Republic

SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. L-63915 April 24, 1985
LORENZO M. TAADA, ABRAHAM F. SARMIENTO, and
MOVEMENT OF ATTORNEYS FOR BROTHERHOOD, INTEGRITY
AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant
to the President, HON. JOAQUIN VENUS, in his capacity as
Deputy Executive Assistant to the President , MELQUIADES P.
DE LA CRUZ, in his capacity as Director, Malacaang Records
Office, and FLORENDO S. PABLO, in his capacity as Director,
Bureau of Printing, respondents.

ESCOLIN, J.:
Invoking the people's right to be informed on matters of public
concern, a right recognized in Section 6, Article IV of the 1973
Philippine Constitution, 1 as well as the principle that laws to be
valid and enforceable must be published in the Official Gazette or
otherwise effectively promulgated, petitioners seek a writ of
mandamus to compel respondent public officials to publish, and/or
cause the publication in the Official Gazette of various presidential
decrees, letters of instructions, general orders, proclamations,
executive orders, letter of implementation and administrative
orders.
Specifically, the publication of the following presidential
issuances is sought:
a)
Presidential Decrees Nos. 12, 22, 37, 38, 59,
64, 103, 171, 179, 184, 197, 200, 234, 265, 286, 298,
303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361,
368, 404, 406, 415, 427, 429, 445, 447, 473, 486, 491,

503, 504, 521, 528, 551, 566, 573, 574, 594, 599, 644,
658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923,
935, 961, 1017-1030, 1050, 1060-1061, 1085, 1143,
1165, 1166, 1242, 1246, 1250, 1278, 1279, 1300, 1644,
1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840,
1842-1847.
b)
Letter of Instructions Nos.: 10, 39, 49, 72, 107,
108, 116, 130, 136, 141, 150, 153, 155, 161, 173, 180,
187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213,
215-224, 226-228, 231-239, 241-245, 248, 251, 253261, 263-269, 271-273, 275-283, 285-289, 291, 293,
297-299, 301-303, 309, 312-315, 325, 327, 343, 346,
349, 357, 358, 362, 367, 370, 382, 385, 386, 396-397,
405, 438-440, 444- 445, 473, 486, 488, 498, 501, 399,
527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611,
612, 615, 641, 642, 665, 702, 712-713, 726, 837-839,
878-879, 881, 882, 939-940, 964,997,1149-1178,11801278.
c)
General Orders Nos.: 14, 52, 58, 59, 60, 62,
63, 64 & 65.
d)
Proclamation Nos.: 1126, 1144, 1147, 1151,
1196, 1270, 1281, 1319-1526, 1529, 1532, 1535, 1538,
1540-1547, 1550-1558, 1561-1588, 1590-1595, 15941600, 1606-1609, 1612-1628, 1630-1649, 1694-1695,
1697-1701, 1705-1723, 1731-1734, 1737-1742, 1744,
1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795,
1797, 1800, 1802-1804, 1806-1807, 1812-1814, 1816,
1825-1826, 1829, 1831-1832, 1835-1836, 1839-1840,
1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866,
1868, 1870, 1876-1889, 1892, 1900, 1918, 1923, 1933,
1952, 1963, 1965-1966, 1968-1984, 1986-2028, 20302044, 2046-2145, 2147-2161, 2163-2244.
e)
Executive Orders Nos.: 411, 413, 414, 427,
429-454, 457- 471, 474-492, 494-507, 509-510, 522,
524-528, 531-532, 536, 538, 543-544, 549, 551-553,
560, 563, 567-568, 570, 574, 593, 594, 598-604, 609,

611- 647, 649-677, 679-703, 705-707, 712-786, 788852, 854-857.

f)
Letters of Implementation Nos.: 7, 8, 9, 10, 1122, 25-27, 39, 50, 51, 59, 76, 80-81, 92, 94, 95, 107,
120, 122, 123.
g)
Administrative Orders Nos.: 347, 348, 352354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have
this case dismissed outright on the ground that petitioners have no
legal personality or standing to bring the instant petition. The view
is submitted that in the absence of any showing that petitioners are
personally and directly affected or prejudiced by the alleged nonpublication of the presidential issuances in question 2 said
petitioners are without the requisite legal personality to institute
this mandamus proceeding, they are not being "aggrieved parties"
within the meaning of Section 3, Rule 65 of the Rules of Court,
which we quote:
SEC. 3. Petition for Mandamus.When any tribunal,
corporation, board or person unlawfully neglects the
performance of an act which the law specifically enjoins
as a duty resulting from an office, trust, or station, or
unlawfully excludes another from the use a rd enjoyment
of a right or office to which such other is entitled, and
there is no other plain, speedy and adequate remedy in
the ordinary course of law, the person aggrieved thereby
may file a verified petition in the proper court alleging the
facts with certainty and praying that judgment be
rendered commanding the defendant, immediately or at
some other specified time, to do the act required to be
done to Protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the defendant.
Upon the other hand, petitioners maintain that since the
subject of the petition concerns a public right and its object is to

compel the performance of a public duty, they need not show any
specific interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the
1910 case of Severino vs. Governor General, 3 this Court held that
while the general rule is that "a writ of mandamus would be granted
to a private individual only in those cases where he has some
private or particular interest to be subserved, or some particular
right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply
for the writ when public rights are to be subserved [Mithchell vs.
Boardmen, 79 M.e., 469]," nevertheless, "when the question is one
of public right and the object of the mandamus is to procure the
enforcement of a public duty, the people are regarded as the real
party in interest and the relator at whose instigation the
proceedings are instituted need not show that he has any legal or
special interest in the result, it being sufficient to show that he is a
citizen and as such interested in the execution of the laws [High,
Extraordinary Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope
Severino, a private individual, as a proper party to the mandamus
proceedings brought to compel the Governor General to call a
special election for the position of municipal president in the town
of Silay, Negros Occidental. Speaking for this Court, Mr. Justice
Grant T. Trent said:
We are therefore of the opinion that the weight of
authority supports the proposition that the relator is a
proper party to proceedings of this character when a
public right is sought to be enforced. If the general rule in
America were otherwise, we think that it would not be
applicable to the case at bar for the reason 'that it is
always dangerous to apply a general rule to a particular
case without keeping in mind the reason for the rule,
because, if under the particular circumstances the
reason for the rule does not exist, the rule itself is not
applicable and reliance upon the rule may well lead to
error'

No reason exists in the case at bar for applying the

general rule insisted upon by counsel for the respondent.
The circumstances which surround this case are different
from those in the United States, inasmuch as if the
relator is not a proper party to these proceedings no
other person could be, as we have seen that it is not the
duty of the law officer of the Government to appear and
represent the people in cases of this character.
The reasons given by the Court in recognizing a private
citizen's legal personality in the aforementioned case apply squarely
to the present petition. Clearly, the right sought to be enforced by
petitioners herein is a public right recognized by no less than the
fundamental law of the land. If petitioners were not allowed to
institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor
General, the government officer generally empowered to represent
the people, has entered his appearance for respondents in this case.
Respondents further contend that publication in the Official
Gazette is not a sine qua non requirement for the effectivity of laws
where the laws themselves provide for their own effectivity dates. It
is thus submitted that since the presidential issuances in question
contain special provisions as to the date they are to take effect,
publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil
Code:
Art. 2. Laws shall take effect after fifteen days
following the completion of their publication in the
Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this
Court's construction of said article. In a long line of decisions, 4 this
Court has ruled that publication in the Official Gazette is necessary
in those cases where the legislation itself does not provide for its
effectivity date-for then the date of publication is material for
determining its date of effectivity, which is the fifteenth day
following its publication-but not when the law itself provides for the
date when it goes into effect.

Respondents' argument, however, is logically correct only

insofar as it equates the effectivity of laws with the fact of
publication. Considered in the light of other statutes applicable to
the issue at hand, the conclusion is easily reached that said Article
2 does not preclude the requirement of publication in the Official
Gazette, even if the law itself provides for the date of its effectivity.
Thus, Section 1 of Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official
Gazette [1] all important legisiative acts and resolutions
of a public nature of the, Congress of the Philippines; [2]
all
executive
and
administrative
orders
and
proclamations, except such as have no general
applicability; [3] decisions or abstracts of decisions of the
Supreme Court and the Court of Appeals as may be
deemed by said courts of sufficient importance to be so
published; [4] such documents or classes of documents
as may be required so to be published by law; and [5]
such documents or classes of documents as the
President of the Philippines shall determine from time to
time to have general applicability and legal effect, or
which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the
general public adequate notice of the various laws which are to
regulate their actions and conduct as citizens. Without such notice
and publication, there would be no basis for the application of the
maxim "ignorantia legis non excusat." It would be the height of
injustice to punish or otherwise burden a citizen for the
transgression of a law of which he had no notice whatsoever, not
even a constructive one.
Perhaps at no time since the establishment of the Philippine
Republic has the publication of laws taken so vital significance that
at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people
are kept abreast by the mass media of the debates and
deliberations in the Batasan Pambansaand for the diligent ones,
ready access to the legislative recordsno such publicity
accompanies the law-making process of the President. Thus,

without publication, the people have no means of knowing what

presidential decrees have actually been promulgated, much less a
definite way of informing themselves of the specific contents and
texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los
reglamentos, Reales decretos, Instrucciones, Circulares y Reales
ordines dictadas de conformidad con las mismas por el Gobierno en
uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638
reads: "There shall be published in the Official Gazette ... ." The
word "shall" used therein imposes upon respondent officials an
imperative duty. That duty must be enforced if the Constitutional
right of the people to be informed on matters of public concern is to
be given substance and reality. The law itself makes a list of what
should be published in the Official Gazette. Such listing, to our
mind, leaves respondents with no discretion whatsoever as to what
must be included or excluded from such publication.
The publication of all presidential issuances "of a public
nature" or "of general applicability" is mandated by law. Obviously,
presidential decrees that provide for fines, forfeitures or penalties
for their violation or otherwise impose a burden or. the people, such
as tax and revenue measures, fall within this category. Other
presidential issuances which apply only to particular persons or
class of persons such as administrative and executive orders need
not be published on the assumption that they have been
circularized to all concerned. 6
It is needless to add that the publication of presidential
issuances "of a public nature" or "of general applicability" is a
requirement of due process. It is a rule of law that before a person
may be bound by law, he must first be officially and specifically
informed of its contents. As Justice Claudio Teehankee said
in Peralta vs. COMELEC 7:
In a time of proliferating decrees, orders and letters of
instructions which all form part of the law of the land, the
requirement of due process and the Rule of Law demand that
the Official Gazette as the official government repository

promulgate and publish the texts of all such decrees, orders

and instructions so that the people may know where to obtain
their official and specific contents.
The Court therefore declares that presidential issuances of
general application, which have not been published, shall have no
force and effect. Some members of the Court, quite apprehensive
about the possible unsettling effect this decision might have on acts
done in reliance of the validity of those presidential decrees which
were published only during the pendency of this petition, have put
the question as to whether the Court's declaration of invalidity
apply to P.D.s which had been enforced or implemented prior to
their publication. The answer is all too familiar. In similar
situations in the past this Court had taken the pragmatic and
realistic course set forth in Chicot County Drainage District vs. Baxter
Bank 8 to wit:
The courts below have proceeded on the theory that
the Act of Congress, having been found to be
unconstitutional, was not a law; that it was inoperative,
conferring no rights and imposing no duties, and hence
affording no basis for the challenged decree. Norton v.
Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry.
Co. v. Hackett, 228 U.S. 559, 566. It is quite clear,
however, that such broad statements as to the effect of a
determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to
such a determination, is an operative fact and may have
consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration.
The effect of the subsequent ruling as to invalidity may
have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of
rights claimed to have become vested, of status, of prior
determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature
both of the statute and of its previous application,
demand examination. These questions are among the
most difficult of those which have engaged the attention

of courts, state and federal and it is manifest from

numerous decisions that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be
justified.
Consistently with the above principle, this Court in Rutter vs.
Esteban 9 sustained the right of a party under the Moratorium Law,
albeit said right had accrued in his favor before said law was
declared unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential
decrees prior to their publication in the Official Gazette is "an
operative fact which may have consequences which cannot be justly
ignored. The past cannot always be erased by a new judicial
declaration ... that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court,
it appears that of the presidential decrees sought by petitioners to
be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have
not been so published. 10 Neither the subject matters nor the texts
of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is
undisputed that none of these unpublished PDs has ever been
implemented or enforced by the government. In Pesigan vs.
Angeles, 11 the Court, through Justice Ramon Aquino, ruled that
"publication is necessary to apprise the public of the contents of
[penal] regulations and make the said penalties binding on the
persons affected thereby. " The cogency of this holding is apparently
recognized by respondent officials considering the manifestation in
their comment that "the government, as a matter of policy, refrains
from prosecuting violations of criminal laws until the same shall
have been published in the Official Gazette or in some other
publication, even though some criminal laws provide that they shall
take effect immediately.
WHEREFORE, the Court hereby orders respondents to publish
in the Official Gazette all unpublished presidential issuances which

are of general application, and unless so published, they shall have

no binding force and effect.
SO ORDERED.

Relova, J., concurs.

Aquino, J., took no part.
Concepcion, Jr., J., is on leave.

Separate Opinions
FERNANDO, C.J., concurring (with qualification):
There is on the whole acceptance on my part of the views
expressed in the ably written opinion of Justice Escolin. I am
unable, however, to concur insofar as it would unqualifiedly impose
the requirement of publication in the Official Gazette for
unpublished "presidential issuances" to have binding force and
effect.
I shall explain why.
1.
It is of course true that without the requisite publication,
a due process question would arise if made to apply adversely to a
party who is not even aware of the existence of any legislative or
executive act having the force and effect of law. My point is that
such publication required need not be confined to the Official
Gazette. From the pragmatic standpoint, there is an advantage to
be gained. It conduces to certainty. That is too be admitted. It does
not follow, however, that failure to do so would in all cases and
under all circumstances result in a statute, presidential decree or
any other executive act of the same category being bereft of any
binding force and effect. To so hold would, for me, raise a
constitutional question. Such a pronouncement would lend itself to
the interpretation that such a legislative or presidential act is bereft
of the attribute of effectivity unless published in the Official Gazette.

There is no such requirement in the Constitution as Justice Plana

so aptly pointed out. It is true that what is decided now applies only
to past "presidential issuances". Nonetheless, this clarification is, to
my mind, needed to avoid any possible misconception as to what is
required for any statute or presidential act to be impressed with
binding force or effectivity.
2.
It is quite understandable then why I concur in the
separate opinion of Justice Plana. Its first paragraph sets forth
what to me is the constitutional doctrine applicable to this case.
Thus: "The Philippine Constitution does not require the publication
of laws as a prerequisite for their effectivity, unlike some
Constitutions elsewhere. It may be said though that the guarantee
of due process requires notice of laws to affected Parties before they
can be bound thereby; but such notice is not necessarily by
publication in the Official Gazette. The due process clause is not
that precise. 1 I am likewise in agreement with its closing
paragraph: "In fine, I concur in the majority decision to the extent
that it requires notice before laws become effective, for no person
should be bound by a law without notice. This is elementary
fairness. However, I beg to disagree insofar as it holds that such
notice shall be by publication in the Official Gazette. 2
3.
It suffices, as was stated by Judge Learned Hand, that
law as the command of the government "must be ascertainable in
some form if it is to be enforced at all. 3 It would indeed be to reduce
it to the level of mere futility, as pointed out by Justice Cardozo, "if
it is unknown and unknowable. 4 Publication, to repeat, is thus
essential. What I am not prepared to subscribe to is the doctrine
that it must be in the Official Gazette. To be sure once published
therein there is the ascertainable mode of determining the exact
date of its effectivity. Still for me that does not dispose of the
question of what is the jural effect of past presidential decrees or
executive acts not so published. For prior thereto, it could be that
parties aware of their existence could have conducted themselves in
accordance with their provisions. If no legal consequences could
attach due to lack of publication in the Official Gazette, then
serious problems could arise. Previous transactions based on such
"Presidential Issuances" could be open to question. Matters deemed

settled could still be inquired into. I am not prepared to hold that

such an effect is contemplated by our decision. Where such
presidential decree or executive act is made the basis of a criminal
prosecution, then, of course, its ex post facto character becomes
evident. 5 In civil cases though, retroactivity as such is not
conclusive on the due process aspect. There must still be a showing
of arbitrariness. Moreover, where the challenged presidential decree
or executive act was issued under the police power, the nonimpairment clause of the Constitution may not always be
successfully invoked. There must still be that process of balancing
to determine whether or not it could in such a case be tainted by
infirmity. 6 In traditional terminology, there could arise then a
question of unconstitutional application. That is as far as it goes.
4.
Let me make therefore that my qualified concurrence
goes no further than to affirm that publication is essential to the
effectivity of a legislative or executive act of a general application. I
am not in agreement with the view that such publication must be in
the Official Gazette. The Civil Code itself in its Article 2 expressly
recognizes that the rule as to laws taking effect after fifteen days
following the completion of their publication in the Official Gazette
is subject to this exception, "unless it is otherwise provided."
Moreover, the Civil Code is itself only a legislative enactment,
Republic Act No. 386. It does not and cannot have the juridical
force of a constitutional command. A later legislative or executive
act which has the force and effect of law can legally provide for a
different rule.
5.
Nor can I agree with the rather sweeping conclusion in
the opinion of Justice Escolin that presidential decrees and
executive acts not thus previously published in the Official Gazette
would be devoid of any legal character. That would be, in my
opinion, to go too far. It may be fraught, as earlier noted, with
undesirable consequences. I find myself therefore unable to yield
assent to such a pronouncement.
I am authorized to state that Justices Makasiar, Abad Santos,
Cuevas, and Alampay concur in this separate opinion.
Makasiar, Abad Santos, Cuevas and Alampay, JJ., concur.

TEEHANKEE, J., concurring:

I concur with the main opinion of Mr. Justice Escolin and the
concurring opinion of Mme. Justice Herrera. The Rule of Law
connotes a body of norms and laws published and ascertainable
and of equal application to all similarly circumstances and not
subject to arbitrary change but only under certain set procedures.
The Court has consistently stressed that "it is an elementary rule of
fair play and justice that a reasonable opportunity to be informed
must be afforded to the people who are commanded to obey before
they can be punished for its violation, 1 citing the settled principle
based on due process enunciated in earlier cases that "before the
public is bound by its contents, especially its penal provisions, a
law, regulation or circular must first be published and the people
officially and specially informed of said contents and its penalties.
Without official publication in the Official Gazette as required
by Article 2 of the Civil Code and the Revised Administrative Code,
there would be no basis nor justification for the corollary rule of
Article 3 of the Civil Code (based on constructive notice that the
provisions of the law are ascertainable from the public and official
repository where they are duly published) that "Ignorance of the law
excuses no one from compliance therewith.
Respondents' contention based on a misreading of Article 2 of
the Civil Code that "only laws which are silent as to their effectivity
[date] need be published in the Official Gazette for their effectivity"
is manifestly untenable. The plain text and meaning of the Civil
Code is that "laws shall take effect after fifteen days following the
completion of their publication in the Official Gazette, unless it is
otherwise provided, " i.e. a different effectivity date is provided by the
law itself. This proviso perforce refers to a law that has been duly
published pursuant to the basic constitutional requirements of due
process. The best example of this is the Civil Code itself: the same
Article 2 provides otherwise that it "shall take effect [only] one year
[not 15 days] after such publication. 2 To sustain respondents'
misreading that "most laws or decrees specify the date of their
effectivity and for this reason, publication in the Official Gazette is

not necessary for their effectivity 3 would be to nullify and render

nugatory the Civil Code's indispensable and essential requirement
of prior publication in the Official Gazette by the simple expedient of
providing for immediate effectivity or an earlier effectivity date in the
law itself before the completion of 15 days following its publication
which is the period generally fixed by the Civil Code for its proper
dissemination.

MELENCIO-HERRERA, J., concurring:

I agree. There cannot be any question but that even if a decree
provides for a date of effectivity, it has to be published. What I
would like to state in connection with that proposition is that when
a date of effectivity is mentioned in the decree but the decree
becomes effective only fifteen (15) days after its publication in the
Official Gazette, it will not mean that the decree can have
retroactive effect to the date of effectivity mentioned in the decree
itself. There should be no retroactivity if the retroactivity will run
counter to constitutional rights or shall destroy vested rights.

PLANA, J., concurring (with qualification):

The Philippine Constitution does not require the publication of
laws as a prerequisite for their effectivity, unlike some Constitutions
elsewhere. * It may be said though that the guarantee of due
process requires notice of laws to affected parties before they can be
bound thereby; but such notice is not necessarily by publication in
the Official Gazette. The due process clause is not that precise.
Neither is the publication of laws in the Official Gazette required by
any statute as a prerequisite for their effectivity, if said laws already
provide for their effectivity date.
Article 2 of the Civil Code provides that "laws shall take effect
after fifteen days following the completion of their publication in the
Official Gazette, unless it is otherwise provided " Two things may be
said of this provision: Firstly, it obviously does not apply to a law
with a built-in provision as to when it will take effect. Secondly, it

clearly recognizes that each law may provide not only a different
period for reckoning its effectivity date but also a different mode of
notice. Thus, a law may prescribe that it shall be published
elsewhere than in the Official Gazette.
Commonwealth Act No. 638, in my opinion, does not support
the proposition that for their effectivity, laws must be published in
the Official Gazette. The said law is simply "An Act to Provide for the
Uniform Publication and Distribution of the Official Gazette."
Conformably therewith, it authorizes the publication of the Official
Gazette, determines its frequency, provides for its sale and
distribution, and defines the authority of the Director of Printing in
relation thereto. It also enumerates what shall be published in the
Official Gazette, among them, "important legislative acts and
resolutions of a public nature of the Congress of the Philippines"
and "all executive and administrative orders and proclamations,
except such as have no general applicability." It is noteworthy that
not all legislative acts are required to be published in the Official
Gazette but only "important" ones "of a public nature." Moreover,
the said law does not provide that publication in the Official Gazette
is essential for the effectivity of laws. This is as it should be, for all
statutes are equal and stand on the same footing. A law, especially
an earlier one of general application such as Commonwealth Act
No. 638, cannot nullify or restrict the operation of a subsequent
statute that has a provision of its own as to when and how it will
take effect. Only a higher law, which is the Constitution, can
assume that role.
In fine, I concur in the majority decision to the extent that it
requires notice before laws become effective, for no person should
be bound by a law without notice. This is elementary fairness.
However, I beg to disagree insofar as it holds that such notice shall
be by publication in the Official Gazette.
Cuevas and Alampay, JJ., concur.

GUTIERREZ, Jr., J., concurring:

I concur insofar as publication is necessary but reserve my

vote as to the necessity of such publication being in the Official
Gazette.

DE LA FUENTE, J., concurring:

I concur insofar as the opinion declares the unpublished
decrees and issuances of a public nature or general applicability
ineffective, until due publication thereof.

Footnotes
1

Section 6. The right of the people to information on matters of

public concern shag be recognized, access to official records,
and to documents and papers pertaining to official acts,
transactions, or decisions, shag be afforded the citizens
subject to such limitation as may be provided by law.

Anti-Chinese League vs. Felix, 77 Phil. 1012; Costas vs.

Aidanese, 45 Phil. 345; Almario vs. City Mayor, 16 SCRA
151;Parting vs. San Jose Petroleum, 18 SCRA 924; Dumlao vs.
Comelec, 95 SCRA 392.

16 Phil. 366, 378.

Camacho vs. Court of Industrial Relations, 80 Phil 848; Mejia

vs. Balolong, 81 Phil. 486; Republic of the Philippines vs.
Encamacion, 87 Phil. 843; Philippine Blooming Mills, Inc. vs.
Social Security System, 17 SCRA 1077; Askay vs. Cosalan, 46
Phil. 179.

1 Manresa, Codigo Civil 7th Ed., p. 146.

People vs. Que Po Lay, 94 Phil. 640; Balbuena et al. vs.

Secretary of Education, et al., 110 Phil. 150.

82 SCRA 30, dissenting opinion.

308 U.S. 371, 374.

93 Phil.. 68,.

10

The report was prepared by the Clerk of Court after Acting

Director Florendo S. Pablo Jr. of the Government Printing
Office, failed to respond to her letter-request regarding the
respective dates of publication in the Official Gazette of the
presidential issuances listed therein. No report has been
submitted by the Clerk of Court as to the publication or nonpublication of other presidential issuances.

11

129 SCRA 174.

Fernando, CJ.:
1

Separate Opinion of Justice Plana, first paragraph. He

mentioned in tills connection Article 7, Sec. 21 of the
Wisconsin Constitution and State ex rel. White v. Grand
Superior Ct., 71 ALR 1354, citing the Constitution of Indiana,
U.S.A

Ibid, closing paragraph.

Learned Hand, The Spirit of Liberty 104 (1960).

Cardozo, The Growth of the Law, 3 (1924).

Cf. Nunez v. Sandiganbayan, G.R. No. 50581-50617, January

30, 1982, 111 SCRA 433.

Cf. Alalayan v. National Power Corporation, L-24396, July 29,

1968, 24 SCRA 172.

Teehankee, J.:
1

People vs. de Dios, G.R. No. 11003, Aug. 3l, 1959, per the late
Chief Justice Paras.

Notes in brackets supplied.

Respondents: comment, pp. 14-15.

Plana, J.:
*

See e.g., Wisconsin Constitution, Art. 7, Sec. 21: "The

legislature shall provide publication of all statute laws ... and
no general law shall be in force until published." See also S ate
ex rel. White vs. Grand Superior Ct., 71 ALR 1354, citing
Constitution of Indiana, U.S.A.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. L-64279 April 30, 1984

ANSELMO L. PESIGAN and MARCELINO L.

PESIGAN, petitioners,
vs.
JUDGE DOMINGO MEDINA ANGELES, Regional Trial Court,
Caloocan City Branch 129, acting for REGIONAL TRIAL COURT
of Camarines Norte, now presided over by JUDGE NICANOR
ORIO, Daet Branch 40; DRA. BELLA S. MIRANDA, ARNULFO V.
ZENAROSA, ET AL., respondents.
Quiazon, De Guzman Makalintal and Barot for petitioners.
The Solicitor General for respondents.

AQUINO, J.:
At issue in this case is the enforceability, before publication in
the Official Gazette of June 14, 1982, of Presidential Executive
Order No. 626-A dated October 25, 1980, providing for
the confiscation and forfeiture by the government of carabaos
transported from one province to another.
Anselmo L. Pesigan and Marcelo L. Pesigan, carabao dealers,
transported in an Isuzu ten-wheeler truck in the evening of April 2,
1982 twenty-six carabaos and a calf from Sipocot, Camarines Sur
with Padre Garcia, Batangas, as the destination.

They were provided with (1) a health certificate from the

provincial veterinarian of Camarines Sur, issued under the Revised
Administrative Code and Presidential Decree No. 533, the AntiCattle Rustling Law of 1974; (2) a permit to transport large cattle
issued under the authority of the provincial commander; and (3)
three certificates of inspection, one from the Constabulary
command attesting that the carabaos were not included in the list
of lost, stolen and questionable animals; one from the LIvestock
inspector, Bureau of Animal Industry of Libmanan, Camarines Sur
and one from the mayor of Sipocot.
In spite of the permit to transport and the said four
certificates, the carabaos, while passing at Basud, Camarines Norte,
were confiscated by Lieutenant Arnulfo V. Zenarosa, the town's
police station commander, and by Doctor Bella S. Miranda,
provincial veterinarian. The confiscation was basis on the
aforementioned Executive Order No. 626-A which provides "that
henceforth, no carabao, regardless of age, sex, physical condition or
purpose and no carabeef shall be transported from one province to
another. The carabaos or carabeef transported in violation of this
Executive Order as amended shall be subject to confiscation and
forfeiture by the government to be distributed ... to deserving
farmers through dispersal as the Director of Animal Industry may
see fit, in the case of carabaos" (78 OG 3144).
Doctor Miranda distributed the carabaos among twenty-five
farmers of Basud, and to a farmer from the Vinzons municipal
nursery (Annex 1).
The Pesigans filed against Zenarosa and Doctor Miranda an
action for replevin for the recovery of the carabaos allegedly valued
at P70,000 and damages of P92,000. The replevin order could not
be executed by the sheriff. In his order of April 25, 1983 Judge
Domingo Medina Angeles, who heard the case at Daet and who was
later transferred to Caloocan City, dismissed the case for lack of
cause of action.
The Pesigans appealed to this Court under Rule 45 of the
Rules of Court and section 25 of the Interim Rules and pursuant to

Republic Act No. 5440, a 1968 law which superseded Rule 42 of the
Rules of Court.
We hold that the said executive order should not be enforced
against the Pesigans on April 2, 1982 because, as already noted,
it is a penal regulation published more than two months later in the
Official Gazette dated June 14, 1982. It became effective only fifteen
days thereafter as provided in article 2 of the Civil Code and section
11 of the Revised Administrative Code.
The word "laws" in article 2 (article 1 of the old Civil Code)
includes circulars and regulations which prescribe penalties.
Publication is necessary to apprise the public of the contents of the
regulations and make the said penalties binding on the persons
affected thereby. (People vs. Que Po Lay, 94 Phil. 640; Lim Hoa Ting
vs. Central Bank of the Phils., 104 Phil. 573; Balbuna vs. Secretary
of Education, 110 Phil. 150.)
The Spanish Supreme Court ruled that "bajo la denominacion
generica de leyes, se comprenden tambien los reglamentos, Reales
decretos, Instrucciones, Circulares y Reales ordenes dictadas de
conformidad con las mismas por el Gobierno en uso de su potestad
(1 Manresa, Codigo Civil, 7th Ed., p. 146.)
Thus, in the Que Po Lay case, a person, convicted by the trial
court of having violated Central Bank Circular No. 20 and
sentenced to six months' imprisonment and to pay a fine of P1,000,
was acquitted by this Court because the circular was published in
the Official Gazette three months after his conviction. He was not
bound by the circular.
That ruling applies to a violation of Executive Order No. 626-A
because its confiscation and forfeiture provision or sanction makes it
a penal statute. Justice and fairness dictate that the public must be
informed of that provision by means of publication in the Gazette
before violators of the executive order can be bound thereby.
The cases of Police Commission vs. Bello, L-29960, January 30,
1971, 37 SCRA 230 and Philippine Blooming Mills vs. Social Security
System, 124 Phil. 499, cited by the respondents, do not involve the
enforcement of any penal regulation.

Commonwealth Act No. 638 requires that all Presidential executive

orders having general applicability should be published in the
Official Gazette. It provides that "every order or document which
shag prescribe a penalty shall be deemed to have general
applicability and legal effect."
Indeed, the practice has always been to publish executive
orders in the Gazette. Section 551 of the Revised Administrative
Code provides that even bureau "regulations and orders shall
become effective only when approved by the Department Head and
published in the Official Gazette or otherwise publicly
promulgated". (See Commissioner of Civil Service vs. Cruz, 122 Phil.
1015.)
In the instant case, the livestock inspector and the provincial
veterinarian of Camarines Norte and the head of the Public Affairs
Office of the Ministry of Agriculture were unaware of Executive
Order No. 626-A. The Pesigans could not have been expected to be
cognizant of such an executive order.
It results that they have a cause of action for the recovery of
the carabaos. The summary confiscation was not in order. The
recipients of the carabaos should return them to the Pesigans.
However, they cannot transport the carabaos to Batangas because
they are now bound by the said executive order. Neither can they
recover damages. Doctor Miranda and Zenarosa acted in good faith
in ordering the forfeiture and dispersal of the carabaos.
WHEREFORE, the trial court's order of dismissal and the
confiscation and dispersal of the carabaos are reversed and set
aside. Respondents Miranda and Zenarosa are ordered to restore
the carabaos, with the requisite documents, to the petitioners, who
as owners are entitled to possess the same, with the right to dispose
of them in Basud or Sipocot, Camarines Sur. No costs.
SO ORDERED.
Makasiar, (Chairman), Concepcion, Jr., Guerrero, and Escolin,
JJ., concur.
De Castro, J., took no part.

Separate Opinions

ABAD SANTOS, J., concurring:

The Pesigans are entitled to the return of their carabaos or the
value of each carabao which is not returned for any reason. The
Pesigans are also entitled to a reasonable rental for each carabao
from the twenty six farmers who used them. The farmers should not
enrich themselves at the expense of the Pesigans.

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 103119 October 21, 1992

SULPICIO INTOD, petitioner,
vs.
HONORABLE COURT OF APPEALS and PEOPLE OF THE
PHILIPPINES, respondents.

CAMPOS, JR., J.:

Petitioner, Sulpicio Intod, filed this petition for review of the
decision of the Court of Appeals 1 affirming in toto the judgment of
the Regional Trial Court, Branch XIV, Oroquieta City, finding him
guilty of the crime of attempted murder.
From the records, we gathered the following facts.
In the morning of February 4, 1979, Sulpicio Intod, Jorge
Pangasian, Santos Tubio and Avelino Daligdig went to Salvador
Mandaya's house in Katugasan, Lopez Jaena, Misamis Occidental
and asked him to go with them to the house of Bernardina
Palangpangan. Thereafter, Mandaya and Intod, Pangasian, Tubio
and Daligdig had a meeting with Aniceto Dumalagan. He told
Mandaya that he wanted Palangpangan to be killed because of a
land dispute between them and that Mandaya should accompany
the four (4) men, otherwise, he would also be killed.
At about 10:00 o'clock in the evening of the same day,
Petitioner, Mandaya, Pangasian, Tubio and Daligdig, all armed with
firearms, arrived at Palangpangan's house in Katugasan, Lopez
Jaena, Misamis Occidental. At the instance of his companions,
Mandaya pointed the location of Palangpangan's bedroom.
Thereafter, Petitioner, Pangasian, Tubio and Daligdig fired at said

room. It turned out, however, that Palangpangan was in another

City and her home was then occupied by her son-in-law and his
family. No one was in the room when the accused fired the shots.
No one was hit by the gun fire.
Petitioner and his companions were positively identified by
witnesses. One witness testified that before the five men left the
premises, they shouted: "We will kill you (the witness) and
especially Bernardina Palangpangan and we will come back if (sic)
you were not injured". 2
After trial, the Regional Trial Court convicted Intod of
attempted murder. The court (RTC), as affirmed by the Court of
Appeals, holding that Petitioner was guilty of attempted murder.
Petitioner seeks from this Court a modification of the judgment by
holding him liable only for an impossible crime, citing Article 4(2) of
the Revised Penal Code which provides:
Art. 4(2). CRIMINAL RESPONSIBILITY. Criminal
Responsibility shall be incurred:
xxx xxx xxx
2.
By any person performing an act which would
be an offense against persons or property, were it not for
the inherent impossibility of its accomplishment or on
account of the employment of inadequate or ineffectual
means.
Petitioner contends that, Palangpangan's absence from her
room on the night he and his companions riddled it with bullets
made the crime inherently impossible.
On the other hand, Respondent People of the Philippines
argues that the crime was not impossible. Instead, the facts were
sufficient to constitute an attempt and to convict Intod for
attempted murder. Respondent alleged that there was intent.
Further, in its Comment to the Petition, respondent pointed out
that:

. . . The crime of murder was not consummated, not

because
of
the
inherent
impossibility
of
its
accomplishment (Art. 4(2), Revised Penal Code), but due
to a cause or accident other than petitioner's and his
accused's own spontaneous desistance (Art. 3., Ibid.)
Palangpangan did not sleep at her house at that time.
Had it not been for this fact, the crime is possible, not
impossible. 3
Article 4, paragraph 2 is an innovation 4 of the Revised Penal
Code. This seeks to remedy the void in the Old Penal Code where:
. . . it was necessary that the execution of the act
has been commenced, that the person conceiving the
idea should have set about doing the deed, employing
appropriate means in order that his intent might become
a reality, and finally, that the result or end contemplated
shall have been physically possible. So long as these
conditions were not present, the law and the courts did
not hold him criminally liable. 5
This
legal
doctrine
left
social
interests
entirely
6
unprotected. The Revised Penal Code, inspired by the Positivist
School, recognizes in the offender his formidability, 7 and now
penalizes an act which were it not aimed at something quite
impossible or carried out with means which prove inadequate,
would constitute a felony against person or against property. 8 The
rationale of Article 4(2) is to punish such criminal tendencies. 9
Under this article, the act performed by the offender cannot
produce an offense against person or property because: (1) the
commission of the offense is inherently impossible of
accomplishment: or (2) the means employed is either (a) inadequate
or (b) ineffectual. 10
That the offense cannot be produced because the commission
of the offense is inherently impossible of accomplishment is the
focus of this petition. To be impossible under this clause, the act
intended by the offender must be by its nature one impossible of
accomplishment. 11 There must be either impossibility of

accomplishing the intended act

impossible crime.

12

in order to qualify the act an

Legal impossibility occurs where the intended acts, even if

completed, would not amount to a crime. 13 Thus:
Legal
impossibility
would
apply
to
those
circumstances where (1) the motive, desire and
expectation is to perform an act in violation of the law; (2)
there is intention to perform the physical act; (3) there is
a performance of the intended physical act; and (4) the
consequence resulting from the intended act does not
amount to a crime.14
The impossibility of killing a person already dead
this category.

15

falls in

On the other hand, factual impossibility occurs when

extraneous circumstances unknown to the actor or beyond his
control prevent the consummation of the intended crime. 16 One
example is the man who puts his hand in the coat pocket of another
with the intention to steal the latter's wallet and finds the pocket
empty. 17
The case at bar belongs to this category. Petitioner shoots the
place where he thought his victim would be, although in reality, the
victim was not present in said place and thus, the petitioner failed
to accomplish his end.
One American case had facts almost exactly the same as this
one. In People vs. Lee Kong, 18 the accused, with intent to kill,
aimed and fired at the spot where he thought the police officer
would be. It turned out, however, that the latter was in a different
place. The accused failed to hit him and to achieve his intent. The
Court convicted the accused of an attempt to kill. It held that:
The fact that the officer was not at the spot where the
attacking party imagined where he was, and where the
bullet pierced the roof, renders it no less an attempt to
kill. It is well settled principle of criminal law in this
country that where the criminal result of an attempt is

not accomplished simply because of an obstruction in the

way of the thing to be operated upon, and these facts are
unknown to the aggressor at the time, the criminal
attempt is committed.
In the case of Strokes vs. State, 19 where the accused failed to
accomplish his intent to kill the victim because the latter did not
pass by the place where he was lying-in wait, the court held him
liable for attempted murder. The court explained that:
It was no fault of Strokes that the crime was not
committed. . . . It only became impossible by reason of
the extraneous circumstance that Lane did not go that
way; and further, that he was arrested and prevented
from committing the murder. This rule of the law has
application only where it is inherently impossible to
commit the crime. It has no application to a case where it
becomes impossible for the crime to be committed, either
by outside interference or because of miscalculation as to
a supposed opportunity to commit the crime which fails
to materialize; in short it has no application to the case
when the impossibility grows out of extraneous acts not
within the control of the party.
In the case of Clark vs. State, 20 the court held defendant liable
for attempted robbery even if there was nothing to rob. In disposing
of the case, the court quoted Mr. Justice Bishop, to wit:
It being an accepted truth that defendant deserves
punishment by reason of his criminal intent, no one can
seriously doubt that the protection of the public requires
the punishment to be administered, equally whether in
the unseen depths of the pocket, etc., what was
supposed to exist was really present or not. The
community suffers from the mere alarm of crime. Again:
Where the thing intended (attempted) as a crime and
what is done is a sort to create alarm, in other words,
excite apprehension that the evil; intention will be carried
out, the incipient act which the law of attempt takes
cognizance of is in reason committed.

In State vs. Mitchell, 21 defendant, with intent to kill, fired at

the window of victim's room thinking that the latter was inside.
However, at that moment, the victim was in another part of the
house. The court convicted the accused of attempted murder.
The aforecited cases are the same cases which have been
relied upon by Respondent to make this Court sustain the
judgment of attempted murder against Petitioner. However, we
cannot rely upon these decisions to resolve the issue at hand. There
is a difference between the Philippine and the American laws
regarding the concept and appreciation of impossible crimes.
In the Philippines, the Revised Penal Code, in Article 4(2),
expressly provided for impossible crimes and made the punishable.
Whereas, in the United States, the Code of Crimes and Criminal
Procedure is silent regarding this matter. What it provided for were
attempts of the crimes enumerated in the said Code. Furthermore,
in said jurisdiction, the impossibility of committing the offense is
merely a defense to an attempt charge. In this regard,
commentators and the cases generally divide the impossibility
defense
into
two
categories:
legal
versus
factual
22
23
impossibility. In U.S. vs. Wilson the Court held that:
. . . factual impossibility of the commission of the
crime is not a defense. If the crime could have been
committed had the circumstances been as the defendant
believed them to be, it is no defense that in reality the
crime was impossible of commission.
Legal impossibility, on the other hand, is a defense which can
be invoked to avoid criminal liability for an attempt. In U.S.
vs. Berrigan, 24 the accused was indicated for attempting to smuggle
letters into and out of prison. The law governing the matter made
the act criminal if done without knowledge and consent of the
warden. In this case, the offender intended to send a letter without
the latter's knowledge and consent and the act was performed.
However, unknown to him, the transmittal was achieved with the
warden's knowledge and consent. The lower court held the accused
liable for attempt but the appellate court reversed. It held
unacceptable the contention of the state that "elimination of

impossibility as a defense to a charge of criminal attempt, as

suggested by the Model Penal Code and the proposed federal
legislation, is consistent with the overwhelming modern view". In
disposing of this contention, the Court held that the federal statutes
did not contain such provision, and thus, following the principle of
legality, no person could be criminally liable for an act which was
not made criminal by law. Further, it said:
Congress has not yet enacted a law that provides
that intent plus act plus conduct constitutes the offense
of attempt irrespective of legal impossibility until such
time as such legislative changes in the law take place,
this court will not fashion a new non-statutory law of
criminal attempt.
To restate, in the United States, where the offense sought to be
committed is factually impossible or accomplishment, the offender
cannot escape criminal liability. He can be convicted of an attempt
to commit the substantive crime where the elements of attempt are
satisfied. It appears, therefore, that the act is penalized, not as an
impossible crime, but as an attempt to commit a crime. On the
other hand, where the offense is legally impossible of
accomplishment, the actor cannot be held liable for any crime
neither for an attempt not for an impossible crime. The only reason
for this is that in American law, there is no such thing as an
impossible crime. Instead, it only recognizes impossibility as a
defense to a crime charge that is, attempt.
This is not true in the Philippines. In our jurisdiction,
impossible
crimes
are
recognized.
The
impossibility
of
accomplishing the criminal intent is not merely a defense, but an
act penalized by itself. Furthermore, the phrase "inherent
impossibility" that is found in Article 4(2) of the Revised Penal Code
makes no distinction between factual or physical impossibility and
legal impossibility. Ubi lex non distinguit nec nos distinguere
debemos.
The factual situation in the case at bar present a physical
impossibility which rendered the intended crime impossible of

accomplishment. And under Article 4, paragraph 2 of the Revised

Penal Code, such is sufficient to make the act an impossible crime.
To uphold the contention of respondent that the offense was
Attempted Murder because the absence of Palangpangan was a
supervening cause independent of the actor's will, will render
useless the provision in Article 4, which makes a person criminally
liable for an act "which would be an offense against persons or
property, were it not for the inherent impossibility of its
accomplishment . . ." In that case all circumstances which
prevented the consummation of the offense will be treated as an
accident independent of the actor's will which is an element of
attempted and frustrated felonies.
WHEREFORE, PREMISES CONSIDERED. the petition is
hereby GRANTED, the decision of respondent Court of Appeals
holding Petitioner guilty of Attempted Murder is hereby MODIFIED.
We hereby hold Petitioner guilty of an impossible crime as defined
and penalized in Articles 4, paragraph 2, and 59 of the Revised
Penal Code, respectively. Having in mind the social danger and
degree of criminality shown by Petitioner, this Court sentences him
to suffer the penalty of six (6) months of arresto mayor, together
with the accessory penalties provided by the law, and to pay the
costs.
SO ORDERED.
Feliciano, Regalado and Nocon, JJ., concur.
Narvasa, C.J., is on leave.

Footnotes
1

People vs. Intod, C.A-G.R. No. 09205, August 14, 1991;

Justice Fidel P. Purisima, Ponente: Justices Eduardo R.
Bengzon and Salome A. Montoya, concurring.

TSN, p. 4, July 24, 1986.

Records, p. 65.

Guevarra, Commentaries on the Revised Penal Code 15 (4th

ed., 1946).

Albert, Ibid.

Albert, Ibid.

Albert, Ibid.

Albert, Ibid.

Grogorio and Feria, Comments on the Revised Penal Code 76

(Vol. I, 1st ed. 1958).

10

Reyes, The revised Penal Code, 90 (Vol. I, 11th ed., 1977).

11

Reyes, Ibid.

12

Reyes, Ibid.

13

U.S. vs. Berrigan, 482 F. 2nd. 171 (1973).

14

U.S. vs. Berrigan, Ibid.

15

Aquino, The Revised Penal Code, (Vol. I, 1987).

16

U.S. vs. Berrigan, supra, p. 13.

17

U.S. vs. Berrigan, Ibid.

18

21 L.R.A. 626 (1898).

19

21 L.R.A. N.S. 898 (1908).

20

17 S.W. 145 (1888).

21

71 S.W. 175 (1902).

22

U.S. vs. HENG AWKAK ROMAN, 39 L. Ed. 2d. 874 (1974).

23

565 F. Supp. 1416 (1983).

24

Supra, n. 13.

LEGAL RULES AND LEGAL ANALYSIS

Legal rule

Penal laws shall apply prospectively.

Primary authorities on the legal rule

Laws shall have no retroactive effect, unless the contrary is provided.

[Article 4, Civil Code of the Philippines]

No felony shall be punishable by any penalty not prescribed by law prior

to its commission. [Article 21, Revised Penal Code]

The Revised Penal Code shall take effect on 1 January 1932. [Article 1,
Revised Penal Code]

Decided cases of the Supreme Court upholding the legal rule.

Exceptions to the legal rule

Penal laws shall have a retroactive effect insofar as they favor the person
guilty of a felony, who is not a habitual criminal as defined in Rule 5 of
Article 62 of the Revised Penal Code, although at the time of the
publication of such laws a final sentence has been pronounced and the
convict is serving the same. [Article 22, Revised Penal Code]

Factual scenarios

Republic Act No. 1 penalized smoking in public places effective 1

January 2011. Jose was caught smoking in a public place on 31
December 2010. Will he be charged and convicted of violating Republic
Act No. 1?

Republic Act No. 1 penalized smoking in public places effective 1

January 2011. Jose was caught smoking in a public place on 2 January
2011. Will he be charged and convicted of violating Republic Act No. 1?

Republic Act No. 1 penalized smoking in public places effective 1

January 2011. Jose was caught smoking in a public place on 2 January
2011. On 14 February 2011, while his trial was pending, the Philippine
legislature exempted minors from the operation of Republic Act No. 1.

Jose was only 17 years old, a minor, when he was caught smoking. Will
he be charged and convicted of violating Republic Act No. 1?

Republic Act No. 1 penalized smoking in public places effective 1

January 2011. Jose was caught smoking in a public place on 2 January
2011. On 14 February 2011, while his trial was pending, the Philippine
legislature exempted minors from the operation of Republic Act No. 1.
Jose was only 17 years old, a minor, when he was caught smoking. He
is, however a habitual delinquent or criminal. Will he be charged and
convicted of violating Republic Act No. 1?

LETTER TO A YOUNG LAW STUDENT*

Professor Corinne Cooper +
University of Missouri - Kansas City School of Law
35 Tulsa L.J. 275 (2000)
I sit down today to write you a letter to read before you start law
school. I know that you are filled with grand anticipation and a little
dread. It's a natural reaction. I hope that I will be able to assuage some of
your concern, and to help you get a good night's sleep. Please know, however,
that after eighteen years (twenty-one if you count my years as a student) in law
school, I still cannot sleep the night before fall classes start. When that edge of
anticipation is gone, I suppose I'll know that it's time to retire.
I am hard pressed to know where to begin in my advice to you. My
perspective on the process of legal education is skewed by the years I've spent
immersed in it.
Perhaps an outsider could explain the process
better.[1] Perhaps I no longer remember what it is like to be a first-year
student. I may have very little of value to offer you.[2]
But I cannot resist the temptation to pass along the insights that I have
developed over the years, however out of touch with your experience they may
prove to be. Think of me as an anthropologist, [3] reciting my findings on a
tribe I've observed for many years, of which I was once a member, but whom I
no longer fully live among.
What I know is what it is like to be a first-year law professor. After
watching the process for many years, in many different places, I've observed
that law school involves three circles [4]: the education that takes place within
you, the education you share with your peers, and the education you
experience with the faculty. I present them here in reverse order of
importance.
I.

The Faculty
You will come to law school expecting the faculty to be the most
important part of the education experience. We are not. At most, the
law faculty will help you to create a useful structure within which selfteaching takes place. At worst, the faculty will get in the way of your
learning. Your job is to keep your eye on the ball: you are in law school
to learn to teach yourself the skills that you will need for the rest of your
professional career. Do not assume that the faculty will teach you how
to practice law. It is not our job, and we could not possibly anticipate
the substantive knowledge or skills you will need during the next forty
years (much of that law doesn't even exist yet). What the faculty will do
is teach you a language and a structure for your thinking, and some

skills that you will apply, both in law school and after, largely on your
own.
Given the intensity of the law school educational process, you may be
tempted to spend inordinate energy focusing on your professors: what they
wear, how they act, how much you hate them, whatever. But this is largely a
waste of your time. Each of these people has something to offer you and you
are there to figure out what that is.
I am not talking only about the obvious substantive subject matter that
they convey; I am talking about their communication skills (or absence
thereof), their logic (ditto), their linear or non-linear thinking. They are
members of the tribe you seek to join, its High Priests in Charge of Initiation
Rites. You are there to observe and absorb these rites. By definition, their
quirks and rituals cannot be wholly irrelevant to your quest. But unless you
become a professor, these relationships will not inform your future
career. Observe them, learn from them, and do not let them get to you.
At most, one-third of what you learn in law school will be learned from
your professors. (I go up and down on this number; it bottoms out at twenty
percent). So don't spend a lot of time getting into the cult of personality. You
are there to learn what these people have to offer. Some will pass along the
secrets of the Temple, and you will not even know it until years later. The law
professor who influenced me most [5]taught Securities Law, which I have
never practiced. My least effective professor [6] taught Contracts (which I
teach), yet he has had a profound impact on my teaching, as I learned a great
deal about bad technique from him. Subject matter does not count for all that
much in this part of the learning process. I am best known as a teacher and
scholar of the Uniform Commercial Code; I took that class pass-fail. I learned
an enormous amount from [7] a professor I fought with constantly. He is now
a colleague and friend, and was instrumental in beginning my teaching career.
Although the introduction that you get to substantive law in your classes
is essential in the short run, what is really important is the introduction and
indoctrination that you get in legal thinking. This critical analysis process will
remain with you long after your grasp of the Rule Against Perpetuities has
faded. You are learning to be a legal thinker, one who, in the long span of a
career, will be largely self-taught.
A.

The Socratic Method

The rigor and aggressiveness of the pedagogy is intimidating to

some. Many modern teachers have fallen away from the rigid,
Kingsfieldian[8] approach to the Socratic method, on the grounds that
learning cannot take place in an atmosphere of abject fear. I agree with
this conclusion, but only to a degree. First, I expect a great deal of my

students, and I want them to expect a great deal from themselves. If I

set the bar too low, how will they learn the great accomplishments of
which they are capable? Some, surely, will experience failure in this
environment, but everyone will achieve more than if the bar is set too
low. Anyway, failure is a necessary part of the learning process for
lawyers; losing is a regular part of professional life.
Second, I remember the words of Philip Levine [9], a poet and teacher. He
was asked once [10]why he had been described by a student as "the cruelest
teacher ever." He replied, "I am the only person in the room paid to tell the
truth." I feel that way too, and so I do not hold back criticism of thinking that
is shallow or lazy. This is not only for the benefit of the student, but also on
behalf of the profession, and the clients who will be served by that future
lawyer.
This is different from disagreeing with opinions -- beware of teachers who
try to convince you of the correctness of their personal opinions. Respect a
teacher who is willing to challenge you intellectually in order to assure that real
learning takes place.[11]
B.

The Ugly Little Secret

There is one other thing that I hesitate to mention, but it is a fact

of law school life. Your professors are not trained to be educators. We
got here mostly by being good law students, not because we have any
background in higher education theory. This is true of most of graduate
school, but it is even worse for law professors, because very few of us go
through the traditional doctoral level educational system [12]where one
apprentices under a professor who may actually know something about
education.
As a result, most elementary school teachers have a stronger background
in educational theory than do law professors. This means that our techniques
may
seem
counterproductive,
awkward,
or
ineffective
at
times
[13]. Nevertheless, this system is oddly effective at producing the product that
the legal profession demands. If you will, this initiation process is quite
effective at delivering appropriate members into the tribe. It rewards people
who are good at teaching themselves, since that is what most lawyers spend
their careers doing. It develops a thick-skinned debating style, which makes
lawyers both successful and disparaged in their professional lives. It makes
being a lawyer seem hard and magical, and this helps to inflate the value of the
professional knowledge, both inside and outside the system.
II.

The Students

Your most important educational experience in law school will be

with other students. You will learn more from them than from your
teachers. Relationships forged in law school are like those forged in war:
what you share with these people is unlike any experience any of you
have had before.
Members of your professionyour professors, but, more importantly, your
classmatesare your colleagues, and will be with you for the rest of your
career. This is the beginning of your entire professional life, and it will not end
until the day that you retire. It is worth your while to spend some time
thinking about your professional life and how you wish to be perceived.
This is the beginning of a life-long game, played throughout the
profession, of "What Goes Around, Comes Around." If you dislike or distrust
someone in law school, it will be hard to forget that impression in later years. I
do not think that students fully understand this. [14] Start off behaving in a
manner that is consistent with the kind of lawyer you hope to be.
A.

Learning

It is important to respect your colleagues for another reason: you

will learn an enormous amount from them. I learned more from my
peers in law school than I did from my professors, and that is not
unusual.[15]
You learn from your classmates by listening to them in class, by
observing their mistakes, by arguing points with them. This is not just in law
school. The practice of law involves an enormous amount of this kind of give
and take among lawyers, those on the same team and those across the table.
Students come to law school from different backgrounds and experiences
and some have a better intuitive understanding of legal education. These
different perspectives will help to broaden yours, and to sharpen your
understanding of the analytic process that is taking place not only in your
mind, but in the minds of your colleagues and professors. Eventually, this will
give you insight into the thinking of your clients, your adversaries, the judge
and jury. Effective persuasion requires that you have insight into and respect
for other opinions and perspectives.[16]
In addition to providing insight, your classmates are a ready-made
educational think tank. Gather people with whom you feel comfortable and
begin to study and review your classes together. How much of this you can
tolerate is a function of your stress level and your learning style, but I always
encourage my students to spend some time working in groups.[17] Someone
should
be
challenging
your
thinking
besides
your
professors.

B.

Competition

One of the hardest things to accept about law school is that

everyone has been a good student, or a success of some kind, before
arriving. If law school were pass-fail, or if there were no exams at
all,[18] then a new ranking of those students would not have to take
place, and everyone could leave law school with the same sense of
accomplishment that they have when they get the acceptance letter.
The job market will not allow this, and so a hierarchy is created in law
school. People who graduated near the top of their undergraduate classes may
find themselves planted firmly in the middle, and that can be a painful
experience. Everyone cannot be at the top of the class, but you can take
advantage of the opportunities available to improve your chances in the job
market.[19]
How you react to this competition is an important factor in how you will
behave as a lawyer. Let it motivate you, and spur you on, as good athletic
competition can. Do not let it scare or anger you. Each class develops its own
sense of competition; some become very supportive communities and others
are schools of sharks. It only takes one or two people to set the tone for the
entire group.[20]
Cutthroat competition is not good for anyone, and it leads to behavior
that degrades the profession and makes practice a nightmare. A cooperative
attitude toward your peers can create a positive pattern for the future. It is
easy to say, "I need this now, and later will be different." But everything you
are doing now is a part of your socialization process. Even if you don't get
caught up in the competition, you will need to address it when you observe it in
others.
C.

Cheating

In law school, there is a good deal of abstract talk about your

professional responsibilities, but there are some real issues to be dealt
with as well:

Are you going to appear in court on time and well prepared? Certainly
you will aspire to do so. Does this also apply to your classes now?

You will never misrepresent facts before a judge. Should you fudge them
with your professors now?

You would never steal a client's funds. Would you slip a book out of the
library? Cheat on an exam?

These issues are the most painful ones that your professors confront. It
is excruciatingly difficult to watch students grapple with the demands of a
professional career, under great stress, and often at a young age. Sometimes
students fail to grasp the importance of their actions. A career can be cut
short because a student does not realize that law schools are serious about
expectations of professional conduct. I am not speaking only about violations
of the honor code that result in expulsion; I am also talking about the breach of
trust that follows a student beyond the classroom, limiting later professional
opportunities. Your teachers will sign off on your integrity as you go to take
the bar; they will be asked by employers for recommendations. Your
classmates will be watching you and evaluating not only your intelligence, but
your honesty and professionalism. If they see you operating at lower
standards, they are not likely to forget this about you when you are a
practicing attorney. If you cannot live by the rules now, when you are being
scrutinized at every turn, what will prevent similar conduct when no one is
watching?
I am not just worried you will feel pressure to cheat. The more difficult
issue will be if you observe others violating the rules. The peer pressure to
ignore these problems is enormous. You may worry that by turning in a
member of your class, you will separate yourself from the group, appear selfrighteous, or even self-interested.
But law is a self-regulating profession: this means that lawyers regulate
and govern their own conduct, largely free of the intervention of others. If this
system is going to work, lawyers have to police the profession, beginning in law
school. The Model Rules of Professional Conduct, which govern the practice of
law in most states, require an attorney to report the misconduct of
others.[21] Failure to do so is a violation of the rules.[22]
Your law school has an honor code.[23] You need to read it and
understand exactly what it requires of you, both in terms of your own conduct
and you obligation to report conduct of others. If you violate this code, you
may be dismissed from school, given a failing grade, or placed on
probation. This will be a part of your permanent record, and may follow you
into practice.
One issue that is becoming more problematic in law school is
plagiarism.[24] Because fewer students are writing significant research papers
in undergraduate school, you may have missed the opportunity to learn the
correct rules for citation and use of other works. If so, you have missed a
chance to make a mistake about this when it will have no repercussions. In
law school, if you are caught by a professor plagiarizing the work of another,
you certainly will be disciplined in some way and you may be dismissed from
school.

Computers have made plagiarism easier, since you can now cut and
paste at the click of a mouse button. But computers have also made
plagiarism easier to catch, since almost any string of words can be searched in
enormous databases. Most plagiarism, however, is caught by experienced
teachers who know the body of work their students are citing so well that they
easily recognize it when passed off by dishonest students. I'm amazed at how
foolish and naive students can be about this.
Learn the appropriate rules of citation. Familiarize yourself with the
rules for using quotations, but also the limits on using another person's ideas
and structure.[25]
III.

Teaching Yourself Law

You may have spent most of your undergraduate career listening
to lectures, taking notes, and reading assignments. Your job was to
absorb the material and pass it back to the teacher in a recognizable
form. Although you were probably required to write papers that involved
your own creative thinking, I suspect that this was the exception and not
the rule. If you participated in class discussions, it may have been by
offering your opinion about a text or issue.

This is a passive form of learning. You take in the information, you

memorize (or "learn") it, and offer it back. This did not prepare you for law
school.
In law school, we expect students to do active learning. You are required
to read the text, attend the lecture, take notes, and reread them. But none of
this passive activity prepares you for the examination, nor even for class.
More importantly, it will not prepare you for the practice of law.
Ultimately, law is a self-teaching discipline. You are not primarily here to learn
the substance of the law for future use; you are learning the skills of analysis
and self-instruction for future use.[26] Someone will come to you with a
question and you won't know the answer. The law on this subject may not
exist. So you learn in law school how to figure out the answers on your own
(and with your colleagues) for the rest of your career.[27] It is an honorable
and highly rewarding exercise; I can assure you that it is never fully mastered,
and therefore, never boring. [28]
A.

Active Learning

In law school, we expect you to teach yourself the meaning of

information, and more importantly, its function, for use in situations you
haven't yet experienced. We will ask you questions that are not in the

text, and questions that not answered there. We expect you to be able to
discuss the case, or the statute, or the article, and extract its meaning
for application in as-yet untested circumstances. We want you to distill
the relevant legal rule from the reading and be prepared to apply it to
new facts. We ask you to do this because this is exactly what you will do
as a lawyer.
This requires a different kind of learning. Instead of just reading and
memorizing, you need to start digging for these rules of law and extracting
them from the text. But you can't stop there: you need to take the next step of
applying the rules to new circumstances. It's one thing to figure out what the
holding of the case is; it is quite another to apply that holding to a different set
of facts, and to determine how the case might come out. This
distillation/application process is a more vibrant form of learning that goes
beyond reading and understanding what you have read and heard in
class. Active learning takes considerably more effort than reading and
reiteration. But since it is the act that will be expected of youin class, on the
exam, on the bar, and in practicestart now. You cannot read about this
process and expect to learn it without practice, any more than you can read a
book about marathon running and then go run one.[29]
The new kind of studying that you learn in law school is this active kind.
This is why I encourage you to study with friends: in a group, a discussion of
the applicable law and its impact on new situations is a more active (and
interesting) learning experience. The people with whom you study will help you
to come up with new fact situations, and to test the rules that you have learned
against them. They will catch you when you skip a necessary step, or
misinterpret the impact of a fact, and you will do the same for them.
This active application of the learned material is not unique to law; it
appears in some form in all graduate education. But it has, regretfully, all but
disappeared from undergraduate education, in part because it is so laborintensive. It is expensive for colleges to teach like this, and so, over time, many
of them have given it up in favor of large lectures and computer-graded
examinations. If you were lucky enough to have a more classical
undergraduate education, then the transition to law school may not be so hard
for you.
B.

What is Legal Thinking?

We do not do a very good job of explicitly teaching legal thinking.

What we do is immerse students in an environment where the
iconography, language, religion, history, and sociology are all "legal" and
let them learn by exposure and correction. The smart students adapt to
this culture in the way that a canny anthropologist can "become"
Yucatecan or Balinese. In the beginning, you do not "learn" so much as

you "absorb." Some students will begin parroting the language quite early
in the process, and that may intimidate you initially. Other students take
longer to get these linguistic messages, and yet they too become fluent.
Some people never do much more than an adequate job mouthing the
words and imitating the rituals. They never truly internalize the thinking
process.[30] They will be mediocre lawyers, but participants in the ritual
nonetheless, because the system will attribute the appropriate meaning
to their gesture even if they do not themselves comprehend its full
import.
The linguistic issue is a significant one. You are entering a language
immersion program. From the first day people will speak to you in words you
thought you knew, but which in this context may have different
meanings. Your teachers will constantly test your understanding of this new
language.[31] That is one huge justification for class participation. Listen to
the way your teachers speak, the way the cases "speak", the way the statutes
"speak." Listen to your colleagues as they practice their new tongue and see if
they are using the language precisely. This is critical. A true expert never uses
a legal term of art casually, and that is one of her attributes. This distinguishes
"expert" from "novice" in our tribe.[32]
This is not to suggest that the ritual of legal linguistics has left us with a
perfect language. Quite the opposite is true. Like many languages, it has
become weighted by a convention that admires mystery more than
clarity.[33] I had a friend in my first-year class, an English major, who
dropped out after a few weeks, declaring that his love of English would not
permit him to stand by passively and observe the treatment it received in law
school. We have specialized meanings that are an important part of the
learning process. I hope that you can learn them without becoming mired in
that ugly language, "legalese." Some lawyers write and speak in meaningless
platitudes, and endlessly disguise the true import of their speech. You can be
both an expert legal speaker and a plain speaker. George Orwell described it
this way:
Orthodoxy, of whatever color, seems to demand a lifeless, imitative style.
. . . [O]ne often has the curious feeling that one is not watching a
live human being but some kind of dummy: a feeling which
suddenly becomes stronger at moments when the light catches the
speaker's spectacles and turns them into blank discs which seem
to have no eyes behind them. And this is not altogether fanciful. A
speaker who uses that kind of phraseology has gone some distance
towards turning himself into a machine. The appropriate noises
are coming out of his larynx, but his brain is not involved as it
would be if he were choosing his words for himself.[34]

Your job is finding a balance: learn the meaning of each new word
or term and use it with precision,[35] but do not memorize endless
phrases and parrot them back.[36]
C.

What is Legal Analysis?

Don't be discouraged by the rote nature of the initial learning.

What you are learning at first is more like mathematics than humanities.
It is like the catechism. You have to get the basic framework correct
before you can begin to understand nuance. You will spend most of the
first semester, indeed the first year, learning the catechism.
What are we trying to accomplish? Like archeologists, we approach a
case like a dig, looking for clues about what happened there. We expect to see
certain things, and must see certain things in order to make assumptions
about the meaning of the text, The theory is something like this:
Facts
We
recover
an
undifferentiated pile
of bones, tools, flora,
and fauna. We do not
know yet what will be
important and what
unimportant. So we
start our detective
work. At this point,
nothing is irrelevant.

Rules

Conclusion

We have learned over

Once we have the
time that certain
elements that we
artifacts
or
have
come
to
evidence lead to a
associate with a
specific
particular level or
conclusion:
type of cultural
pottery means a
development, we
certain level of
search for those
cultural
elements.
When
sophistication.
all are present we
Writing tells us
can
reach
a
something
else.
conclusion.

The same process applies in law. A client will come in and tell the
attorney a story, with facts that are relevant to the attorney jumbled with those
that are only relevant to the client, or relevant to a doctor or an accountant.
The attorney will then plow through the facts to determine if they satisfy any of
the applicable legal rules. If all the elements of the rule are satisfied, then the
standard has been met, and the client is entitled to relief, or subject to action
under that rule. If one of the elements is not met, then we cannot reach that
conclusion. We may debate at length what the elements of the rule are, or
whether the elements of the rule have been met. This is the process of legal
analysis.
For example, suppose that the law provides that a person may file a
bankruptcy only if his debts exceed the value of his assets.[37] Suppose

further that your clients, the Stanleys, have assets that, at fair market value,
exceed their debts. But if the assets are valued at liquidation prices, their debts
exceed their assets. The issue is: Do the Stanleys qualify for bankruptcy?[38]

Facts
The

Stanleys
owe
$70,000. They
do
not
own
much, but the
appraised value
of their property
may be as much
as
$100,000. They
do not have any
income,
and
cannot pay their
bills. They do
not want to sell
their
assets. They're
upset.

Rules

Analysis

A debtor may
file for
bankru
ptcy
only if
its
debts
exceed
the
value
of
its
assets.

If a court finds that

the "value" of
the
Stanleys'
assets exceeds
their debts, the
Stanleys
can't
file
bankruptcy. If
a court defines
"value"
as
liquidation
value,
rather
than appraised
value,
they
satisfy
the
rule.
Most
courts
apply
this meaning.

Conclusion

The

facts of
this case
suggest
that the
Stanleys
have
satisfied
the rule
and are
entitled
to
file
bankrup
tcy.

Note that many of the facts turned out to be irrelevant. In this

hypothetical, the fact that the Stanleys have no income is not relevant, because
this particular rule doesn't require us to look at income. Similarly, the fact that
they are upset does not affect the legal outcome, although it might help the
lawyer decide which alternative to recommend. Finally, although the Stanleys'
reluctance to sell their assets might be relevant in determining whether
bankruptcy is a good option for them, it is not relevant to the application of the
rule. The rule has specific elements: if they are satisfied, it applies and the case
is decided under it. If not, it doesn't. This is the mathematics of legal
reasoning.
I call it "mathematics" because, in its simplest form, legal reasoning is
entirely formulaic and not particularly discretionary. If a statute requires four
elements, you must convince the decision maker that all four elements are
represented in the facts of this case to get relief under the rule. Three won't do,

two won't do, one won't do. Identifying the elements is the first job that you
have as a law student. It's not particularly easy, but you can figure it out by
reading the statute or the case.
D.

The IRAC Method

Everyone is going to talk to you about IRAC, and that is another way of
describing the process we just went through:
Issue:
Rule:
assets.

Can the Stanleys file for bankruptcy under the law?

You can file bankruptcy if your debts exceed the value of your

Analysis: Because of the facts of this case, the result depends upon the
meaning that the court applies to value. Most courts will consider
liquidation value in making this determination.
Conclusion: The court is likely to permit them to file bankruptcy.
Legal analysis is simply the application of this rule to these facts. This is
most of what first-year law students do. Lawyers do this, but they also have
another job, and that is convincing the decision maker that the facts of this
case fit the rule.[39] That job is entirely fact-specific. In other words, the
answer depends on what happened in this case.[40] This also frustrates firstyear law students. If cases are completely fact-specific, why are your teachers
expecting you to extract something fixed and knowable from reading them?
Why don't we all just roll the dice and go home?
E.

Legal Analysis and Precedent

The difference between rolling the dice and legal analysis is the
difference between prediction and detection, or the difference between
what might happen in the future based upon things we cannot know,
and what is likely to happen in the future based upon what we know
about the past.
When you ask your teachers, "What would happen in this case if . .
." and change the facts in some way, you are asking the teacher to
predict what a decision maker might think about these new facts.
Teachers can't guess that much better than you can, and so we may
answer, "It depends!" and make you furious. You are asking the teacher
to predict what an unidentified future decision maker, subject to
influences and whims that we know nothing about, is going to decide
based upon an imagined set of facts.[41] We may respond that your
guess is as good as ours.

But if you ask the teacher, "Would these new facts also arguably
meet the requirements of this statute?" then you are asking about the
elements of the rule, and that is a question we are prepared to answer.
We may walk you back through the relevant rule of law and ask you if
each of its requirements, in turn, has been satisfied. At the end of this
exercise, we will have illustrated again what the rule requires and the
necessity of identifying facts to fulfill each requirement[42].
What we want you to understand is that you cannot win
application of the rule if you do not identify facts that satisfy all its
elements. But you may not win even if you do. Another way to say this is
that you can easily make a bad argument (for example, when you make
an incomplete one, or inaccurately identify the elements of the rule) but
it's not so easy to make a winning one. All we want you to do at this
juncture is to identify clearly and accurately the elements of the rule,
and go through the process of applying them to the facts. Until you get
into practice, you won't know whether your argument is a winning one.
You will only learn in law school if it is a plausible one.
F.

The Importance of the Rule of Law

Why do we care so much about the application of the rule to the

facts? Because law is a relatively simplistic (and therefore relatively
predictable) process. Identification of the rule isn't often very
difficult[43] or interesting.[44] There is nothing particularly compelling
about this part of legal reasoning. What is interesting is the analysis,
where you debate the applicability of the rule, and its meaning, in
specific cases. If your facts meet the standards set forth in the rule, it
applies. If they don't, it doesn't.
So, although you might by background or sympathy want to discuss why
the Stanleys are upset, or how they got into this situation, or whether they are
being reasonable under the circumstances when refusing to sell assets, your
professors may discourage (and even disparage) this kind of discussion. None
of this discussion is relevant to the issue at hand. The questions may have
social, or even moral, importance. But the don't help us to solve the problem at
hand: Does the rule apply in this case?
Sometimes, we get into discussions about the applicability of the rule
that squarely involve these kinds of social and moral issues. In contracts class,
for example, we talk about the right of a woman to contract for the sale of her
unborn child. The rule in that case is that the courts won't enforce contracts
that are antithetical to "public policy." In analyzing what "public policy" means,
many very personal, moral issues are relevant to the discussion. But often they
are not. Why is this relentless cleaving to the rule so important? Because, as I

mentioned, we want predictability in law. As a democratic society, we have

come to believe that the rule of law must be applied in the same way for
everyone, and rigid application of legal rules is one of the ways that we pretend
that this occurs in the legal system. Of course, the rules are never applied "in
the same way" for everyone; in particular, people with better lawyers tend to get
better results.[45]
We also prize consistent application of the rules because it makes future
results predictable. We can plan transactions and behavior because we know
what the rules are. It is very disruptive and expensive to operate in a society
where the rules are uncertain.[46] Think about the application of laws in some
foreign countries that do not have the rule of law. In the United States legal
system, we believe that if you are going the speed limit, you will not get a
ticket, and if you exceed the speed limit, you will get a ticket. This helps us
plan how to behave. (We won't discuss yet the issue of enforcement and its
effect on predictability!)
Because your professors are trying to hammer this process into your
brain, and the importance of IRAC, and the concomitant value of predictability,
it may seem that the first semester is painfully repetitive, even anti-intellectual.
But you are learning lots of things at the same time: the language of law, the
substantive law (legal rules) in many different areas, and how to be a good
anthropologist and archaeologist. So I am sure that you will not be bored. You
may sometimes get frustrated, however. Do not be afraid to pull back and ask
yourself, "What am I supposed to learn here? Analytical skills? Substantive
law? Vocabulary?" This may help you to diminish, to some degree, your
frustration. If you've lost sight of the purpose, go see your professor and talk
about it.

IV. The Nature of Law as a Profession

It seems appropriate to point out now something about law that you may
not have noticed before. Although there is something forward-looking
about trying to ascertain how a matter will be decided in the future, law
is essentially the study of history. Even when you are arguing a
precedent-setting case, you will largely bolster your position by looking to
the past. In every legal question, we are asking essentially the same
question: "How do we get to this point from where we were previously?"
You may be tempted to argue for bold changes in the way that decisions
are made. I encourage you to do so. But you must couch your arguments, even
the most precedent-shattering, in the least revolutionary way. Your professors,
and ultimately, the judges before whom you argue, will be most inclined to

make the necessary leaps of faith if they see an argument that leads, like
stepping stones, through the historical precedents to the next logical step.
Even dramatic shifts in legal thinking Brown v. Board of Education, the
Brandeis brief, the doctrine of unconscionability were clothed in the
language and the argumentation of history.
Sometimes this historical perspective is frustrating. You may argue to
your professors, "That is not fair!" in response to some perceived injustice. The
legal argument with which to object to an arguably wrong result is not that it
was not fair, but that it did not follow the applicable rules correctly. Only rarely
will the court be persuaded by specific facts that the applicable rule is leading
to an inappropriate result, and as lawyers we tend to disparage these
moments. In response, lawyers say, "Hard cases make bad law," meaning that
cases decided on the basis of emotion are not reliable as sources of future
results. Why don't we want judges deciding on their own what's "fair"? Because
it leads to a very personal, and unpredictable kind of law, and one that is more
subject to whim.[47] That is why justice is portrayed as blind, and thus
indifferent to the personal biases that might otherwise sway her.
V.

Your Professional Life Begins Now

I usually wait until Thanksgiving to give this speech to my firstyear students. But it will serve you well now. Although we, your teachers,
will be pressing you to your limit, we also hope that you become healthy,
well-rounded, fully functioning professionals. Part of that training is
learning early on to keep a balance between your work and your life. I do
not like to mention this too early in the semester, because student
attention spans have only just begun to expand, and you will be amazed
by the end of the first semester how much work you can do and how long
a seemingly dusty inquiry can hold your attention.[48]
So even as I will exhort my students to "Work! Work!" more than
they ever have before, I also remind them that this is the beginning of the
delicate balancing act they will perform for the rest of their professional
lives. Developing good habits is a part of your professional training. So,
in no particular order, please try to organize your life so that:
1. You eat regularly and healthily.
2. You sleep regular hours, including an occasional nap if
necessary (not in class, if you can help it).
3. You exercise regularly.
4. You take time away from your work for brain-cleansing activities
like sports and movies.

5. You do not kill all your brain cells by using alcohol as a method
to relieve stress.
6. You remember that the people in your life, family and friends,
are more important than law school.
VI.

The Courage to Face the Struggle Ahead

You cannot get into law school without having proven that you have a
good measure of intelligence and drive. Everyone around you will have
gone through the same process to get there. Now the game begins again,
demanding even more of your intellect, your stamina, your dedication. I
have every faith that you have the capacity to succeed. What happens
now is up to you.

ENDNOTES
*Cf. R.M. Rillke, Letters to a Young Poet, M.D. Horton trans. (Norton 1934).
Copyright 1999 Corinne Cooper. All rights reserved; reproduction with permission and
attribution only. Professor of Law, University of MissouriKansas City School of Law. This
article was inspired by my niece, Jennifer Anne Ramo, Tulane Law School Class of
1999. Watching her go through the first year of law school made me a better and more
compassionate teacher of first-year students. She made me watch my profession with a more
analytical eye, and this article is the result. It was written with the support of the UMKC Law
Foundation. I am grateful for the guidance provided by Professors Barbara Glesner Fines,
Nancy Levit, Laura G. Dooley, Mark Loewenstein, Lynn LoPucki, and for the indefatigable
research of Lawrence MacLachlan, Senior Research Librarian, UMKC School of Law.
1. See, e.g., Alex de Tocqueville, Correspondence and Conversations of Alex de Tocqueville with
Nassau William Senior 1834-1859 (1968); Alex de Tocqueville, Tocqueville's America: The Great
Quotations (1983).
2. I recall a dinner at my sister's house where my niece, about to start law school, sought
counsel from two guestsone who had just finished the first year, and one who had just
graduatedbut never asked me at all. I assume she trusted more the advice of those who had
more recently shared her perspective. This is consistent with my experience of students
generally. If asked, I will tell a student exactly what is expected in my class, or on my
exam. Yet many students persist in believing that professors intentionally "hide the ball." It
is not uncommon to have a student treat peer advice as more reliable. It is possible, and even
likely, that students observe things in class to which the teacher is oblivious. But it is unlikely
that a student has greater insight into that teacher's goals and intentions than the teacher can
provide. If this were true, law school would be a terrible waste of money and time.
3.
Cf. Margaret Mead, Coming of Age in Samoa at iii (1973). In the 1928 introduction to
this work, Franz Boaz describes anthropology in a manner peculiarly appropriate for our
discussion of law school:

[A] systematic description of human activities gives us very little insight into the mental
attitudes of the individual. His thought and actions appear merely as expressions of rigidly
defined cultural forms. We learn little about his rational thinking, about his friendships
and conflicts with his fellowmen. The personal side of the life of the individual is almost
eliminated in the systematic presentation of the cultural life of the people. The picture is
standardized, like a collection of laws that tell us how we should behave, and not how we
behave; like rules set down defining the style of art, but not in the way in which the artist
elaborates his ideas of beauty like a list of inventions, and not the way in which the
individual
overcomes
technical
difficulties
that
present
themselves.
Id. at 9. I'm not trying to predict how you will experience law school. I can only hope to
capture for you the "rigidly defined cultural forms" that will govern your professional life for
the next three years, and beyond.

4. There is a fourth dimension, the real world of law. As law school proceeds, and perhaps
even worse, after you graduate, the distance between what you learn in law school and what
you are expected to do in the real world of law practice will become another powerful factor in
your education. That doesn't make law school irrelevant, but it distinguishes law school from
an apprenticeship, what the study of law used to be. See, e.g., Frances Kahn Zemans & Victor
G. Rosenblum, The Making of a Public Profession 135-50 (1981).
5. Here I must pay homage to Professor Junius Hoffman of the University of Arizona College of
Law.
6. Sorry, this one shall remain nameless!
7.
This tiny tribute is to Professor Dan Dobbs of the University of Arizona College of
Law. He still remembers the day I upbraided him after class for his bad manners. I also
remember students who have justifiably done this to me.
8. See The Paper Chase (Twentieth Century Fox 1973), in which John Houseman freezes
forever the image of law professors as cold, rigid, ruthlessly logical, and ultimately brutal
creatures.
9. See Philip Levine, "What Work Is," for a favorite poem of mine.
10. Interview with Philip Levine, Fresh Air, (National Public Radio Broadcast, November 13,
1996).
11. Most students think that student evaluations have no impact on a teacher's career. My
observation is otherwise. Most schools take teaching quite seriously, although good teaching
alone cannot sustain a career. But it is difficult to keep a job, or move up the ladder, without
solid teaching evaluations. Even when a school does not reward good teaching, no
administrator likes the hassle of dealing with students who are irate, or classes that are empty
because of poor teaching.
12. This is changing, but not so rapidly as you might suppose. Several law schools have LL.M.
programs in legal education, and professors who come out of these programs have a
much better grounding in educational theory.
13. I cannot tell you the number of times that I have seen faculties at different law schools
make decisions about pedagogy in the absence of, and even in spite of, research on the relevant
issue. We aren't stupid. It's just that most of us have not studied, and thus do not rely upon

scientific method. We are trained as lawyers, and we rely upon the "relevant evidence." Our
own experience is considered the best evidence, and scientific research be damned!
14. I had a research assistant early in my career who cheated on his hours. He is a lawyer
now. I still do not trust him, and I would not send a client to him.
15. I must pay obeisance here to the people who helped me get through law school, especially
my first year: John C. Richardson, Marilyn Skender, Michael Mandig, all University of Arizona
College of Law Class of 1978, and the Hon. Colin F. Campbell and the Hon. Nikki A. Chayet,
University
of
Arizona
College
of
Law
Class
of
1977.
16. This is a hard lesson for students to learn. I encourage my students to persuade me with
legal reasoning and evidence, Nagging and self-righteousness don't get you what you want
from a good parent. They won't get you what you want from a good judge or adversary,
regardless of what you see on television dramas
17. Don't waste time on people who are only interested in showing off, or are taking your
energy
and
information
and
offering
nothing
in
return.
18. If I had my druthers, there would not be any grades in law school. The ranking that
occurs after the first semester changes the dynamic of the classroom significantly, and not for
the better. Students who have been graded and ranked feel differently about themselves and
others. That innocent first semester when no one really knows how anyone will do is the most
open and sincere time in law school. Grades serve two purposes that are important to
students: they give you an idea how well you are learning the material, and they help you to get
jobs by distinguishing you from your peers. Grades only serve one purpose that is important
to me: they motivate students to study. Some students need that motivation, and I wouldn't
want to teach those people without that stick, but I'd be delighted to teach a classroom full of
students who are motivated by the desire to learn without grades. Also, most professors do not
care if the students we are teaching have gotten good grades. We care if the students are
sincerely trying to learn. My most rewarding teaching experiences have been with students
whose work improved dramatically with great effort on both our parts. After all, even a
mediocre professor can teach smart people.
19 It is too early to think about law journals or reviews, but do take advantage of different
opportunities to learn, and to show your stuff. For some people this is law review, or appellate
advocacy. For others it is student government, or work within the Law Student Division of the
ABA.
Some students do public service work, and organize projects for other
students. Remember that all of these activities, even law review, are adjuncts to the main
game, which is class.
20. I once taught a first-year class that included a very charming woman who did work for the
poor. She was great fun, and everyone loved her, but she also had a strong communitarian
value system that she communicated to the entire group. Although she left law school after the
first year to return to her work with the poor, her attitude continued to affect the members of
that
class,
who
were
unusually
supportive
of
one
other.
21. See Model Rules of Professional Conduct Rule 8.3(a)(1993); see also, Model Rules of
Professional Conduct Preamble [10] (1993).
22. See Model Rules of Professional Conduct Rule 8.4(a)(1993).
23. See, e.g., UMKC School of Law, Honor Code.

24. Although my experience is personal and narrow, I have in addition noted an alarming
increase in the number of apologies being written in law reviews. See, e.g., Scott K. Friedrich,
Form
of
Apology,
58
UMKC
L.
Rev.
3rd
unnumbered
page
(1990).
25. Julie M. Cheslik, Plagiarism Policy and Guidelines: Writing to Avoid Plagiarism (1990)
(unpublished plagiarism policy, University of Missouri-Kansas City Law School) (on file with
author) citing In Search of Plagiarism Policy, 16 N. Ky. L. Rev. 501 (1989); Louis Sirico, Jr.,
Primer on Plagiarism (1988); and Ralph D. Mawdsley, Legal Aspects of Plagiarism (National
Organization on Legal Problems of Education 1985).This is one area where the rules in law
school differs substantially from those in practice. Some practitioners feel perfectly free to steal
liberally from other lawyers' pleadings, documents, briefs, or discovery. Indeed, some people
practice law primarily through the use of the form document and the copy machine. They
would never think to cite the document from which they have cribbed. I don't condone these
practices, and I believe that there are legal limits to them, but I know that they exist. Law
school is different. The writing done in law school is scholarship, meant to preserve and
publicize original thinking about law. In academia, plagiarism is a career-ending error. So in
law school, this practice will be viewed as a very serious transgression.
26.

There are two reasons why the substantive law you learn in law school isn't all that
important. First, you'll forget most of it, or wind up practicing in a completely different
field. Second, the law changes all the time, so by the time you graduate, much of what
you've learned won't be quite the same. Of course, the basic outlines of the subject
matter, and critical characteristics will remain. But most of what you are learning in
law school is to bring about and react to changes in the law.

27.

Expertise just means that the questions you can't answer get harder. Even as a
consultant, I don't make very much money giving people the answers that I already
know. I earn my fee when I work through a difficult problem, using the things I know
and the problem-solving skills I've developed. We wouldn't need so many lawyers if the
solutions to most problems could be looked up. (This is even truer as lay people gain
access to computer databases.)

28.

The cockiness of most lawyers may be one result of their daring to face the law's
relentless newness, rather than any possession of the delivered wisdom.
29. You know, I tell my students this OVER and OVER and they have the hardest time
believing it! I rail against study aids, those crutches that built a million dollar industry
on student insecurity. If someone is doing the distillation process for you, it seems easy.
It's only when you have to do it on your own that it gets hard. But how can you expect
to learn analysis if the first time you try it is on the exam? Until they come up with
study aids for the exam, and study aids for the future, study aids can't help you learn
what you need to know. Yes, they will give you a perfectly acceptable case brief that you
can use in class. They may give you an outline to study for the exam. But it's all passive
learning that won't do anything but lure you into a false sense of security from which
you will have a rude and unhappy awakening. While I'm on the topic, some learning
aids can be useful. If you are completely lost on the topic, or have missed a nuance in
class, a good hornbook will help you get an overview, teach you the basic concepts, and
even help you focus on the details. I use them all the time. A book of problems and
answers can be helpful IF you actually answer the problems yourself before you read
the answers. If you just read the answers, it's more passive learning and ultimately
destructive of good learning habits. The sports analogy is a good one. You have to put
in the practice.

30.

Do you remember when you were learning Spanish and you suddenly stopped translating
everything? That is the moment of ownership, of fluency.. The same thing will happen
in
law
school,
but
probably
not
until
the
second
year.
31. Animal Farm and Alice in Wonderland are familiar examples of the frustration

caused by using apparently familiar words to mean something new. "All animals are
equal but some animals are more equal than others." George Orwell, Animal Farm 118
(1946). "When I use a word,' Humpty Dumpty said in rather a scornful tone, it means
just what I choose it to mean neither more nor less.' The question is,' said Alice,
whether you can make words mean so many different things.' The question I,' said
Humpty Dumpty, which is to be master that's all.'" Lewis Carroll, Through the Looking
Glass 94 (1946).
32.

See, e.g., John B. Mitchell, Current Theories on Expert & Novice Thinking: A Full Faculty
Considers the Implications for Legal Education, 39 J. Legal Educ. 275 (1989).

33

Cloaking simple acts in the aura magic is another indication of expertise. The expert
wishes to clothe her actions in mystery, lest they be devalued for their simplicity. See
generally William R. Bishin & Christopher D. Stone, Law, Language and Ethics: An
Introduction to Law and Legal Method 404-11 (1972). What lawyers and experts should
be doing is unmasking illusion in the search for clarity. This doesn't always happen.
Lawyers may try intentionally to obscure meaning to make their task seem more
difficult. Although this isn't necessary, and can be dangerous, more than one client has
looked at a brilliantly written, clear, and spare legal document and exclaimed, "Why was
this so expensive? I could have written it!"

34

George Orwell, "Shooting an Elephant; Politics and the English Language" in Orwell
Reader: Fiction, Essays, and Reportage by George Orwell 362-63 (1962). He was
speaking of politics, but the impact in law is the same.

35

Of course, this assumes a single, fixed meaning for words. In contract law, you will learn
that this is a myth, perpetrated in part by lawyers desperate to make the uncertain
certain. See Frigaliment Importing Co. v. B.N.S. Int'l. Sales Corp., 190 F. Supp. 116
(S.D.N.Y. 1960). Holmes said, "A word is not a crystal, transparent and unchanged, it
is the skin of a living thought." Towne v. Eisner, 245 U.S. 418, 425 (1918). This is true;
it argues against the possibility of perfect precision. It does not deny the possibility of
utter confusion. Your job is to seek the former and avoid the latter. Too many lawyers
assume the opposite!

36

I have observed a strange phenomenon in examinations, where a student clearly does not
understand the concepts underlying the terminology. They read like English
translations of electronic equipment manuals originally written in Japanese. The words
are there (they might even be the relevant words) but the context clearly reveals a
confusion that a person fluent in their usage would never have.

37

38

A colleague who teaches bankruptcy law objected to this example, arguing strenuously
that it did not accurately represent the law. I know. I'm using it as a simple
example. This isn't an article on bankruptcy law. This is another thing that you will
learn about professors: we so adore precision that we can almost never make simple
statements. We can't relax until all the appropriate qualifiers have been added.
Interestingly, another of the professors who read this article decided that I had stated the
issue wrongly, and that the issue was, "What definition of value applies?" That is just as
true a statement of the issue as the one in the text. It is also one of the great
frustrations of law students. There is never just one issue, or one way of describing it.
Our analysis is deeply affected by the way in which we pose the initial questions. For
practicing lawyers, that is what makes legal analysis interesting. Suppose I call
something a tort that has never been considered a tort before (say, the sale of
cigarettes.) My analysis is circumscribed by my framing of the issue in this way. I could
be wrong (that is, I could lose) or I might just be framing the issue in a new way, and

the analysis that follows may be persuasive or not. See, e.g., Sullivan v. O'Connor, 296
N.E.2d 1833 (Mass. 1973), where an unusual set of facts led a lawyer to include and
win a contract claim against a doctor, while losing the negligence claim. See also the
discussion of this case in Richard Danzig, The Capability Problem 15-43 (1978).
49 Or, in the business context, predicting what a future decision maker might do with
these facts, and structuring the transaction to fit within the known legal parameters.
40. Although you are likely to learn most of your first-year subjects using the case
method (that is, learning substantive law by reading specific cases that focus on that
topic), it is not the only, or even the most effective way to learn law. One author
criticized it this way: "The casebook method of teaching is, in fact, an exercise in futility.
It is the students themselves who are expected to build up a picture of law from the few
generally disconnected scraps available to them and with virtually not tools. Students
are left to guess what the editors' view of the law is rather than getting to what the law
is all about. Instead of looking at the reasoning of a case in the light of the developed
conceptual thought that preceded it, and of its place in a structured web of reasoned
principle they are provided in the first place with a single instance that justifies itself
only by reference to particular features, leaving much to be understood.... The students
study, as it were, the status of a grain of sand by walking around inside the grain and
without reference to the rest of the beach, the surf, and the sky." Alan Watson,
Introduction to Law for Second- Year Law Students? 46 J. Legal Educ. 430, 436 (1996)
(emphasis in the original.) Some authors have begun to develop teaching materials and
books that emphasize sources in addition to cases for presenting substantive
information. See, e.g., Stewart Macaulay, et. all, Contracts: Law in Action (1st ed. 1992).
1 think that the case method is useful in its place, but it grossly overstates the actual
impact of the appellate process in the full scope of the legal system. After all, not every
legal issue involves a dispute (as when a lawyer gives a client advice about what a
statute means), not every dispute reaches litigation, only a tiny percentage of cases that
are filed actually go to trial, and an even smaller percentage are appealed. So reading
cases to find out about the legal system is indeed looking through a microscope when
we might better consult a map. But this letter is about what is, and not what ought to
be....
41 I don't even want to get into what members of the school of legal thinking called Critical
Legal Studies have to say about that unidentified, future, biased, deceptive, conniving decision
maker. When you are older, and can handle it with maturity, I will give you Duncan Kennedy,
The Legal Education and the Reproduction of Hierarchy: A Polemic Against the System (1983)
known in my profession (and not without justification) as The Little Red Book. In the
meantime, see Robert L. Hayman, Jr. and Nancy Levit, Jurisprudence: Contemporary
Readings, Problems, and Narratives 213-216 (1995) for an uncharacteristically clear
explanation
of
Critical
Legal
Studies.
42 This is sort of silly, but I like to think of a legal rule like a hungry hydra. If you don't throw
meat
to
each
of
the
heads,
the
one
left
unsatisfied
will
eat
you!
43 Sometimes a bad statute can make this challenging, or even hilarious, as when the
Missouri Legislature accidentally outlawed consensual sex! But usually, once you have
experience, reading a statute or case and figuring out the rule isn't all that difficult. Of course,
I don't teach Constitutional Law.
44 The clearer the rule, the easier the decision will be. But the rule will also be inflexible, and
fail to cover cases that, in retrospect, we think ought to fall within its scope. So, for example, a
speed limit of 35 miles an hour is clear, and it is easy to apply. But if the driver is driving badly
even at 35 miles an hour, we might want a more general rule that says, for example, the driver
must drive safely and prudently. Montana recently confronted this issue, having done away
with its daytime speed limit in favor of a rule that required drivers to drive a "reasonable and
proper" speed. Mont. Code Ann. 61-8-303 (1995). One would expect that such a rule would

result either in fewer tickets or more contested cases. One author suggested that such a rule is
self-enforcing, since there aren't enough highway patrol cars to police such a big state:
"Montana is a huge state with a sparse population and a tiny tax base. We have a lot more road
than we do citizens and we can't afford many highway patrol officers. The 'reasonable and
prudent' rule is more a reflection of actual conditions than an invitation to excess. Statistically,
no matter how you drive, there's not going to be a state employee around to keep an eye on
you. If you don't drive in a reasonable and prudent manner, you end up in a ditch." Otto
Halgren, Big Sky, Big Flap, Big Deal, The San Francisco Chronicle Dec. 18, 1995 at A23. Officers
enforcing the law disagreed: "The problem with reasonable and prudent,' troopers argue, is
that there aren't three fuzzier words in U.S. lawbooks." Steve Lopez, America's Fast Lane, Time
October 12, 1997 at 44. This change in the law resulted in an increase in highway deaths in
Montana, although raising the speed limit to 75 has actually resulted in fewer deaths in some
neighboring states. Morning Edition (National Public Radio broadcast, Sept. 15, 1997). See
also Jim Robbins, Montana's Speed Limit of ??? M.P.H. Overturned as Too Vague, The New York
Times Dec. 25, 1998 at A16. Although no statistics are available on the increase in legal
challenges to tickets, officers reported spending more time arguing with drivers and in
court. Id. In 1998, the Montana Supreme Court threw out the law as unconstitutionally
vague. State of Montana v. Stanko, 974 P.2d 1132 (Mt. S.Ct 1998). "Vague laws offend
several important values. First, because we assume that man is free to steer between lawful
and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap
the innocent by not providing fair warning. Second, if arbitrary and discriminatory
enforcement is to be prevented, laws must provide explicit standards for those who apply
them. A vague law impermissibly delegates basic policy matters to policemen, judges, and
juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary
and discriminatory application." Id. at 1136. In 1999, Montana enacted a 75 m.p.h. speed
limit. Mont. Code Ann. 61-8-303 (1999). Interestingly enough, despite Stanko, the new
statute retains the "reasonable and prudent speed" standard for cases below the stated
limit! Id. at (4).
45 This is a relevant point for you to think about in law school even if it makes rule
identification and analysis seem less important and results seem less predictable. After all, if
good lawyers win, what difference does it make if they learn the rules? There are two answers:
first, good lawyers know the rules and apply them well. They may have other skills in addition
to this that they might or might not have learned in law school, but at a minimum they have
this. Second, the more that you practice this process, and the better that you get at it in law
school, the better you will be once you get into practice. This is the only skill that lawyers need
that I can guarantee you will be taught in school. You may say to yourself that the people who
get straight A's in law school won't necessarily become the best or most successful lawyers
(and these are not necessarily the same ones) and you would be right. But the best lawyers will
certainly be excellent legal thinkers, and I think that the successful ones will at least be more
persuasive in all ways, including their analyses, than their opponents. For the other skills that
good lawyers need that they (largely) do not learn in law school, see Zemans & Rosenblum,
supra note 4, at Ch. 6; see generally Section of the Legal Education and Admissions to the Bar,
American Bar Association, Legal Education and Professional Development: Report of the Task
Force on Law Schools and the Law Profession: Narrowing the Gap (1992) [known as the
MacCrate Report.]
46 This is one of the reasons that businesses decry the litigation explosion. If you have to
litigate every issue anyway, even if the rule is clear, then you have lost the value of
predictability. Litigation can also have other economic effect, for example, by discouraging
innovation. See, e.g., James Gleick, Fast Forward: Legal Eagles, Times Sunday Magazine, Sept.
14, 1997, at 48, 50 (arguing that litigation has discouraged the development of new
technologies in the single-engine aircraft industry). The lack of a clear legal rule can have other

impact as well, clogging the courts, or encouraging (or failing to discourage) costly behavior.
See, e.g., discussion of the Montana speed limit, supra note 44.
47 See note 44 supra and the discussion of Montana v. Stanko, 974 P.2d 1132 (Mt. S.Ct
1998).
48 I was in high school when my sister came home to live with us while studying for the bar
exam. I was astonished that she could study all day long, and late into the night, with only a
rare break for food and water. Her concentration seemed almost unnatural to me. Now I think
about that and laugh, often after sitting at my computer working on a problem, oblivious to
time and bodily function, until something serves to break my concentration and I realize that
four hours have passed since I last took a break. For this reason, I try not to cook while
working! Your powers of concentration will expand exponentially over the next three years,
even as your improving skills shorten the time it takes to solve a problem.