This is the perennial question posed to law school professors and academic support instructors: What does a good legal analysis look like? More specifically, what distinguishes a good analysis from a poor one? And what distinguishes an average analysis from a good, or an exceptional, analysis?
These questions are only natural to law students at all levels. I know from personal experience, not just as a professor but from my own experience as a law student. In my 1L Contracts class, for example, I recall receiving a score of a 94 on the midterm (the highest possible score being a 100). Not a bad result, and I would have been very pleased had the midterm results not been posted in a hallway of the school so that I was able to see the range of scores on the midterm. I saw that my midterm score was the second-highest in the class; the only student who scored higher than I did received a 96, only two points higher. Notwithstanding my excellent result on the exam, I had to wonder – what was the difference between my 94 and the other student’s 96? What could I have done differently to put myself over the top?
Questions like this have more urgency for students who are struggling just to survive in law school. If you are on academic probation, or facing failure in a course or removal from your JD program, your ultimate success in law school and the bar exam, and therefore your entire future in the legal profession, are at stake. The question demands an answer.
There are different ways to answer the question, but I think the best way to explain what makes for a good legal analysis on a law school essay is by example.
Below, you will find a basic 1L Contracts problem, with a basic question: Do the parties have an enforceable contract? Following the problem, you will see five sample answers, arranged in order from the weakest to the strongest, along with an explanatory note discussing what is good and bad about each answer.
Study these examples closely. Make an effort to understand what makes the good examples work and what causes the poor examples to fall short. Try to model your own answers after the former, and avoid the mistakes of the latter. Ultimately, you will learn that the difference between a good analysis and an excellent one is subtle, but that the difference between a poor analysis and a good one is vast.
Contracts Question
Rita plans to go into the business of painting houses. She has 200 flyers printed up reading, “Limited time only – houses painted for the low price of $2,000! Call Rita immediately at 555-1234 to accept this offer!” and distributes them around town.
The following day, Rita receives a call from Marvin. As soon as Rita answers the phone, Marvin states, “I accept your offer to paint my house for $2,000. You can start tomorrow at 10:00 a.m.” Marvin then quickly blurts out his address and hangs up before Rita has a chance to respond.
Is there an enforceable contract between Rita and Marvin to have Rita paint Marvin’s house for $2,000?
What to Know Before Proceeding
If you have not taken Contracts yet, or have just started learning Contracts, you will need to know some basics of Contract law before reading further. Here are the basic rules you would need to apply to answer this prompt:
Contract Formation: A valid contract requires proof of three elements: (1) offer; (2) acceptance; and (3) consideration.
Offer: An offer is the manifestation of a willingness to enter into a contract and be bound by its terms, expressed in definite terms, communicated to the offeree, and giving the offeree the power to close the deal. An offer is definite if it includes the essential terms of quantity, time of performance, identification of parties, price, and subject matter.
Advertisements as Offers: Generally, advertisements are not offers. However, advertisements can be considered offers if they are sufficiently definite and narrow in scope, and the offeree can be identified.
Acceptance: Acceptance is the unequivocal assent by the offeree to the offeror’s offer. Silence is generally not considered acceptance.
Consideration: Consideration is a bargained-for exchange, in which each party incurs a detriment and each party receives a benefit.
Sample Responses to Contracts Question
With the above rules in mind, review the following sample answers. They are arranged in order from worst to best. Each sample answer is followed by an explanatory note discussing the pros and cons of each response.
Sample Answer #1
An offer is the manifestation of a willingness to enter into a contract and be bound by its terms, expressed in definite terms, communicated to the offeree, and giving the offeree the power to close the deal. Rita’s first communication is an advertisement. Advertisements are not offers. Therefore, there is no offer and there can be no contract.
Explanatory Note to Sample Answer #1: This is the answer of a student who is destined to fail law school. There are at least three problems with this answer.
First, the answer does not state a complete rule for contract formation. The question asks if there is a valid contract between Rita and Marvin. A valid contract requires three elements: (1) offer; (2) acceptance; and (3) consideration. The rule, and thus the answer, only discusses the first element, and is therefore incomplete.
Second, the rule for offers as advertisements is incomplete. The general rule is that advertisements are not offers, but invitations to deal. However, the general rule has an exception; offers can be deemed advertisements if they are narrow enough in scope and identifies the offerees. This answer does not address the exception at all.
Third, the answer hardly makes any use of the facts. After stating the rule for what makes a valid offer, and the general rule for advertisements as offers, the entire application of the facts to the rule consists of exactly two sentences, both of which state conclusions. Almost none of the facts, including the facts pertaining to whether the advertisement is an offer, are used.
Sample Answer #2
An offer is the manifestation of a willingness to enter into a contract and be bound by its terms, expressed in definite terms, communicated to the offeree, and giving the offeree the power to close the deal. Marvin will argue that Rita’s advertisement is an offer. Advertisements are not offers; therefore, Rita’s advertisement is not an offer. However, Marvin’s telephone call to Rita is an offer, because it is a manifestation of a willingness to enter into a contract with Rita and be bound by its terms, expressed in definite terms, communicated to the offeree (Rita), and giving Rita the power to close the deal by beginning performance.
Explanatory Note to Sample Answer #2: This is also a poor answer. It improves on Sample Answer #1 by discussing Marvin’s telephone call to Rita, and therefore makes better use of the facts. However, the rules are still incomplete, the answer still only discusses the offer element of contract formation, and there is no discussion as to whether the advertisement is an offer.
Sample Answer #3
An offer is the manifestation of a willingness to enter into a contract and be bound by its terms, expressed in definite terms, communicated to the offeree, and giving the offeree the power to close the deal. An offer is definite if it includes the essential terms of quantity, time of performance, identification of parties, price, and subject matter. Marvin will argue that Rita’s advertisement is an offer. Generally, advertisements are not offers. Advertisements can be considered offers if they are sufficiently definite and are directed to specific individuals. This advertisement is not sufficiently definite, and is not directed to specific individuals. Therefore, it is not an offer. However, Marvin’s telephone call to Rita is an offer, because it is a manifestation of a willingness to enter into a contract with Rita and be bound by its terms, expressed in definite terms, communicated to the offeree (Rita), and giving Rita the power to close the deal by beginning performance.
Explanatory Note to Sample Answer #3: This is better, but still not great. The answer still only addresses the offer element of contract formation. While it does address the exception to the general rule that ads are not offers, the discussion of this exception is conclusory – the statement “[t]his advertisement is not sufficiently definite” is a conclusion that is not supported by any facts.
Sample Answer #4
A valid contract requires proof of three elements: (1) offer; (2) acceptance; and (3) consideration. An offer is the manifestation of a willingness to enter into a contract and be bound by its terms, expressed in definite terms, communicated to the offeree, and giving the offeree the power to close the deal. An offer is definite if it includes the essential terms of quantity, time of performance, identification of parties, price, and subject matter. Generally, advertisements are not offers. However, advertisements can be considered offers if they are sufficiently definite and narrow in scope, and the offeree can be identified. Acceptance is the unequivocal assent by the offeree to the offeror’s offer. Consideration is a bargained-for exchange, in which each party incurs a detriment and each party receives a benefit.
Marvin will argue that Rita’s advertisement is an offer. Although the advertisement lists a price (which is apparently non-negotiable), it is not limited in the number of customers who can respond. It is also lacking in listing the time of performance (although Marvin may argue that this can be implied). Therefore, the advertisement is not an offer.
However, Marvin’s telephone call to Rita is an offer. The call makes it clear that Marvin intends to be bound by a contract to paint his house for $2,000, and all essential terms are either expressly included or implied in Marvin’s communication. It is communicated directly to Rita, and givers her the power to seal the contract by her assent. Therefore, there is an offer.
Explanatory Note to Sample Answer #4: This is an improvement. The rule statement is complete, and the discussion of offer is much more extensive than in the other examples. However, while the rule discusses all three elements of contract formation, the application still only addresses the offer element.
Also, the organization is not great. When you have a rule that can be broken down into elements (like the rule for contract formation), it is usually better to break down the essay into different sections by element. For an example of what I mean by this, see Sample Answer #5 below.
Sample Answer #5
A valid contract requires proof of three elements: (1) offer; (2) acceptance; and (3) consideration. Each of these will be discussed in turn below.
A. Offer
An offer is the manifestation of a willingness to enter into a contract and be bound by its terms, expressed in definite terms, communicated to the offeree, and giving the offeree the power to close the deal. An offer is definite if it includes the essential terms of quantity, time of performance, identification of parties, price, and subject matter. Generally, advertisements are not offers. However, advertisements can be considered offers if they are sufficiently definite and narrow in scope, and the offeree can be identified.
Marvin will argue that Rita’s advertisement is an offer. Generally, advertisements are not offers. However, advertisements can be considered offers if they are sufficiently definite and narrow in scope, and the offeree can be identified. The issue therefore becomes whether the advertisement is sufficiently definite and narrowly tailored to be considered an offer.
Marvin will argue that the advertisement is sufficiently definite because it states the contract price (without stating that the price is negotiable), and because the number of flyers is limited. Marvin will argue that, by printing only a limited number of flyers, Rita communicated that she was ready, willing, and able to perform as many painting jobs as she had printed flyers. Marvin will also argue that the advertisement calls itself an offer, that it lists a quantity (one house for $2,000), and the time of performance is implied (immediate).
Rita will argue that most advertisements list a price, as advertisements that do not list price are usually not effective. Rita will also argue that she has not limited the number of customers who may respond to the ad (it does not limit the offer to a certain number of responders), and she has no control over how many people will see the flyers or call to offer her work. It would therefore be unfair to hold her to a binding contract any time someone somewhere sees her flyer and calls her to “accept”, because she is not equipped to handle a potentially unlimited number of paint jobs. Rita will also argue that the “offer” language in the advertisement has no legal effect.
A court will most likely agree with Rita, because to call this advertisement an offer would set a bad precedent of holding a business to a binding contract any time a businessman prints a limited number of ads listing a specific price. Such a ruling would chill advertisements, especially among small businesses. A court would most likely hold that the advertisement is not an offer.
However, a court would hold that Marvin’s telephone call to Rita is an offer. The call makes it clear that Marvin intends to be bound by a contract to paint his house for $2,000, and all essential terms are either expressly included or implied in Marvin’s communication. It is communicated directly to Rita, and givers her the power to seal the contract by her assent. Therefore, there is an offer.
B. Acceptance
Acceptance is the unequivocal assent by the offeree to the offeror’s offer. Silence is normally not construed as acceptance.
Had Rita’s advertisement constituted an offer, Marvin’s response would certainly be an acceptance. Marvin enthusiastically and unequivocally agreed to all of the terms in the ad. However, because Rita’s ad was not an offer, Marvin’s response cannot be an acceptance because there was nothing for Marvin to accept.
Although Marvin’s response to the ad is an offer, he hung up the phone before Rita could respond. He therefore never gave her a chance to respond his offer. Because Rita was not given the chance to respond, and therefore had no opportunity to accept, she did not accept. This element is not satisfied.
C. Consideration
Consideration is a bargained-for exchange, in which each party incurs a detriment and each party receives a benefit.
Here, there is consideration – house painting in exchange for $2,000. If the parties had reached an agreement by offer and acceptance, there would be a valid contract. However, as discussed above, the element of acceptance is missing. Therefore, although there is an offer and consideration, there is no contract because there is no acceptance.
Explanatory Note to Sample Answer #5: This is by far the best of the five, and would receive a high score. It includes complete rule statements, it is thorough in its discussion of the facts, and it discusses every element fully and completely. It is also organized well and therefore easy to follow. This is the sort of answer you should be modeling your own analysis after.
Conclusion
If you continue to struggle with legal analysis, practice! Use the practice hypotheticals on Virtual Law Tutor to work on your written legal analysis. Each question is a single-issue hypothetical, with a modest time limit. After you submit your answer, you will be shown a sample answer, accompanied by an explanatory note discussing why the sample answer is accurate. Using these hypotheticals for practice will sharpen your skills and show you what you need to improve on going forward.