The Boston Massacre: Same Event, Different Viewpoints
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. There was always an uneasiness between the British Royal guard and those colonists who opposed the British monarchy. It seemed as though the tension was seething beneath the surface. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. The print gives the idea that the British army were in attack formation ready to attack the protesters. In fact, there was nothing organized about the episode and when the shots were fired both sides took a part the calamity. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous. According to several historical texts, the event occurred at night in the dead of winter. Notice also that Revere's engraving shows a blue sky. Only a small moon in the left corner suggest that the riot occurred on a cold winter night. The absence of snow and ice on the street is noticeable in Revere's engraving. While Crispus Attucks was escaped African slave who was the first to be killed in the event, he shown to be a white man lying on the ground closest to the Britsh soldiers. In some ways, Paul Revere did achieve his goal of moving many former moderates to outspoken opposition to British policies. By using radicalized skillful propaganda, Revere may have created one of the strongest influences in molding a staunch anti-British public opinion among the colonies. Yet, some remained steadfast in their opinions and beliefs. One of them, was John Adams. Even though he never swayed in his loyalty to colonial rights and refused to change his position as a foe of British oppression, John Adams risked the dissapproval of his friends and neighbors by defending the British soldiers during the Boston Massacre trial. John Adams conservative approach and traditional values made him unyielding in his pursuit to give that the British soldiers accused of the Boston Massacre receive a fair and ethical hearing. He defended the soldiers at their trial and he also spoke out repeatedly against the violence of the mob and the other signs of social disintegration that descended upon the city of Boston that cold winter night. Although John Adams was loyal to the American fight for libertyhe may have supported the British troops in stopping a group of unruly colonists that night in Boston. John Adams logical approach to the situation made him realize that the rioters were belligerent and supported the British soldiers in keeping the situation under control. He stood behind the actions of the British brigade which was evidenced in his summation during the Boston Massacre trials. John Adams was not so easily caught up in all of the political propaganda of Paul Revere's engraving. He instead chose to rationalize what happened during the event. One should remember that Adams himself was a member of Boston's elite and a well respected man in New England. It was likely that he did not support all of the negative assumptions the lower class had for the British Parliament. When the Boston Massacre occurred, Adams may not have immediately taken the Americans side,but may have examined the evidence thoroughly and realized that the British were only attempting to diffuse a riotous situation and protect themselevs in the process. In fact, it is plausible that from evaluating historical accounts that John Adams did not support the opinion that the Boston Massacre was actually a massacre at all, but more of a riot. Several eyewitness accounts of what happened at the Boston Massacre were illogical and inaccurate. Such as the testimony of Robert Goddard who was by all historical accounts a common citizen. In Robert goddard testiomny he claims he looked Captain Thomas Preston directly in the face as ordered the British troops to fire on the colonists. Goddard's testimony could be a possible explanation of what happened during the event except that his eyewitness account is the completely opposite of Captain Preston's deposition. In Preston's point of view, he was in the center of the action with the soldiers and the protesters on opposite sides of him. He claimed that his soldiers were being viciously attacked and beaten by several members of the mob. He told the court that he did curse and use profanity during the Massacre, but he swore that he never commanded his troops to shoot. While the despositions of Robert Goddard and Thomas Preston appear to antagonize each other, the reader must realize that the men viewed the situation from two different perspectives. One man, Robert Goddard is a commoner of Boston who is probably not very wealthy. He most likely viewed the British as an enemy of the American colonies. He may have been one of the Americans that questioned the British idea of a monarchy and no longer wanted the colonies to be under any form of British control. His viewpoint of the Boston Massacre may have by influenecd by his political and social ideals. Alternately, Captain Thomas Preston is a high ranking officer of the English throne and loyal to the political philosophy of the British Parliament. In his position, he was in charge of an entire battalion of British soldiers in a chaotic situation. He may have ordered his troops to fire on the colonists to to stop them from attacking his soldiers. Besides, Captain Preston was thinking of the safety of his troops and not of the welfare of the protesters. Whether he gave the command to fire or not, he defended the actions of himself and his soldiers to the fullest extent at the trial. I think this shows our modern age that without extensive research a historian cannot conclude that any newly discovered historical information can be taken as pure fact. Another thing it teaches people is that historical information cannot always be considered concrete or believed as the bare truth. What is written down as solid history may have just been one person's interpretation or opinion of what happened in that time period. If an article of historical information is not examined any further, people that read it will believe it is turly what happened without knowing the actual truth. Ultimately, the colonists and the British sentries had their own reasons for viewing what happened at the Boston Massacre differently. What was considered the Boston Massacre may not have been a real massacre at all. One reason may be that the lasting effects of the Stamp Act may have added to some of the uneasiness and tension between the British and the Americans. Especially among radical colonists who disdained British control and may have felt bombarded by the British Parliament attempting to maintain dominance over the colonies. All in all, modern society can only take the facts we do know as truth of the Boston Massacre. Anything else is left to question.
Thursday, February 25, 2010
Boston Massacre paper is done
The Boston Massacre: Same Event, Different Viewpoints
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. There was always an uneasiness between the British Royal guard and those colonists who opposed the British monarchy. It seemed as though the tension was seething beneath the surface. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. The print gives the idea that the British army were in attack formation ready to attack the protesters. In fact, there was nothing organized about the episode and when the shots were fired both sides took a part the calamity. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous. According to several historical texts, the event occurred at night in the dead of winter. Notice also that Revere's engraving shows a blue sky. Only a small moon in the left corner suggest that the riot occurred on a cold winter night. The absence of snow and ice on the street is noticeable in Revere's engraving. While Crispus Attucks was escaped African slave who was the first to be killed in the event, he shown to be a white man lying on the ground closest to the Britsh soldiers. In some ways, Paul Revere did achieve his goal of moving many former moderates to outspoken opposition to British policies. By using radicalized skillful propaganda, Revere may have created one of the strongest influences in molding a staunch anti-British public opinion among the colonies. Yet, some remained steadfast in their opinions and beliefs. One of them, was John Adams. Even though he never swayed in his loyalty to colonial rights and refused to change his position as a foe of British oppression, John Adams risked the dissapproval of his friends and neighbors by defending the British soldiers during the Boston Massacre trial. John Adams conservative approach and traditional values made him unyielding in his pursuit to give that the British soldiers accused of the Boston Massacre receive a fair and ethical hearing. He defended the soldiers at their trial and he also spoke out repeatedly against the violence of the mob and the other signs of social disintegration that descended upon the city of Boston that cold winter night. Although John Adams was loyal to the American fight for libertyhe may have supported the British troops in stopping a group of unruly colonists that night in Boston. John Adams logical approach to the situation made him realize that the rioters were belligerent and supported the British soldiers in keeping the situation under control. He stood behind the actions of the British brigade which was evidenced in his summation during the Boston Massacre trials. John Adams was not so easily caught up in all of the political propaganda of Paul Revere's engraving. He instead chose to rationalize what happened during the event. One should remember that Adams himself was a member of Boston's elite and a well respected man in New England. It was likely that he did not support all of the negative assumptions the lower class had for the British Parliament. When the Boston Massacre occurred, Adams may not have immediately taken the Americans side,but may have examined the evidence thoroughly and realized that the British were only attempting to diffuse a riotous situation and protect themselevs in the process. In fact, it is plausible that from evaluating historical accounts that John Adams did not support the opinion that the Boston Massacre was actually a massacre at all, but more of a riot. Several eyewitness accounts of what happened at the Boston Massacre were illogical and inaccurate. Such as the testimony of Robert Goddard who was by all historical accounts a common citizen. In Robert goddard testiomny he claims he looked Captain Thomas Preston directly in the face as ordered the British troops to fire on the colonists. Goddard's testimony could be a possible explanation of what happened during the event except that his eyewitness account is the completely opposite of Captain Preston's deposition. In Preston's point of view, he was in the center of the action with the soldiers and the protesters on opposite sides of him. He claimed that his soldiers were being viciously attacked and beaten by several members of the mob. He told the court that he did curse and use profanity during the Massacre, but he swore that he never commanded his troops to shoot. While the despositions of Robert Goddard and Thomas Preston appear to antagonize each other, the reader must realize that the men viewed the situation from two different perspectives. One man, Robert Goddard is a commoner of Boston who is probably not very wealthy. He most likely viewed the British as an enemy of the American colonies. He may have been one of the Americans that questioned the British idea of a monarchy and no longer wanted the colonies to be under any form of British control. His viewpoint of the Boston Massacre may have by influenecd by his political and social ideals. Alternately, Captain Thomas Preston is a high ranking officer of the English throne and loyal to the political philosophy of the British Parliament. In his position, he was in charge of an entire battalion of British soldiers in a chaotic situation. He may have ordered his troops to fire on the colonists to to stop them from attacking his soldiers. Besides, Captain Preston was thinking of the safety of his troops and not of the welfare of the protesters. Whether he gave the command to fire or not, he defended the actions of himself and his soldiers to the fullest extent at the trial. I think this shows our modern age that without extensive research a historian cannot conclude that any newly discovered historical information can be taken as pure fact. Another thing it teaches people is that historical information cannot always be considered concrete or believed as the bare truth. What is written down as solid history may have just been one person's interpretation or opinion of what happened in that time period. If an article of historical information is not examined any further, people that read it will believe it is turly what happened without knowing the actual truth. Ultimately, the colonists and the British sentries had their own reasons for viewing what happened at the Boston Massacre differently. What was considered the Boston Massacre may not have been a real massacre at all. One reason may be that the lasting effects of the Stamp Act may have added to some of the uneasiness and tension between the British and the Americans. Especially among radical colonists who disdained British control and may have felt bombarded by the British Parliament attempting to maintain dominance over the colonies. All in all, modern society can only take the facts we do know as truth of the Boston Massacre. Anything else is left to question.
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. There was always an uneasiness between the British Royal guard and those colonists who opposed the British monarchy. It seemed as though the tension was seething beneath the surface. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. The print gives the idea that the British army were in attack formation ready to attack the protesters. In fact, there was nothing organized about the episode and when the shots were fired both sides took a part the calamity. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous. According to several historical texts, the event occurred at night in the dead of winter. Notice also that Revere's engraving shows a blue sky. Only a small moon in the left corner suggest that the riot occurred on a cold winter night. The absence of snow and ice on the street is noticeable in Revere's engraving. While Crispus Attucks was escaped African slave who was the first to be killed in the event, he shown to be a white man lying on the ground closest to the Britsh soldiers. In some ways, Paul Revere did achieve his goal of moving many former moderates to outspoken opposition to British policies. By using radicalized skillful propaganda, Revere may have created one of the strongest influences in molding a staunch anti-British public opinion among the colonies. Yet, some remained steadfast in their opinions and beliefs. One of them, was John Adams. Even though he never swayed in his loyalty to colonial rights and refused to change his position as a foe of British oppression, John Adams risked the dissapproval of his friends and neighbors by defending the British soldiers during the Boston Massacre trial. John Adams conservative approach and traditional values made him unyielding in his pursuit to give that the British soldiers accused of the Boston Massacre receive a fair and ethical hearing. He defended the soldiers at their trial and he also spoke out repeatedly against the violence of the mob and the other signs of social disintegration that descended upon the city of Boston that cold winter night. Although John Adams was loyal to the American fight for libertyhe may have supported the British troops in stopping a group of unruly colonists that night in Boston. John Adams logical approach to the situation made him realize that the rioters were belligerent and supported the British soldiers in keeping the situation under control. He stood behind the actions of the British brigade which was evidenced in his summation during the Boston Massacre trials. John Adams was not so easily caught up in all of the political propaganda of Paul Revere's engraving. He instead chose to rationalize what happened during the event. One should remember that Adams himself was a member of Boston's elite and a well respected man in New England. It was likely that he did not support all of the negative assumptions the lower class had for the British Parliament. When the Boston Massacre occurred, Adams may not have immediately taken the Americans side,but may have examined the evidence thoroughly and realized that the British were only attempting to diffuse a riotous situation and protect themselevs in the process. In fact, it is plausible that from evaluating historical accounts that John Adams did not support the opinion that the Boston Massacre was actually a massacre at all, but more of a riot. Several eyewitness accounts of what happened at the Boston Massacre were illogical and inaccurate. Such as the testimony of Robert Goddard who was by all historical accounts a common citizen. In Robert goddard testiomny he claims he looked Captain Thomas Preston directly in the face as ordered the British troops to fire on the colonists. Goddard's testimony could be a possible explanation of what happened during the event except that his eyewitness account is the completely opposite of Captain Preston's deposition. In Preston's point of view, he was in the center of the action with the soldiers and the protesters on opposite sides of him. He claimed that his soldiers were being viciously attacked and beaten by several members of the mob. He told the court that he did curse and use profanity during the Massacre, but he swore that he never commanded his troops to shoot. While the despositions of Robert Goddard and Thomas Preston appear to antagonize each other, the reader must realize that the men viewed the situation from two different perspectives. One man, Robert Goddard is a commoner of Boston who is probably not very wealthy. He most likely viewed the British as an enemy of the American colonies. He may have been one of the Americans that questioned the British idea of a monarchy and no longer wanted the colonies to be under any form of British control. His viewpoint of the Boston Massacre may have by influenecd by his political and social ideals. Alternately, Captain Thomas Preston is a high ranking officer of the English throne and loyal to the political philosophy of the British Parliament. In his position, he was in charge of an entire battalion of British soldiers in a chaotic situation. He may have ordered his troops to fire on the colonists to to stop them from attacking his soldiers. Besides, Captain Preston was thinking of the safety of his troops and not of the welfare of the protesters. Whether he gave the command to fire or not, he defended the actions of himself and his soldiers to the fullest extent at the trial. I think this shows our modern age that without extensive research a historian cannot conclude that any newly discovered historical information can be taken as pure fact. Another thing it teaches people is that historical information cannot always be considered concrete or believed as the bare truth. What is written down as solid history may have just been one person's interpretation or opinion of what happened in that time period. If an article of historical information is not examined any further, people that read it will believe it is turly what happened without knowing the actual truth. Ultimately, the colonists and the British sentries had their own reasons for viewing what happened at the Boston Massacre differently. What was considered the Boston Massacre may not have been a real massacre at all. One reason may be that the lasting effects of the Stamp Act may have added to some of the uneasiness and tension between the British and the Americans. Especially among radical colonists who disdained British control and may have felt bombarded by the British Parliament attempting to maintain dominance over the colonies. All in all, modern society can only take the facts we do know as truth of the Boston Massacre. Anything else is left to question.
Boston Massacre: Final Paper2
The Boston Massacre: Same Event, Different Viewpoints
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. There was always an uneasiness between the British Royal guard and those colonists who opposed the British monarchy. It seemed as though the tension was seething beneath the surface. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. The print gives the idea that the British army were in attack formation ready to attack the protesters. In fact, there was nothing organized about the episode and when the shots were fired both sides took a part the calamity. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous. According to several historical texts, the event occurred at night in the dead of winter. Notice also that Revere's engraving shows a blue sky. Only a small moon in the left corner suggest that the riot occurred on a cold winter night. The absence of snow and ice on the street is noticeable in Revere's engraving. While Crispus Attucks was escaped African slave who was the first to be killed in the event, he shown to be a white man lying on the ground closest to the Britsh soldiers. In some ways, Paul Revere did achieve his goal of moving many former moderates to outspoken opposition to British policies. By using radicalized skillful propaganda, Revere may have created one of the strongest influences in molding a staunch anti-British public opinion among the colonies. Yet, some remained steadfast in their opinions and beliefs. One of them, was John Adams. Even though he never swayed in his loyalty to colonial rights and refused to change his position as a foe of British oppression, John Adams risked the dissapproval of his friends and neighbors by defending the British soldiers during the Boston Massacre trial. John Adams conservative approach and traditional values made him unyielding in his pursuit to give that the British soldiers accused of the Boston Massacre receive a fair and ethical hearing. He defended the soldiers at their trial and he also spoke out repeatedly against the violence of the mob and the other signs of social disintegration that descended upon the city of Boston that cold winter night. Although John Adams was loyal to the American fight for libertyhe may have supported the British troops in stopping a group of unruly colonists that night in Boston. John Adams logical approach to the situation made him realize that the rioters were belligerent and supported the British soldiers in keeping the situation under control. He stood behind the actions of the British brigade which was evidenced in his summation during the Boston Massacre trials. John Adams was not so easily caught up in all of the political propaganda of Paul Revere's engraving. He instead chose to rationalize what happened during the event. One should remember that Adams himself was a member of Boston's elite and a well respected man in New England. It was likely that he did not support all of the negative assumptions the lower class had for the British Parliament. When the Boston Massacre occurred, Adams may not have immediately taken the Americans side,but may have examined the evidence thoroughly and realized that the British were only attempting to diffuse a riotous situation and protect themselevs in the process. In fact, it is plausible that from evaluating historical accounts that John Adams did not support the opinion that the Boston Massacre was actually a massacre at all, but more of a riot. Several eyewitness accounts of what happened at the Boston Massacre were illogical and inaccurate. Such as the testimony of Robert Goddard who was by all historical accounts a common citizen. In Robert goddard testiomny he claims he looked Captain Thomas Preston directly in the face as ordered the British troops to fire on the colonists. Goddard's testimony could be a possible explanation of what happened during the event except that his eyewitness account is the completely opposite of Captain Preston's deposition. In Preston's point of view, he was in the center of the action with the soldiers and the protesters on opposite sides of him. He claimed that his soldiers were being viciously attacked and beaten by several members of the mob. He told the court that he did curse and use profanity during the Massacre, but he swore that he never commanded his troops to shoot. While the despositions of Robert Goddard and Thomas Preston appear to antagonize each other, the reader must realize that the men viewed the situation from two different perspectives. One man, Robert Goddard is a commoner of Boston who is probably not very wealthy. He most likely viewed the British as an enemy of the American colonies. He may have been one of the Americans that questioned the British idea of a monarchy and no longer wanted the colonies to be under any form of British control. His viewpoint of the Boston Massacre may have by influenecd by his political and social ideals. Alternately, Captain Thomas Preston
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. There was always an uneasiness between the British Royal guard and those colonists who opposed the British monarchy. It seemed as though the tension was seething beneath the surface. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. The print gives the idea that the British army were in attack formation ready to attack the protesters. In fact, there was nothing organized about the episode and when the shots were fired both sides took a part the calamity. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous. According to several historical texts, the event occurred at night in the dead of winter. Notice also that Revere's engraving shows a blue sky. Only a small moon in the left corner suggest that the riot occurred on a cold winter night. The absence of snow and ice on the street is noticeable in Revere's engraving. While Crispus Attucks was escaped African slave who was the first to be killed in the event, he shown to be a white man lying on the ground closest to the Britsh soldiers. In some ways, Paul Revere did achieve his goal of moving many former moderates to outspoken opposition to British policies. By using radicalized skillful propaganda, Revere may have created one of the strongest influences in molding a staunch anti-British public opinion among the colonies. Yet, some remained steadfast in their opinions and beliefs. One of them, was John Adams. Even though he never swayed in his loyalty to colonial rights and refused to change his position as a foe of British oppression, John Adams risked the dissapproval of his friends and neighbors by defending the British soldiers during the Boston Massacre trial. John Adams conservative approach and traditional values made him unyielding in his pursuit to give that the British soldiers accused of the Boston Massacre receive a fair and ethical hearing. He defended the soldiers at their trial and he also spoke out repeatedly against the violence of the mob and the other signs of social disintegration that descended upon the city of Boston that cold winter night. Although John Adams was loyal to the American fight for libertyhe may have supported the British troops in stopping a group of unruly colonists that night in Boston. John Adams logical approach to the situation made him realize that the rioters were belligerent and supported the British soldiers in keeping the situation under control. He stood behind the actions of the British brigade which was evidenced in his summation during the Boston Massacre trials. John Adams was not so easily caught up in all of the political propaganda of Paul Revere's engraving. He instead chose to rationalize what happened during the event. One should remember that Adams himself was a member of Boston's elite and a well respected man in New England. It was likely that he did not support all of the negative assumptions the lower class had for the British Parliament. When the Boston Massacre occurred, Adams may not have immediately taken the Americans side,but may have examined the evidence thoroughly and realized that the British were only attempting to diffuse a riotous situation and protect themselevs in the process. In fact, it is plausible that from evaluating historical accounts that John Adams did not support the opinion that the Boston Massacre was actually a massacre at all, but more of a riot. Several eyewitness accounts of what happened at the Boston Massacre were illogical and inaccurate. Such as the testimony of Robert Goddard who was by all historical accounts a common citizen. In Robert goddard testiomny he claims he looked Captain Thomas Preston directly in the face as ordered the British troops to fire on the colonists. Goddard's testimony could be a possible explanation of what happened during the event except that his eyewitness account is the completely opposite of Captain Preston's deposition. In Preston's point of view, he was in the center of the action with the soldiers and the protesters on opposite sides of him. He claimed that his soldiers were being viciously attacked and beaten by several members of the mob. He told the court that he did curse and use profanity during the Massacre, but he swore that he never commanded his troops to shoot. While the despositions of Robert Goddard and Thomas Preston appear to antagonize each other, the reader must realize that the men viewed the situation from two different perspectives. One man, Robert Goddard is a commoner of Boston who is probably not very wealthy. He most likely viewed the British as an enemy of the American colonies. He may have been one of the Americans that questioned the British idea of a monarchy and no longer wanted the colonies to be under any form of British control. His viewpoint of the Boston Massacre may have by influenecd by his political and social ideals. Alternately, Captain Thomas Preston
Boston Massacre 85
he Boston Massacre: Same Event, Different Viewpoints
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. There was always an uneasiness between the British Royal guard and those colonists who opposed the British monarchy. It seemed as though the tension was seething beneath the surface. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. The print gives the idea that the British army were in attack formation ready to attack the protesters. In fact, there was nothing organized about the episode and when the shots were fired both sides took a part the calamity. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous. According to several historical texts, the event occurred at night in the dead of winter. Notice also that Revere's engraving shows a blue sky. Only a small moon in the left corner suggest that the riot occurred on a cold winter night. The absence of snow and ice on the street is noticeable in Revere's engraving. While Crispus Attucks was escaped African slave who was the first to be killed in the event, he shown to be a white man lying on the ground closest to the Britsh soldiers. In some ways, Paul Revere did achieve his goal of moving many former moderates to outspoken opposition to British policies. By using radicalized skillful propaganda, Revere may have created one of the strongest influences in molding a staunch anti-British public opinion among the colonies. Yet, some remained steadfast in their opinions and beliefs.
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. There was always an uneasiness between the British Royal guard and those colonists who opposed the British monarchy. It seemed as though the tension was seething beneath the surface. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. The print gives the idea that the British army were in attack formation ready to attack the protesters. In fact, there was nothing organized about the episode and when the shots were fired both sides took a part the calamity. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous. According to several historical texts, the event occurred at night in the dead of winter. Notice also that Revere's engraving shows a blue sky. Only a small moon in the left corner suggest that the riot occurred on a cold winter night. The absence of snow and ice on the street is noticeable in Revere's engraving. While Crispus Attucks was escaped African slave who was the first to be killed in the event, he shown to be a white man lying on the ground closest to the Britsh soldiers. In some ways, Paul Revere did achieve his goal of moving many former moderates to outspoken opposition to British policies. By using radicalized skillful propaganda, Revere may have created one of the strongest influences in molding a staunch anti-British public opinion among the colonies. Yet, some remained steadfast in their opinions and beliefs.
Boston Massacre 72
The Boston Massacre: Same Event, Different Viewpoints
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous.
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in New Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards the British. He also wanted to encourage colonial discontent with the crown of England. After the Massacre happened, Paul Revere immediately took action to bring to light the harsh way the British abused their power towards the colonists even though his intepretation of the Masasacre is for the most part inconsistent. He made color prints from his engraving and distributed them around Boston. The prints were very inaccurate and painted a falsified picture of the event. Historians and chroniclers alike recognized what Paul Revere did as political propaganda. In Revere's depiction of the Boston Massacre, he uses several examples of anti-British sentiment that take a visual form. Revere's engravure shows English troops standing in a straight line shooting at retreating colonists. In truth, the event was actually very chaotic. When the incident actually happened both sides were quarrelsome and riotous. Following the event, Paul Revere's print showed Captain Preston as the one who gave the command to fire upon the peaceful crowd. Many colonists were incited with anger when seeing the painting and believed that Captain Preston gave the order to shoot when, in reality, Captain Preston claimed that he was standing in front of the rifles, between his British soldiers and the crowd of rioters. There were also several other errors in the print made by Paul Revere. The errors were done on purpose in orderto present the Americans in the most sympathetic light possible, and the Britsh in the most tyrannous.
Boston Massacre 45
The Boston Massacre: Same Event, Different Viewpoints
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards British. He also wanted to encourage colonists discontent with the crown of England.
The Boston Massacre was an incidence where five American men were killed by British troops Yet, because of various forms of media and propaganda, the ramifications and repercusssions of the Boston Massacre were felt throughout the colonies. When Paul Revere's horrific engraving of the events that occurred that day in Boston reached the doorsteps of colonists across the east coast, hundreds of americvans began to have negative emotions towards their British counterparts. As a result, Revere had accomplished his goal of widely circulating an effective piece of anti-British propaganda that would stir feelings of civic pride among the colonists and later lead to the campaign for national independence from England. On March 5, 1770 a small group of colonists were throwing snowballs and other items at a band of British soldiers. A crowd soon gathered throwing ice and making fun of the troops. Soon, the tone of the event went from cheerful teasing to anger and frustration. By many historical accounts there was a great deal of taunting that eventually lead to an escalation of hostilities. More specifcally, history tells us that a lone sentry was being seriously taunted by a group of colonists. Probably fearing himself in danger, he called for assistance from his fellow British soldiers. A group of soldiers led by Captain Thomas Preston came to the aid of the lone sentry. Captain Preston and his detachment of seven or eight men were qucikly surrounded. All attempts to calm the crowd and bring an end to the mayhem proved useless. The situtation developed into total chaos. At this point the accoutns of the event vary drastically. Apparently, a solider fired a musket into the crowd immediately followed by more shots. This action left five american men dead and several others wounded. The presence of Britsh soldiers in Enlgand was always dreaded among Boston's citizens that were radicals against the British parliament. Paul Revere quickly took advantage of the situation and capitalized on The Boston Massacre to reinforce hatred towards British. He also wanted to encourage colonists discontent with the crown of England.
Wednesday, February 24, 2010
Boston Massacre23
Although he never wavered in his devotion to colonial rights and early commited himself to independence as an unwelcome last resort, Adam's innate conservatism made him determined in 1770 that the British soldiers accused of the Boston Massacre receive a fair and ethical hearing. He defended the soldiers at their trial. He also spoke out repeatedly against mob violence and other signs of social disintegration.
More recent scholars, however, have found evidence of a more discerning Boston public that was appreciative of Britidh restraint and disapproving of provocative mob actions. Evidence of the latter view was found in the relative quiet that descened on the community after the fuenral.
Later, 35 year old John Adams risked the disapproval of his friends and neighbors by defending the British soldiers in a highly publicized trial.
Although John Adams was loyal to the American cause he may have supported the British troops in stopping a group of unruly colonists that day in Boston. John Adams loyalist ties to British realized that the rioters were belligerent and supported the British troops keeping the situation under control which he supporteed in his summation and testimony. May not have been caught up in all the political progpaganda of Paul revere's engraving. May have taken a logical approach to what happened that day at the Boston Massacre. You must remember that John Adams himself was a member of Boston's elite and a well respected man in New England he did not support much of the lower classed negative assumptions of the British Parliament. And when the Boston Massacre occurred, he may not have immediately taken the Americans side, but may have examiend the evidience throroughly and realized the that the Briths were only protecting themselves in a riotous situation. In fact, john Adams did not support the opinion that The Boston Massacre was actually a massacre at all, but more of a riot.
Several accoutns of what happened at the Boston Massacre were illogical and inaccurate. Such as the account of robert goddard..
More recent scholars, however, have found evidence of a more discerning Boston public that was appreciative of Britidh restraint and disapproving of provocative mob actions. Evidence of the latter view was found in the relative quiet that descened on the community after the fuenral.
Later, 35 year old John Adams risked the disapproval of his friends and neighbors by defending the British soldiers in a highly publicized trial.
Although John Adams was loyal to the American cause he may have supported the British troops in stopping a group of unruly colonists that day in Boston. John Adams loyalist ties to British realized that the rioters were belligerent and supported the British troops keeping the situation under control which he supporteed in his summation and testimony. May not have been caught up in all the political progpaganda of Paul revere's engraving. May have taken a logical approach to what happened that day at the Boston Massacre. You must remember that John Adams himself was a member of Boston's elite and a well respected man in New England he did not support much of the lower classed negative assumptions of the British Parliament. And when the Boston Massacre occurred, he may not have immediately taken the Americans side, but may have examiend the evidience throroughly and realized the that the Briths were only protecting themselves in a riotous situation. In fact, john Adams did not support the opinion that The Boston Massacre was actually a massacre at all, but more of a riot.
Several accoutns of what happened at the Boston Massacre were illogical and inaccurate. Such as the account of robert goddard..
Tuesday, February 23, 2010
Boston Massacre
The ramifcations and repercussions of the Boston Massacre were felt throughout the colonies.
Sunday, February 21, 2010
Busy Burger: Refresh Memory game
 | Busy Burger Keep your customers happy by serving up fast food orders without mistakes. |
Rashad Gray, Attorney at law11
All testable Issues whether factual or legal can be describe within a four level framework Transactional Issue
Theory Issue
Rule Issue
Element Issue
Near Miss Issue
Flowchart
Transactional Basic facts that form the corner stone of all other issues Isolate each transaction or occurrence which, under the call of the question is legally significant
Most exams multi-Transactional
Required to recognize and label each transaction
Absolute condition precedent to demonstrating any level competence
Events or occurrences
Examples:
Separate motions in civil procedure
Distinct pieces of evidence in evidence
Each injury in torts
Every agreement in contract
Multiple parties
Example
Each separate party whose rights or liabilities
Items of property
Example:
Listed item of property
Theory
Arises out of Transactional Issues
Determine what legal theories and concepts are involved in each transaction
Require legal competence
must be creative and well informed
Advanced level of competence "problem-solving" and "judgment" deals with
the capacity to prioritize among these theories
ability to assess likelihood of success
For Issue-spotting sufficient to see the possible application of a theory so that he/she can subject it to further analysis
If a student fails to identify a theory issue, the student also loses the opportunity to demonstrate competency on the sub-issues related to that theory.
Questions to be answered
What Theory or Concept applies
What Cause of Action applies
What Defenses applies
Rule
Arises out of Theory Issues
Determine the rule that must be applied to controversy
What rule or legal proposition must be applied to the controversy
Applicable rule of law
Alternative Rules
Unsettled or first impression = develop a rule
Example
What formulation of the felony murder rule
Questions as to the applicable rule of law are rule issues
Some legal issues have only one possible formulation
Others (felony murder rule) require that student recognize splits among states and alternative rules
Most law school test items directly or indirectly test a student's ability to spot and handle rule issues.
Element
Arises Out of Rule Issues
Determine which elements are met/not met by the facts
Whether the individual elements of the rule are satisfied by the facts.
Each rule can be broken down into operative element
Example
larceny is
trespassory taking
carry away of
personal property
known to be another
with the intent of permanently depriving.
Systematically examine.
May be legal or factual
Example =
carrying away = legal
personal property = legal
intent to permanently deprive = factual
Near Miss Issue
troublesome - teacher wants to see the student discuss possible points of controversy even if it is clear that there is no legitimate basis for dispute:
Example
Burglary - the trespassory breaking and entering of a dwelling in the nighttime with the intent to commit a felony or larceny.
Assume every element present except one, the window was left open
while reasonable attorneys might not raise the issue of burglary,
the savvy law student knows he/she should discuss the issue of burglary and state whey there is none in this case
Theory Issue
Rule Issue
Element Issue
Near Miss Issue
Flowchart
Transactional Basic facts that form the corner stone of all other issues Isolate each transaction or occurrence which, under the call of the question is legally significant
Most exams multi-Transactional
Required to recognize and label each transaction
Absolute condition precedent to demonstrating any level competence
Events or occurrences
Examples:
Separate motions in civil procedure
Distinct pieces of evidence in evidence
Each injury in torts
Every agreement in contract
Multiple parties
Example
Each separate party whose rights or liabilities
Items of property
Example:
Listed item of property
Theory
Arises out of Transactional Issues
Determine what legal theories and concepts are involved in each transaction
Require legal competence
must be creative and well informed
Advanced level of competence "problem-solving" and "judgment" deals with
the capacity to prioritize among these theories
ability to assess likelihood of success
For Issue-spotting sufficient to see the possible application of a theory so that he/she can subject it to further analysis
If a student fails to identify a theory issue, the student also loses the opportunity to demonstrate competency on the sub-issues related to that theory.
Questions to be answered
What Theory or Concept applies
What Cause of Action applies
What Defenses applies
Rule
Arises out of Theory Issues
Determine the rule that must be applied to controversy
What rule or legal proposition must be applied to the controversy
Applicable rule of law
Alternative Rules
Unsettled or first impression = develop a rule
Example
What formulation of the felony murder rule
Questions as to the applicable rule of law are rule issues
Some legal issues have only one possible formulation
Others (felony murder rule) require that student recognize splits among states and alternative rules
Most law school test items directly or indirectly test a student's ability to spot and handle rule issues.
Element
Arises Out of Rule Issues
Determine which elements are met/not met by the facts
Whether the individual elements of the rule are satisfied by the facts.
Each rule can be broken down into operative element
Example
larceny is
trespassory taking
carry away of
personal property
known to be another
with the intent of permanently depriving.
Systematically examine.
May be legal or factual
Example =
carrying away = legal
personal property = legal
intent to permanently deprive = factual
Near Miss Issue
troublesome - teacher wants to see the student discuss possible points of controversy even if it is clear that there is no legitimate basis for dispute:
Example
Burglary - the trespassory breaking and entering of a dwelling in the nighttime with the intent to commit a felony or larceny.
Assume every element present except one, the window was left open
while reasonable attorneys might not raise the issue of burglary,
the savvy law student knows he/she should discuss the issue of burglary and state whey there is none in this case
Rashad Gray, Attorney at law10
All testable Issues whether factual or legal can be describe within a four level framework Transactional Issue
Theory Issue
Rule Issue
Element Issue
Near Miss Issue
Flowchart
Transactional Basic facts that form the corner stone of all other issues Isolate each transaction or occurrence which, under the call of the question is legally significant
Most exams multi-Transactional
Required to recognize and label each transaction
Absolute condition precedent to demonstrating any level competence
Events or occurrences
Examples:
Separate motions in civil procedure
Distinct pieces of evidence in evidence
Each injury in torts
Every agreement in contract
Multiple parties
Example
Each separate party whose rights or liabilities
Items of property
Example:
Listed item of property
Theory
Arises out of Transactional Issues
Determine what legal theories and concepts are involved in each transaction
Require legal competence
must be creative and well informed
Advanced level of competence "problem-solving" and "judgment" deals with
the capacity to prioritize among these theories
ability to assess likelihood of success
For Issue-spotting sufficient to see the possible application of a theory so that he/she can subject it to further analysis
If a student fails to identify a theory issue, the student also loses the opportunity to demonstrate competency on the sub-issues related to that theory.
Questions to be answered
What Theory or Concept applies
What Cause of Action applies
What Defenses applies
Rule
Arises out of Theory Issues
Determine the rule that must be applied to controversy
What rule or legal proposition must be applied to the controversy
Applicable rule of law
Alternative Rules
Unsettled or first impression = develop a rule
Example
What formulation of the felony murder rule
Questions as to the applicable rule of law are rule issues
Some legal issues have only one possible formulation
Others (felony murder rule) require that student recognize splits among states and alternative rules
Most law school test items directly or indirectly test a student's ability to spot and handle rule issues.
Element
Arises Out of Rule Issues
Determine which elements are met/not met by the facts
Whether the individual elements of the rule are satisfied by the facts.
Each rule can be broken down into operative element
Example
larceny is
trespassory taking
carry away of
personal property
known to be another
with the intent of permanently depriving.
Systematically examine.
May be legal or factual
Example =
carrying away = legal
personal property = legal
intent to permanently deprive = factual
Near Miss Issue
troublesome - teacher wants to see the student discuss possible points of controversy even if it is clear that there is no legitimate basis for dispute:
Example
Burglary - the trespassory breaking and entering of a dwelling in the nighttime with the intent to commit a felony or larceny.
Assume every element present except one, the window was left open
while reasonable attorneys might not raise the issue of burglary,
the savvy law student knows he/she should discuss the issue of burglary and state whey there is none in this case
Theory Issue
Rule Issue
Element Issue
Near Miss Issue
Flowchart
Transactional Basic facts that form the corner stone of all other issues Isolate each transaction or occurrence which, under the call of the question is legally significant
Most exams multi-Transactional
Required to recognize and label each transaction
Absolute condition precedent to demonstrating any level competence
Events or occurrences
Examples:
Separate motions in civil procedure
Distinct pieces of evidence in evidence
Each injury in torts
Every agreement in contract
Multiple parties
Example
Each separate party whose rights or liabilities
Items of property
Example:
Listed item of property
Theory
Arises out of Transactional Issues
Determine what legal theories and concepts are involved in each transaction
Require legal competence
must be creative and well informed
Advanced level of competence "problem-solving" and "judgment" deals with
the capacity to prioritize among these theories
ability to assess likelihood of success
For Issue-spotting sufficient to see the possible application of a theory so that he/she can subject it to further analysis
If a student fails to identify a theory issue, the student also loses the opportunity to demonstrate competency on the sub-issues related to that theory.
Questions to be answered
What Theory or Concept applies
What Cause of Action applies
What Defenses applies
Rule
Arises out of Theory Issues
Determine the rule that must be applied to controversy
What rule or legal proposition must be applied to the controversy
Applicable rule of law
Alternative Rules
Unsettled or first impression = develop a rule
Example
What formulation of the felony murder rule
Questions as to the applicable rule of law are rule issues
Some legal issues have only one possible formulation
Others (felony murder rule) require that student recognize splits among states and alternative rules
Most law school test items directly or indirectly test a student's ability to spot and handle rule issues.
Element
Arises Out of Rule Issues
Determine which elements are met/not met by the facts
Whether the individual elements of the rule are satisfied by the facts.
Each rule can be broken down into operative element
Example
larceny is
trespassory taking
carry away of
personal property
known to be another
with the intent of permanently depriving.
Systematically examine.
May be legal or factual
Example =
carrying away = legal
personal property = legal
intent to permanently deprive = factual
Near Miss Issue
troublesome - teacher wants to see the student discuss possible points of controversy even if it is clear that there is no legitimate basis for dispute:
Example
Burglary - the trespassory breaking and entering of a dwelling in the nighttime with the intent to commit a felony or larceny.
Assume every element present except one, the window was left open
while reasonable attorneys might not raise the issue of burglary,
the savvy law student knows he/she should discuss the issue of burglary and state whey there is none in this case
Rashad Gray, Attorney at law10
They are honest with themselves.
They resist manipulation.
They overcome confusion.
They ask questions.
They base judgments on evidence.
They look for connections between subjects.
They are intellectually independent
From Critical Thinking by Vincent Ryan Ruggiero
They are honest with themselves.
They resist manipulation.
They overcome confusion.
They ask questions.
They base judgments on evidence.
They look for connections between subjects.
They are intellectually independent
From Critical Thinking by Vincent Ryan Ruggiero
They resist manipulation.
They overcome confusion.
They ask questions.
They base judgments on evidence.
They look for connections between subjects.
They are intellectually independent
From Critical Thinking by Vincent Ryan Ruggiero
They are honest with themselves.
They resist manipulation.
They overcome confusion.
They ask questions.
They base judgments on evidence.
They look for connections between subjects.
They are intellectually independent
From Critical Thinking by Vincent Ryan Ruggiero
Rashad Gray, Attorney at law9
Facts are critical to lawyers and law students. Lawyers get paid to separate relevant facts from irrelevant facts and then apply the facts to the the law. As law students, it is an essential skill for doing well on law school exams. Most law students spend insufficient time on learning this skill. One place to start is to understand that all the facts that a client (or a law professor) gives you do not have equal performance. Thus, a student must learn to categorize facts appropriately.
There are lots of different terms used to categorize facts (key, legally significant, essential). It is not the name that is important but the skill of identifying facts that fit within the category AND then using those facts appropriately in analysis.
Key Facts Facts which create the dispute; or help resolve the dispute. Facts can take two basic form:
Primary Facts tend to prove or disprove an element of a rule without any additional facts or inferences.
Secondary Facts always need other facts or inferences to prove or disprove an element of a rule.
Background facts Made to fill out the story but changing the background facts does not have any effect on the legal analysis
Influential Facts Facts which may effect the outcome of the dispute but on a strictly legal basis probably will not.
There are lots of different terms used to categorize facts (key, legally significant, essential). It is not the name that is important but the skill of identifying facts that fit within the category AND then using those facts appropriately in analysis.
Key Facts Facts which create the dispute; or help resolve the dispute. Facts can take two basic form:
Primary Facts tend to prove or disprove an element of a rule without any additional facts or inferences.
Secondary Facts always need other facts or inferences to prove or disprove an element of a rule.
Background facts Made to fill out the story but changing the background facts does not have any effect on the legal analysis
Influential Facts Facts which may effect the outcome of the dispute but on a strictly legal basis probably will not.
Rashad Gray, Attorney at law8
Facts are critical to lawyers and law students. Lawyers get paid to separate relevant facts from irrelevant facts and then apply the facts to the the law. As law students, it is an essential skill for doing well on law school exams. Most law students spend insufficient time on learning this skill. One place to start is to understand that all the facts that a client (or a law professor) gives you do not have equal performance. Thus, a student must learn to categorize facts appropriately.
There are lots of different terms used to categorize facts (key, legally significant, essential). It is not the name that is important but the skill of identifying facts that fit within the category AND then using those facts appropriately in analysis.
Key Facts Facts which create the dispute; or help resolve the dispute. Facts can take two basic form:
Primary Facts tend to prove or disprove an element of a rule without any additional facts or inferences.
Secondary Facts always need other facts or inferences to prove or disprove an element of a rule.
Background facts Made to fill out the story but changing the background facts does not have any effect on the legal analysis
Influential Facts Facts which may effect the outcome of the dispute but on a strictly legal basis probably will not.
There are lots of different terms used to categorize facts (key, legally significant, essential). It is not the name that is important but the skill of identifying facts that fit within the category AND then using those facts appropriately in analysis.
Key Facts Facts which create the dispute; or help resolve the dispute. Facts can take two basic form:
Primary Facts tend to prove or disprove an element of a rule without any additional facts or inferences.
Secondary Facts always need other facts or inferences to prove or disprove an element of a rule.
Background facts Made to fill out the story but changing the background facts does not have any effect on the legal analysis
Influential Facts Facts which may effect the outcome of the dispute but on a strictly legal basis probably will not.
Rashad Gray, Attorney at law7
Issue/Conclusion Standard Facts Reasons
(Common Knowledge, Policy)
Paul met the element of intent because he had to be substantially certain that he would hit someone
when he went skateboarding on a busy side walk. Conclusion not Analytical
Paul met the element of intent because he had to be substantially certain that he would hit someone because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk.
Conclusion not Analytical
Paul had to be substantially certain that he would hit someone when he went skateboarding on a busy sidewalk. because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Acceptable analytical sentence
Paul met the element of intent because he had to be substantially certain that he would hit someone when he went skateboarding on a busy side walk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as the number of pedestrians increases. Acceptable Analytical Sentence
(Common Knowledge, Policy)
Paul met the element of intent because he had to be substantially certain that he would hit someone
when he went skateboarding on a busy side walk. Conclusion not Analytical
Paul met the element of intent because he had to be substantially certain that he would hit someone because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk.
Conclusion not Analytical
Paul had to be substantially certain that he would hit someone when he went skateboarding on a busy sidewalk. because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Acceptable analytical sentence
Paul met the element of intent because he had to be substantially certain that he would hit someone when he went skateboarding on a busy side walk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as the number of pedestrians increases. Acceptable Analytical Sentence
Rashad Gray, Attorney at law6
Issue/Conclusion Standard Facts Reasons
(Common Knowledge, Policy)
Paul met the element of intent because he had to be substantially certain that he would hit someone
when he went skateboarding on a busy side walk. Conclusion not Analytical
Paul met the element of intent because he had to be substantially certain that he would hit someone because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk.
Conclusion not Analytical
Paul had to be substantially certain that he would hit someone when he went skateboarding on a busy sidewalk. because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Acceptable analytical sentence
Paul met the element of intent because he had to be substantially certain that he would hit someone when he went skateboarding on a busy side walk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as the number of pedestrians increases. Acceptable Analytical Sentence
(Common Knowledge, Policy)
Paul met the element of intent because he had to be substantially certain that he would hit someone
when he went skateboarding on a busy side walk. Conclusion not Analytical
Paul met the element of intent because he had to be substantially certain that he would hit someone because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Conclusion not Analytical
Paul met the element of intent when he went skateboarding on a busy sidewalk.
Conclusion not Analytical
Paul had to be substantially certain that he would hit someone when he went skateboarding on a busy sidewalk. because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as there are more pedestrians around.
Acceptable analytical sentence
Paul met the element of intent because he had to be substantially certain that he would hit someone when he went skateboarding on a busy side walk because it is common knowledge that it is difficult to maneuver around people on a skateboard. Thus, the likelihood of hitting someone while skateboarding increases as the number of pedestrians increases. Acceptable Analytical Sentence
Rashad Gray, Attorney at law5
The single most important skill for a lawyer is the ability to analyze an issue. Professors award high grades based on good analysis. For the exam, the professor develops a hypothetical dispute where the judicial decision could go either way. There is no right answer as to the dispute, but the excellent answer analyzes all of the facts and issues.
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Elements of Rule of common law burglary
Facts of case
Proven True?
Breaking
Forces open door with crowbar.
Yes.
Entering
Enters cabin.
Yes
Of a dwelling
Houseboat
Maybe. If structure is used as a residence - i.e. someone sleeps there regularly - then it probably qualifies as a dwelling.
At night
12 noon
No.
With intent to commit a felony.
Plan is to steal expensive equipment and pawn it.
Yes.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods: Reasoning by Analogy, Balancing of Factors Test, Judicial Tests and
Public Policy Argument.
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
of a reasonable
and prudent person
under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
General principles of the Balancing Test
Consider all of the facts and circumstances.
No one factor determines the case.
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
EXAMPLE
In contract law, one party can make a contract void if the terms are found to be unconscionable. First, we state the rule on unconscionability by listing the elements that must be proven in order for unconscionability to be present.
Rule
Unconscionability in a contract exists IF there is:
absence of meaningful choice
AND terms unreasonably favorable to other party.
Next, we have to prove each of the elements of unconscionability. You will discover in your reading that the first element, "absence of meaningful choice," is proven by a balancing test. The factors to be considered are listed below.
Balancing Test
Weighing the following factors proves absence of meaningful choice:
gross inequality of bargaining power
unfair surprise by the one of the parties
lack of education of one of the parties.
hidden terms in the fine print of the contract.
The next step is to take each of these factors and see if it exists in the professor's hypothetical. You will want to weigh all of the factors to see whether the bulk of the factors suggest unconscionability.
Hypothetical Facts
A retailer in an inner city neighborhood has a contract where residents can purchase furniture on the installment plan. Residents tend to buy all of their furniture at this store - sometimes buying a piece every three to six months. However, if the buyer misses a payment on a single piece of furniture, the contract allows the retailer to repossess every piece of furniture the buyer has ever bought regardless of whether they have paid off all of the previous purchases. For instance, over the course of five years, a customer buys a TV, sofa, bed and table. She pays off all of the purchases. She then buys a desk but misses three payments. Under the contract, the store can repossess the TV, sofa, bed, table and the desk to cover the depreciation of the desk.
Issue: Was there an absence of meaningful choice?
Balancing Test Analysis
Gross inequality of bargaining power: Because of the lack of transportation, there is only one merchant who sells furniture in the inner city neighborhood. The residents have no other person to bargain with. They either have to buy furniture from the merchant at his high prices or go without the furniture. The retailer is essentially holding these buyers hostage.
Unfair surprise: These are terms that are unusual for most contracts. A reasonable person would think that the once they have paid off a particular item of furniture, it is there's to keep. An installment plan typically only requires repossession of the item bought and does not create a security interest in additional items.
Lack of education: The level of education will help determine whether the buyer had a reasonable opportunity to understand the terms of the contract. If the buyers were uneducated, then that suggests that they never expressly agreed to these terms.
Hidden terms: If the retailer hid the terms in the fine print of the contract or engaged in deceptive sales practices to mislead the buyer, then that also suggests that the buyer did not have full knowledge of the unreasonable terms.
No single factor by itself will prove the element. In fact, you might even have a highly educated person and still have an unconscionable contract if the rest of the factors are strong. Here, on balance, we can probably conclude that there was an absence of meaningful choice. (See Williams v. Walker-Thomas Furniture Co. 350 F.2d 445 for a real world example of this hypothetical.)
Judicial Tests
Courts also articulate a judicial "IF-THEN" test that proves a particular element. The test is sometimes couched in terms of probability. It may ask a series of questions that would prove an element. Usually, a test will allow the court some flexibility for interpretation in order to achieve a just result.
EXAMPLE
In tort law, a person can claim self-defense if they use force against someone who attacked them first. The rule on self defense requires three elements
Rule
A defendant can claim self defense against a charge of battery IF:
The defendant used proportional force against offensive bodily contact
AND there was a reasonable belief of necessity to use force under the circumstances
AND there was an immediate need to use the force.
We're focusing on the first element of the rule. What constitutes proportional force can be vague. For instance, is a gun proportional force against a penknife? A four-inch blade? A nine-inch hunting knife in the hands of a 200 pound male who's an an ex-Marine? In the hands of the a little old lady with arthritis? As you can see, the distinctions can easily become blurred and it's hard to know where to draw the line. Consequently, the courts have developed a test that allows the judge to formulate an answer.
Judicial Test
Self-defense is proportional IF the force used is no more than is adequate to stop the onslaught of the assault.
If the force is non-deadly then it should be met with non-deadly force.
Deadly force (e.g. a gun or other weapon that causes seriously bodily injury) should only be used when deadly force is threatened.
As you can see, this test lends some certainty as to what is proportional while still giving the court some room for interpretation.
Public Policy Argument
A good fallback method for proving a rule is to ask whether the underlying public policy of the rule is furthered by the application of the rule. Sometimes, you will be presented with a set of facts that on the surface are identical or similar to case law. However, if you applied the rule in these circumstances, the result would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the rule in existence? Have judges used this rule for equity's sake, economic efficiency or because it lends certainty to the process.
Policy arguments are particularly useful in balancing tests. The policy, in fact, might be considered yet another factor to weigh in the analysis. If the policy is or is not furthered by application of the rule, then that element should be given significant weight.
EXAMPLE
In criminal law, the charge of burglary carries with it a greater penalty than mere theft. The policy behind it is that society wants to distinguish between petty theft and more serious takings of property. However, the common law rule for burglary required several elements.
Common Law Rule on Burglary
The charge of burglary is proven IF there is:
breaking
entering
of a dwelling
at night
with the intent to commit a felony therein.
The problem with this rule is that it doesn't further the underlying policy. A thief could break into a barn, which is not considered a dwelling since no one lives there, and steal valuable farm equipment. Likewise, a thief could enter a house and clear it out at daytime under this rule and not be guilty of burglary. Since the policy did not match up with the rule, courts started to liberalize the rule so that interpretations of dwelling were expanded or the nighttime requirement dropped. Today's rule is much more flexible.
Modern Rule on Burglary
The charge of burglary is proven IF there is an:
entering
of a structure
with the intent to commit a crime therein.
Some of the common public policy arguments that are used in the law include the following.
Common Public Policies
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
Economic Efficiency: This policy suggests that all rules be based on a cost-benefit analysis. Society has to have some losses in order to make gains. For instance, this view holds that you can breach a contract and only have to pay damages if it would be economically wasteful to carry out the contract.
Predictability: Is the rule fashioned in such a way that it lends certainty to the judicial process. Everyone knows that there is a bright line rule. Cross over it and you've violated the rule. This sort of rule also lends administrative efficiency to the court such that balancing tests are not used.
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Elements of Rule of common law burglary
Facts of case
Proven True?
Breaking
Forces open door with crowbar.
Yes.
Entering
Enters cabin.
Yes
Of a dwelling
Houseboat
Maybe. If structure is used as a residence - i.e. someone sleeps there regularly - then it probably qualifies as a dwelling.
At night
12 noon
No.
With intent to commit a felony.
Plan is to steal expensive equipment and pawn it.
Yes.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods: Reasoning by Analogy, Balancing of Factors Test, Judicial Tests and
Public Policy Argument.
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
of a reasonable
and prudent person
under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
General principles of the Balancing Test
Consider all of the facts and circumstances.
No one factor determines the case.
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
EXAMPLE
In contract law, one party can make a contract void if the terms are found to be unconscionable. First, we state the rule on unconscionability by listing the elements that must be proven in order for unconscionability to be present.
Rule
Unconscionability in a contract exists IF there is:
absence of meaningful choice
AND terms unreasonably favorable to other party.
Next, we have to prove each of the elements of unconscionability. You will discover in your reading that the first element, "absence of meaningful choice," is proven by a balancing test. The factors to be considered are listed below.
Balancing Test
Weighing the following factors proves absence of meaningful choice:
gross inequality of bargaining power
unfair surprise by the one of the parties
lack of education of one of the parties.
hidden terms in the fine print of the contract.
The next step is to take each of these factors and see if it exists in the professor's hypothetical. You will want to weigh all of the factors to see whether the bulk of the factors suggest unconscionability.
Hypothetical Facts
A retailer in an inner city neighborhood has a contract where residents can purchase furniture on the installment plan. Residents tend to buy all of their furniture at this store - sometimes buying a piece every three to six months. However, if the buyer misses a payment on a single piece of furniture, the contract allows the retailer to repossess every piece of furniture the buyer has ever bought regardless of whether they have paid off all of the previous purchases. For instance, over the course of five years, a customer buys a TV, sofa, bed and table. She pays off all of the purchases. She then buys a desk but misses three payments. Under the contract, the store can repossess the TV, sofa, bed, table and the desk to cover the depreciation of the desk.
Issue: Was there an absence of meaningful choice?
Balancing Test Analysis
Gross inequality of bargaining power: Because of the lack of transportation, there is only one merchant who sells furniture in the inner city neighborhood. The residents have no other person to bargain with. They either have to buy furniture from the merchant at his high prices or go without the furniture. The retailer is essentially holding these buyers hostage.
Unfair surprise: These are terms that are unusual for most contracts. A reasonable person would think that the once they have paid off a particular item of furniture, it is there's to keep. An installment plan typically only requires repossession of the item bought and does not create a security interest in additional items.
Lack of education: The level of education will help determine whether the buyer had a reasonable opportunity to understand the terms of the contract. If the buyers were uneducated, then that suggests that they never expressly agreed to these terms.
Hidden terms: If the retailer hid the terms in the fine print of the contract or engaged in deceptive sales practices to mislead the buyer, then that also suggests that the buyer did not have full knowledge of the unreasonable terms.
No single factor by itself will prove the element. In fact, you might even have a highly educated person and still have an unconscionable contract if the rest of the factors are strong. Here, on balance, we can probably conclude that there was an absence of meaningful choice. (See Williams v. Walker-Thomas Furniture Co. 350 F.2d 445 for a real world example of this hypothetical.)
Judicial Tests
Courts also articulate a judicial "IF-THEN" test that proves a particular element. The test is sometimes couched in terms of probability. It may ask a series of questions that would prove an element. Usually, a test will allow the court some flexibility for interpretation in order to achieve a just result.
EXAMPLE
In tort law, a person can claim self-defense if they use force against someone who attacked them first. The rule on self defense requires three elements
Rule
A defendant can claim self defense against a charge of battery IF:
The defendant used proportional force against offensive bodily contact
AND there was a reasonable belief of necessity to use force under the circumstances
AND there was an immediate need to use the force.
We're focusing on the first element of the rule. What constitutes proportional force can be vague. For instance, is a gun proportional force against a penknife? A four-inch blade? A nine-inch hunting knife in the hands of a 200 pound male who's an an ex-Marine? In the hands of the a little old lady with arthritis? As you can see, the distinctions can easily become blurred and it's hard to know where to draw the line. Consequently, the courts have developed a test that allows the judge to formulate an answer.
Judicial Test
Self-defense is proportional IF the force used is no more than is adequate to stop the onslaught of the assault.
If the force is non-deadly then it should be met with non-deadly force.
Deadly force (e.g. a gun or other weapon that causes seriously bodily injury) should only be used when deadly force is threatened.
As you can see, this test lends some certainty as to what is proportional while still giving the court some room for interpretation.
Public Policy Argument
A good fallback method for proving a rule is to ask whether the underlying public policy of the rule is furthered by the application of the rule. Sometimes, you will be presented with a set of facts that on the surface are identical or similar to case law. However, if you applied the rule in these circumstances, the result would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the rule in existence? Have judges used this rule for equity's sake, economic efficiency or because it lends certainty to the process.
Policy arguments are particularly useful in balancing tests. The policy, in fact, might be considered yet another factor to weigh in the analysis. If the policy is or is not furthered by application of the rule, then that element should be given significant weight.
EXAMPLE
In criminal law, the charge of burglary carries with it a greater penalty than mere theft. The policy behind it is that society wants to distinguish between petty theft and more serious takings of property. However, the common law rule for burglary required several elements.
Common Law Rule on Burglary
The charge of burglary is proven IF there is:
breaking
entering
of a dwelling
at night
with the intent to commit a felony therein.
The problem with this rule is that it doesn't further the underlying policy. A thief could break into a barn, which is not considered a dwelling since no one lives there, and steal valuable farm equipment. Likewise, a thief could enter a house and clear it out at daytime under this rule and not be guilty of burglary. Since the policy did not match up with the rule, courts started to liberalize the rule so that interpretations of dwelling were expanded or the nighttime requirement dropped. Today's rule is much more flexible.
Modern Rule on Burglary
The charge of burglary is proven IF there is an:
entering
of a structure
with the intent to commit a crime therein.
Some of the common public policy arguments that are used in the law include the following.
Common Public Policies
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
Economic Efficiency: This policy suggests that all rules be based on a cost-benefit analysis. Society has to have some losses in order to make gains. For instance, this view holds that you can breach a contract and only have to pay damages if it would be economically wasteful to carry out the contract.
Predictability: Is the rule fashioned in such a way that it lends certainty to the judicial process. Everyone knows that there is a bright line rule. Cross over it and you've violated the rule. This sort of rule also lends administrative efficiency to the court such that balancing tests are not used.
Rashad Gray, Attorney at law4
The single most important skill for a lawyer is the ability to analyze an issue. Professors award high grades based on good analysis. For the exam, the professor develops a hypothetical dispute where the judicial decision could go either way. There is no right answer as to the dispute, but the excellent answer analyzes all of the facts and issues.
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Elements of Rule of common law burglary
Facts of case
Proven True?
Breaking
Forces open door with crowbar.
Yes.
Entering
Enters cabin.
Yes
Of a dwelling
Houseboat
Maybe. If structure is used as a residence - i.e. someone sleeps there regularly - then it probably qualifies as a dwelling.
At night
12 noon
No.
With intent to commit a felony.
Plan is to steal expensive equipment and pawn it.
Yes.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods: Reasoning by Analogy, Balancing of Factors Test, Judicial Tests and
Public Policy Argument.
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
of a reasonable
and prudent person
under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
General principles of the Balancing Test
Consider all of the facts and circumstances.
No one factor determines the case.
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
EXAMPLE
In contract law, one party can make a contract void if the terms are found to be unconscionable. First, we state the rule on unconscionability by listing the elements that must be proven in order for unconscionability to be present.
Rule
Unconscionability in a contract exists IF there is:
absence of meaningful choice
AND terms unreasonably favorable to other party.
Next, we have to prove each of the elements of unconscionability. You will discover in your reading that the first element, "absence of meaningful choice," is proven by a balancing test. The factors to be considered are listed below.
Balancing Test
Weighing the following factors proves absence of meaningful choice:
gross inequality of bargaining power
unfair surprise by the one of the parties
lack of education of one of the parties.
hidden terms in the fine print of the contract.
The next step is to take each of these factors and see if it exists in the professor's hypothetical. You will want to weigh all of the factors to see whether the bulk of the factors suggest unconscionability.
Hypothetical Facts
A retailer in an inner city neighborhood has a contract where residents can purchase furniture on the installment plan. Residents tend to buy all of their furniture at this store - sometimes buying a piece every three to six months. However, if the buyer misses a payment on a single piece of furniture, the contract allows the retailer to repossess every piece of furniture the buyer has ever bought regardless of whether they have paid off all of the previous purchases. For instance, over the course of five years, a customer buys a TV, sofa, bed and table. She pays off all of the purchases. She then buys a desk but misses three payments. Under the contract, the store can repossess the TV, sofa, bed, table and the desk to cover the depreciation of the desk.
Issue: Was there an absence of meaningful choice?
Balancing Test Analysis
Gross inequality of bargaining power: Because of the lack of transportation, there is only one merchant who sells furniture in the inner city neighborhood. The residents have no other person to bargain with. They either have to buy furniture from the merchant at his high prices or go without the furniture. The retailer is essentially holding these buyers hostage.
Unfair surprise: These are terms that are unusual for most contracts. A reasonable person would think that the once they have paid off a particular item of furniture, it is there's to keep. An installment plan typically only requires repossession of the item bought and does not create a security interest in additional items.
Lack of education: The level of education will help determine whether the buyer had a reasonable opportunity to understand the terms of the contract. If the buyers were uneducated, then that suggests that they never expressly agreed to these terms.
Hidden terms: If the retailer hid the terms in the fine print of the contract or engaged in deceptive sales practices to mislead the buyer, then that also suggests that the buyer did not have full knowledge of the unreasonable terms.
No single factor by itself will prove the element. In fact, you might even have a highly educated person and still have an unconscionable contract if the rest of the factors are strong. Here, on balance, we can probably conclude that there was an absence of meaningful choice. (See Williams v. Walker-Thomas Furniture Co. 350 F.2d 445 for a real world example of this hypothetical.)
Judicial Tests
Courts also articulate a judicial "IF-THEN" test that proves a particular element. The test is sometimes couched in terms of probability. It may ask a series of questions that would prove an element. Usually, a test will allow the court some flexibility for interpretation in order to achieve a just result.
EXAMPLE
In tort law, a person can claim self-defense if they use force against someone who attacked them first. The rule on self defense requires three elements
Rule
A defendant can claim self defense against a charge of battery IF:
The defendant used proportional force against offensive bodily contact
AND there was a reasonable belief of necessity to use force under the circumstances
AND there was an immediate need to use the force.
We're focusing on the first element of the rule. What constitutes proportional force can be vague. For instance, is a gun proportional force against a penknife? A four-inch blade? A nine-inch hunting knife in the hands of a 200 pound male who's an an ex-Marine? In the hands of the a little old lady with arthritis? As you can see, the distinctions can easily become blurred and it's hard to know where to draw the line. Consequently, the courts have developed a test that allows the judge to formulate an answer.
Judicial Test
Self-defense is proportional IF the force used is no more than is adequate to stop the onslaught of the assault.
If the force is non-deadly then it should be met with non-deadly force.
Deadly force (e.g. a gun or other weapon that causes seriously bodily injury) should only be used when deadly force is threatened.
As you can see, this test lends some certainty as to what is proportional while still giving the court some room for interpretation.
Public Policy Argument
A good fallback method for proving a rule is to ask whether the underlying public policy of the rule is furthered by the application of the rule. Sometimes, you will be presented with a set of facts that on the surface are identical or similar to case law. However, if you applied the rule in these circumstances, the result would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the rule in existence? Have judges used this rule for equity's sake, economic efficiency or because it lends certainty to the process.
Policy arguments are particularly useful in balancing tests. The policy, in fact, might be considered yet another factor to weigh in the analysis. If the policy is or is not furthered by application of the rule, then that element should be given significant weight.
EXAMPLE
In criminal law, the charge of burglary carries with it a greater penalty than mere theft. The policy behind it is that society wants to distinguish between petty theft and more serious takings of property. However, the common law rule for burglary required several elements.
Common Law Rule on Burglary
The charge of burglary is proven IF there is:
breaking
entering
of a dwelling
at night
with the intent to commit a felony therein.
The problem with this rule is that it doesn't further the underlying policy. A thief could break into a barn, which is not considered a dwelling since no one lives there, and steal valuable farm equipment. Likewise, a thief could enter a house and clear it out at daytime under this rule and not be guilty of burglary. Since the policy did not match up with the rule, courts started to liberalize the rule so that interpretations of dwelling were expanded or the nighttime requirement dropped. Today's rule is much more flexible.
Modern Rule on Burglary
The charge of burglary is proven IF there is an:
entering
of a structure
with the intent to commit a crime therein.
Some of the common public policy arguments that are used in the law include the following.
Common Public Policies
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
Economic Efficiency: This policy suggests that all rules be based on a cost-benefit analysis. Society has to have some losses in order to make gains. For instance, this view holds that you can breach a contract and only have to pay damages if it would be economically wasteful to carry out the contract.
Predictability: Is the rule fashioned in such a way that it lends certainty to the judicial process. Everyone knows that there is a bright line rule. Cross over it and you've violated the rule. This sort of rule also lends administrative efficiency to the court such that balancing tests are not used.
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Elements of Rule of common law burglary
Facts of case
Proven True?
Breaking
Forces open door with crowbar.
Yes.
Entering
Enters cabin.
Yes
Of a dwelling
Houseboat
Maybe. If structure is used as a residence - i.e. someone sleeps there regularly - then it probably qualifies as a dwelling.
At night
12 noon
No.
With intent to commit a felony.
Plan is to steal expensive equipment and pawn it.
Yes.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods: Reasoning by Analogy, Balancing of Factors Test, Judicial Tests and
Public Policy Argument.
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
of a reasonable
and prudent person
under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
General principles of the Balancing Test
Consider all of the facts and circumstances.
No one factor determines the case.
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
EXAMPLE
In contract law, one party can make a contract void if the terms are found to be unconscionable. First, we state the rule on unconscionability by listing the elements that must be proven in order for unconscionability to be present.
Rule
Unconscionability in a contract exists IF there is:
absence of meaningful choice
AND terms unreasonably favorable to other party.
Next, we have to prove each of the elements of unconscionability. You will discover in your reading that the first element, "absence of meaningful choice," is proven by a balancing test. The factors to be considered are listed below.
Balancing Test
Weighing the following factors proves absence of meaningful choice:
gross inequality of bargaining power
unfair surprise by the one of the parties
lack of education of one of the parties.
hidden terms in the fine print of the contract.
The next step is to take each of these factors and see if it exists in the professor's hypothetical. You will want to weigh all of the factors to see whether the bulk of the factors suggest unconscionability.
Hypothetical Facts
A retailer in an inner city neighborhood has a contract where residents can purchase furniture on the installment plan. Residents tend to buy all of their furniture at this store - sometimes buying a piece every three to six months. However, if the buyer misses a payment on a single piece of furniture, the contract allows the retailer to repossess every piece of furniture the buyer has ever bought regardless of whether they have paid off all of the previous purchases. For instance, over the course of five years, a customer buys a TV, sofa, bed and table. She pays off all of the purchases. She then buys a desk but misses three payments. Under the contract, the store can repossess the TV, sofa, bed, table and the desk to cover the depreciation of the desk.
Issue: Was there an absence of meaningful choice?
Balancing Test Analysis
Gross inequality of bargaining power: Because of the lack of transportation, there is only one merchant who sells furniture in the inner city neighborhood. The residents have no other person to bargain with. They either have to buy furniture from the merchant at his high prices or go without the furniture. The retailer is essentially holding these buyers hostage.
Unfair surprise: These are terms that are unusual for most contracts. A reasonable person would think that the once they have paid off a particular item of furniture, it is there's to keep. An installment plan typically only requires repossession of the item bought and does not create a security interest in additional items.
Lack of education: The level of education will help determine whether the buyer had a reasonable opportunity to understand the terms of the contract. If the buyers were uneducated, then that suggests that they never expressly agreed to these terms.
Hidden terms: If the retailer hid the terms in the fine print of the contract or engaged in deceptive sales practices to mislead the buyer, then that also suggests that the buyer did not have full knowledge of the unreasonable terms.
No single factor by itself will prove the element. In fact, you might even have a highly educated person and still have an unconscionable contract if the rest of the factors are strong. Here, on balance, we can probably conclude that there was an absence of meaningful choice. (See Williams v. Walker-Thomas Furniture Co. 350 F.2d 445 for a real world example of this hypothetical.)
Judicial Tests
Courts also articulate a judicial "IF-THEN" test that proves a particular element. The test is sometimes couched in terms of probability. It may ask a series of questions that would prove an element. Usually, a test will allow the court some flexibility for interpretation in order to achieve a just result.
EXAMPLE
In tort law, a person can claim self-defense if they use force against someone who attacked them first. The rule on self defense requires three elements
Rule
A defendant can claim self defense against a charge of battery IF:
The defendant used proportional force against offensive bodily contact
AND there was a reasonable belief of necessity to use force under the circumstances
AND there was an immediate need to use the force.
We're focusing on the first element of the rule. What constitutes proportional force can be vague. For instance, is a gun proportional force against a penknife? A four-inch blade? A nine-inch hunting knife in the hands of a 200 pound male who's an an ex-Marine? In the hands of the a little old lady with arthritis? As you can see, the distinctions can easily become blurred and it's hard to know where to draw the line. Consequently, the courts have developed a test that allows the judge to formulate an answer.
Judicial Test
Self-defense is proportional IF the force used is no more than is adequate to stop the onslaught of the assault.
If the force is non-deadly then it should be met with non-deadly force.
Deadly force (e.g. a gun or other weapon that causes seriously bodily injury) should only be used when deadly force is threatened.
As you can see, this test lends some certainty as to what is proportional while still giving the court some room for interpretation.
Public Policy Argument
A good fallback method for proving a rule is to ask whether the underlying public policy of the rule is furthered by the application of the rule. Sometimes, you will be presented with a set of facts that on the surface are identical or similar to case law. However, if you applied the rule in these circumstances, the result would somehow be unjust. If that is the case, then look to the policy of the rule. Why is the rule in existence? Have judges used this rule for equity's sake, economic efficiency or because it lends certainty to the process.
Policy arguments are particularly useful in balancing tests. The policy, in fact, might be considered yet another factor to weigh in the analysis. If the policy is or is not furthered by application of the rule, then that element should be given significant weight.
EXAMPLE
In criminal law, the charge of burglary carries with it a greater penalty than mere theft. The policy behind it is that society wants to distinguish between petty theft and more serious takings of property. However, the common law rule for burglary required several elements.
Common Law Rule on Burglary
The charge of burglary is proven IF there is:
breaking
entering
of a dwelling
at night
with the intent to commit a felony therein.
The problem with this rule is that it doesn't further the underlying policy. A thief could break into a barn, which is not considered a dwelling since no one lives there, and steal valuable farm equipment. Likewise, a thief could enter a house and clear it out at daytime under this rule and not be guilty of burglary. Since the policy did not match up with the rule, courts started to liberalize the rule so that interpretations of dwelling were expanded or the nighttime requirement dropped. Today's rule is much more flexible.
Modern Rule on Burglary
The charge of burglary is proven IF there is an:
entering
of a structure
with the intent to commit a crime therein.
Some of the common public policy arguments that are used in the law include the following.
Common Public Policies
Equity: This is the moralistic argument that we want to cure harms to an injured party and deter bad behavior.
Economic Efficiency: This policy suggests that all rules be based on a cost-benefit analysis. Society has to have some losses in order to make gains. For instance, this view holds that you can breach a contract and only have to pay damages if it would be economically wasteful to carry out the contract.
Predictability: Is the rule fashioned in such a way that it lends certainty to the judicial process. Everyone knows that there is a bright line rule. Cross over it and you've violated the rule. This sort of rule also lends administrative efficiency to the court such that balancing tests are not used.
Rashad Gray, Attorney at law3
The single most important skill for a lawyer is the ability to analyze an issue. Professors award high grades based on good analysis. For the exam, the professor develops a hypothetical dispute where the judicial decision could go either way. There is no right answer as to the dispute, but the excellent answer analyzes all of the facts and issues.
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods: Reasoning by Analogy, Balancing of Factors Test, Judicial Tests and
Public Policy Argument.
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
of a reasonable
and prudent person
under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
Analysis is the simple act of proving each element of a rule to be true or false. To analyze, you must first break up the rule into elements to be proven. This makes the analysis easier since we're working with smaller elements. You then list all of the facts and circumstances of a case. Next, you simply match up the facts to the elements to see if the element exists.
EXAMPLE
At 12 noon, Joe forces open the door of a houseboat and enters the cabin. He takes the houseboat's expensive navigation equipment, which he plans to sell at a pawnshop the next day.
Using the rule for burglary, we match up the facts to the elements to analyze the outcome.
Conclusion: Common law burglary is not satisfied since the crime did not occur at night.
The goal in a good analysis is to step through every element and match up every fact rather than just coming to a snap conclusion because one of the elements is not satisfied. While the conclusion can be short, the analysis should be full, lengthy and methodical.
The analysis is often not as straightforward as matching facts to elements. When the element of a rule is merely whether it's day or night, the analysis is simple. However, if the element definition is fuzzier, then the analysis becomes more difficult. For instance, in Tort law one of the most fuzzy elements for negligence concerns the word "reasonable." If a person acted reasonably then they may not be liable for negligence. However, what's "reasonable?" Was it unreasonable for a landowner to leave an open hole on his property if a trespasser falls in it? Was if instead of trespasser, the injured party was a neighbor that landowner invited over?
Court solve these definition problems by creating different types of tests to handle the tricky problem of fitting facts into elements that have fuzzy definitions. There are four primary methods: Reasoning by Analogy, Balancing of Factors Test, Judicial Tests and
Public Policy Argument.
The method used depends on the rule. A court may use one or all of these methods in deciding whether to apply a rule. Think of these techniques as the set of tools that you'll use to apply the rule.
Reasoning by Analogy
To reason by analogy you draw parallels between your hypothetical cases and cases that have already been decided. Since the facts and circumstances often determine the legal issue, you can often simply look to see whether the facts of this case match the facts of previous cases. If the key facts are similar enough, then you can draw an analogy that the decision rendered in the previous case should be used in the current case as well. Likewise, if the material facts are different on key elements of a rule, then you try to distinguish the present case by arguing that it is too different from precedent in order to apply the rule.
In reasoning by analogy, it is not necessary that facts match up exactly. If you do find a case that matches up exactly, then the argument is "on point" (legalese for a slam-dunk). More likely, you will find that key facts are somewhat different. Thus, while you can reason by analogy to bolster an argument, you will often have to use an additional means of persuasion in order to apply a rule.
As you read cases, note what facts prove an element of a rule. Key cases will frequently cite other precedents to show examples of where to draw the line. By building up a list of these examples, you have a database to show you where the line should be drawn.
EXAMPLE:
In Torts, an issue arises over the standard of care that a defendant owed a plaintiff in a negligence case. The rule on the standard of care can be stated as follows:
The standard of care must be that
of a reasonable
and prudent person
under the same or similar circumstances.
Although we have a clear statement of the rule, it's impossible to know what behavior is reasonable and prudent without knowing some examples. Thus we build a database of examples from the case law to show where the courts have found behavior to be or not to be reasonable and prudent. Here are two cases that illustrate the standard.
Breach of Standard of Care: Operator of heavy machinery has sister ride on side of tractor. Sister is killed. Brother's experience and knowledge of machinery should have led him to conclude that it wasn't safe. - Hill v. Sparks 546 S.W.2d 473.
No Standard of Care: In a drive-through bank, a car suddenly starts to back up and defendant throws car into reverse and backs up without looking. He runs into another vehicle and causes damage. Even though defendant didn't look, held to be reasonable behavior because it was an emergency. The other car would have hit him. - Wilson v. Silbert 535 P.2d 1034.
By building the list of examples, we begin to see what is taken into account to determine the standard of care. Prudent behavior may depend on experience and knowledge. The circumstances of an emergency may change the standard temporarily. You can see that these simple examples serve as easy guides. When choosing examples, try to include cases that illustrate holdings on either side of an issue. You want to see the full spectrum of situations when the rule applies and when it doesn't apply.
With these examples in place, you can draw an analogy to the facts and circumstances of your hypothetical. If there was an emergency situation in your example, you would argue that the hypothetical was analogous (or not if that's your position) to Wilson v. Silbert.
Balancing of Factors Test
In the balancing test, the court literally balances the different interests to achieve a just result. To do a balancing test, the court identifies factors to weigh in making its decision. The factors differ according to the issue. Factors might include age, education, experience, wealth, health and intent to do harm.
The factors are not meant to be a laundry list of necessary elements; otherwise, the factors would be incorporated into the rule. Rather, each factor is just another weight tipping the scale toward applying the rule until enough of the factors are present that you've satisfied the condition. This technique gives the court some leeway to adjust the result given a set of circumstances.
Often the courts will say "no single factor is dispositive," meaning that one fact or set of facts won't decide the case. Also, you can be light in one factor and heavy in another and still apply the rule. Be sure to note whether the cases allow this sort of flexibility in applying factors. Use it only when cases specifically state that alternative weights are allowed.
Rashad Gray, Attorney at law2
Fear of failure is one of the greatest fears people have. Fear of failure is closely related to fear of criticism and fear of rejection. Successful people overcome their fear of failure. Fear incapacitates unsuccessful people.
The Law of Feedback states: there is no failure; there is only feedback. Successful people look at mistakes as outcomes or results, not as failure. Unsuccessful people look at mistakes as permanent and personal.
Buckminster Fuller wrote, "Whatever humans have learned had to be learned as a consequence only of trial and error experience. Humans have learned only through mistakes."
Most people self-limit themselves. Most people do not achieve a fraction of what they are capable of achieving because they are afraid to try—because they are afraid they will fail.
Take these steps to overcome your fear of failure and move yourself forward to getting the result you desire:
Step One: Take action. Bold, decisive action. Do something scary. Fear of failure immobilizes you. To overcome this fear, you must act. When you act, act boldly.
Action gives you the power to change the circumstances or the situation. You must overcome the inertia by doing something. Dr. Robert Schuller asks, "What would you do if you knew you could not fail?" What could you achieve? Be brave and just do it. If it doesn’t work out the way you want, then do something else. But DO SOMETHING NOW.
Step Two: Persist. Successful people just don’t give up. They keep trying different approaches to achieving their outcomes until they finally get the results they want. Unsuccessful people try one thing that doesn’t work and then give up. Often people give up when they are on the threshold of succeeding.
Step Three: Don’t take failure personally. Failure is about behavior, outcomes, and results. Failure is not a personality characteristic. Although what you do may not give you the result you wanted, it doesn’t mean you are a failure. Because you made a mistake, doesn’t mean that you are a failure.
Step Four: Do things differently. If what you are doing isn’t working, do something else. There is an old saying, "if you always do what you’ve always done, you’ll always get what you always got." If you’re not getting the results you want, then you must do something different. Most people stop doing anything at all, and this guarantees they won’t be successful.
Step Five: Don’t be so hard on yourself. Hey, if nothing else, you know what doesn’t work. Failure is a judgement or evaluation of behavior. Look at failure as an event or a happening, not as a person.
Step Six: Treat the experience as an opportunity to learn. Think of failure as a learning experience. What did you learn from the experience that will help you in the future? How can you use the experience to improve yourself or your situation? Ask yourself these questions:
(1) What was the mistake?
(2) Why did it happen?
(3) How could it have been prevented?
(4) How can I do better next time?
Then use what you learned from the experience to do things differently so you get different results next time. Learn from the experience or ignore it.
Step Seven: Look for possible opportunities that result from the experience. Napoleon Hill, author of Think and Grow Rich, says "every adversity, every failure and every heartache carries with it the seed of an equivalent or a greater benefit." Look for the opportunity and the benefit.
Step Eight: Fail forward fast. Tom Peters, the management guru, says that in today’s business world, companies must fail forward fast. What he means is that the way we learn is by making mistakes. So if we want to learn at a faster pace, we must make mistakes at a faster pace. The key is that you must learn from the mistakes so you make so you don’t repeat them.
Although we all make mistakes, fear of failure doesn’t have to cripple you. As self-help author Susan Jeffers says, "feel the fear and do it anyway."
The Law of Feedback states: there is no failure; there is only feedback. Successful people look at mistakes as outcomes or results, not as failure. Unsuccessful people look at mistakes as permanent and personal.
Buckminster Fuller wrote, "Whatever humans have learned had to be learned as a consequence only of trial and error experience. Humans have learned only through mistakes."
Most people self-limit themselves. Most people do not achieve a fraction of what they are capable of achieving because they are afraid to try—because they are afraid they will fail.
Take these steps to overcome your fear of failure and move yourself forward to getting the result you desire:
Step One: Take action. Bold, decisive action. Do something scary. Fear of failure immobilizes you. To overcome this fear, you must act. When you act, act boldly.
Action gives you the power to change the circumstances or the situation. You must overcome the inertia by doing something. Dr. Robert Schuller asks, "What would you do if you knew you could not fail?" What could you achieve? Be brave and just do it. If it doesn’t work out the way you want, then do something else. But DO SOMETHING NOW.
Step Two: Persist. Successful people just don’t give up. They keep trying different approaches to achieving their outcomes until they finally get the results they want. Unsuccessful people try one thing that doesn’t work and then give up. Often people give up when they are on the threshold of succeeding.
Step Three: Don’t take failure personally. Failure is about behavior, outcomes, and results. Failure is not a personality characteristic. Although what you do may not give you the result you wanted, it doesn’t mean you are a failure. Because you made a mistake, doesn’t mean that you are a failure.
Step Four: Do things differently. If what you are doing isn’t working, do something else. There is an old saying, "if you always do what you’ve always done, you’ll always get what you always got." If you’re not getting the results you want, then you must do something different. Most people stop doing anything at all, and this guarantees they won’t be successful.
Step Five: Don’t be so hard on yourself. Hey, if nothing else, you know what doesn’t work. Failure is a judgement or evaluation of behavior. Look at failure as an event or a happening, not as a person.
Step Six: Treat the experience as an opportunity to learn. Think of failure as a learning experience. What did you learn from the experience that will help you in the future? How can you use the experience to improve yourself or your situation? Ask yourself these questions:
(1) What was the mistake?
(2) Why did it happen?
(3) How could it have been prevented?
(4) How can I do better next time?
Then use what you learned from the experience to do things differently so you get different results next time. Learn from the experience or ignore it.
Step Seven: Look for possible opportunities that result from the experience. Napoleon Hill, author of Think and Grow Rich, says "every adversity, every failure and every heartache carries with it the seed of an equivalent or a greater benefit." Look for the opportunity and the benefit.
Step Eight: Fail forward fast. Tom Peters, the management guru, says that in today’s business world, companies must fail forward fast. What he means is that the way we learn is by making mistakes. So if we want to learn at a faster pace, we must make mistakes at a faster pace. The key is that you must learn from the mistakes so you make so you don’t repeat them.
Although we all make mistakes, fear of failure doesn’t have to cripple you. As self-help author Susan Jeffers says, "feel the fear and do it anyway."
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