§ 4.32    The If-Then Model

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There is a completely different root idea that you also need in thinking through the policy, and that is the notion (referred to here as the If-Then model) that every legal rule can be expressed as a condition and a result. In other words, every legal statement can be expressed with an "if" and a "then." This is an extremely powerful and useful idea.

Here's how the If-Then model works in practice. The following sentences are in a form typically used for rules of law:

The Secretary shall do X.
The Secretary may do Y.
The Secretary shall not do Z.

The If-Then model suggests they can be written as:

If the Secretary does not do X, then [consequence 1].
If the Secretary does Y, then [consequence 2].
If the Secretary does Z, then [consequence 3].

The value of the If-Then model is that it makes you focus on consequences--when you use this model, you often realize that you and the client haven't adequately considered what the consequences should be. Notice the unconsidered consequences that appear above, when the typical sentences are translated into If-Then statements.

A consequence can be almost anything. Typically, a consequence is a burden that applies if the law is violated, though it may be a benefit that applies if the law is followed.

Among the more common sorts of consequences are damages, injunctive relief, civil penalties, criminal fines, and imprisonment. These are the types of remedies commonly ordered by courts. But as far as consequences go, these are only the beginning.

When a police officer violates a person's Miranda rights, the consequence is that the evidence obtained cannot be used against the person in court. When a person misses a deadline to file an appeal, the consequence might be that the right to appeal is lost. When a state does not comply with a federal program, the consequence might be that the state forfeits some or all of its federal grant money. And so on.

As Justice Holmes explained, "Legal obligations that exist but can not be enforced are ghosts that are seen in the law but that are elusive to the grasp." The Western Maid, 257 U.S. 419, 433 (1922). Using the If-Then model will help you grasp the ghosts.

And grasping the ghosts is essential to effective drafting. "For it is but lost labor to say 'do this, or avoid that,' unless we also declare, 'this shall be the consequence of your noncompliance.' " Sir William Blackstone, Commentaries on the Laws Of England, section 2.