How to spot the “issue” in a legal case: a primer for 1L students

1L Law School legal studies

By Rob Barnett

My first class at Harvard Law School was Contracts, with then-professor, now-Senator Elizabeth Warren. Before she was famous as a leader of the progressive wing of the Democratic Party, she was a famously excellent teacher -- the only professor at Harvard Law School to win the student nominated teaching award twice -- as well as a famously tough one. We knew before the first day of class that she planned to cold-call every student, in class. (She always did, and often called on many students more than once!)

To this day, I’ll never forget the first question she would always ask about every case, starting with Hawkins v. McGee: “What’s the issue?”

What is a legal issue?

There have been tens of thousands of legal opinions written over the years, but in law school you’ll only read a small slice of cases. Why are those cases picked? They are chosen because of the way they illuminate issues -- the precise legal questions or conflicts whose resolutions end up shaping the development of the law. Identifying the issues that a case presents is perhaps the central skill you’ll learn in law school: they call law school exams “issue spotters” for a reason.

So what is a legal issue, exactly, and how do you identify it before that first cold-call? Here are my tips for identifying those legal issues.

1. Ignore the obvious.

Generally, if two parties sign a written agreement with the word “Contract” on it, it’s a contract. If a statute gives federal courts jurisdiction over a certain type of claim, they have jurisdiction. What makes cases interesting -- and fun -- is not the facts or claims that are easy to make, but the ones that are tricky. The issue is never a question that can be resolved with a simple, clear answer.

2. Look for ambiguity in the facts.

Lawyers LOVE ambiguity. It’s exactly what allows us to make arguments! There are some famous cases with straightforward facts -- where the intrigue comes exclusively from the legal principles at stake -- but just as often there’s a question of how a generally accepted legal principle (equal protection, the tax-and-spend power, etc.) applies to a particular set of facts. Where there’s something you don’t quite get in the facts, there’s a nice legal issue lurking.

3. Find where the opinions disagree.

Many cases you read in law school have dissenting opinions, precisely because these opinions help you see both sides of the contested legal or factual points. Dissents are great because they show you what both sides accept -- see above -- as well the points at which the judges’ opinions diverge. Where they diverge is what’s interesting and important. That’s the issue!

4. Think about what you don’t understand.

Have a question about how the case was decided? So did the parties, and the judges -- that’s why they brought the case to court! If you’re unsure of what the answer should be, and your friends are unsure, and you all have the same question, you’ve probably found the issue. Now all you have to do is articulate the question!

Summary

Essentially, what you’re doing is looking for whatever doesn’t make sense. Sound confusing? It can be! In other schools we have been so trained to look for a “right” answer that it’s almost counterintuitive to seek out the questions that don’t have such an answer… but that’s exactly what lawyers do!

Elizabeth Warren told us on our last day of class that law school -- and the practice of law, at least for appellate lawyers -- is about “interpreting the law at dawn and dusk:” not the times when it’s clear but at the time when things are murkiest. It’s a different way of thinking, but it’s truly what it means to “think like a lawyer.” Now go spot those issues!

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