“Professor, for question number one, I actually see two questions here!” My student leans over my desk and frowns over his writing prompt, seemingly worried he is hallucinating.
Later, during an in-class critical thinking exercise, there is a kerfuffle about framing the issue presented: “Professor, the question on the paper asks whether the cyclist broke the park’s rule, but she [another student] says that the issue is whether her [hybrid] bicycle was a motor vehicle. Which one of us is right?”
The object of this week’s lessons was supposed to be about using the facts: weeding out irrelevant information, and using relevant information in support of a legal conclusion. But the conversation has evolved into the issue of questions. They are grappling with the idea that one question can yield one or more sub-questions, and they wonder whether to choose one or harmonize both. In return they get more questions from me: “How did you see that second question? Do you need to answer it to get an answer to the original question? How does your answer to that second question help you to answer the original question? OK, so now that you have an answer to the first question, and an answer to the second question, can you write a two-sentence conclusion that answers both? How about a one-sentence conclusion?” Some chuckle, as though this is a game we’re playing. Others wrinkle their brows, looking very unsatisfied. I think this is a struggle worth having.
Questions are powerful instruments in law. Litigators use them as anglers use a series of casts, reeling information from deposition witnesses. There’s a reason the United States Supreme Court certifies questions, and from those questions come pointed discussions about government powers or individual rights.
But questions aren’t often solitary, they work in tandem. In a memorandum or brief, questions about how to categorize facts dovetail with questions of law. In her recent article, Conceptual blending in legal writing: Linking definitions to facts, Alissa J. Hartig identifies the high level of linguistic control it takes to form the Questions Presented in a legal memorandum. It is an exercise in marrying issues of legal doctrine with case facts, and general principles with specific definitions and problems. It requires a series of decisions about tense, voice, and perspective. At its core, it is an exercise in recognizing that questions have strata.
My international LL.Ms have encountered these outer/inner question pairings before, but perhaps have not noticed them to the degree they do now. In Williams v. Braum Ice Cream Stores, Inc., a simple question about injury from a cherry pit in ice cream turned into a question about which test Oklahoma should adopt for determining breach of warranty of merchantability. In Lefkowitz v. Great Minneapolis Surplus Store, Inc. a dispute over a rabbit fur stole turned up the question of whether a newspaper ad was an offer. My students have read these cases and successfully briefed them, but suddenly they are facing questions as Hercules faced the Hydra, wondering which head of the beast to slice first.
So how to proceed in getting them to notice, frame, and answer these surface and sub-questions on a very basic level? What to call these pairings in the first place? I have waffled about calling them surface questions and sub-questions, inner and outer questions, the general question and the specific question, or simply “question layers.”
Whatever the name, my first approach might be to pass out examples of memoranda and briefs and have them “notice” how many sub-issues they can spot in the questions presented, and “notice” language the authors used to answer them in summary conclusions. I would have them try to divide each question into two separate questions: a broad question and a narrow question, and compare with one another how they separated the questions.
A related approach is to workshop the questions of their next few writing assignments in class, listing both surface question written on the assignment, and the sub-question it begs: What is the question on the surface of their writing assignment? What information would they need to know to answer it, and what information do they lack? Does that yield a sub-question?
Once they have noticed the different “layers” of questions, we’ll look to sample language: How do model questions glue the layers together? How do model conclusions answer all questions in one sentence or paragraph?
My hope is to familiarize students with the concept of question layers, help them train themselves to look for question layers in every case issue or writing prompt, and to build a library of lexical chunks and words to present and answer questions. In turn, I hope exercises in framing questions will lay a smoother path for framing research terms, and identifying relevant law and facts to guide more focused analysis. I welcome all thoughts.