Quick note for those of you working on your outlines now.

For con law, it's pret ty important to know the names and facts of all the cases, because the opinions of the United States Supreme Court are the law. So, being able to distinguish th e facts of a SCOTUS case from the facts in your case can be key. The cases in this book, however, are from lots of different jurisdictions and, o f course, none of them controls in a Brookings court. The cases are not the law of Brookings. However, they can help flesh out the issues a Brookings court may have to consider when trying to interpret Brookings law and help a Brookings cou rt see what kind of rules other courts/legislatures have chosen to help resolve these issues. For instance, say that a Brookings statute defines rape as "an act of sexual pen etration using physical force without consent . . ." If you are given a fact pa ttern with lots of force, like Lopez, then you should explain that the force ele ment would be satisfied regardless of how the court interpretted the words "phys ical force" and move on to more interesting issues. However, say that you're giv en a fact pattern where penetration is accomplished with very little force. In t hat case, a Brookings judge would have to figure out how to distinguish between physical force that satisfies the statute and force that does not. At that point , the judge would turn to "Defining Crimes," and learn about the different stand ards other jursidictions that have a force requirement have applied in deciding whether there is or is not "force." The Brookings judge could decide that "physical force" means no more force than necessary to accomplish the penetration, like the New Jersey court did in MTS, i n which case any rape fact pattern would satisfy the force element. Or, like in Berkowitz, the judge could decide that "physical force" means some level of for ce greater than that inherent in the penetration, in which case the issue would be much more debatable. You need to be familiar enough with the different standa rds discussed in the cases/notes to be able to see that if the court followed MT S, the force requirement is necessarily satisfied, but that if the court chose a stronger standard of force, the issue is much more debatable. Because, as the n otes and cases reveal, different jursidictions vary greatly on how much force is necessary, and none of the cases controls in Brookings, it would be hard to pre dict whether the defendant would win or lose under the particular standard the c ourt finally chooses. In other words, because the court isn't bound to follow th e precise rule in a case like Berkowitz, it doesn't make much difference if the force in the fact pattern is a little more or less than in that case. In a situa tion like this, you're probably best off explaining that if the court follows MT S, the defendant loses, but that if the court, like many jurisdictions, imposes a higher standard, the defendant might win, depending on how high the bar is set . It would also be well worth noting that if the court follows MTS, there's a bi gger issue of mistake of consent, and that a stronger force requirement imposes a greater duty on victims to "resist to the utmost," with all the bad consequenc es that implies. Note that with some issues, like insanity, there are only a few, fairly well def ined standards from which a Brookings court could choose. If you are given a fac t pattern that requires the court to develop an insanity defense standard from w hole cloth, the court would likely just pick from one of the options we discusse d today. In that case, you would want to explain which standards the defendant c learly wins or loses unders and how/why he might lose under the others. Being familiar with the facts of the different cases will make it easier to tell when an issue is in play, and help you understand those issues. Indeed, it woul d be hard to understand the rule of MTS unless you knew that the case may have i nvolved almost no force at all. However, with a question like a rape force requi rement, the bigger picture concerns are much more important for the final than h ow the case would have come out in a different state.

In practice, you have to be able to analyze the cases that are binding precedent to learn/develop/define/distinguish the rules, which is why we've been learning from a case oriented book rather than a Bar exam prep guide. However, when you come across an issue without binding precedent, or when the binding precedent is not favorable to your case, you will want to turn to persuasive precedent from other jurisdictions to show the judge that the rule you dislike is not the only way to do things, and help the judge see why the standard that works best for yo ur client is also the best one for the judge to choose. In retrospect, that was definitely not a quick note, regardless of how a Brookin gs court would interpret the work "quick." But, hopefully it helps. Thank you al l for being such a great class. I've really enjoyed the experience, and the effo rt and enthusiasm you all brought made it that much more fulfilling. I hope to s ee all of you on Monday. If not, good luck with your finals. -Andy Kim