More on Holdings and Black Letter Law

Just to make sure the previous post on the granularity of holdings isn’t read to disparage the importance of black letter law for 1Ls, I offer a clarification:

Black letter law is of the utmost importance for your 1L exams. At no point in a legal education or career will it be more so. You must know black letter law.

This is particularly true of the various tests formulated for answering questions of law and mixed law and fact. You need to be comfortable applying all such tests you cover in class, however short a time your professor spends on them, or even if one appears in the reading but not in class. This applies equally where there are jurisdictional splits over the correct test to use.

The reason I think it’s important to understand what I described as the “granularity” of holdings is twofold.

First, rules of black letter law are at the end of the day abstractions of a series of these holdings. The abstraction is not perfect though, and detail is lost. Because of this, courts sometimes say they are applying a certain test, but reach conclusions of law inconsistent with the “black letter” of the test. You will see series of cases that make similar errors in this respect, and if you understand how to reduce them all to their particular holdings, it’s frequently possible to connect the dots and deduce a much more accurate statement of the test these courts really applied to reach their holdings.

Second, however clear the letter of a test, it usually can be applied to the facts only through analogy to precedent, which is what some call “analogical reasoning.” The reason for this is that, just as black letter law only approximates a series of holdings, language only approximates the physical world. The legal Rosetta Stone, as it were, is judicial precedent, which translates fact patterns into legal conclusions:

Court C applies Test T to Facts A and B with Result R.

Holdings like this are the irreducible quantum particle of law. Learn to extract these from cases (and, frequently, several pages of an opinion can be reduced a two or three line statement of the holding), and practice applying them to facts. (By far the best way to do this, in my view, is working the E&Es, which will be covered in another post.)


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