Issue of Law
Let us use Element 4 of some cause of action to illustrate an issue of law in a
hypothetical case. Element 4 has three meanings, which are designated Element
4M1, Element 4M2 and Element 4M3, the range being Elements 4M1-3. These
can be set out in an excerpt from a developed form of the model for litigation
in the following way:
Element 4
Fact 4
Evidence 4
Element 4M1
Element 4M2
Fact 4M2
Evidence 4M2
Element 4M3
Figure 18.5 Issues of Law
As set up for this illustration, Element 4M2 is the version of Element 4 that
favours the plaintiff. Element 4M2
is satisfied by Fact 4M2 which in turn is
proved by Evidence 4M2. Element 4 raises an issue of law in this case because
two necessary conditions are satisfied concerning the plaintiff. First, they
possess evidence which can prove a fact that satisfies a version of Element 4;
in the illustration the plaintiff possesses Evidence 4M2 which can prove Fact
4M2, which in turn satisfies Element 4M2. Second, they do not possess
evidence to prove facts which would satisfy other versions of Element 4; in the
illustration the plaintiff does not possess Evidence 4M1 or 4M3 to prove Facts
4M1 or 4M3 which would satisfy Element 4M1 or Elements 4M3.
Since these conditions are satisfied, there is an issue of law. When the court
hears the issue, the plaintiff wins on this point,
and satisfies the disputed
element, Element 4, only if the court holds that Element M2 is the correct legal
meaning of Element 4.
If, however, the court decides that some other meaning is correct, that is,
Element 4M1 or Elements 4M3, the defendant succeeds. They win because the
only evidence the plaintiff has is Evidence 4M2, and this will not prove the fact
needed to satisfy the version of Element 4 which the court has decreed is
correct.
While the model indicates the nature of an issue of law, it does not explain
how the issue is resolved. This is done by another model, the model for
interpreting law.
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Issue of Discretion
A typical cause of action such as there is with tort and contract law involves a
right. If a plaintiff wins they receive the remedy as of right. A cause of action,
however, can also be based on a discretion. Here, the remedy issues at the
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Chapter 5 Model for Forming Law
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