This is a discussion on GOOD READ -- Using Hypotheticals When Debating Law in the Blogosphere within the Off Topic & Humor Discussion forums, part of the The Back Porch category; http://volokh.com/2010/09/13/hypothe...+Conspiracy%29 Lawyers often explore legal arguments by offering “hypotheticals,” or “hypos” for short. A hypothetical is a “what if” scenario designed to question a legal ...
http://volokh.com/2010/09/13/hypothe...+Conspiracy%29Lawyers 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.
I'm just one root in a grassroots organization. No one should assume that I speak for the VCDL.
I am neither an attorney-at-law nor I do play one on television or on the internet. No one should assumes my opinion is legal advice.
Veni, Vidi, Velcro
The thing to always keep in mind when discussing law is that black letter aside, it boils down to opinions. Cases don't get to a courtroom unless two people educated in the law and working from the same set of facts come to different opinions about what the law is.
Sometimes relying on the opinions of lawyers is about like taking a back pain to 3 different docs. One says, "slipped disc," another says, "kidney disease," another says, "psychiatric problem." Sometimes it is impossible to know which opinion to believe. How much more so in law where the whole thing goes by "opinion" which is malleable.