NEVER a Dumb Question?
Part 1

We’ve all heard and used this saying, but have also felt (especially as competitive law students) that yes there probably IS some question that is dumb, and it’s probably the one we’re about to ask. At Pace Law School, we’d never call a question “dumb”, but certainly there are some that are not very well thought-out and are common student pit-falls. Here is Part 1 of some examples of not-dumb but also some not-thought-out questions:

Not a dumb question:

What is a “common-law” system and how does it differ from a “civil law” system?

Common law is law that was developed by courts and judges. Someone sued someone over something, and a judge had to make a decision years and years ago; then someone else sued someone else over something similar, and the judge in that case looked to the first case and used that case’s rule; and so on and so on. The idea is that it’s only fair to treat similar cases in the same way as they had been before and it’s good to have predictability in the law. The emphasis in common law is on precedent (a principle or rule established in a previous legal case that is used a court or other tribunal when deciding subsequent cases with similar issues or facts).

If we could trace a common-law rule of law all the way back to its origins, it would go something like this:
Say you sued your neighbor because he tore down his fence and your cow escaped and died; you hadn’t put up your own fence to keep in your cow because your neighbor’s fence had been there for all of living memory. The judge would have to decide who had to pay (and how much/what value) for the dead cow—did you have to just take the loss or should your neighbor have to pay? (And if your neighbor was liable (had to pay), how much would he have to pay? for the worth of an average cow’s output of milk or meat, or that particular cow’s output (then the cow’s health and age would matter)? would he have to pay more if that particular cow was beloved by your family?)

The judge would look at it from the point of view of what had happened before; what would the typical person think should happen under the circumstances? He (it was always a “he” back then) would state what he thought society would agree should happen if there was no prior case he knew of or that had been reported or no other legal commentary on such a matter. In a common-law system, that judge’s reasoning about why he thought you or your neighbor should have to pay for the cow became a rule of law. The rule could be something like “if a fence has existed for a long time and the owner of the fence knows that there is a neighbor’s cow kept in by that fence, then the owner will have to pay for the dead cow if he just tears down the fence without warning the neighbor who owns the cow.” Or, the rule could have been “even if a fence has existed for a long time, if you own a cow and it is not your fence, you can’t rely on the fence continuing to be there to keep your cow in—the fence’s owner can decide at any time he chooses to just tear it down and if your cow escapes and dies you get nothing.” I’m sure you can think of other possible rules that could seem reasonable. After the judge decided your case, if other cows escaped and died due to a neighbor tearing down a fence between his land and the cow owner’s, then that rule could be used by the new cases.

That seems simple enough—just find a case with the exact same fact pattern as your case and you’ll know how the judge should rule in your case. However, even with all the cases being decided over all the years we’ve been keeping records, chances are good that you won’t find one with exactly the same facts. In your new case, it will be a chicken that leaves and dies (differs from a cow because chickens can fly so maybe the fence did little to keep it in anyway) or the fence is not torn down but instead just falls into such disrepair that the cow or chicken walks out—are we going to say that the owner has to keep the fence in good repair when it’s your cow or chicken being kept inside and not his? Taking the rule from one case with one set of facts and applying that rule to another case with a different set of facts is what we do in a common-law system. (I could go on and on with examples where we’d take the original rule and apply it to other scenarios to see how the rule should be extended or modified or maybe wouldn’t work at all: the chicken doesn’t die but can no longer produce eggs; the cow had gotten out of your own fence at other times so you knew you had to do more to keep it in; it is a wild animal rather than a domesticated one; it’s not a fence but a hedge or canal; there’s no barrier between your properties and your neighbor decides to put a sculpture at the property line which then falls on you; etc.)

When a judge does this application of a prior rule to new facts, then her decision further refines or explains the rule or gives us an exception. To continue our example: if the original case’s rule was that the owner has to maintain the fence and give you notice if he’s going to tear it down then the judge in our new case (where the fence became broken) could use that in one of several different ways. She could decide that while actively tearing down the fence requires the owner to give you notice, the owner doesn’t have to give any notice that the fence is falling down because you could have noticed that for yourself and besides, at what point does the owner have to tell you—when the fence is starting to fall down, or when it almost is down? Or she could decide that the owner has to give notice to you as soon as he decides to stop maintaining the fence. Whichever way she decides, that decision would refine the rule to tell us what duties the owner actually has if he has a fence along a property line. In law school (or later as an attorney), you would have read both those cases, worked out what the rule is in its entirety (putting both cases together), and then been able to answer an essay question (or advise a client) that has a new fact pattern you believe is similar to the fence situation. (See my examples of possibly related fact patterns above.)

In a civil law system, the court is not bound by prior decisions; courts use statutes and executive orders interpreting those statutes. (What are statutes, you ask? Not a dumb question! See Part 2 of this series.) Since I’ve never worked or lived in such a system, I’m going to leave it at that!

A question that is not well-thought-out:

What is the definition of precedent/tort/larceny/covenant/third party/liable/damages/etc.?

Above I’ve used a lot of legal terms and defined them. I did this because I wanted you to be able to understand the basic concept of common law without being distracted. However, usually such terms will not be defined for you in what you read or hear in class. You will come across a lot of new words and terms in the cases you read. You should look those up. Be curious! You can’t expect to just wait and hear from the professor in the class the next day what the term means. In fact, it’s very likely that the professor will ask whoever is called on for the definition—and if it’s you, you’ll want to be prepared.

When I was about to start my first year I thought, “what is this class, ‘Torts’ that I have to take?” It being 1996, I looked up “torts” in my newly purchased hard-copy Black’s Law Dictionary. You can of course find almost any term on-line now, just watch out that the source for the information is good. As discussed in Part 3 of this series (on the Socratic method), you will need to find out information for yourself the rest of your legal career, so start now by looking up “torts” yourself!