In much of the popular mythology about the law, legal thinking consists of two operations. First, the lawyer must determine what the facts are - which, in the popular mind, consists primarily of listening to witnesses or reading the relevant documents. Second, the lawyer must determine what the law is - which, in the popular mind, consists primarily of looking up the cases or statutes which deal with the subject at hand. As all law students quickly learn, both of these processes are in fact considerably more complicated than the popular mind imagines. Determining what the facts are, as we have already seen in these materials, is a much more creative activity than commonly thought, and so is determining the applicable law, as this and subsequent lectures will explain. What is sometimes missed even by law students, however, is that these two processes are not the only processes. For it is also necessary to bring the facts and the law together. Even if there is no question as to what were the events at issue, and even if a lawyer has found a clearly stated, undoubtedly authoritative, relevant rule of law, the lawyer may be quite uncertain as to the legal result, because a third operation is needed: the determination of whether or not the known events fit the operative terms of the known rule.(1)

For example, the federal Fair Labor Standards Act requires, as is well known, that employers pay a specified minimum wage, and more for overtime, to their "employees."(2)But who in the real world counts as an "employee"? We can be fairly sure that when an automobile company hires assembly line workers, the workers are the company's "employees." But there are many unclear cases, as the course of litigation has shown. Is someone who spends a week or so training-through-practice to become a yard brakeman already the railroad's "employee"? The Supreme Court, in Walling v. Portland Terminal Co.,(3) said no. Is a medical-technician-to-be who spends many hours per week for many months performing routine procedures in a hospital already an "employee"? Judge Morton, in Marshall v. Baptist Hospital, Inc.,(4) said yes. Is a prisoner who is required to work in a prison workshop producing economically useful goods an "employee?" The Ninth Circuit in Hale v. State of Arizona,(5) said no. Is a member of a religious group who volunteers to work in the group's workshops to produce economically useful goods sold to the public an "employee"? The Supreme Court in Tony and Susan Alamo Foundation v. Sec. of Labor,(6) said yes. Clearly a great deal of the legal thinking involved in applying this statute to the real world takes place in the determination of how far the category "employee" is meant to extend.

The process of characterizing the facts in terms of a known and settled legal rule is also an important part of common law thinking. One does not have to study the law of contracts too long before he or she knows that a contract requires an "offer" and an "acceptance." But what counts as an "offer"? It is not a straightforward question of following the words the parties used: in Moulton v. Kershaw,(7)"we are authorized to offer Michigan fine salt" was held not to be an "offer" under the circumstances, while in Fairmount Glass Works v. Crunden-Martin Woodenware Co.,⁽⁸⁾"we quote you Mason fruit jars" was held indeed to be an "offer," under the other circumstances there present. Indeed, it is not a straightforward question at all; "What Is an Offer" takes eight pages to state in the leading modern treatise on contracts, and at that the author has only indicated the outlines of the subject.(9)

This process, the type of legal thinking that lies between the shaping of evidence to produce the "facts" and the marshalling of enactments, precedents, and policies to produce the "law," can be referred to in several ways. If one starts with the law and looks down onto the facts, one might refer to "applying the law to the facts" or "deciding a mixed question of law and fact." If one starts with the facts and looks up to the law, one might speak of "categorizing" or "characterizing" the facts in "legally relevant terms." Probably not much turns on the choice among these various ways of speaking.

What techniques do lawyers use to characterize the facts? Let us look at a hypothetical problem.