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The Use of Actual, Not Fictional, Hypotheticals North East Journal of Legal Studies Volume 13 Spring 2007 Article 8 Spring 2007 The Use of Actual, Not Fictional, Hypotheticals Peter M. Edelstein Follow this and additional works at: https://digitalcommons.fairfield.edu/nealsb Recommended Citation Edelstein, Peter M. (2007) "The Use of Actual, Not Fictional, Hypotheticals," North East Journal of Legal Studies: Vol. 13 , Article 8. Available at: https://digitalcommons.fairfield.edu/nealsb/vol13/iss1/8 This item has been accepted for inclusion in DigitalCommons@Fairfield by an authorized administrator of DigitalCommons@Fairfield. It is brought to you by DigitalCommons@Fairfield with permission from the rights- holder(s) and is protected by copyright and/or related rights. You are free to use this item in any way that is permitted by the copyright and related rights legislation that applies to your use. For other uses, you need to obtain permission from the rights-holder(s) directly, unless additional rights are indicated by a Creative Commons license in the record and/or on the work itself. For more information, please contact [email protected]. 2007 I The Use of Factual, Not Fictional I 104 105 I Vol. 17 I North East Journal of Legal Studies THE USE OF FACTUAL, NOT FICTIONAL, I. Introduction. HYPOTHETICALS The author's premise was derived, not from sudden realization of the blandness and small profit in the use of by antiseptic hypotheticals using "A's" and "B's" and simplistic fact patterns, but as the result of a dismaying epiphany that one Peter M. Edelstein* cannot buy a newspaper without seeing a breach of law related article on the front page. In law school students heard (and now we perpetuate) Abstract questions and statements like: For as long as this author can Assume A says to B: "I will sell remember, principals of law have you my car for $1,000." Does an been illustrated and explained by offer exist?" or "A says to B: "I the use of hypotheticals in the will sell you my house for form of statements or questions $500,000." B says, "O.K. it's a composed of contrived scenarios deal." Is the Statute of Frauds and the use of alphabet letters applicable? instead of actual events and persons. How dull, unimaginative, uninteresting and forgettable. Events constantly occurring around us furnish a rich and This author proposes that fascinating mine of living material to supplement and replace traditional hypotheticals trade off traditional hypotheticals with meaningful facts to which the short term insight for long term students' can readily relate. This writer proposes that understanding and retention. traditional hypotheticals trade off short-term insight for long- Hypotheticals based on term understanding. recognizable people and facts The word "hypothetical" has evolved to serve two gleaned from actual events result functions as a teaching technique: first, to illustrate an example in a more effective teaching of a legal doctrine, theory or other "rule;" and second, to elicit technique. a response that demonstrates the students' understanding of the substantive material. The author urges both usages can make more effective educators and better students by supplementing *Professor of Law, Pace University, Lubin School of Business, the fictional hypothetical with the factual one. Pleasantville, New York. Member, Edelstein & Lochner LLP, Mount Kisco, New York. 2007 I The Use of Factual, Not Fictional I 106 107 I Vol. 17 I North East Journal of Legal Studies II. Practice. about trees, I diagnosed that the tree was sick. I called a tree Assume (for purposes of this paper) that instructors' company for a second opinion. objectives are: The arborist confirmed that the tree was sick and had to be (i) getting the students' removed. We entered a contract attention, to have a tree removed from my (ii) creating an interest in the property for $1,000.00. After the subject matter, arborist and his crew climbed the (iii) generating a desire to tree, they came down and the learn. arborist told me he could not do the job because the tree had While it is beyond the scope of this article to delve into Dutch Elm disease and the limbs the "psychology of education," probably all instructors have were brittle and therefore may had the experience of illustrating a rule based on "real life" crack and cause his workers to experience, especially one in which the instructor may have fall. I was really ticked off and been involved. Students always seem more attentive and told the arborist so, he said he interested in these examples. There is a sense that the students' would speak to his men. Upon tend to retain the point because of their emotional identification his return he said that the men with the instructor. This emotional involvement converts into a told him they would do it for motivation to understand and more easily learn the subject more money, so the arborist and I matter. agreed that the amount for the When teaching the concept of consideration, disputed tree removal would now be debts and past consideration, the following "true" hypothetical $2,000. Before the bill was is the platform: received, I felt that the arborist had scammed me as to the I live in a house that faces a additional $1 ,000.00 and this was beautiful view of a large lake. his way of getting another When I bought the house twenty- $1,000. I disputed the bill m six years ago there was a good faith. magnificent tree in the yard between the house and the lake. Almost without fail, the students seem to learn the rules Each successive year I noticed related to consideration, (that there was no consideration for that the tree lost its leaves earlier the second promise based on pre-existing duty and the in the summer. Knowing nothing genuineness of the disputed debt). Students easily relate to this 2007 I The Use of Factual, Not Fictional I 108 109 I Vol. 17 I North East Journal of Legal Studies type of anecdote. Because of an identification with the author's legal problem, the students become interested in the While Ms. Couric is under facts, and as a result are motivated to remember the rules being contract to NBC through the end taught. of May and, under the terms of "Personal" hypotheticals are easy to convey and make her current deal, cannot have any for lively discourse. Hypotheticals that are adapted from formal talks with CBS or another current affairs seem to be even more beneficial. Additionally, network until the beginning of they expand the students' universe beyond I-pods, beer and that month, NBC executives sex, to include world events. decided in recent days to permit Ms. Couric's representatives to III. Methodology and Illustrations. discuss outside offers for her future services." Where do we find the bases for such hypotheticals (New York Times, April 4, 2006, (other than our personal experiences)? To plant seeds that may by Bill Carter) flourish this author believes that newspapers (The New York Times is the author' s choice because of its comprehensive This writer suggests that there is not a student in class who coverage) may be the most fruitful source. cannot identify with Katie and her horrible problems in Some random examples: deciding which billion-dollar offer to accept. 1. Subjects for possible hypotheticals in the areas of: 2. Subjects for possible hypotheticals in the areas contracts, offer, acceptance, consideration, restrictive of: negligence, fraud, elements of a trial, concept of a class- covenants, interference with contractual relationships: action, settlement, federal drug regulation, rules of evidence, damages: "A CBS DEAL WITH COURJC MAY BE NEAR "JURY TO START DELIBERATION IN TWO CBS's long courtship of Katie VIOXX INJURY CASES Couric has moved close to a conclusion. A deal to recruit her After a month of testimony, the away from NBC's "Today" show fourth Vioxx-related personal and into the nightly anchor chair injury trial ended Monday with at CBS News may be completed well-worn closing arguments as early as this week, people from lawyers for Merck and for close to the negotiations said two men who say the company's yesterday. 2007 I The Use of Factual, Not Fictional I 110 Ill I Vol. 17 I North East Journal of Legal Studies drug Vioxx caused their heart "6,000 PILOTS AT DELTA attacks. AIR VOTE TO STRIKE Less than two years after Merck withdrew Vioxx from the market, The nearly 6,000 pilots at Delta and eight months after the first Air Lines, proving resistant to a Vioxx case reached a verdict, second round of concessions, litigation over the drug has voted overwhelmingly to settled into something of a approve a strike should their groove. contract be voided by an arbitration panel, the pilot's In this case, as in the earlier suits, union said yesterday. The panel lawyers for Merck insisted that is expected to issue a ruling by the company fully disclosed April 15." Vioxx's potential dangers to (New York Times, April 5, 2006, regulators and the public. by Jeff Bailey and Christopher Lawyers for the plaintiffs pointed Elliot) to documents and e-mail messages showing that company Any student planning travel for a spring break or home at the scientists were concerned about end of the semester wants to know about this subject. Vioxx's risks long before Merck withdrew the drug from the 4. Subjects for possible hypotheticals in the areas market in September 2004." of: ethics, criminal law, fraud, trials, witnesses, evidence and (New York Time, April 4, 2006, the relative weight thereof, politics and the law: by Alex Berenson) " IN ENRON TRIAL, A While college students are too young to enjoy the thrills of CALCULATED RISK arthritis, they can relate to the potential damage of a "bad" TWO FORMER CHIEFS medicine on the market.
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