that could
of the situation? arguably be said to apply
- A case may present to the situation.
more than one, two, or ii. The Nature of Rules: Substance
all three. - Rules are based on some
ii. Deciding Issues sort of policy
- It is critical to determine - When the rule is a
what kind of issue statute, the underlying
you’re tackling to arrive policy is generally that
at a proper decision. which the legislative
iii. Distinguishing Issues of Law intended to further when
and Fact it enacted the statute.
- Where the judge takes - When it is a case law
the issue from the jury rule, underlying policy
and decides by is generally that which
themselves - “a matter of the court articulated as
law” justification for the rule
b. Court of Appeals - Rules represent
- Each circuit/district has a CA compromise among set
- Standard of review establishes of opposing policies.
the extent to which court of iii. The Problem of Generality
appeals will defer to the - Rules are phrased in
discussion of the trial court. general terms for
- De Novo Review: CA gives no fairness and efficiency
deference to trial court’s - However, this can also
decision and decides on issue impede legal reasoning
entirely by its own interpretation process, as it leads to
of the law. vagueness.
c. Supreme Court c. Identifying Void Rules: An Introduction
- Executes writ of certiorari to Constitutionalism
II. Identifying Applicable Law - The Constitution prevails over
a. Identifying the Government with Power: all other law, federal or state.
An Introduction to Choice of Law - Federal law made pursuant to the
Theory Constitution is the supreme law
- A law may not apply to a given of the land
situation: - Legislative supremacy states that
- The government entity courts are required to enact
that adopted the law statutes.
does not have the power - Courts have the power to
to prescribe law determine the constitutionality of
applicable. all laws, including statutes.
- Law by its terms does - In the absence of the contrary
not apply to the law, the first rule might apply.
situation. Further, a rule that is void in one
- Another entity of greater situation may be treated as valid
power enacted contrary in a second situation because the
law. contrary law of greater authority
- The choice of law is critical to does not apply to the second
finding the applicable law. situation.
i. Vertical Choice of Law Analysis
- Whether (1) federal law, IN RE: MAX SHOOP
(2) state law, (3) both In re application of Max Shoop for admission to practice
federal and state law law
apply
ii. Horizontal Choice of Law W/N New York Lawyer can practice law in the
Analysis Philippines under paragraph four of the Rules for the
- Which state’s laws Examination of Candidates for Admission to the Practice
apply, or if the law of
of Law, effective July 1, 1920.
more than one state
applies.
That portion of the rules of this court, in point, is as
b. Identifying Law by Subject Matter: An
Introduction to Rule Analysis follows:
- Process of Rule Analysis
- Identifying factual predicates "Applicants for admission who have been admitted to
that accurately describe the practice in the Supreme Court of the United States or in
situation any circuit court of appeal or district court, therein, or in
i. The Nature of Rules: Form the highest court of any State or territory of the United
- Rules have form: If x States, which State or territory by comity confers the same
then y; if these facts privilege on attorneys admitted to practice in the
occur then this legal
Philippine Islands, and who can show by satisfactory
right or duty arises
- The lawyer searches for affidavits that they have practiced at least five years in any
rules with factual of said courts, may, in the discretion of the court, be
admitted without examination."
The above rule requires that New York State by comity establish a precedent which may be controlling on this
confer the privilege of admission without examination court with respect to future applications if our
under similar circumstances to attorneys admitted to interpretation is not borne out by the future enforcement
practice in the Philippine Islands. The rule of the New of that rule by the New York court. So ordered.
York court permits admission without examination, in the
discretion of the Appellate Division in several cases,
LEGAL REASONING AS PRACTICAL
among which are the following:
REASONING (POSNER)
"1. Any person admitted to practice and who has practiced ● Practical Reason – most often used to denote methods
that people use to make a practical or ethical choice
five years as a member of the bar in the highest law court such as to whether to go to the theater or whether to lie
in any other state or territory of the American Union or in to an acquaintance; action-oriented in contrast to
the District of Columbia. methods of “pure reason: by which we determine
whether a proposition is T or F or argument is V or
"2. Any person admitted to practice and who has practiced Invalid.
five years in another country whose jurisprudence is
based on the principles of the English Common Law." Authority
● Legal decisions are authoritative not when they
This court is advised informally that under this rule one command a consensus among lawyers but when they
member of the bar of the Philippine Islands has been EMANATE FROM THE TOP OF JUDICIAL
admitted to practice, without examination, in the State of HIERARCHY.
● Authority in intellectual matters is different from
New York, and one member of the same bar has been
authority in law – judicial decisions are authoritative
refused such admission, the latter being the more recent because they emanate from a politically accredited
case. The rulings of the New York court have not been source rather than because they are agreed to be correct
brought to the attention of this court authoritatively, but by individuals in whom the community reposes an
assuming that reports of such rulings by the New York absolute epistemic trust.
court are true, in view of the apparent conflict, it seems ● Legal profession would look askance at a judge who
proper to enter upon the consideration of whether or not cultivated a close personal relationship with the
members of the court above him in the hope that a better
under the New York rule as it exists the principle of
understanding of their values and beliefs would enable
comity is established. It must be observed that under the him to predict their decisions more accurately
rules of both jurisdictions, admission in any particular ● Society does not have confidence in the upper court
case is at the discretion of the court. Refusal to admit in enough that it would rule out lesser courts altogether.
any particular case is not necessarily conclusive as to the ● Judges make efforts to minimize disagreement with
general principles established by the rules. each other and as a result will occasionally go with the
convictions of a colleague, despite the impulse to agree.
CONCLUSIONS This is likely in factions of a factionalized court.
● Though not throughout the entire legal profession, a
(1) The Philippine-Islands is an unorganized territory sound decision in accord with the highest court of the
of the United States, under a civil government established jurisdiction is “correct” by virtue of its conformity to
by the Congress. authority.
● A law professional commenting against the Court’s
(2) In interpreting and applying the bulk of the latest and unanimous decision is not out of bounds or in
violation of professional etiquette.
written laws of this jurisdiction, and in rendering its
decisions in cases not covered by the letter of the written Reasoning by Analogy
law, this court relies upon the theories and precedents of ● Modern lawyers perceive reasoning by analogy as the
Anglo-American cases, subject to the limited exception of heart of legal reasoning.
those instances where the remnants of the Spanish written o It has no definite content or integrity; it
law present well-defined civil law theories and of the few denotes an unstable class of reasoning
cases where such precedents are inconsistent with local methods.
o Yet, is a principal candidate for the
customs and institutions.
method that will set lawyers apart from
everyday reasoners.
(3) The jurisprudence of this jurisdiction is based
o Common-sense, practical, everyday
upon the English Common Law in its present day form of induction is a bit low-keyed to be the core
Anglo-American Common Law to an almost exclusive of legal reasoning.
extent. ● Judges and law professors exhibit freedom in their
inductive procedures that proves destructive, as they
(4) By virtue of the foregoing, the New York rule, can reject a sound observation, but they are also free to
given a reasonable interpretation, permits conferring reject anomalous decisions, without having to
privileges on attorneys admitted to practice in the reconsider their own theory.. The pressure both to
Philippine Islands similar to those privileges accorded by theorize and to adjust theory to observations is
the rule of this court. correspondingly relaxed.
● Existence of patterns can create expectations but not the
Accordingly, the supporting papers filed by the obligation to follow it.
● Generalizing from observations is perilous; Take
application this case showing to the satisfaction of the
everything into context.
court his qualifications as an attorney-at-law, his petition ● Lawyers have the tendency to use this syllogistically,
is hereby granted and he is admitted to the practice of law rather than inductively. The general rule cannot be
in the Philippine Islands. Our decision is based upon our enforced syllogistically or analogically.
interpretation of the New York rule, and it does not
● Analogies can be viewed simply as similarities to
provide a wealth of facts, reasons, and techniques one
can base on in deciding what to do.
● Unless a precedent is authoritative, it can only be a
source of data that are anecdotal in character.
o A precedent is authoritative by virtue of
stare decisis
o The more precedents, the stronger stare
decisis becomes.
● Limitations of reasoning by analogy are highlighted
when it is praised as a method when judges create law
incrementally.
o Authoritative counsel merely licenses to
take small steps
o Experience allows judges to stop as soon
as experience demonstrates the error, or
may hinder them from seeing the
cumulative changes they’re affecting.
o There’s no metric in contextualizing the
difference between a prior case and a
present case
● Reasoning by analogy is NOT a method of reasoning,
but rather a tool to connect premises and conclusions.
● In a system of precedent:
o Creates the precedents.
o Decides the breadth of an earlier
decision, whether narrow or broad.
Narrower means less force.
o Chooses Whether to uphold or overrule a
precedent.

A Note on Legal Education

● Socratic method familiarizes with the style of legal
materials, training them to exploit by means of logic as
a critical tool.
● Law school teaches a language rather than a method of
reasoning; a culture, a vocabulary, a set of
representative texts and problems.
● Most important that law school imparts is a feel for the
outer bounds of permissible legal argumentation at the
time the education is imparted; “Thinking like a
lawyer.”