(A rather interesting passage on socratic dialogue!)
The hypothetical (or “hypo”) is so familiar to anyone who has received a legal education in the United States that you might ask, “Can there possibly be anything of theoretical interest in the hypothetical?” And in the same vein, “We all know what hypos are.” The purpose of this post is to reflect on the “hypothetical,” with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorous and analytically about hypotheticals, what they are, what they can and can’t accomplish, how to construct them, and how to maneuver around them.
Particularly, the lessons on how to better deal with socratic arguments:
Lesson Number One: Fight the hypothetical, lose the war!
The first and most important lesson to learn about hypotheticals is that you can’t get anywhere by fighting the set up. (I will modify this rule of thumb later on.) One of the first ways that law students begin to fight back against hypotheticals to resist the “hypothesis.” One way to do this is to fight the facts. “That wouldn’t happen.” Or “In the real world, it would happen differently.” Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, “O.K., but for the sake of argument, assume these facts.” At the best, you get another version of the same hypo that works around your factual objection.” As a general rule, don’t fight the facts.
Lesson Number Two: Watch for Slippery Slopes
Every law student learns to recognize the following pattern: the Professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn’t seem to be an logical stopping point, so if the student wants to be consistent, they are lead to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1. 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust. The atoms that are expelled when Ben says, I agree? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, “I see were are on a slippery slope here.” Then just go along for the ride, and when you read the bottom, just say, “Well, I see we are at the bottom of the slippery slope now!” You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, “My answer is still “Yes, but we are starting to enter the gray zone.” (If you want to be fancy, say “. . . but we are starting to enter the penumbra of the rule.” When you think that you’ve hit a truly hard case, say “Now, we are definitely in the gray zone. It’s really a judgment call which could go either way.” And then when you get to the bottom of the slippery slope, you can say, “Now, it’s clear, the answer is no.” This second strategy is simply the way to make the point that there are lot’s of legal rules that require a “Yes” or “No” answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor’s way of getting you to see this phenomenon.
Lesson Number Three: Watch Out for Cold Rules and Hot Facts
This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. “Starving babies” are a common device. But should Alice have to pay Ben damages if Alice has a “starving baby!” Of course not, you say to yourself, but in fact whether or not Alice’s baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. “Well, morally speaking, it seems repugnant to make Alice pay, but I don’t see how her financial needs provide her with a legal defense.” Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of “necessity.” Obviously, these two strategies can be combined: “Well, morally speaking, it seems repugnant to make Alice pay, but I don’t see how her financial needs provide her with a legal defense. Maybe, should could argue that there is a defense of “necessity” to actions for breach of contract.”
Lesson Four: Easy Cases, Hard Cases, and Wild Cases One way to slice the hypothetical pie is into cases that are easy, hard, and wild:
Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.
Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn’t. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided–“novel questions” where not precedent or rule is binding; (2) Rules sometimes have “gaps,” places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a “hard case.” When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:
(1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).
(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.
(3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) savings lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.
Hard cases are the meat and potatoes of law school.
Wild Cases involve fanciful fact patters or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren’t punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus, can a 32 year serve as President, even though the Constitution sets a minimum age of 35. Wild cases are frequently constructed to serve as “intuition pumps.” That is, the wild case is constructed so as to generate a particular reaction–an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating–they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work–pumping the intuition. When you are questioned about a wild case, you should simply give your reaction–your gut instinct. But it is also fair to qualify your answer: “My answer is yes, but this case is so wild that I really don’t feel very sure about my intuitions.” Wild cases are the desert of law school.