This might be an interesting read for 2302 students as we plunge into the judiciary.
From the Volock Conspiracy:
One of the main things a law teacher does in class is to explore the boundary regions of a legal doctrine—the hard-to-categorize cases that are most likely to give rise to litigation: Is it an assault for a man to kiss a sleeping woman? Has the hunter acquired ownership of a wild animal when one of his bullets has been lodged in it, whereupon the animal stumbles into another hunter’s trap? Is the alumnus’ promise of a donation a binding contract? Posing these kinds of questions may be the activity law professors most often indulge in, often to excess.
One of the most fascinating problems raised by such boundary cases is why the law is so disturbingly rigid when dealing with them, why it paints in black and white, when reality seems to come in shades of gray. The law insists that something either is an assault or is not, either gives rise to ownership or does not, either is a binding contract or is not. There are no in-betweens.
The trouble is that many of the actual cases seem like in-betweens. In fact a case would never reach the courts if it did not seem to be in-between. But why not let the court say that while this is not a clear-cut case of an assault, it is sort of an assault and that therefore we will award the victim a fraction of the damages, or impose on the perpetrator a fraction of the punishment, that would be appropriate if this were a clear-cut case? Wouldn’t that avoid a lot of unnecessary hair-splitting hairsplitting? That’s what many legal scholars have come to believe. Are they right? Would it be better if the law were less either/or?
