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.
3. Find where the opinions disagree.
4. Think about what you don’t understand.
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!