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 that
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, which will now be explained.
Resolving the Issue
Interpreting law is explained by a model, which has three steps:
(1)
Step 1: Options. Identify the options facing a court about to interpret
law.
(2)
Step 2: Reasons. Formulate reasons for courts to use as they choose
from among the options.
(3)
Step 3: Decision. Make the decision by choosing the best option as
determined by the reasoning process in Step 2.
This model was explained in discussion above of forming law. That
explanation demonstrates briefly how to carry out each of these steps. There is
more elaborate discussion of this model in another text.
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Issues of Discretion
Introduction
A cause of action is commonly seen as
the means of vindicating rights.
Consequently, when the elements are established, the consequences flow as of
right. That is,
they come automatically. However, in some cases at common
law, and in many cases with benefits and detriments created by statute, the
consequences are discretionary. The decision maker has a discretion or choice
to deliver or not deliver the consequences.
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Thus a discretion is distinguished from a cause of action based on a right by
the discretionary nature of the remedy that it provides. But apart from this, the
two types of legal rule otherwise function in an identical way. This means that
the discussion here of issues of discretion is directed only to resolving issues
of discretion. Any issues of law and fact arising in the rule that houses the
discretion are resolved in the manner discussed above.
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Christopher Enright Legal Method Chapters 4-16
145
Christopher Enright Legal Method
Chapter 26 Model for Exercising
Discretions
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