GOOD READ -- Using Hypotheticals When Debating Law in the Blogosphere
Lawyers often explore legal arguments by offering “hypotheticals,” or “hypos” for short. A hypothetical is a “what if” scenario designed to question a legal principle. The idea is to change the facts to something very different than the one before us to see how the offered legal principle would apply to that set of facts. In many cases, the goal is to show that the rule under consideration isn’t workable or has some problem that isn’t obvious from the application of the rule to the facts that presently exist. In that sense, hypos are ways of criticizing legal rules by showing problems with how they apply.
As common as they are in discussions of law generally, I find that hypos often fall flat when debating law in the blogosphere. The problem, I think, is that a lot of people who argue about law in the blogosphere tend to draw different lessons about hypotheticals than what would be intended in an oral argument in court or in in a law school setting.