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.

Walking 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.