Avoiding Negative issue spotting and “bad-smelling” counterarguments

Negative issue spotting:

Discussing issues or parties falling outside of the call of the question

Discussing tangential issues that, although technically falling within the call of the question, are nonetheless frivolous.

Example: call of question is PJ over Bob.

Outside call of question: Student analyzes SMJ. Student is answering a different question.

Wrong party: Student analyzes PJ over Sally.  Student is addressing wrong defendant.

Frivolous issue: Defendant is corporation, student analyzes domicile even though corporations do not have “domicile.”\

Frivolous issue: There are single/isolated contacts, but student analyzes general jurisdiction anyway even though there is 0% chance of general jurisdiction.

Example: call of question is SMJ.

Frivolous issue: Facts do not mention any substantive federal law, student analyzes federal-question jurisdiction anyway.

Example: call of question is 12(b)(6).

Student decides to analyze Rule 8(a)(1) and goes into extended analysis of subject-matter jurisdiction.

Straw-man arguments

Just like a “straw man” is a pretend person, straw man arguments are pretend arguments.

They are also often given as counterarguments because the student feels obliged to come up with . . . something.

Such arguments are unlike to pass the “smell” test, also known as the “straight face” or “Scalia” test.

Counter-analysis is a good thing to do, but not when it would make Justice Scalia yell at you.


A non-argument is when an essay uses words but provides no analysis (does not apply law to facts). Examples include:

The “it could be argued” argument.

“It could be argued that the D is subject to personal jurisdiction. If the court finds that D is subject to personal jurisdiction, then D is subject to personal jurisdiction.”

Circular arguments.

“Purposeful availment requires that the defendant purposefully avail herself to the forum state.”

The “court will have to decide” argument.

“Because the plaintiff released her goods into the stream of commerce, the court will have to determine whether that is sufficient for stream of commerce.”  (With no further discussion.)

Fight-the-fact arguments

Student doesn’t like the facts provided so student argues.  Should only be done if student is absolutely certain there is an error in the fact pattern.

If you believe you have discovered an error in an essay question, identify the error and resolve it in a reasonable manner.  If you believe that it is necessary to assume additional facts, state what those facts would be and how they would affect your analysis.

Change facts.

Done by error, student misread the facts.

Done expressly, student changes facts to a set easier to analyze.

Add facts.

Done by error, student assumed existence of facts not in essay.

Done expressly, student adds facts to make analysis easier.

Presented in review 11/23/15. Posted same day.