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Step 2: Identify the rule, but don't waste time stating the rule.
Step 3: Summarize the elements of the rule that are easily satisfied by the facts.
(WARNING: avoid conclusory statements – provide analysis even for the obvious
answers)
Step 4: State the sticking point on which this issue turns - i.e., the ambiguity in the facts
that makes it a difficult question.
Step 5: Apply one or more of the four types of Analysis to the problem.
(1) Reasoning by analogy (cases we’ve read)
(2) Balancing of factors test
1. Consider all of the facts and circumstances
2. No one factor determines the outcome
3. Equity. This is the moralistic argument that we want to cure harms to an
injured party and deter bad behavior.
(3) Judicial tests (IF-THEN tests)
(4) Public policy argument
(a) Sometimes, you will be presented with a set of facts that on the surface are
identical or similar to case law. However, if you applied the rule in these
circumstances, the result would somehow be unjust. If that is the case,
then look to the policy of the rule. Why is the rule in existence? Have
judges used this rule for equity's sake, economic efficiency or because it
lends certainty to the process.
(b) Policy arguments are particularly useful in balancing tests.
(c) Common public policies:
i. Equity: this is the moralistic argument that we want to cure harms
to an injured party and deter bad behavior
ii. Economic Efficiency: this policy suggests that all rules be based on a
cost-benefit analysis. Society has to have some losses in order to
make gains. (e.g., efficient breach: breaching a K because it would
be more economically efficient to pay damages than to carry out
the K)
iii. Predictability: Is the rule fashioned in such a way that lends
certainty to the judicial process. Everyone knows that there is a
bright line rule. Cross over it and you’ve violated the rule. This sort
of rule also lends administrative efficiency (fewer litigations).