A popular essay topic when reading Romeo and Juliet poses the following question: who is to blame for the deaths of Romeo and Juliet?
This claim is strong for multiple reasons. First, it is direct. Second, this claim is arguable —not provable—but also logical.
The idea can be supported by examples from the text. A claim is not a fact. Evidence is the logic, proof, or support that you have for your claim. I mentioned earlier that your claim, while arguable, should be rooted in logic.
Evidence is where you present the logic you used to arrive at your claim. This can take a variety of forms: research, facts, observations, lab experiments, or even quotes from interviews or authorities. That is, the evidence should be rooted—if not directly quoted from—in the text. For example, the writer may want to use quotes, paraphrasing, or a summary of events from the text.
I encourage my students to use word-for-word textual evidence quoted and cited from the text directly. This creates evidence with which it is difficult to argue. This is strong evidence because the text proves it. It is also on-topic.
For claim, evidence, and reasoning writing, the strength of the argument depends on its evidence. Insiders get the scoop on new blog posts, teaching resources, and the occasional pep talk! By clicking below to submit this form, you acknowledge that the information you provide will be processed in accordance with our Privacy Policy.
Reasoning is the thinking behind the evidence that led to the claim. It should explain the evidence if necessary, and then connect it to the claim. In a one paragraph response, I usually recommend that students break down their reasoning into three sentences:. Or, do you Or, do you explore different mathematical contexts e. Neither can be done completely divorced from the other. Sundstrom's book takes the former approach with chapters on proofs, logic, writing, induction, set theory, functions, and relations that focus heavily on elementary number theory and particularly the notion of congruence.
In these chapters, his text is appropriately comprehensive. These foundational chapters are followed by two further chapters on number theory and cardinality, providing some application of the preceding foundations. Other mathematical contexts are found in the exercises throughout. Users who desire the latter approach using different mathematical areas to motivate the foundations might find the text to be limited in its scope. However, users who prefer the approach taken here will find a comprehensive treatment appropriate for a one-semester bridge course.
This open textbook was formerly available as a traditional textbook from a traditional publisher Pearson , and has been in use for nearly two decades. In addition, the author has numerous textbook credits with both traditional publishers and in open formats. Therefore, it is unsurprising that the accuracy is high. The basic writing conventions and logical tools of theoretical mathematics change slowly over time, if at all.
Thus, like in most mathematics texts, the contents of this book will remain relevant for beginning mathematics students for some time. Moreover, this textbook is structured with an active-learning pedagogy in mind. Given the growing preponderance of evidence for the efficacy of active learning in college mathematics instruction e.
Bridge courses in mathematics exist for a reason. Many students find the transition from computationally-based mathematics e. Clarity of thought and expression are essential to good mathematics, yet challenging to acquire for many. Moreover, improvement of thought and expression are two of the formational outcomes from studying mathematics.
Thus, it is essential that a textbook resource for such a bridge course both be clear in its development and exposition, as well as teach these to students by more than merely example. Sundstrom's book is strong in this area. Not only is it lucid and readable, even for beginning undergraduates, it also tries to intentionally teach its readers the principles of the development of correct mathematical reasoning and the articulation of well-crafted arguments.
Similar to the question of accuracy, this book demonstrates the quality of its writing and editing through its consistency. The book is divided into nine chapters, each of which is divided into sections excluding the chapter summaries. Each section is appropriate for standard minute class periods, depending upon the topic and the strength of the class. Thus, the text is readily divisible in a way that fits a standard semester schedule. Since mathematics, in general, builds upon itself in a more linear way than most disciplines, the book really isn't intended to be reorganized and realigned.
It is unlikely that adopters will find this to be a deficiency given its context. The textbook is well organized, and provides a clear and logical flow for a semester-long bridge course. The text seems to be free of any interface issues. The bookmarks and hyperlinks in the pdf function correctly. There are very few figures, other than the occasional Venn diagram, graph, or table, and these all display nicely. Unlike many texts in calculus, linear algebra, statistics, etc.
In addition, most theoretical mathematics textbooks although not all are written in an academic tone, with very limited use of humor, colloquialisms, or cultural references. Given these things, the question of cultural sensitivity is essentially moot in this context.
The prose is primarily in the first-person plural, using "we" throughout. There are a couple of examples that reference a named hypothetical person, although the names seem limited in their cultural diversity e. The open version of this textbook was the inaugural winner of the Mathematical Association of America's Solow Award, the primary criterion for which is " This is no doubt due to the quality and clarity of the exposition, as well as its presumed active-learning approach.
Almost every section begins with two Preview Activities, which are designed to be done by the students before they read the section and before they have a classroom lesson on the topic. There are also occasional Progress Check activities within the sections that ask the reader to stop and determine if they are understanding the material.
Each section includes a healthy, although not overwhelming, number of exercises. Finally, each chapter ends with a summary consisting of hyperlinked compendia of important definitions, results, and proof techniques. Although not officially part of the textbook itself, there are ancillary materials that help support teaching and learning with this textbook.
The author is also willing to send solutions to the Preview Activities and Exercises to adopters who request them via email. Comprehensiveness rating: 4 see less. The book has accurate and only contains minimal typographical errors. The mathematics in the book is correct. This text will be relevant for a long while. Students who become math or statistics majors need to understand proof, and the basic methods used in proof and mathematical logic have not significantly changed and will not over time.
This is a strong point of the text. The writing is extremely clear and simple, making it easy for the undergraduate reader to follow where ,any other books fail. The examples lead the reader gently towards an understanding of logic and proof. Especially good are the sections where the author clarifies how to write a proof for your audience. There are simply no problems with the consistency of the mathematical work or exposition.
Sample Office Memorandum B. Sample Email Memo C. Sample Client Advice Letter D. Basic Legal Usage H. Nine Punctuation Issues I. The act of writing forces a lawyer to test analysis in order to express it fully and precisely. Thus, legal reasoning and legal writing are learned more deeply when the two are taught together.
Part II — the writing process Chapters 4—5. Part III — office memos Chapters 6—7. Part IV — legal authority and statutes, cases, and facts Chapters 8— Part V — organizing proof of a conclusion of law Chapters 12— Part VI — paragraphing, style, and quoting Chapters 16— Part VII — professional email, oral reports, and client letters Chapters 19— Part VIII — persuasion, argumentation, motion memos, point headings, and persuasive fact statements Chapters 22— Part IX — appellate briefs Chapters 27— Part X — oral advocacy Chapter Appendices — sample office memo, email memo, client letter, motion memo, and appellate briefs Apps.
A—F ; usage and punctuation Apps. G—H ; and procedural postures App. On the inside covers of the book are questions that students can ask themselves while working through drafts of a document. Each question represents a recurring problem in student writing — the sort that a teacher marks over and over again on student papers.
Richard K. Their perceptiveness and skill caused this book to become a different and far better text than it otherwise would have been. Copyright Acknowledgments Permission to reprint copyrighted excerpts from the following is gratefully acknowledged: Ramage, John D. Reprinted by permission of Pearson Education, Inc. Finding the town unsatisfactory for his purpose, he destroyed it and moved his people nine miles east to a coastal village called Hastings. A few days later, the English king, Harold, arrived with an army of roughly the same size.
The English had always fought on foot, rather than on horseback, and in a day-long battle they were cut down by the Norman knights. According to legend, Harold was at first disabled by a random arrow shot through his eye and then killed by William himself, who marched his army north, burning villages on the way and terrorizing London into submission. Although in December he had himself crowned king of England, William controlled only a small part of the country, and in the following years he had to embark on what modern governments would call campaigns to pacify the countryside.
In , for example, his army marched to York, executed every English male of any age found along the way, flattened the town, and then marched on to Durham, burning every farm and killing every English-speaking person to be found — all with the result that seventeen years later the survey recorded in Domesday Book revealed almost no population in Yorkshire. In the five years after William landed at Pevensey, one-fifth of the population of England was killed by the Norman army of occupation or died of starvation after the Normans burned the food supply.
To atone for all this, William later built a monastery at Hastings. For nine centuries, it has been known as Battle Abbey, and its altar sits on the spot where Harold is said to have died. With the exception of a few collaborators, everyone whose native language was English became — regardless of earlier social station — landless and impoverished.
Normans quickly occupied even the most local positions of power, and suddenly the average English person knew no one in authority who understood English customs, English law, or even much of the language.
William himself never learned to speak it. Norman French was the tongue of the new rulers, and eventually it became the language of the courts as well. The sub-language called Norman Law French could still be heard in courtrooms many centuries later, even after the everyday version of Norman French had merged with Middle English to produce Modern English.
Some of the more familiar examples include allegation, appeal, arrest, assault, attorney, contract, counsel, court, crime, damages, defendant, evidence, felony, judge, jury, misdemeanor, plaintiff, slander, suit, tenant, tort, a n d verdict. Some law terms are from Latin, such as res judicata and habeas corpus. Begin now the habit of looking up every unfamiliar term of art in a law dictionary, which you should keep close at hand while studying.
Some words entered the English language directly from the events of the Conquest itself. Even today, these terms appear in the French word order noun first, modifiers afterward. More importantly, the Conquest profoundly influenced the way our law is created. Although in some countries law might come from royal decree, in England before the Conquest it arose more often from the custom of each locality, as known to and enforced by the local courts.
From the time of the Norman Conquest,. Instead, it had given them an agreeable opportunity to develop, through local habit, rules that suited each region and village relatively well. The practical reason was that a judge of a national court cannot know the customary law of each locality. Out of this grew a uniform set of rules, common to every place in the country and eventually known as the common law of England. Although much of the common law has since been changed through statute or judicial decision, it remains the foundation of our legal system.
Common law methods of reasoning dominate the practice and study of law. The somewhat oversimplified answer is that the judges figured it out for themselves. They started from the few rules that plainly could not be missing from medieval society, and over centuries — faced with new conditions and reasoning by analogy — they discovered other rules of common law, as though each rule had been there from the beginning, but hidden. Eventually, the English parliament did become a law-passing legislature, a role later adopted by the U.
Congress and the American state legislatures. That has left us with two ways in which law can be made or, as lawyers would say, two sources of law. One is statutes enacted by legislatures together with other statute-like provisions. The other is common law and other judicial precedent. This is true not only because lawyers spend so much time reading and writing, but — more importantly — because words are the most fundamental tool lawyers use to gain advantage for their clients.
Lawyers must choose their words carefully in court, during negotiation, in drafting a contract or will, and in writing an appellate brief. One might hazard the supposition that the average lawyer in the course of a lifetime does more writing than a novelist. Plain English is streamlined, elegant, and practical.
Unnecessarily convoluted writing leads to misunderstandings because the content can be hard to understand. Good legal writing is clear, concise, and precise. You might write to a supervisor, a client, a judge, or a bench of several judges. Your tone and style may change depending on the reader.
But all legal readers share certain characteristics. All of them must make some sort of decision. They want you to explain how to make that decision with the law and facts at hand. Legal writing is decisional writing.
Your readers are busy and probably in a hurry, with no time to read your writing twice. They expect to read your writing once and learn from it everything needed to make the decision. Legal readers are also inherently skeptical because skepticism helps them make better decisions. And legal readers tend to be hypercritical about grammar, style, and citation errors — all of which can affect your credibility as a writer. The ability to write well is essential to a young lawyer looking for a job.
They look for basic analytical skills and clean writing. Legal writing is put to practical tests in a real world. You are more likely to become a partner in your law firm, or receive comparable promotions in your law department or government law office. Lawyers are regularly asked to predict what a court will do. For example, a newspaper might ask its in-house counsel whether an article it wants to publish is defamatory.
If the answer is yes, the newspaper will want to know how to change it. Clients also ask lawyers to evaluate their potential for success in a lawsuit.
A person mentioned in the newspaper article who feels defamed, for example, might ask a lawyer whether a lawsuit against the newspaper would succeed.
Predictive writing is sometimes called objective writing, but objectivity only partly defines the genre. Any writing that simply describes the law can be classified as objective. But predictive writing does more than that. It foretells how the law will resolve a particular controversy. Will a defamation suit against the newspaper succeed? If it seems likely, the newspaper will change the article. Persuasive writing is different. The goal of persuasive writing is to influence a court to make a favorable decision.
Regardless of the form, these predictions must provide everything a lawyer needs to advise a client, plan the next step in the litigation, decide how to structure a contract, and so on. These are confidential documents not normally distributed to third parties. You can read an office memorandum in Appendix A, a professional email in Appendix B, and a client letter in Appendix C. Persuasive writing takes primarily two forms: motion memoranda submitted to trial courts and appellate briefs submitted to appellate courts.
Lawyers write a wide range of other things, too: contracts, wills, trusts, pleadings, motions, interrogatories, affidavits, stipulations, judicial opinions, orders, judgments, statutes, administrative regulations, and more.
But instruction in these other forms of legal writing might wait until after you have learned more about law and procedure, perhaps in upper-class drafting courses, clinics, and simulation courses.
Harry W. William L. Legal Educ. Irving R. Mark E. Wojcik, Perspectives 7 Fall Richard S. Admissions to the Bar, at 54 Donald N. McCloskey, The Writing of Economics 2 All persons more than a mile high to leave the court.
Some appear to be one kind of rule, but turn out to be something else. Every rule has three separate components: 1 a set of elements, collectively called a test; 2 a result that occurs when all the elements are present and the test is thus satisfied ; and 3 a causal term that determines whether the result is mandatory, prohibitory, discretionary, or declaratory. Additionally, many rules have 4 one or more exceptions that, if present, would defeat the result, even if all the elements are present.
Alice was confronted with a test of two elements. The first was the status of being a person, which mattered because at that moment she was in the company of a lot of animals — all of whom seem to have been exempt from any requirement to leave. The second element went to height — specifically a height of more than a mile. No exceptions were provided for. Alice has denied the second element her height , impliedly conceding the first her personhood. The Queen has offered to prove a height of two miles.
What would happen if the Queen were not able to make good on her promise and instead produced evidence showing only a height of 1. Read the rule. What if the Queen were to produce no evidence and if Alice were to prove that her height was only 0.
A causal term can be mandatory, prohibitory, discretionary, or declaratory. Because the causal term is the heart of the rule, if the causal term is, for example, mandatory, then the whole rule is, too. A prohibitory rule is the opposite. A discretionary rule gives someone the power or authority to do something.
That person has discretion to act but is not required to do so. A declaratory rule simply states declares that something is true. A declaratory rule places a label on a set of facts the elements. But other words could be used there instead.
You have to look at what the rule does. Below are examples of all these types of rules. Rules of law are found not just in places like the Federal Rules. In law, they are everywhere — in statutes, constitutions, regulations, and judicial precedents. For now, just read them to get a sense of how the four kinds of rules differ from each other.
The key words in the causal terms have been italicized to highlight the differences. In the prohibitory rule, the square brackets mean that the rule has been edited: words in the original have been replaced by the words in brackets. List and number the elements in the test. An element in a test is something that must be present for the rule to operate. Identify the causal term and the result. If the exception has more than one element, list and number them as well.
You only want to know the structure of the rule. You can use any method of diagramming that breaks up the rule so you can understand it. When can you combine the causal term and the result? You can do it whenever doing so does not confuse you. Figure out the meaning of each element, the causal term, the result, and any exception. Look up the words in a legal dictionary, and read other material your teacher has assigned until you know what each word means. You already know what a plaintiff and a defendant are.
The surrounding materials also tell you that the expenses of service are whatever the plaintiff has to pay to have someone hired for the purpose of delivering the papers personally to the defendant. Step 3: Put the rule back together in a way that helps you use it.
If when you first read the rule, an exception came at the beginning and the elements came last, rearrange the rule so the elements come first and the exception last.
It will be easier to understand that way. These are the elements in the test. When all the elements are present, what happens? The causal term and the result tell us. Even if all the elements are present, could anything prevent the result? An exception, if the rule has any. Usually, you can put the rule back together by creating a flowchart and trying out the rule on some hypothetical facts to see how the rule works.
A flowchart is essentially a list of questions. The flowchart below comes straight out of the diagram in Step 1 above. When you gain more experience at this, it will go so quickly and seamlessly that Steps 1, 2, and 3 will seem to merge into a single step.
Assume that Keisha wants Raymond to pay the costs of service. Is Raymond a defendant? Is Raymond located within the United States? Did Raymond fail to comply with a request for waiver? Is Keisha a plaintiff who made that request? Is Keisha located within the United States? If the answers to all these questions are yes, the court must impose the costs subsequently incurred in effecting service on Raymond — but only if the answer to the question below is no.
If all the elements are present in the facts, the court must order the defendant to reimburse the plaintiff for whatever the plaintiff had to pay to have someone hired for the purpose of delivering the papers personally to the defendant — unless good cause is shown. If you have a simple causal term and result, a long list of elements, and no exceptions, you can list the elements last.
For example: Common law burglary is committed by breaking and entering the dwelling of another in the nighttime with intent to commit a felony inside. If you can think of a reasonably predictable scenario in which part of what you believe to be one element could be true but part not true, then you have inadvertently combined two or more elements. A person might be guilty of some other crime, but he is not guilty of common law burglary when he breaks and enters the restaurant of another, even in the nighttime and with intent to commit a felony therein.
The same is true when he breaks and enters his own dwelling. In each instance, part of the element is present and part missing. Often you cannot know the number of elements in a rule until you have consulted the precedents interpreting it. A would-be burglar would seem to have done so where she has opened a window by pushing it up from the outside, and where, before proceeding further, she has been apprehended by an alert police officer — literally a moment too soon.
Where the elements are complex or ambiguous, enumeration may add clarity to the list: Common law burglary is committed by 1 breaking and 2 entering 3 the dwelling 4 of another 5 in the nighttime 6 with intent to commit a felony inside. Instead of elements, some rules have factors, which operate as criteria or guidelines. In a hearing on a petition for termination of parental rights, the court shall consider the manifest best interests of the child.
For the purpose of determining the manifest best interests of the child, the court shall consider and evaluate all relevant factors, including, but not limited to: 1 Any suitable permanent custody arrangement with a relative of the child. With a rule like this, a judge does something of a balancing test, deciding according to the tilt of the factors as a whole, together with the angle of the tilt. Factors rules are a relatively new development in the law and grow out of a recent tendency to define more precisely the discretion of judges and other officials.
But the more common rule structure is still that of a set of elements, the presence of which leads to a particular result in the absence of an exception. At midnight, Welty is studying, while Lutz is listening to a Radiohead album with his new four-foot speakers. Continuing to express outrage, Welty pushes the door completely open and strides into the room. Lutz turns on Welty and orders her to leave. Welty finds this to be too much and punches Lutz so hard that he suffers substantial injury.
In this jurisdiction, the punch is a felonious assault. Is Welty also guilty of common law burglary? Maybe this will turn out to be some kind of trespass. The answer can be determined only by applying a rule like the definition of common law burglary found earlier in this chapter. Anything else is a guess. Where do you start? Remember that a rule is a structured idea: The presence of all the elements causes the result, and the absence of any of them causes the rule not to operate.
Assume that in our jurisdiction the elements of burglary are what they were at common law: 1. If not, this element is missing. The case law might turn up a variety of results. That kind of evidence might be present, for example, where an accused was in possession of safecracking tools when he broke and entered, or where, before breaking and entering, the accused had told someone that he intended to murder the occupant.
They state not only the result, but also the reason why. Where law is made through precedent — as much of our law is — different judges, writing in varying circumstances, may enunciate what seems like the same rule in a variety of distinct phrasings.
At times, it can be hard to tell whether the judges have spoken of the same rule in different voices or instead have spoken of slightly different rules. In either situation, it can be harder still to discover — because of the variety — exactly what the rule is or what the rules are.
Ambiguity and vagueness can obscure meaning unless the person stating the rule is particularly careful with language. How could the intention have been made more clear? To answer that question, try to imagine what the rule-makers were trying to accomplish. Why did they create this rule? What harm were they trying to prevent, or what good were they trying to promote? Finally, the parts of a rule may be so complex that it may be hard to pin down exactly what the rule is and how it works.
And this is compounded by interaction between and among rules. A word or phrase in one rule may be defined, for example, by another rule. Or the application of one rule may be governed by yet another rule — or even a whole body of rules. More than any others, two skills will help you become agile in the lawyerly use of rules.
You need to be able to figure out the structure of an idea and apply it to facts. Unless the legal system focuses its resources on resolving those problems it handles best, it would collapse under the sheer weight of an unmanageable workload and would thus be prevented from attempting even the problem-solving it does well.
A harm the law will remedy is called a cause of action or, in some courts, a claim or a claim for relief. If a plaintiff proves a cause of action, a court will order a remedy unless the defendant proves an affirmative defense. If the defendant proves an affirmative defense, the plaintiff will get no remedy, even if that plaintiff has proved a cause of action. For example, where a plaintiff proves that a defendant intentionally confined him and that the defendant was not a law enforcement officer acting within the scope of an authority to arrest, the plaintiff has proved a cause of action called false imprisonment.
State-of-mind and abstract-quality elements will probably puzzle you more than others will. Legislatures create rules through statutes. Statute-like provisions include constitutions, administrative regulations, and court rules. A large amount of our law is created by the courts in the process of enforcing it.
Courts record their decisions in judicial opinions, which establish precedents under the doctrine of stare decisis. Lawyers use the words cases, decisions, and opinions interchangeably to refer to those precedents. Thus, our two sources of law are statutes and judicial precedent. Statutes and opinions are hard to read and understand, and much of the first year of law school is devoted to teaching you the skills needed to interpret them.
For each provision, decide whether it is mandatory, prohibitory, discretionary, or declaratory. Then diagram it. Finally, create a flowchart showing the questions that would need to be answered to determine when a court must strike a paper. Rule 4 d 2 of the Federal Rules of Civil Procedure. Rule 62 e of the Federal Rules of Civil Procedure.
Rule 4 n 1 of the Federal Rules of Civil Procedure. Rule 3 of the Federal Rules of Civil Procedure. This was the crime at common law.
Because of the way its elements are divided, it does a good job of illustrating several different things about rule structure. But the definition of burglary in a modern criminal code will differ. A statute might break the crime up into gradations burglary in the first degree, burglary in the second degree, and so on.
A typical modern statute would not require that the crime happen in the nighttime, and at least the lower gradations would not require that the building be a dwelling. Opinions often begin with 1 a recitation of procedural events inside the litigation that have raised the issue decided by the court. Examples are motions, hearings, trial, judgment, and appeal. Frequently, the court will next describe 2 the pleaded events or the evidentiary events on which the ruling is based.
In litigation, parties allege facts in a pleading and then prove them with evidence. The court has no other way of knowing what transpired between the parties before the lawsuit began. A court might also set out 3 a statement of the issue or issues before the court for decision and 4 a summary of the arguments made by each side, although either or both are often only implied. A court will further state, or at least imply, 5 the holding on each of the issues and 6 the rule or rules of law the court enforces in making each holding, together with 7 the reasoning behind — often called the rationale for — its decision.
Somewhere in the opinion, the court might place some 8 dicta. An opinion usually ends with 9 a statement of the relief granted or denied. If the opinion is the decision of an appellate court, the relief may be an affirmance, a reversal, or a reversal combined with a direction to the trial court to proceed in a specified manner. If the opinion is from a trial court, the relief is most commonly the granting or denial of a motion.
A concurring judge agrees with the result the majority reached but would have used different reasoning to justify that result. A dissenting judge disagrees with both the result and the reasoning. Concurrences and dissents are themselves opinions, but they represent the views only of the judges who are concurring or dissenting. A concurring or dissenting judge might, for example, describe procedural events, narrate pleaded or evidentiary events, state issues, summarize arguments, and explain reasoning.
Exercise I. Read Roberson v. Look up in a legal dictionary every unfamiliar word as well as every familiar word that is used in an unfamiliar way. Law reviews are periodicals that publish articles analyzing legal questions in scholarly depth. Almost every law review is sponsored by a law school and edited by students. Like the cases reprinted in your casebooks for other courses, the version of Roberson printed here has been edited extensively to make it more readable.
In casebooks and in other legal writing, certain customs are observed when quoted material is edited. Where words have been added, usually to substitute for deleted words, the new words will be in brackets squared-off parentheses. There is no precedent for such an action to be found in the decisions of this court. Mention of such a right is not to be found in Blackstone, Kent or any other of the great commentators upon the law, nor so far as the learning of counsel or the courts in this case have been able to discover, does its existence seem to have been asserted prior to about the year , when it was [theorized] in the Harvard Law Review.
The legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent. The courts, however, being without authority to legislate, are. So in a case like the one before us, which is concededly new to this court, it is important that the court should have in mind the effect upon future litigation and upon the development of the law which would necessarily result from a step so far outside of the beaten paths of both common law and equity [because] the right of privacy as a legal doctrine enforceable in equity has not, down to this time, been established by decisions.
Those authorities are now to be examined in order that we may see whether they were intended to and did mark a departure from the established rule which had been enforced for generations; or, on the other hand, are entirely consistent with it.
The first case is Prince Albert v. Strange 1 Macn. The queen and the prince, having made etchings and drawings for their own amusement, decided to have copies struck off from the etched plates for presentation to friends and for their own use.
The workman employed, however, printed some copies on his own account, which afterwards came into the hands of Strange, who purposed exhibiting them, and published a descriptive catalogue. Prince Albert applied for an injunction as to both exhibition and catalogue, and the vice-chancellor granted it, restraining defendant from publishing. The opinion contained no hint whatever of a right of privacy separate and distinct from the right of property. GRAY, J. Our consideration of the question thus presented has not been fore-closed by the decision in Schuyler v.
Curtis, N. In that case, it appeared that the defendants were intending to make, and to exhibit, at the Columbian Exposition of , a statue of Mrs. Schuyler, and of other immediate relatives, sought by the action to restrain them from carrying out their intentions as to the statue of Mrs.
Schuyler; upon the grounds, in substance, that they were proceeding without his consent,. Anthony typified and of which Mrs. Schuyler did not approve. His right to maintain the action was denied and the denial was expressly placed upon the ground that he, as a relative, did not represent any right of privacy which Mrs.
Schuyler possessed in her lifetime and that, whatever her right had been, in that respect, it died with her. The proposition is, to me, an inconceivable one that these defendants may, unauthorizedly, use the likeness of this young woman upon their advertisement, as a method of attracting widespread public attention to their wares, and that she must submit to the mortifying notoriety, without right to invoke the exercise of the preventive power of a court of equity.
Such a view, as it seems to me, must have been unduly influenced by a failure to find precedents in analogous cases. Property is not, necessarily, the thing itself, which is owned; it is the right of the owner in relation to it. It seems to me that the principle, which is applicable, is analogous to that upon which courts of equity have interfered to protect the right of privacy, in cases of private writings, or of other unpublished products of the mind.
The writer, or the lecturer, has been protected in his right to a literary property in a letter, or a lecture, against its unauthorized publication; because it is property, to which the right of privacy attaches.
The right would be conceded, if she had sat for her photograph; but if her face, or her portraiture, has a value, the value is hers exclusively; until the use be granted away to the public.
For Roberson, all this information appears in the heading on page In a case with multiple plaintiffs or defendants, the name of only the first listed per side appears in the case name. In Torts casebooks, Roberson is often used as an example of how the law makes false starts as it grows.
The Harvard Law Review article to which Judge Parker refers is probably the most famous law review article in history. It was written by 1 Louis Brandeis, who was later appointed to the U. Brandeis and Warren argued that the common law should recognize a new cause of action for tortious invasion of privacy.
Facts typically make the case, and the Roberson facts illustrate why Brandeis and Warren were right. Despite that statute, Roberson is some respects still the law in New York. The reasons are explained, with the statute, later in this chapter.
In , two years after Roberson, Judge Alton Parker, author of the majority opinion, ran for president of the United States.
He was nominated by the Democratic Party but lost in a landslide to the incumbent, Theodore Roosevelt. During the campaign, Parker complained that newspaper photographers often took his picture while he was slouching or looking otherwise unpresidential, and that his family had lost their privacy because they were so frequently photographed.
He commanded the photographers to stop. I have very high authority for my statement, being nothing less than a decision of the Court of Appeals of this State wherein you wrote the prevailing opinion [and] I was the plaintiff. This last group could be called the determinative facts or the essential facts. If they had been different, the decision would have been different.
The determinative facts lead to the rule of the case — the rule of law for which the case stands as precedent. The most important goal of case analysis is discovering and understanding that rule. Where several issues are raised together in a case, the court must make several rulings and an opinion may thus stand for several different rules. The determinative facts can be identified by asking the following question: If a particular fact had not happened, or if it had happened differently, would the court have made a different decision?
If so, that fact is one of the determinative facts. This can be illustrated through a nonjudicial decision of a sort with which you might recently have had some experience. Assume that a rental agent has just shown you an apartment and that the following facts are true: A. The apartment is located half a mile from the law school. The building appears to be well maintained and safe.
The apartment is on the third floor, away from the street, and the neighbors do not appear to be disagreeable. You have a widowed aunt, with whom you get along well and who lives alone in a house 45 minutes by bus from the law school, and she has offered to let you use the second floor of her house during the school year. The house and neighborhood are safe and quiet, and the living arrangements would be satisfactory to you.
You have made a commitment to work next summer in El Paso. You neither own nor have access to a car. Which facts are essential to your decision? If the apartment had been two miles from the law school rather than a half-mile , would your decision be different?
Go through the listed facts and mark in the margin whether each would determine your decision. Facts recited specifically in an opinion can sometimes be reformulated generically. Where a court ambiguously states a rule, you might arrive at an arguably supportable formulation of the rule by considering the determinative facts to have caused the result. Notice how different formulations of a rule can be extracted from the apartment example. Because this formulation is limited to the specific facts given in the hypothetical, it could directly govern only a tiny number of future decision-makers.
It would not, for example, directly govern the member of the clergy described above, even if she will spend next summer doing relief work in Rwanda. Who is suing whom over what series of events and to get what relief? What issue does the court say it intends to decide? How does the court decide that issue? On what facts does the court rely in making that decision? What rule does the court enforce? In answering the fifth question, use the same kind of reasoning we applied to the apartment hypothetical: Develop several different phrasings of the rule broad, narrow, middling and identify the one the court is most likely to have had in mind.
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