Abstract: The Grocer’s Dilemma is a well-known legal writing (and thinking) assignment that can help undergraduate students interested in law school as well as first-year law students beginning their legal study better understand many aspects of legal reasoning, including issue spotting, rule synthesis, case explanation, and analogical reasoning. Notably, it can also demonstrate how legal rules are not fixed but are instead malleable—uncertain, flexible, and somewhat indeterminate. The exercise asks students to consider, based on a grocer’s preference, where to place produce inside a grocery store. In this process, students must consider “precedents”—other produce—that contribute to the rule. Those precedents, however, do not have a fixed “legal meaning.” Instead, their meaning is malleable.

Malleability is a threshold concept in the law. As such, when students become aware of and more comfortable with the concept of malleability, they can begin moving through the liminality of legal education and begin their journey across the threshold between legal novice and lawyer-expert. The Grocer’s Dilemma assignment focuses students on a nonlegal context for examining malleability, making it easier for students to focus on the complexities of reasoning about a malleable rule rather than the legal rules themselves.

Although the Grocer’s Dilemma is an exercise for the legal writing classroom that is fairly well-known, the exercise has not been well-grounded in writing theory. This essay grounds the exercise in both the theory of malleability as a legal concept and in the theory of threshold concepts from composition theory by demonstrating how the threshold concept of malleability is taught through the exercise.

The Problem for 1Ls: Getting Past THE Law and Learning to Think Like a Lawyer

When students transition from undergraduate education to law school, law faculty often observe that new law students think that law school’s purpose is to teach them THE law: a fixed body of knowledge that will give them clear and directly applicable answers to every legal problem (Donson and O’Sullivan 2016). That is, students think that law school is meant to teach them the substance of the law; knowing that substance, they think, makes them become lawyers. Faculty, however, know that this is not true. Learning the principles of the law is not a straightforward endeavor of gathering official answers to every possible legal question. Instead, learning the law involves learning a perspective for thinking about legal problems. It requires understanding how lawyers reason (Schauer 2009, 1). We might call this perspective “thinking like a lawyer.”

What faculty witness in law school classrooms, particularly in the legal writing classroom, is that learning to think, and thus to write, like a lawyer is not easy. Students struggle to spot legal issues, identify and synthesize legal rules, explain those rules fully and clearly, apply those rules to the facts by giving good reasons to support that application and draw legally relevant analogies and distinctions, and identify and fully describe points of counteranalysis. In particular, they struggle with the idea that the legal authority from which a lawyer’s reason is not treated necessarily as having a fixed meaning. Instead, legal rules have a good amount of malleability (Weresh 2014), indeterminacy, and uncertainty (Donson and O’Sullivan 2016). Stated another way, students struggle with the troublesome idea that legal documents cannot be taken at their word (Fajans and Falk 1993, 163), and this struggle can be a sticking point in their development as legal thinkers and writers.

Threshold Concepts and the Struggle to Understand How to Work with Legal Rules

This struggle to learn a way of discipline-specific thinking is not unique to law school students. Novices in all disciplines struggle to learn the domain’s specific analytical and rhetorical commitments and to communicate in the ways that disciplinary experts will recognize. That is, they struggle to integrate and internalize the conceptual structure of their discipline that will enable them to take on the worldview of experts in the subject matter (Meyer & Land, (2003), (2005)).

This worldview is reflected in the discipline’s “threshold concepts.” Threshold concepts are those discipline-specific understandings that reflect the foundational concepts one must integrate to perform as an expert in a particular discipline (Meyer & Land, (2003), (2005)). Adler-Kassner and Wardle ((2015)), who are writing scholars, describe threshold concepts as “ways of seeing, ways of understanding that change a learner’s stance” (p. x). Threshold concepts function as a “portal” into the discipline (Meyer and Land 2005). They open up new ways of thinking about subjects that are both troublesome and also transformative for learners in understanding themselves and performing as disciplinary experts (Meyer and Land 2005).

In the law, threshold concepts are those discipline-specific concepts that reflect the foundational understandings that one must understand to think and write like a lawyer, to deploy the law’s discipline-specific way of defining problems and identifying solutions (Weresh 2014). Malleability has been identified as a threshold concept in the law (Weresh 2014).¹ Weresh ((2014), p. 710) describes malleability as the “latitude” in the law that gives a lawyer flexibility in “articulating legal principles.” Understanding malleability, then, results in students traveling from the “lay” side of the threshold to the expert or “disciplinary” side via a “cognitive shift” (p. 689). As such, Weresh suggests that students would be “well-served if they got started as early as possible to grapple” (p. 719) with the threshold concept of malleability.

Legal Writing as a Liminal Space for Learning Malleability

When students struggle with the concept of malleability, they can be thought of as occupying a space of liminality. Liminality is the condition of being in a kind of mental “flux” (Field and Meyer 2020, 149) where a “transitioning person may experience disconnection, having ‘lost’ their previously settled state but not having achieved a new one to replace it” (Field and Meyer 2020, 149). Law students (including aspiring ones) may be thought of experiencing liminality when they encounter new concepts, like malleability, that are foreign to them (Field and Meyer 2020, 150). Weresh notes that “[t]he state of liminality is ‘within the threshold,’ and signifies an attempt to engage with the material” (Weresh 2014, 689).

Legal writing courses can be thought of as liminal spaces associated with learning threshold concepts, “a space of transformation in which the transition from an earlier understanding (or practice) to that which is required is effected” (Land, Rattray, and Vivian 2014, 200). In that classroom, the goal of professors is to help students traverse the liminal space, to transition from undergraduate school to law school, and to learn and internalize the threshold concepts that enable them to think like a lawyer. Encouraging students to work with the language of the law through discussion and writing can foster that transition because, as Meyer and Land ((2005)) note, the acquisition of threshold concepts necessarily is “accompanied by (or occasioned through) an extension of the student’s use of language” (p. 374). Discourse brings new thinking into being (Meyer and Land 2005). This is where the Grocer’s Dilemma comes in; it can be used as an assignment to help students grapple, in the liminal space created by legal writing, with the malleability of the law.

The Grocer’s Dilemma and Why It Works to Teach Malleability as a Threshold Concept

The “Grocer’s Dilemma” assignment is an assignment that can ease students across the threshold for understanding malleability by starting them with a writing assignment in a nonlegal context. In other words, the Grocer’s Dilemma assignment eliminates the complexity of the law so that novices can focus on the complexities of legal thinking, including the concept of malleability. The assignment asks students to think about a non-legal writing context and to consider how the framework for legal analysis, which includes malleability, will apply in that context.

The Grocer’s Dilemma assignment concept has been around for a while in legal writing. The assignment was first mentioned in the legal writing context in a 1997 article in The Second Draft and was described as a way to teach reasoning by analogy (Gionfriddo 1997).² Others, including myself, followed up on that initial article noting its advantages and offering extensions of the exercise (Calleros 1999; Davis 2005; Rowe and Varn 2000) to learn rule synthesis, implicit reasoning, case explanation, the structure of court systems, and comfort with situations of uncertainty and ambiguity.

While the Grocer’s Dilemma can be used to teach a variety of legal reasoning and writing skills, it does several good things concerning teaching malleability. First, it takes a complicated idea—the idea that legal rules have some indeterminacy and are flexible in both their content and application—and presents that indeterminacy in an everyday context, the grocery store. To do this, the exercise draws upon what Calleros ((1999)) calls students’ “pre-existing schemata” and “focus[es] their attention… on the concepts… of legal method… [in] a completely nonlegal context” (p. 7). This can help students transition from novice to expert because, as Calleros notes, “by first addressing these principles of legal method in a simple, concrete, familiar, nonlegal context, students may be better prepared to apply them later to legal problems” (p. 10).

Second, the assignment is helpful for understanding malleability because it is a “familiar and concrete” way of demonstrating how lawyers apply precedent cases, how competing values shape precedent, how the implicit rationales of precedent influence our understanding of general rules, and how analogy and distinction are used to determine how the precedent cases apply in a given context (Calleros 1999, 7–8). This process allows students to appreciate how “legal rules often are malleable and indeterminate, so that the choice between legal conclusions is uncertain and dependent on discretionary choices among competing values or policies” (Calleros 1999, 8).

Third, the Grocer’s Dilemma helps teach malleability because it teaches students to be more open to embracing ambiguity in the law itself and how that ambiguity is directly connected to how that relates to the facts of a client’s case. I have written about the Grocer’s Dilemma and its value in helping students embrace ambiguities, analyze the possibilities for acceptable outcomes within those ambiguities, and make arguments in rhetorical situations fraught with uncertainty (Davis 2005). I argued that the value of the Grocer’s Dilemma was that it could help students focus on the “transformative potential of… ambiguities and arguments” (Davis 2005, 13). I identified that my best class was, in fact, the one that taught the Grocer’s Dilemma because it “represent[ed] a transformation of my students’ orientation to law school—from ‘answer seekers’ to ‘legal problem solvers’” (p. 13). In retrospect, I see this transformation as related to the threshold concept of malleability.

The Grocer’s Dilemma Assignment

The Grocer’s Dilemma is particularly effective in the first few weeks of law school and could likely be used in an undergraduate legal writing class to introduce malleability.

The assignment, which I have adapted from others, consists of this prompt, which can be given to students in writing or orally:

You work for a grocer who is about to leave on a long vacation to a remote island. Before leaving, the grocer makes you, a trusted but new store employee, Manager of Produce, in the small, urban grocery store with a big front window. The grocer says that the point of putting produce in that window is to attract customers. On the day before the grocer leaves, you watch the grocer put red apples in the front window and brown potatoes in a bin near the back of the store. The next day, a shipment of limes arrives. The grocer is gone, and you are now in charge.

While malleability is a central idea of the assignment, students also learn about the process of legal analysis and how to follow those steps in a non-legal context, which helps help them focus on the process aspects of legal analysis and writing rather than its substance.³ Students begin to understand that the law provides a framework for and a source of arguments for reasoning through legal problems.

A precursor to the writing assignment is the classroom discussion. Working through the assignment as a class helps students better understand what is expected in their writing and is good for demonstrating to students the challenges of legal reasoning that they may not have expected. (It also helps them see that everyone is in that liminal space, learning new skills that seem counterintuitive to what they thought they would be doing in law school.)

The prompt can be given to students before class, handed out in writing at the beginning of class, or shown on a PowerPoint slide at the beginning of the exercise. In addition, having an image of (or actual!) apple, potato, and lime during the class session facilitates the discussion, giving students a visual reference for each “case.”

The professor leads students through a discussion in which they play the role of the grocery store clerk interpreting the directions of the grocer.⁴ Students will need to move deliberately through all the steps of legal reasoning. Students will identify the issue (“Do the limes belong in the window with the apples?”), tease out the possible meanings of the grocer’s rule for “attractiveness,” and then apply that rule to make arguments about where the limes should be placed. Based on this discussion, students can complete a writing assignment that allows them to take what they’ve learned about the structure for legal analysis and the malleability of legal rules and attempt that analysis themselves.

A useful discussion of the Grocer’s Dilemma begins with asking students, “Where do we start”? Notice that the prompt given to students does not include a specific question for them to consider in the context of the problem. This allows a professor to tease out the concepts of “issue identification” and how to properly phrase an issue. In my classes, once they identify the basic issue, I then help them think about how to frame that question in a way that lawyers frame issues: (1) ask as a yes/no question; (2) include reference to the relevant law; and (3) include “legally relevant” facts (although the relevant facts may not yet be clear). For example, as a class, we might come up with the following: Using what I know about where the grocer puts apples and potatoes based on his idea of “attractiveness,” do I put limes in the window when they arrive at the store?

Now the class moves to the intellectual lawyering work, attempting to determine the meaning of authority and how it will be applied in a given circumstance. This is where the Grocer’s Dilemma introduces malleability.

In my class, I start by asking students how we might answer the question we posed as the issue. Students will often—and correctly—begin with what the grocer said: Attractive produce goes in the window. Students should recognize that this rule does not determine, on its face, the location for the shipment of limes (Calleros 1999). Instead, the stated rule opens a range of possibilities for what “attractive” might mean. Students will be able to see that the meaning of “attractiveness” will be based on some amount of “professional judgment” that can vary from person to person (Calleros 1999, 10). It is here that idea of malleability—the idea that legal rules can be flexible—begins to emerge.

The malleability in the attractiveness rule introduces a concept essential to the ability to think flexibly like lawyers do: the ability to draw reasonable inferences. At this point, students must consider what legal rules can be inferred based on the attractiveness rule coupled with the two precedent cases, the apples and the potatoes.

To begin, one possible inferred rule, for example, is that if attractive produce goes in the front of the store, then unattractive produce goes in the bin in the back of the store. Here students get their first interaction with malleability. Is this a correct inference? Are there others? Could it be that the rule is that less attractive (rather than unattractive) produce goes in the back of the store? Could that produce go somewhere else, or must it be only in the back? In considering these rules, students will have to think just how flexible the inferred rule can be; perhaps the attractiveness rule is an either/or rule, but it could also be something else. This exploration can show students that some rules, particularly ones that are inferred, are malleable.

After this discussion, students can be led to consider the impact of the cases, the apple and the potato, on the meaning of the “attractiveness” rule. Here, students learn that the apple and the potato represent precedent; they are instances where the grocer has applied the “attractiveness” rule in the past, and we can infer from those instances the meaning of “attractiveness.” Because in this non-legal example we do not have a written description of what makes the apple “attractive” and the potato (inferentially) “unattractive,” students are faced with the problem of interpreting precedent and determining what it means. This brings them directly to the threshold concept of malleability and the need to confront the idea that “the” law is not just learning a set of fixed rules.

Now the students can be focused on an essential aspect of understanding how malleability works in the context of legal rules—lawyers care less about what a court has said and more about what it has done. In the case of the Grocer, for example, nothing was said about the apples or the potatoes. Instead, the Grocer did something—he placed the produce in certain places in the store based on his “attractiveness” rule. It’s the placement from which students must infer the meaning of the attractiveness rule.

To determine what the precedent produce adds to the attractiveness rule, students will need to look at the policy derived, in this case, from their common sense (Calleros 1999) about the Grocer’s values that underlie his decisions in placing the produce. That is, students must ask, “Why did the Grocer find the apples attractive?” or “What policies or values guided the Grocer to place those apples in the window?” Here is where the students can see malleability at work. As Calleros ((1999)) notes, students need to try to identify “possible implicit rationales [for] the precedent” (p. 10).

In my class, I lead a discussion of what the apples might represent regarding the Grocer’s values underlying attractiveness. Perhaps the Grocer valued the visual appeal of the apple because it catches the eye of people walking by and brings them into the store. For example, the apple’s characteristics that influence that visual appeal might be color and shape. Alternatively, or in addition, perhaps the Grocer valued the health qualities of the apple because the Grocer believes healthy eating is important to customers. Perhaps the Grocer thought that produce that is easy to eat “on the go” is more attractive to customers walking by the store and put the apples in the window because a grab-and-go snack would attract customers. Even further, the Grocer might have valued the cultural associations related to apples in the decision, including apple pie, fall festivals, and family. All of these might evoke emotions in customers that attract them to the apples.⁵

Each rationale shows that the meaning the apple adds to the rule is partly in the eye of the beholder, which results in a flexible and thus malleable attractiveness rule. Depending on the “beholder,” the meaning of the rule can change. Pointing these things out to students is important. This result, of course, is much different from what most new law students think legal rules are, fixed and determinate. As Calleros ((1999)) notes, “[w]ith such an exercise, maybe students will be more likely to believe us when we assert that we cannot identify a single correct answer to a legal question” (p. 12).

Students can then go through the same analysis of the possible policy/value rationales for not placing a potato in the window. Why is it not “attractive”? Is it because of its lack of visual appeal, that it is dull, misshapen, and brown? Is it because it is not ready to eat? What about its health and cultural associations?

By thinking about the values underlying the choices made about the apples and potatoes, students also learn that the threshold concept of malleability requires them to carefully explain the reasoning behind the rule. In other words, it is not only the application of legal rules to client facts that involve argument; legal rules themselves require that lawyers advance arguments to justify the soundness of legal rules (Calleros 1999). It is not enough to simply say that produce that attracts customers goes in the front window; instead, rules must be explained, be justified, and make sense to the legal reader. This is a consequence of malleability.

But malleability does have its limits, and students get to see that while rules are flexible in their meaning, there are limits on the range of interpretability of a legal rule. That is, while legal rules are malleable, they are not infinitely so. For example, it is not reasonable to infer that the apples are in the window because the Grocer values produce with names that start with “A.” Nothing in the grocer’s actions or in a common sense interpretation of the produce placement would support such an inference. In this way, the rule of attractiveness, at least on the facts in the prompt, limits its possible meaning.

Once the class has discussed what the rule of attractiveness might mean, I divide the students into small groups to consider how that rule will apply to the newly arrived shipment of limes. At this stage, students begin to experiment with arguments for and against the attractiveness of the limes. In this part of the discussion, students are invited to draw analogies about the limes to the facts of precedent, the characteristics of the apples and the potatoes that make a difference to the attractiveness rule. Students should discover here that the relevant analogies and distinctions relevant to the attractiveness rule will differ depending on what values the students have identified as underlying the rule. Students who think the visual appeal of the apple is important to what the Grocer values will focus on the visual attributes of the limes, likely resulting in the limes joining the apples in the window. Students who focus on the apple’s grab-and-go snack will distinguish the limes (no one grabs a lime and takes a bite!) and will not put the limes in the window. Students learn that while the Grocer’s attractiveness rule serves as a source for determining where the limes will go, the meaning of the rule, even when coupled with the precedent, is not determinative.

Here, the students can learn that the malleability of legal rules creates a situation where there is no “one right answer” for the placement of the limes. That is, the lime can be transformed depending on how students interpret the attractiveness rule in light of precedent. Wow. Even facts are indeterminate when filtered through the malleability of legal rules! Students can now begin to integrate into their worldview that the practice of law is not only about learning the rules but, even more importantly, about making arguments about what both the law and the facts mean.

Finally, students can learn that new facts might change the rule if the material conditions prioritize a different policy or value. Take, for example, holidays. Suppose the limes arrive near Cinco De Mayo, when limes might be popular for making margaritas. In that case, the rule might need to be flexible, even if the existing cases (the apples and the potatoes) don’t account for that new situation. The new situation changes the potential meaning of the attractiveness rule. Customers might come in the store because the limes are attractive in relation to the holiday; the new conditions might influence how the Grocer values the limes, perhaps, and thus alter what attractiveness means. So, now the attractiveness rule’s boundaries must change; the rule of attractiveness might now account for produce appeal during holidays. For example, butternut squash that is not easy to eat and not necessarily visually attractive might become attractive at Thanksgiving. The changing of the rule’s boundaries is malleability on display.

ASSIGNMENT The Grocer’s Dilemma

The basic assignment for discussion and writing

You work for a grocer who is about to leave on a long vacation to a remote island. Before leaving, the grocer makes you, a trusted but new store employee, Manager of Produce, in the small, urban grocery store with a big front window. The grocer says that the point of putting produce in that window is to attract customers. On the day before the grocer leaves, you watch the grocer put red apples in the front window and brown potatoes in a bin near the back of the store. The next day, a shipment of limes arrives. The grocer is gone, and you are now in charge.

The writing assignment

After the in-class discussion, ask students to draft a written analysis of the Grocer’s Dilemma. Writing out their interpretation of the class discussion is not only good for working on internalizing the concept of malleability but it also helps them apply all of the skills of legal reasoning including analysis and counteranalysis, rule-based reasoning, and analogy and distinction.

Concerning malleability, students will need to wrestle further with the challenges that rule malleability presents—how, exactly, should they describe the “attractiveness” rule? What features of apples and potatoes are important to the rules? What values matter in considering what is attractive? If different interpretations are possible, how should those be expressed and applied?

Faculty may give individual feedback on the assignment or provide students with an annotated sample. Have them compare the annotated sample to their own assignment and write a paragraph or two about their similarities and differences. Collect and review the reflections.

Other ways to build on the assignment

Professors can introduce students to persuasive authority and binding authority by suggesting that a large grocery chain in the area puts the limes in the back next to the margarita mix. Ask students: What kind of authority does the placement of the limes represent? How does it impact how you construct your rule for placing the limes? Discuss with students the differences between binding and persuasive authorities and how they impact legal rules.

Professors can also introduce new facts that require both applying and rethinking the rules. Suggest that a shipment of bananas has arrived. Ask students: Where do we place them? Now that we’ve placed the bananas, what do we do with a shipment of red peppers? How does the analysis change for a shipment of juicing apples of second quality (spots and bruises)? Does this change our rule or our analysis?

Here are instructions to give the students for the writing assignment:

Now that we have discussed The Grocer’s Dilemma in class, your assignment is to write the “legal” analysis of where the Grocer’s assistant should put the shipment of limes. You will write the analysis in CREAC format. You may use your notes from the class discussion to help you. Remember that because this is a new method of thinking and writing, this assignment is likely to feel effortful and perhaps confusing. These feelings are part of the process of moving from novice to expert and acquiring a new ways of approaching problems. Here is a step-by-step approach for writing the analysis.

Step 1: (C) Start with your conclusion. Do the limes belong in the window?

Step 2: (R/E) Explain the “Grocer’s Rule” to your reader. Tell the reader the boundaries that limit where we can put the limes. Start with the general rule that you learned from the Grocer. Then add more detail to that rule by including what you learned from the “case of the apple” and the “case of the potato.” You will want to include in this part a description of the apple and potato cases. Remember, rules can be malleable; that is, they may not be easy to determine and could, depending on the context and the interpreter, be slightly different. Accordingly, while you may realize that the rules that govern this situation could be described in more that one way, you will need to choose one in order to move to the next step. If you would like, drop a footnote to explain to me why you chose to formulate the rule like you did. You may also include in that footnote any alternative formulations of the rule you considered.

Step 3: (A) Analyze the limes using the Grocer’s Rule you developed in Step 2. Explain to the reader why the Rule requires the limes to go where you concluded they should be placed. Remember to not only explain your reasoning but also to draw analogies and distinctions to the apple and potato cases as necessary. Note that some features of the limes will be more important or less important depending on how you crafted your Rule. Facts, too, are malleable in light of the rules that we use to analyze them.

Step 4: (C/A) Repeat Step 3 except this time support a conclusion opposite to your original conclusion. This is your counteranalysis and is necessary to ensure your overall analysis is well-balanced. End this step by explaining why you think the counteranalysis is weaker than the analysis in Step 3.

Step 5: (C) Repeat your conclusion.

References