I. State v. Boomer
1. Void for Vagueness
Timothy Boomer will argue that the Michigan statute violates the due process clause of the U.S. Constitution because it is void for vagueness. A statute can be void for vagueness in one of three ways: (1) the statute is so unclear that ordinary persons have to guess at its meaning; (2) the statute is overly broad in that it includes innocent conduct;
(3) the statute allows for unfettered police discretion.
Boomer will argue that the words “indecent,”� “immoral,”� “obscene,”� “vulgar,”� and “insulting”� are so unclear that a law-abiding human being would not know what behavior was precluded. For example, words that are “insulting”� to one person may be simply humorous to another. If a person told a joke involving a rabbi and a priest, for example, some might find that “indecent”� or “immoral,”� while others would find it normal humor. The meaning of the words turns too much on the sensibilities of the individual. They do not have common meanings to which all agree.
Mr. Smith will also argue, for many of the same reasons already stated, that the language of the statute is overly broad. Purely innocent commentary can be taken as “insulting”� or “vulgar”� depending upon the listener. Also for the same reasons, the statute allows for unfettered police discretion on whom to arrest, since the arrests will turn on the own individual officer’s definition of what is “insulting”� or “indecent.”� This is not unlike the unfettered discretion given to officers in Chicago v. Morales in defining when a person is loitering “with no apparent purpose.”�
While in 1897, it might have been clear to the framers of the statute what would be “insulting”� or “vulgar”� to say in the presence of women and children, we do not have that statutory history available, and, in any case, as times have changed dramatically since then, it would be a violation of due process to hold persons liable for making statements that no longer carry that meaning.
The prosecution may respond to this argument that the average person understands what would be insulting to a woman or children, just as the dissent argued in Chicago
v. Morales that the average person knows when they are loitering with no apparent purpose. For example, in this case, when Timothy Boomer fell into the water and cussed, these words are universally unacceptable in mixed company. However, this argument will be problematic since Smith will be arguing that the statute is void on its face and not just in application to his case.
2. Mens rea as to attendant circumstance
Boomer can argue that he had no idea there were women and children around. To do this, however, he needs to argue that the statute contains some sort of mens rea that applies to “in the present or hearing of any woman or child.”� This will be impossible, since, at the most, he may be able to argue that the common law dictates that a crime carry a mens rea of at least recklessness, but that mens rea would apply only to the nature of conduct element of the crime, which is “using”� the indecent language. Clearly, he was not only reckless about using vulgar language, but purposeful. However, the common law presumes that mens rea does not apply to the attendant circumstance of “in the presence of . . .”�. This presumption makes sense here since the law was meant to prohibit offending women and children and so a person would be at their own risk, if they used offensive language, to be sure there were no women or children present. If this statute were strict liability (which could be argued in
that it is a misdemeanor offense dealing with an issue of public welfare), the attendant circumstance would obviously still be strict liability.
Law school is… different, and so is the approach to answering problem based questions. The IRAC method will help you structure your exams and essays, so forget everything you currently know about answering questions and take a read!
What does IRAC mean?
- Issue: identify the issue.
- Rule: state the rule/law.
- Analysis: discuss the law in respect to the facts.
- Conclusion: provide your conclusion.
Don’t be deceived – it’s harder than it looks
It looks pretty simple, right? Don’t get me wrong, the idea behind IRAC is as simple as things can get – the difficulty is in the execution.
An easy way to explain IRAC is to talk about the things that are most likely to trip you up when using it.
Don’t write an introduction
We are taught during high school and most university courses to rehash the facts or situation as part of an introduction for any answer we give.
At law school, a problem based question simply doesn’t need one. Instead, just write down the issue as a question or a statement. For example: “the issue in this situation is whether plaintiff’s title to the property is indefeasible.” That’s it – now move on to the rule section.
I remember writing a short introduction in a problem based assignment (which I thought was different to an exam, for some unknown reason) even when the lecturer told us not to! In my defence it was early on in my first year (fine – second half of my first year).
A problem that many law students face is failing to adapt to the academic environment of law school. It takes time to reverse old habits and realise that an introduction is no longer necessary.
Don’t pad your answer
Answers in law school should be concise and relevant – the IRAC method will assist, but you still need to consider everything you write down and query whether its relevant. Fluff and padding will not help your marks and will not make up for the fact that you don’t know what you’re talking about. Save the extra words for those 7,500 and 10,000 word essays!
Being concise is particularly important in exams when you have time limits to separate students into into credit, distinction and high distinction categories. Expressed bluntly, you can’t bullshit your way through a legal question.
This is enforced by lecturers by imposing low word limits. A 3,000 word assignment might sound like a lot before you start but most people will find themselves at the end scrambling to delete words.
Word limits are also used to identify students who understand the most important concepts and reward them for it. You will always get the most marks if you:
- can identify the key issues (relevance); and
- are able to thoroughly consider the issues for each (being concise).
This might mean you need remove any discussion of minor ancillary issues, even if what you wrote is correct.
For example, a 30 mark essay capped at 1500 words might in fact have 40 marks available, depending on what your response is. This generally gives the lecturers some scope when marking papers. However, you would need to write far more than 1500 words to discuss all the issues to get all those marks, which is obviously not allowed.
Write on point and with precision and you will increase your chances to score full marks.
Don’t revisit your answer in your conclusion
Don’t rewrite your answer in your conclusion section. Your conclusion is essentially a “yes” or “no” response to the issue (eg “the plaintiff’s title to the property is not indefeasible”). Similar to the issue section, limit it to one sentence and spend your effort on the far more important analysis section – this is where all the marks lie.
Be flexible with the rule and analysis sections, and structure your answer to help the reader
The ideal question to answer is one where the various issues you need to discus and explain are entirely separate from one another and your structure is literally: issue; rule; analysis; and conclusion (perhaps repeated three or four times). You might get a few of these in an exam, but unfortunately, they are not in abundance!
Most questions, will have overlapping issues and this is where structure becomes very important. For written essays and assignments you will have time to plan this out properly. In exams, it will come down to practice, so make sure you run through as many practice exams as you can to find out the best structure for any particular question (exam topics are frequently repeated so you can figure out what will be on your exam early).
The IRAC method is not for all types of questions
You might have already picked it up, but the IRAC method works best with problem based questions. If you’ve got a “discuss the the advantages and disadvantages of indefeasibility in property law” kind of question, then first of all I feel genuinely sorry for you, and secondly, you will need to find another way to answer this question.
IRAC answer examples
It’s easier to explain this method if by looking at an example IRAC answer. The below examples are very brief and don’t go into much caselaw detail, but they should suffice for a general example.
I have chosen the first one from criminal law because this is usually taught early on in most degrees. The second is in a different post on exam scripts, and is from a key area in contract law.
The words in [square brackets] or in italics are to indicate [structure] or are just general commentary and would not be included in your answer.
Criminal law IRAC example – Murder/manslaughter
[Exam heading] Murder
[Exam heading] Issue
- Did D commit murder?
- Can prosecution charge D with murder?
[Exam heading] Law and Analysis
- [Exam heading] (a) Mens Rea
- (State the law)
- (This is the analysis) In this situation, [there is insufficient evidence of intention]
- [Exam heading] (b) Actus reus
- (State the law)
- (This is the analysis) Here, it is clear that D’s actions were voluntary, and that the act caused the death of V.
- (Still the analysis) It could be argued that [act] was actually [something else], and therefore should not be considered voluntary. This was argued in [key case], however here, [the other important factor in key case] was not present, which means that any argument from D that actus reus is not made out is unlikely.
- (I can’t remember much of crim, but usually an exam question will have a factual scenario that plays on the facts of a key case. For example, in this question there might be something in the facts which requires you to discuss how the “voluntary” act is similar or different to a voluntary act in the key case. Refer to it and make a conclusion. If the chief examiner is particularly cruel, they will blend a factual scenario from two key cases, and you will need to refer to both and make a call on what is more applicable.)
[Exam heading] Conclusion
- D unlikely to be charged with murder. While there is sufficient evidence for actus reus, there is no mens rea.
(You will now want to determine whether D can be charged with a lesser office based on a different mens rea. To make the best use of time, refer back to what you have already written in the murder section.
Just as a warning – only refer back to things in the same answer. Sometimes, different questions in an exam booklet will be marked by different people. They might not have time to skip back to a different question to find something you have written.)
[Exam heading] MANSLAUGHTER
[Exam heading] Issue
- Can D be charged with manslaughter?
[Exam heading] Law and Analysis
- [Exam heading] (a) Mens rea
- The mens rea for manslaughter is… (as I said above, it’s been a looooong time since I studied criminal law. I have no idea what elements should go here. Recklessness?? Also, surely law students learn that this is the “fault element” now?)
- In this situation… (apply facts)
- [Exam heading] (b) Actus reus
- The elements for manslaughter are the same as for murder. These have been discussed above and are present in this situation.
[Exam heading] Conclusion
- D is likely to be charged with manslaughter as fault and external elements are all present.
(Part of your job is to make life easy for the marker. That’s the great thing about IRAC – it provides an ideal structure to frame your answer around. However, when you don’t need to write much then the structure can feel very forced. If you think your answer is going to look a bit stupid, just put everything in the one paragraph, but make sure you stick to the IRAC structure. See the below paragraph for an example.)
[Alternative manslaughter IRAC section]
(Issue) As murder is unlikely to be found, an alternative charge of manslaughter should be considered. (The following is law and analysis for actus reus) The actus reas for manslaughter is identical to murder, and is therefore present, as discussed above. (Next up, law and analysis for mens rea) However, the mens rea is different. The mens rea for manslaughter is…. [state law, discuss]. (Conclusion) Therefore, it is likely/unlikely that D will be charged with manslaughter.
Contract law IRAC example – termination of contracts
In my post on exam scripts you will find an IRAC example for termination of contracts. It’s from one of my old exam scripts and is a little more detailed than the above example for criminal law.
Want some help with a practice exam question?
If you have a practice exam question that you’re working on and you would like a second set of eyes taking a look, email me a copy of the exam (or upload it using the contact form below) and I’ll see if I can work through it. (I won’t look at any current essay questions you’re working on – speak to your class mates about those.)
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