§2.

1 The Inner Structure of a Rule

At this moment the King, who had for some time been busily writing in his notebook, called out
‘‘Silence!” and read from his book, ‘‘Rule Forty-two. All persons more than a mile high to leave the
court.”
Everyone looked at Alice.
‘‘I’m not a mile high,” said Alice.
‘‘You are,” said the King.
‘‘Nearly two miles high,” added the Queen.
—  Lewis Carroll,
Alice in Wonderland

A rule is a formula for making a decision.

Some rules are mandatory (‘‘any person who pays a fee of a hundred rubles shall
be entitled to a beach permit”), while others are prohibitory (‘‘no person shall
transfer more than two million pesos to another country without a license from the
Ministry of Finance”) or discretionary (‘‘the curator of the Louvre may permit flash
photographs to be taken when, in the curator’s judgment, no damage to art will
result”) or declaratory (‘‘failure to pay the fare on the Konkan Railway is an
offense”). Some appear to be one kind of rule, but turn out to be something else. For
example, the following seems mandatory: ‘‘A person in charge of a dog that fouls
the footway shall be fined ten pounds.” But it would actually be discretionary if
some other rule were to empower the judge to suspend the sentence.
Every rule has three separate components: (1) a set of elements, collectively
called a test; (2) a result that occurs when all the elements are present (and the test is
thus satisfied); and (3) a causal term that determines whether the result is
mandatory, prohibitory, discretionary, or declaratory. (As you’ll see in a moment,
the result and the causal term are usually integrated into the same phrase or clause.)
Additionally, many rules have (4) one or more exceptions that, if present, would
defeat the result, even if all the elements are present.
 Alice was confronted with a test of two elements. The first was the status of being
a person, which mattered because at that moment she was in the company of a lot of
animals — all of whom seem to have been exempt from any requirement to leave.
The second element went to height — specifically a height of more than a mile. The
result would have been a duty to leave the court, because the causal term was
mandatory (‘‘All persons . . . to leave . . .”). No exceptions were provided for.
Alice has denied the second element (her height), impliedly conceding the first
(her personhood). The Queen has offered to prove a height of two miles. What would
happen if the Queen were not able to make good on her promise and instead
produced evidence showing only a height of 1.241 miles? (Read the rule.) What if
the Queen were to produce no evidence and if Alice were to prove that her height
was only 0.984 miles?
A causal term can be mandatory, prohibitory, discretionary, or declaratory.
Because the causal term is the heart of the rule, if the causal term is, for example,
mandatory, then the whole rule is, too.
A mandatory rule requires someone to act and is expressed in words like ‘‘shall”
or ‘‘must” in the causal term. ‘‘Shall” means ‘‘has a legal duty to do something.”
‘‘The court shall grant the motion” means the court has a legal duty to grant it.
A prohibitory rule is the opposite. It forbids someone to act and is expressed by
‘‘shall not,” ‘‘may not,” or ‘‘must not” in the causal term. ‘‘Shall not” means the
person has a legal duty not to act.
A discretionary rule gives someone the power or authority to do something. That
person has discretion to act but is not required to do so. It’s expressed by words like
‘‘may” or ‘‘has the authority to” in the causal term.
A declaratory rule simply states (declares) that something is true. That might not
seem like much of a rule, but you’re already familiar with declaratory rules and their
consequences. For example: ‘‘A person who drives faster than the posted speed limit
is guilty of speeding.” Because of that declaration, a police officer can give you a
ticket if you speed, a court can sentence you to a fine, and your state’s motor vehicle
department can impose points on your driver’s license. A declaratory rule places a
label on a set of facts (the elements). Often the declaration is expressed by the word
‘‘is” in the causal term. But other words could be used there instead. And some rules
with ‘‘is” in the causal term aren’t declaratory. You have to look at what the rule
does. If it simply states that something is true, it’s declaratory. If it does more than
that, it’s something else.
Below are examples of all these types of rules. The examples come from the
Federal Rules of Civil Procedure, and you’ll study them later in the course on Civil
Procedure. (Rules of law are found not just in places like the Federal Rules. In law,
they are everywhere — in statutes, constitutions, regulations, and judicial
precedents.)
 If the rules below seem hard to understand at first, don’t be discouraged. In a
moment, you’ll learn a method for taking rules like these apart to find their
meaning. For now, just read them to get a sense of how the four kinds of rules differ
from each other. (The key words in the causal terms have been italicized to highlight
the differences. In the prohibitory rule, the square brackets mean that the rule has
been edited: words in the original have been replaced by the words in brackets.)

If a defendant located within the United States fails, without good

cause, to sign and return a waiver requested by a plaintiff located
within the United States, the court must impose on the defendant (A)
mandatory:
the expenses later incurred in making service and (B) the reasonable
expenses, including attorney’s fees, of any motion required to
collect those service expenses. 1

The court must not require a bond, obligation, or other security from
the appellant when granting a stay on an appeal by the United States,
prohibitory:
its officers, or its agencies, or on an appeal directed by a department
of the federal government. 2

The court may assert jurisdiction over property if authorized by a

discretionary:
federal statute.3

declaratory: A civil action is commenced by filing a complaint with the court. 4

Here’s a three-step method of figuring out what a rule means:

Step 1: Break the rule down into its parts. List and number the elements in the
test. (An element in a test is something that must be present for the rule to operate.)
Identify the causal term and the result. If there’s an exception, identify it. If the
exception has more than one element, list and number them as well. (Exceptions can
have elements, too; an exception’s element is something that must be present for the
exception to operate.) In Step 1, you don’t care what the words mean . You only want
to know the structure of the rule. You’re breaking the rule down into parts small
enough to understand. Let’s take the mandatory rule above and run it through Step 1.
Here’s the rule diagrammed:
You don’t need to lay out the rule exactly this way — and you certainly don’t need
to use boxes. You can use any method of diagramming that breaks up the rule so you
can understand it. The point is to break the rule up visually so that it’s no longer a
blur of words and so you can see separately the elements in the test, the causal term,
the result, and any exception. When can you combine the causal term and the result?
You can do it whenever doing so does not confuse you. If you can understand what’s
in the box below, you can combine, at least with this rule:

Step 2: Look at each of those small parts separately. Figure out the meaning of
each element, the causal term, the result, and any exception. Look up the words in a
legal dictionary, and read other material your teacher has assigned until you know
what each word means. You already know what a plaintiff and a defendant are. If
you look up service in a legal dictionary you’ll learn that it’s the delivery of legal
papers. If you read other material surrounding this rule in Civil Procedure, you’ll
learn that a request for a waiver is a plaintiff’s request that the defendant accept
service by mail and waive (give up the right to) service by someone who personally
brings the papers to the defendant. The surrounding materials also tell you that the
expenses of service are whatever the plaintiff has to pay to have someone hired for
the purpose of delivering the papers personally to the defendant.
Step 3: Put the rule back together in a way that helps you use it. Sometimes that
means rearranging the rule so that it’s easier to understand. If when you first read
the rule, an exception came at the beginning and the elements came last, rearrange
the rule so the elements come first and the exception last. It will be easier to
understand that way. For many rules — though not all of them — the rule’s inner
logic works like this:

What events or circumstances set the rule into operation?

(These are the elements in the test.)

When all the elements are present, what happens?

(The causal term and the result tell us.)

Even if all the elements are present, could anything prevent the result?
(An exception, if the rule has any.)

Usually, you can put the rule back together by creating a flowchart and trying out the
rule on some hypothetical facts to see how the rule works. A flowchart is essentially
a list of questions. You’ll be able to make a flowchart because of the diagramming
you did earlier in Step 1. Diagramming the rule not only breaks it down so that it can
be understood, but it also permits putting the rule back together so that it’s easier to
apply. The flowchart below comes straight out of the diagram in Step 1 above.
(When you gain more experience at this, it will go so quickly and seamlessly that
Steps 1, 2, and 3 will seem to merge into a single step.) Assume that Keisha wants
Raymond to pay the costs of service.

elements:
1. Is Raymond a defendant?
2. Is Raymond located within the United States?
3. Did Raymond fail to comply with a request for waiver?
4. Is Keisha a plaintiff who made that request?
5. Is Keisha located within the United States?

If the answers to all these questions are yes, the court must impose the costs
subsequently incurred in effecting service on Raymond — but only if the answer to
the question below is no.

exception:
Does Raymond have good cause for his failure to comply?

Step 3 helps you add everything up to see what happens when the rule is applied to a
given set of facts. If all the elements are present in the facts, the court must order the
defendant to reimburse the plaintiff for whatever the plaintiff had to pay to have
someone hired for the purpose of delivering the papers personally to the
defendant — unless good cause is shown.
The elements don’t have to come first. If you have a simple causal term and
result, a long list of elements, and no exceptions, you can list the elements last. For
example:
Common law burglary is committed by breaking and entering the dwelling of another in the nighttime
with intent to commit a felony inside.5

How do you determine how many elements are in a rule? Think of each element as
an integral fact, the absence of which would prevent the rule’s operation. Then
explore the logic behind the rule’s words. If you can think of a reasonably
predictable scenario in which part of what you believe to be one element could be
true but part not true, then you have inadvertently combined two or more elements.
For example, is ‘‘the dwelling of another” one element or two? A person might be
guilty of some other crime, but he is not guilty of common law burglary when he
breaks and enters the restaurant of another, even in the nighttime and with intent to
commit a felony therein. The same is true when he breaks and enters his own
dwelling. In each instance, part of the element is present and part missing. ‘‘The
dwelling of another” thus includes two factual integers — the nature of the building
and the identity of its resident — and therefore two elements.
Often you cannot know the number of elements in a rule until you have consulted
the precedents interpreting it. Is ‘‘breaking and entering” one element or two? The
precedents define ‘‘breaking” in this sense as the creation of a gap in a building’s
protective enclosure, such as by opening a door, even where the door was left
unlocked and the building is thus not damaged. The cases further define ‘‘entering”
for this purpose as placing inside the dwelling any part of oneself or any object
under one’s control, such as a crowbar. Can a person ‘‘break” without ‘‘entering”? A
would-be burglar would seem to have done so where she has opened a window by
pushing it up from the outside, and where, before proceeding further, she has been
apprehended by an alert police officer — literally a moment too soon. ‘‘Breaking”
and ‘‘entering” are therefore two elements, but one could not know for sure without
discovering precisely how the courts have defined the terms used.
Where the elements are complex or ambiguous, enumeration may add clarity to
the list:
Common law burglary is committed by (1) breaking and (2) entering (3) the dwelling (4) of another
(5) in the nighttime (6) with intent to commit a felony inside.

Instead of elements, some rules have factors, which operate as criteria or guidelines.
These tend to be rules empowering a court or other authority to make discretionary
decisions, and the factors define the scope of the decision-maker’s discretion. The
criteria might be few (‘‘a court may extend the time to answer for good cause
shown”), or they might be many (like the following, from a typical statute providing
for a court to terminate a parent’s legal relationship with a child).
In a hearing on a petition for termination of parental rights, the court shall consider the manifest best
interests of the child. . . . For the purpose of determining the manifest best interests of the child, the court
shall consider and evaluate all relevant factors, including, but not limited to:

(1) Any suitable permanent custody arrangement with a relative of the child. . . .
(2) The ability and disposition of the parent or parents to provide the child with food, clothing, medical
care or other remedial care recognized and permitted under state law instead of medical care, and other
material needs of the child.
(3) The capacity of the parent or parents to care for the child to the extent that the child’s safety, well-
being, and physical, mental, and emotional health will not be endangered upon the child’s return home.
(4) The present mental and physical health needs of the child and such future needs of the child to the
extent that such future needs can be ascertained based on the present condition of the child.
(5) The love, affection, and other emotional ties existing between the child and the child’s parent or
parents, siblings, and other relatives, and the degree of harm to the child that would arise from the
termination of parental rights and duties.
(6) The likelihood of an older child remaining in long-term foster care upon termination of parental
rights, due to emotional or behavioral problems or any special needs of the child.
(7) The child’s ability to form a significant relationship with a parental substitute and the likelihood that
the child will enter into a more stable and permanent family relationship as a result of permanent
termination of parental rights and duties.
(8) The length of time that the child has lived in a stable, satisfactory environment and the desirability
of maintaining continuity.
(9) The depth of the relationship existing between the child and the present custodian.
(10) The reasonable preferences and wishes of the child, if the court deems the child to be of sufficient
intelligence, understanding, and experience to express a preference.
(11) The recommendations for the child provided by the child’s guardian ad litem or legal
representative.6

Only seldom would all of these factors tip in the same direction. With a rule like
this, a judge does something of a balancing test, deciding according to the tilt of the
factors as a whole, together with the angle of the tilt.
Factors rules are a relatively new development in the law and grow out of a recent
tendency to define more precisely the discretion of judges and other officials. But
the more common rule structure is still that of a set of elements, the presence of
which leads to a particular result in the absence of an exception.

§2.2 Organizing the Application of a Rule

Welty and Lutz are students who have rented apartments on the same floor of the same building. At
midnight, Welty is studying, while Lutz is listening to a Radiohead album with his new four-foot
speakers. Welty has put up with this for two or three hours, and finally she pounds on Lutz’s door. Lutz