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Saturday, September 10, 2016

Artichoke IRAC

Here we are at the beginning of another school year, and once again I am trying to come up with metaphors that help the 1Ls understand that the law is not a thing, but a language in which we convert narratives in the real world into a series of logical propositions that churn out a legal conclusion.

UnknownWalking the dog this morning, I decided on "Artichoke IRAC."  It is my means of explaining that there is a difference between mere issue-spotting, on one hand, and developing a legal theory in which many issues may be embedded, on the other.  Inevitably when I'm grading an exam, a student who has drunk the naive IRAC Kool-Aid will organize the answer to a question in which I have embedded perhaps twenty issues into a vastly incomplete four paragraph answer, beginning with ISSUE and identifying one of them, stating one RULE, and so on.  And this has the effect of earning the student minimal points, if any.

Today's discussion (the third hour of my first unit in Contracts) will be the legal analysis of a little play-acting in which Student A goes into a restaurant, orders a meal, eats it, and leaves without paying the owner (Student B) for the meal or leaving a tip for the waiter (Student C).  We will start the discussion of developing legal theories and defenses in the cases of B v. A and C v. A.

"Artichoke" or "Big" IRAC is the overarching theory of the case.  I ask Student B:  Now that you feel aggrieved, what is the legal theory that you will employ to make things right?  The artichoke here is the contract, and the overarching theory - the RULE in Big IRAC - is that B needs to establish per Restatement 2d of Contracts § 1 that there was indeed a promise or set of promises for which the law provides a remedy or for which performance of the promise is a duty.  

Well, that's perfectly fine as a theory, but it barely begins the complete analysis.  The leaves of the artichoke are metaphors for the elements of the legal theory.  To establish a contract (or the existence of the artichoke) we need to establish the elements.  Here, the first leaf or element is the existence of a promise.  The second is something that would cause the promise to become enforceable (the dreaded consideration issue).

Depending on the facts of the situation, peeling the artichoke doesn't end there. Suppose in my hypothetical the claim is that the promise occurred by way of a series of eye blinks that said in Morse Code: "I presently intend to pay you Tuesday for a meal today."  The element of promise now turns out to have two relevant sub-elements, deeper leaves as it were.  One is whether the eye blinks constituted a manifestation.  The other is, even if the blinks were a manifestation, did it constitute a commitment to act (versus a mere present intention)?

So we can have a theory, or Big IRAC, about the whole artichoke, but almost certainly we are going to have to construct the theory out of a series of Little IRACs or leaves.  And every time we look at a leaf we have to decide if there are fruitful (no pun intended) leaves or sub-sub-elements if we keep peeling.

There is a fun series of articles on this theme, from Bayless Manning's conception of "hyperlexis" and the "conservation of ambiguity" to a more recent piece by Andrew Stumpff entitled The Law is a Fractal: The Attempt to Anticipate Everything, 44 Loyola U. Chi. J. 649 (2013).

In some ways it's easier to think of this from the standpoint of defending a claim.  How many leaves deep into the artichoke do I have to go before I find something contestable in the plaintiff's legal theory?  But, of course, if you are the plaintiff, you need to be anticipating precisely that, either to prepare a counter-argument or to give your client realistic advice about the possible outcome.

Posted by Jeff Lipshaw on September 10, 2016 at 07:34 AM | Permalink


Hmm. Maybe artichokes are more popular among kids these days, but this doesn't seem like an analogy tailored to call upon some familiar experience or understanding. That doesn't make it wrong - and I can certainly see the intended point with the little picture.

But, I wonder if you really want to start with artichokes. That seems to complicate things at just the wrong time - as the students are learning the basic concepts. Maybe the artichoke is best...savored...when students are deep enough into the material that it's time to start "reminding" them that they've been solving layer upon layer of issues all along, even though we necessarily tend to focus on discrete, bite-sized chunks in the moment.

I agree with Scott that it is the misuse of IRAC that can be the problem. But, it may also be the extreme time-constraint of most law exams. Students sometimes import IRAC structure into exam writing, without the "mapping" of interconnected issues and sub-issues that I think Scott is alluding to. That creates the potential to miss the forest for the trees. Or the plants, if you prefer.

Posted by: Adam | Sep 12, 2016 12:07:13 PM

No, IRAC doesn't simplify it; the improper use of IRAC simplifies it. Legal writing professors teach that first the student should identity all the issues and subissues. Next, arrange those issues and subissues in a logical, large-scale organization. Then, use IRAC to analyze the issues and subissues.

Linda Edward's legal writing text presents this approach in great detail.

Posted by: Scott Fruehwald | Sep 10, 2016 2:19:58 PM

Good point Jeff. Students don't see the big picture of the whole problem and its parts, because IRAC simplifies it.
My analogous composite image for torts, which is perhaps more linear than bundled, is "a bicycle wheel."
Each spoke is an IRAC...working out from the hub of facts (this fact raises a question of duty? that of cause? or defenses? each being separate analyses or spokes)one by one...
working through all the facts by going out the spokes one by one, and back to the hub each time...
and tying the different parts together with the rim of the wheel....so that all the facts and all the issues are joined up.

Posted by: Steve Hicks | Sep 10, 2016 8:20:08 AM

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