5 - Types of Legal Arguments

The Five Types of Legal Argument

Wilson Huhn
Professor of Law, The University of Akron School of Law
© 2013
Design Assistance by Patrick Tabatcher

Clip Art by Joshua Dean
1
Timeline

Huhn started teaching law
___________________________________
1980 1984 1988 1992 1996 2000 2004 2008 2012
Ronald Reagan Bush I Bill Clinton George W. Bush Barack Obama
2
Courses Taught

Health Law
Evidence
Administrative Law
Secured Transactions
Law and Genetics
Commercial Paper
Jurisprudence
Constitutional Law I Constitutional Law II
3
Scholarly Research

Freedom of Expression
State Action Doctrine
Gay Rights Eavesdropping
Waterboarding
Affordable Care Act
Logic and Legal Reasoning
The Stages of Legal Reasoning
4
Recent 5 to 4 Decisions
in the Supreme Court

McConnell v. Federal Election Comm’n (campaign finance
limits constitutional)
Citizens United v. Federal Election Comm’n (campaign finance
limits unconstitutional)
Van Orden v. Perry (10 Commandments obelisk constitutional)
McCreary County v. ACLU (10 Commandments picture
unconstitutional)
Gratz v. Bollinger (affirmative action struck down)
Grutter v. Bollinger (affirmative action upheld)
Bush v. Gore (recount halted in 2000 election)
5
Supreme Court Justices

Felix Frankfurter Sandra Day O’Connor

Oliver Wendell Holmes, Jr.
Harry Blackmun
John Roberts
6
Thurgood Marshall
7
Presentation One: Introduction and
Textual Arguments

Introduction to the Five Types of Legal
Arguments
Textual Arguments:
Plain Meaning, Canons of Construction, and
Intratextual Arguments
8
Why Are There Hard Cases?

Why do informed and reasonable people
differ as to what the law is?
9
10

11
12
The Five Types of Legal Arguments

Text
13

Text
Intent
14

Text
Intent
Precedent
15

Text
Intent
Precedent
Tradition
16

Text
Intent
Precedent
Tradition
Policy
17
Not All Arguments Are Legitimate
Common Fallacies: Ad hominem attacks, namecalling,

in terrorem arguments, and appeals to prejudice.
18
Each Type of Argument Is
Proof of What the Law Is

To prove a question of fact, lawyers call
witnesses and introduce exhibits.
To prove a question of law, lawyers create
valid legal arguments, drawing on legal text, intent,
precedent, traditions, and policy.
The different legitimate types of legal
argument are the “data” that lawyers use to prove
what the law is.
19
Text Intent Precedent Tradition Policy
The Different Types of Argument
Operate as Rules of Recognition

The legal philosopher H.L.A. Hart said that
underlying the law are “rules of recognition” –
rules that govern what “counts” as law.
The five types of legal arguments operate
as rules of recognition. Judges and lawyers
recognize arguments based upon text, intent,
precedent, tradition, and policy as being
legitimate forms of legal argument.
20
Each Type of Argument Has a
Different Source and Structure

Each different type of argument draws on
different sources of information and has a
different structure.
21
Each Type of Argument Has Different
Strengths and Weaknesses

Each type of argument has characteristic
strengths and weaknesses, and may be attacked
or evaluated in different ways.
22
Why Identify the Different Types of
Legal Arguments?

It is important for legal professionals to
understand the different types of legal
arguments
As students
As lawyers
As judges
23
As Students

There are many skills a lawyer must master. The
most important are “people skills” – learning how to
listen, how to understand, and how to counsel. To
develop those, you must simply interact with people.
But you must also master certain intellectual skills,
and the theory of the Five Types of Legal Arguments can
help with that. As students of the law, understanding the
different types of arguments helps us to analyze difficult
legal problems. If you can identify what type of argument
you are studying, then you have taken the first step
towards identifying the strengths and weaknesses of that
particular argument.
24
As Lawyers

Legal arguments are the tools that lawyers
use in advising and representing clients. They
are the arrows in our quiver. The Five Types of
Legal Arguments is a checklist of what is
available to us as we seek to develop the most
powerful arguments on our clients’ behalf.
25
As Judges

In writing judicial opinions, judges often seek
to convey that the result was preordained – that
there was only one possible conclusion.
But judges who are honest with themselves
know that is not true. Frequently, plausible legal
arguments can be constructed for more than one
interpretation of the law. Understanding the
different types of arguments helps us to evaluate
which arguments are the most persuasive.
26
There Are Also
Secondary Sources of Law

The five types of legal arguments are primary
sources of evidence of what the law is. All other
materials are secondary sources of law.
Secondary sources about the law include legal
treatises, textbooks, legal encyclopedias, articles,
essays, and study aids.
Some legal treatises are very influential – but
they are not law by themselves. Instead they cite the
law.
27
The Five Presentations
In This Series
1.

Introduction; Textual Arguments – Plain
Meaning, Canons of Construction, and
28
In This Series
1.

2. Historical Arguments – Intent, Precedent, and
Tradition
29
In This Series
1.

Tradition
3. Policy Arguments
30
In This Series
1.

Tradition
3. Policy Arguments
4. Identifying and Attacking the Different Types
of Arguments
31
In This Series
1.

Tradition
3. Policy Arguments
4. Identifying and Attacking the Different Types
of Arguments
5. The Stages of Legal Reasoning – Logic,
Analogy, and Policy
32
1. Legal Text

Textual arguments look to the text of the law
itself to determine what the law is.
Hugo Black Antonin Scalia 33

Examples of Legal Text

Legal Text Includes:
Constitutions
34

Constitutions
Statutes
35

Constitutions
Statutes
Ordinances
Regulations
36

Constitutions
Statutes
Ordinances
Regulations
Contracts
37

Constitutions
Statutes
Ordinances
Regulations
Contracts
Deeds
Wills
38
There Are Three Sub-Types of
Textual Arguments

A. Plain Meaning
B. Canons of Construction
C. Intratextual Arguments
39
Plain Meaning

The most basic type of legal argument is
one that is based upon the “plain meaning” of
legal text.
“Plain Meaning” means that the law is

simply what the words of the constitution,
statute, regulation, or ordinance mean.
40
There Are Three Sources of “Plain
Meaning”

Lay usage
Dictionary definitions
“Terms of Art” – words that

have a specialized meaning in
the law
Definitional sections in
statutes
41
Some Laws Are Clear
42
The Law of Murder
(State Law)

No person shall intentionally cause the death of
another human being.
43
Law Against Use of a Weapon of
Mass Destruction (federal law)

18 U.S.C. § 2332a(a) - Use of a Weapon of Mass
Destruction:
A person who, without lawful authority,
uses, threatens, or attempts or conspires to use,
a weapon of mass destruction … shall be
imprisoned for any term of years or for life, and
if death results, shall be punished by death or
imprisoned for any term of years or for life.
44
“Weapon of Mass Destruction”
Defined

18 U.S.C. 2332a(c) - Definitions:
For purposes of this section … the term

“weapon of mass destruction” means … any
destructive device as defined in section 921 of
this title.
45
“Destructive Device” Defined

18 U.S.C. 921(a)(4)(A)(i):
As used in this chapter … the term

“destructive device” means … any explosive …
bomb.
46
“Plain Meaning” Arguments Are
Determinative … Unless …

You might think that the law ALWAYS consists of
“plain meaning” arguments – but that is not the case.
Even if a law is clear in most cases, there will
always be some situations where the meaning of the
law is unclear.
In addition, the courts will not apply the “plain
meaning” of legal text if it would lead to an “absurd”
result.
47
Some Laws Are Not Clear:
“No Vehicles in the Park”

48
Antonin Scalia:
Advocate of “Plain Meaning

Justice Scalia is widely
considered the leader of the
“New Textualism”
movement.
He is the author of
“The Rule of Law Is a Law of
Rules.”
He rightly identifies
himself as someone who is
more likely than other
judges to perceive “plain
meaning” in constitutional
or statutory provisions. 49
The Text of the Second Amendment

A well-regulated militia being necessary to
the security of a free state, the right of the
people to keep and bear arms shall not be
infringed.
50
Justice Scalia’s Opinion in
District of Columbia v. Heller

Justice Scalia found, in the text of the Second
Amendment, an individual right to possess a gun for
self-defense. This decision overruled centuries of
judicial precedent.
It is in reality based not upon the text of the
Constitution, but rather upon “tradition” – the
tradition of gun ownership in the United States.
Justice Scalia is not so much a “textualist” as
he is a “traditionalist.”
51
Another Source of Ambiguity:
Rules and Standards

Some laws are very clear and specific –
these are rules.
Other laws are vague and general – these

are standards.
52
Example of a Rule
“Stop at red light.”

• Rules are clear, but may be unfair.
– Rules are efficient in situations where facts of different
cases are basically similar.
• Rules are difficult to create but easy to apply.
– Example: specific emissions limits for industries
• Rules are applied formalistically
– Did the person stop at the red light or not? Do the facts of
the case match the fact portion of the rule?
53
Example of a Standard
“Proceed cautiously on yellow light”

• Standards are fair, but may be ambiguous
– Standards are efficient where it is necessary for the law to cover many
different fact situations
• Standards are easy to create but difficult to apply

– Example – “reasonable person” standard in tort law
• Standards are applied realistically

– What are the facts, what are the underlying values and interests to be
considered, and how are those values and interests involved in the
case to be decided?
54
More Examples of Standards

Due Process: Judicial and administrative procedures
must be “fundamentally fair.”
Equal Protection: Persons who are “similarly situated”

must be treated alike.
The Law of Tort: Persons must act according to what

the “reasonable person” would do under the
circumstances.
55
If the Law Is Not Absolutely Clear …

If the text of the law is not determinative –
if the “plain meaning rule” does not resolve the
difficulty – then it opens the door to every other
form of legal argument …
… including two other types of textual

arguments as well as arguments based on
intent, precedent, tradition, and policy.
56
B. The Canons of Construction

The canons of construction are not “rules”
of law. They are instead general presumptions
about how legal text should be interpreted. The
canons of construction are analogous to rules of
syntax, like the rules governing word order in
English:
“Only I love you” or “I love only you.”
57
There Are Dozens of Canons
of Construction

58
Some Canons of Construction Are
Similar to Each Other

The Rule of Lenity: “Criminal statutes are to be
narrowly construed against the state and in
favor of the defendant.”
“Ambiguous words in a contract that is drafted

by only one of the parties such as an insurance
policy should be construed against the party
who drafted it and in favor of the other party.”
59
Some Canons of Construction Are in
Contradiction to Each Other

Statutes in derogation of common law are to be
narrowly construed.
Remedial statutes must be broadly construed.
60
Example: Dogs Allowed – How
About Cats?

Suppose you are travelling with your cat and
see this sign outside a restaurant –
Is your cat welcome?
61
Canon Number 1
Expressio Unius

Canon Number 1: Expressio unius est exclusio
alterius - meaning, “to say the one is to exclude
the other” –
So “Dogs Allowed” means

“Cats Not Allowed”
62
Canon Number 2:
Ejusdem Generis

Canon Number 2: Ejusdem Generis – meaning,
“of the same kind”
So “Dogs Allowed” means

“Cats Also Allowed”
63
Another Example:
Marbury v. Madison

Article III, Section 2, Clause 2:
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall be
Party, the supreme Court shall have original Jurisdiction.
Issue in Marbury:
May Congress enact a statute giving the Supreme
Court original jurisdiction in other kinds of cases?
Dispositive Choice in Marbury:

In the interpretation of Article III, Section 2, Clause
2, should the Court apply expressio unius or ejusdem
generis?
64
For Every Canon of Construction
There Is an Equal and Opposite Canon

Karl Llewellyn
studied the canons of
construction and
discovered that for every
canon of construction
there is an opposite
canon.
Karl Llewellyn
65
Llewellyn’s List of Canons
(first six)

Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be
Construed, 3 Vanderbilt Law Review 395 (1950)
66
C. Intratextual Arguments

Look to one portion of legal text to

interpret another portion of same text
– Same word used more than once
– Different words used in different places
– Organization or structure of the document
67
The Necessary and Proper Clause

One of the most important passages in the
Constitution is the Necessary and Proper Clause,
Article I, Section 8, Clause 18.
It is understood to mean that Congress not
only has express powers, but also has implied
powers to act.
68
Necessary and Proper Clause

Article I, Section 8, Clause 18:
Congress shall have power to make all Laws which

shall be necessary and proper for carrying into
execution the foregoing powers and all other powers
vested by this Constitution in the government of the
United States, or in any department or officer
thereof.
69
McColloch v. Maryland (1819)

When the United States was formed one of
the principal issues was whether the country should
have a central bank – a government-owned bank
that could be used to hold and transfer government
funds.
Congress created the Bank of the United
States. In this case the State of Maryland argued
that Congress did not have the power to create a
bank, because that power was not expressly listed
in the Constitution.
70
The Arguments

The United States contended that the Bank
of the United States was created to facilitate
both taxation and spending, and could be used
to purchase materials and support the army,
navy, and movement of the armed forces.
The State of Maryland argued that the
bank wasn’t “necessary” for any of these
purposes.
71
Chief Justice Marshall’s Two

Contrast between
“necessary and
proper” and
“absolutely necessary”
Placement of the
Necessary and Proper
Clause among the
powers of Congress Chief Justice John Marshall
72
“Necessary and Proper” versus
“Absolutely Necessary”

“Congress shall have power to make all Laws which
shall be necessary and proper …”

“No State shall, without the Consent of the
Congress, lay any Imposts or Duties on Imports or
Exports, except what may be absolutely necessary
for executing it's inspection Laws …”
73
Placed Among the Powers of
Congress, Not the Limits

The Necessary and
Proper Clause is in Article
I, Section 8 (the powers of
Congress)
not Article I, Section 9 (the

limits on the powers of
Congress)
74
Expanding the Evidence of What the
Law Is

Plain meaning arguments look only to the particular
words in question in determining the meaning of the law.
The canons of construction require us to consider
not only the particular words under consideration but also
the traditional presumptions and inferences about the
meaning of legal text.
Intratextual arguments look not only to the
particular words under consideration but to the document
as a whole.
75
Intent, Precedent, Tradition,
and Policy

The next two presentations will further
expand the universe of information we will
consider in determining what the law is.
In Presentation Two we shall look at the

three types of historical arguments: Intent,
Precedent, and Tradition. Presentation Three
will cover Policy.
76
End
77
Presentation Two:
The Historical Arguments
Intent, Precedent, and Tradition
Wilson Huhn
© 2013
1
The Five Types of Legal
Arguments
Text
Intent
Precedent
Tradition
Policy
2
The Three Historical Types
of Legal Arguments
Intent
Precedent
Tradition
3
2. Intent
“Intent” refers to the intentions of the
persons who drafted a constitution, statute,
ordinance, or regulation.
It also includes the intent of the persons
who draft private documents that change legal
rights, such as contracts, deeds, and wills.
It may be known as “original intent,”
“legislative intent,” regulatory intent,” “the intent
of the parties,” or “the intent of the testator,”
depending on what document is being
interpreted.
4
INTENT
The Signing of the Constitution 5

Intent Is Different from Text
The text of the law consists of the
words of the law itself, written in a
constitution, a statute, an ordinance, a
regulation, or privately written legal
documents like contracts, wills, deeds, and
trusts.
The intent of the law is what was
meant by those words.
6
Which Is Really the Law?
Text or Intent?
If you had to choose just one, which is

really the law?
Is the law the plain meaning of the
words contained in the legal document, or is
the law what the drafters of the text meant
by those words?
7
Why Text Is the Law
This argument is simple and

straightforward.
The law consists of legal text itself. The
constitution, statute, ordinance, or regulation
is what was adopted or enacted into law.
Evidence of intent such as legislative
history, editorials, or newspaper reports are
not the law.
8
Why Intent Is Law
The Declaration of Independence says that
the people have the right to establish their own
government – that all “just powers” of government
are derived from the consent of the people.
The people elect legislatures to enact laws
on their behalf – the legislatures speak for the
people.
People have a right to enter into contracts,
adopt wills, grant deeds – based upon their own
personal choices.
9
Different Names for “Intent” in
Different Fields of Law
Constitutional Law – The “original intent” of
framers of the constitution
Statutory Law – The intent of the legislature
or “legislative intent”
Administrative Law – “Regulatory intent”
Contract Law – The “intent of the parties”
Law of Wills – The “intent of the testator”
10
Intent Expands the Field of
Evidence of What the Law Is
As we saw earlier, arguments based on

plain meaning, intratextualism, and canons
of construction sequentially expand the pool
of data that is considered in determining
what the law is.
Arguments based upon intent expand
this pool of data even further.
11
Proof of Intent
• The text of the law itself or preamble

• Previous versions of the text (intertextual)
• Legislative history
• Official comments
• Contemporary commentary
12
Textual Evidence of Intent:
Preamble to the Constitution
“We the People of the United States, in
Order to form a more perfect Union, establish
Justice, insure domestic Tranquillity, provide for
the common defense, promote the general
Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and
establish this Constitution for the United States
of America.”
13
Previous Version:
The Articles of Confederation
Article II, Articles of Confederation:
Each state retains its sovereignty, freedom, and

independence, and every power, jurisdiction,
and right, which is not by this Confederation
expressly delegated to the United States, in
Congress assembled.
14
Forms of Legislative History
Records of comments and remarks on the

floor of the legislature
House and Senate committee reports
Transcripts of hearings before legislative

committees
15
Official Comments
Advisory Committee Notes for the
Rules of Civil Procedure
Advisory Committee Notes for the

Rules of Evidence
Official Comments to the Uniform

Commercial Code
16
Other Evidence of Intent
News stories and editorials
Speeches, press releases, blog entries,

letters
Other statements or testimony
17
Example: The Federalist Papers
The Federalist Papers
were a series of essays
written by Alexander Hamilton,
James Madison, and John Hamilton
Jay, attempting to persuade
the people of America to ratify
the Constitution. These
Madison
essays are considered to be
an important source of
information about the intent of
the framers. Jay
18
Problems with Proof of Intent
Whose intent counts? – What if Madison
and Hamilton disagree about the relative
powers of Congress and the President?
How many members of the group must
share that intent? – What if a minority or
only a few members of Congress expressed
their intent?
Is there such a thing as “group intent”? –
Is “intent” a fictional concept?
19
General versus Specific Intent
Another common problem with

determining the intent of the people who
drafted a law is to ascertain the appropriate
level of generality.
20
General Intent:
Liberty and Equality
Did the framers of the Fourteenth
Amendment intend that people should be
people to be permitted to make intimate and
personal choices about their own lives,
without interference from the law, so long as
they do not harm others?
Did the framers also intend that people
who are in similar circumstances must be
treated alike by the law?
21
Specific Intent:
Marriage Equality
Did the framers of the Equal Protection

Clause intend that persons of different races
should be permitted to marry?
Did the framers of the Equal Protection
Clause intend that persons of the same
gender should be permitted to marry?
22
Congress’ Power over
Commerce
Did the Framers intend that Congress

should have the power to regulate interstate
commerce as well as conduct that
substantially affects interstate commerce?
Did the Framers intend that Congress
should have the power to regulate wages
and hours, health and safety of factory
workers or miners?
23
Influential Legal Treatises
Some legal treatises are so influential
as to be considered almost authoritative.
This sometimes occurs because the
authors of the treatise participated in the
drafting of the law.
For example, White & Summers on
Commercial Law is persuasive legal
authority in part because of their
involvement in the drafting of commercial
24
codes.
3. PRECEDENT
The term “precedent” means a formal
judicial opinion in a previous case.
Over the centuries the courts have
rendered millions of decisions.
In recent centuries judges explain their
decisions in written opinions.
This immense body of case law
constitutes “precedent.”
25
The Common Law
The “common law” is that law that

developed in the courts, first in England, and
then America.
Originally there were no written

constitutions and statutes were rare, so
almost all of the law was the “common law.”
26
The Law Used to Be the Will of
The King
Law was originally conceived as the will

of the sovereign, and the highest court in
medieval England was called the “King’s
Bench” or “Queen’s Bench” because
originally the monarch dispensed justice,
seated on a bench.
27
The Independent Judiciary
The courts are now an independent branch
of government, thanks to courageous
judges such as Sir Edward Coke and
Chief Justice John Marshall.
Coke labored for the principle that

the King is subject to the law,
Sir Edward Coke (1552-1634)
while Marshall ruled that the President
is governed by law.
Both stood for the principle of judicial

review – the idea that the courts have
the power to determine the validity
and the meaning of statutes. 28
John Marshall (1735-1855)
Codification and Model Acts
Today, much of the law has been
“codified,” meaning that it has been enacted
into law as statutes or rules. Federal laws
are national laws. Many state laws are also
similar across the United States because
they are modeled after federal rules like the
Federal Rules of Evidence and the Federal
Rules of Civil Procedure, or model acts like
the Uniform Commercial Code or the Model
Penal Code. 29
Administrative Agencies and
Regulations
In addition to codification, our law has

witnessed another revolution. Over the last
eighty years we have created thousands of
administrative agencies which are
responsible for issuing regulations that have
the force of law.
Administrative agencies now create far
more law than legislatures do.
30
The Present Scope of the
Common Law
Today, the common law (judge-made

law) still governs certain areas; contracts,
torts, and property are largely uncodified
and remain subject to the common law.
Even in those fields of law, however,
federal and state statutes and regulations
govern many aspects of the law.
31
But Codification Has Not
Reduced the Importance of the
Courts
Even though most areas of the law are

governed by statutes or regulations, the role
of the courts has not diminished. Instead the
courts are busier than ever interpreting the
law that is created by statutes and
regulations.
32
What Do the Courts Do?
The courts
continue to develop the
“common law.”
The courts also

interpret legal text …
constitutions, statutes,
regulations, ordinances,
contracts, wills, and
deeds.
33
Constitutional Law and the
Power of Judicial Review
The courts perform one other function

besides developing the common law and
interpreting legal text.
In the United States, the courts have

the power to declare laws unconstitutional.
34
“Stare Decisis”
The principle of “stare decisis” is what

gives strength to precedent. It is what makes
judicial precedent a type of “law.”
“Stare decisis” means “to stand by the

decision.” It is a duty on the courts to
respect the decisions of previous courts.
35
Vertical Stare Decisis
Vertical stare Ohio Supreme Court
decisis is the obligation
that a lower court owes
to a higher court. If a
State Supreme Court Ohio District Courts of Appeal
has interpreted the law in

a particular manner, all
of the lower courts in that
state have to interpret Ohio Common Pleas Courts
that law the same way. 36

Horizontal Stare Decisis
If the court that previously decided the
question is at the same level – or if the same
court decided the question previously – then
stare decisis requires the courts to take the
previous ruling into account and to give it
some weight before coming to a different
interpretation of the law.
Ohio Ninth District Court of Appeals Ohio Eighth District Court of Appeals
Ohio Eighth District Court of Appeals Ohio Eighth District Court of Appeals
37
Vertical and Horizontal Stare
Decisis Compared
Vertical stare decisis is a binding

obligation on the lower courts to defer to the
previous decisions of higher courts in the
same jurisdiction.
Horizontal stare decisis is an obligation
to give some weight to the previous
decisions of the same court or other courts
at the same level.
38
Other Factors Affecting the
Weight of Precedent
What level was the court that
previously decided the same case? A state
supreme court, an intermediate appellate
court, a county court, a municipal court?
Was the opinion a majority opinion, a
concurring opinion, or a dissenting opinion?
Was the case really the same as the
case under consideration, or could the case
be distinguished?
39
Precedent Is an Important
Source of Law
The courts interpret the law

and dispense justice.
A court’s interpretation
of the law must be
followed by lower courts
and will probably be
followed by other courts
as well.
40
Using Precedent Is
Reasoning by Analogy
In law, to cite precedent is to assert

that the case that is presently before the
court is similar to another case that was
previously decided; that therefore the rule
that governed the first case must also
govern the second case; and that the
outcome must also be the same.
This is reasoning by analogy.
41
Example:
Maimonides and the Talmud
Rabbi Moshe ben Maimon,

twelfth century author
of the fourteen volume
Mishneh Torah. His brilliant
exegesis on Jewish law
relies heavily on reasoning
by analogy.
42
Following or Overruling Cases
If a previous case is similar to the
present case we are trying to decide, we
“follow” the previous case by applying the
same rule and coming to the same
conclusion.
To “follow” a case is to apply the
principle of stare decisis and shows respect
for precedent.
To “overrule” a case is to say that it not
necessary to respect a previous decision. 43
The Plurality in
Planned Parenthood v. Casey
In 1992 in the case of
Planned Parenthood v. Casey,
Justices Sandra Day O’Connor,
Anthony Kennedy, and
David Souter reaffirmed Roe v. Wade
despite their opposition to abortion.
Their joint opinion in that case

remains the single most extensive
analysis of the principle of
stare decisis, and provides guidance
on when a court should follow a
previous case, and when it may
44
overrule it.
Four Factors to Consider in
Stare Decisis
1. Is the rule announced in the previous
case unworkable?
2. Has our society relied upon the previous
decision?
3. Has the previous decision been
undermined by later cases?
4. Have the facts or our understanding of
the fact changed since the previous
decision?
45
Distinguishing Cases
If a previous case is different from the

present case we are trying to decide, we
may “distinguish” the previous case.
If we distinguish a previous case, then
we either apply a different rule or we apply
the same rule but arrive at a different
conclusion.
46
Analogies May Be Either
Factual or Based on Policy
You may draw an analogy to another

case based upon similarities of the facts of a
previous case.
You may also draw analogies based on

similarities to the policies that were involved
in a previous case.
47
Example: McPherson v. Buick
Motor Co.
In the case of Buick Motor Co. v.
McPherson, an automobile driver was
injured when the wheel of his car fell apart.
The car had been assembled by the Buick
Motor Company, but sold to the injured
person by an automobile dealer.
Was the manufacturer (Buick) liable to
the plaintiff for the injuries caused by the
defective part, even though they had no
contractual relationship? 48
Is a Car More Like a Wagon or
More Like a Scaffold?
In previous cases, the courts had ruled

that the maker of a wagon was not liable
for injuries caused to passengers when a
wheel fell apart, but that the maker of a
scaffold was liable for injuries caused to
workers when the scaffold fell.
Is an automobile more like a wagon or
more like a scaffold?
49
Cardozo – Look to the Purpose
of the Rule
On the surface, a car is more like a
wagon, and that analogy would lead you to
the conclusion that Buick was not liable to
the owner of the car.
But Judge Benjamin Nathan Cardozo
looked to the purpose of the rule, which was
to prevent an unreasonable risk of danger.
He found that automobiles, like scaffolds,
present an unreasonable risk of danger to
the public if not properly made. 50
Cardozo’s Opinion in
McPherson
“From this survey of the decisions,
there thus emerges a definition of the duty of
a manufacturer which enables us to
measure this defendant's liability. Beyond all
question, the nature of an automobile gives
warning of probable danger if its
construction is defective. This automobile
was designed to go fifty miles an hour.
Unless its wheels were sound and strong,
injury was almost certain.” 51
Cardozo’s Opinion, cont.
“The maker of this car supplied it for the use
of purchasers from the dealer just as plainly
as the contractor in Devlin v. Smith supplied
the scaffold for use by the servants of the
owner. The dealer was indeed the one
person of whom it might be said with some
approach to certainty that by him the car
would not be used. Yet the defendant would
have us say that he was the one person
whom it was under a legal duty to protect.” 52
Cardozo’s Opinion, cont.
“The law does not lead us to so
inconsequent a conclusion. Precedents
drawn from the days of travel by stage
coach do not fit the conditions of travel to-
day. The principle that the danger must be
imminent does not change, but the things
subject to the principle do change. They are
whatever the needs of life in a developing
civilization require them to be.”
53
Cardozo’s Use of Analogy
Judge Cardozo rejected the simple

factual analogy between a wagon and an
automobile, and embraced the policy
analogy between the rule governing the
liability of the manufacturer of a scaffold and
the rule that should govern the liability of the
manufacturer of an automobile.
54
The Difference Between
Factual and Realist Analogies
“Some judges seldom get
beyond that process in
any case. Their notion of
their duty is to match the
colors of the case at hand
against the colors of
many sample cases
spread out upon their
desk. The sample
nearest in shade supplies
Benjamin Nathan Cardozo
the applicable rule.”
55
Another Example of Formalist
and Realist Analogies:
Davis v. Davis (Tenn. 1992)
Junior and Mary Sue Davis were being
divorced. They had no children, but they
had undergone fertility treatments and
owned six embryos which were frozen and
in storage at the fertility center. Mary Sue
wanted the embryos so that she could have
children in the future. Junior wanted the
embryos to remain in storage because he
had vowed never to have children he was
56
not taking care of.
Which Is the Correct Analogy?
Are Embryos Property or Children?
Mary Sue said that the proper analogy is that
the embryos are like “children” and that “custody”
should be awarded to the spouse who will act in
their best interests – herself. The trial judge ruled
that the embryos are a form of “property” and that
they should be evenly divided between the parties.
The Tennessee Supreme Court rejected

both of these analogies and found another case
which it found to be analogous and controlling.
57
The Tennessee Supreme Court
Rejected Both Analogies
The Tennessee Supreme Court ruled

that the embryos were neither “children” nor
“property,” but rather a new entity unto
themselves, and that neither “factual
analogy” was entirely appropriate.
58
The Tennessee Supreme Court
Adopts a Policy Analogy
The Tennessee Supreme Court found

an analogy between this case and Roe v.
Wade – not on a factual level, but on a
deeper level of constitutional values.
In the end, the court gave priority to
Junior’s right not to become a parent
without his consent, as in Roe v. Wade.
59
John Dickinson:
The Law Behind Law
“The choice which a judge
makes of one analogy rather than
another is an expression of ... a
value-judgment; and the possibility
of competing analogies therefore
arises not merely or so much out
of the doubtfulness of the factual
resemblances among his
materials, but rather out of the
possibility of differences of opinion
as to the comparative value of the
John Dickinson different results which one analogy
1894-1952 or the other would bring about.” 60
4. TRADITION
61
How Is “Tradition” Different from
“Precedent”
“Precedent” means “judicial precedent”

– decisions and opinions rendered by judges
over the years.
“Tradition” refers to the behavior

patterns of a society over decades,
centuries, or millennia.
62
Ubiquitous Yet Invisible:
The “Unwritten Law”
Tradition arguments are unique in that
they are extremely influential yet often
appear only briefly in judicial opinions.
The traditions of society represent how
people have understood the law over long
periods of time. Traditions form our
“baseline assumptions” and “cognitive
schemas” for understanding how people are
supposed to behave.
63
Tradition is the “unwritten law.”
Some Influences of Tradition
Our “fundamental rights” include those rights
that that are “deeply rooted in our nation’s history
and tradition.”
The powers of the government include those
that the government has traditionally wielded.
The law of tort is derived in part from how
people have traditionally been permitted to act.
Commercial law is heavily influenced by
“trade usage” – how businesses have conducted
themselves in the market.
64
Torts: Unreasonably Dangerous
Products
If any of these products
were invented today, would
it be legal to manufacture
and sell them to
consumers?
No, they would all be
considered “unreasonably
dangerous.”
65
Other Examples of
“Tradition” Arguments
“Children of different races have been

assigned to separate schools for
generations!”
“Marriage has always consisted of the

union of one man and one woman!”
66
Justice Scalia’s Tradition
Argument in United States v.
Virginia
“Today the Court shuts
down an institution that has
served the people of the
Commonwealth of Virginia
with pride and distinction for
over a century and a half. …
It counts for nothing the long
tradition, enduring down to
the present, of men’s
military colleges supported
by both States and the
Federal Government. 67
Justice John Harlan on
“Tradition” in Poe v. Ullman
“Due process has not been reduced to any
formula; its content cannot be determined by reference
to any code. The best that can be said is that through the
course of this Court’s decisions it has represented the
balance which our Nation, built upon postulates of
respect for the liberty of the individual, has struck
between that liberty and the demands of organized
society. If the supplying of content to this Constitutional
concept has of necessity been a rational process, it
certainly has not been one where judges have felt free to
roam where unguided speculation might take them. The
balance of which I speak is the balance struck by this
country, having regard to what history teaches are the
traditions from which it developed as well as the
traditions from which it broke. That tradition is a living
68
thing.”
When Should We Break from
Tradition?
One of the central questions in all of

law is this: When is it necessary to abandon
a traditional way of doing things? Under
what circumstances should we break from
tradition – and create a new tradition?
Our next lesson on policy arguments
will in part address that question.
69
End
70
Argument: Presentation Three
Policy Analysis
Wilson Huhn
© 2013
1

Text
Intent
Precedent
Tradition
Policy
2
POLICY ARGUMENTS

• Look to the future, not to the past
• “Ends-Means” form of argument
• Concerned with the consequences
of interpreting the law one way or another
• Require the exercise of judgment by the court
3
Two-Part Structure of Policy
Arguments

• Predictive statement of fact – what
consequences will flow from the particular
interpretation of the law?
• Evaluative judgment – are those

consequences consistent with the underlying
purposes of the law?
4
Elements of the Evaluative Judgment

• What is the purpose of the law – what are the
values that this particular law serves?
• How strong are those values?
• How likely is it that this interpretation of the
law will serve those values?
• Is there a competing policy, and how strong is
it?
5
History of Policy Arguments

• Policy arguments were used at the founding, when
American judges were consciously developing new
laws for a new country
• They were not used – instead were consciously

avoided – during the conventional era from 1840 to
1930
• In the modern era the resurgence of policy analysis

may be traced to three groups of reformers –
philosophers, legal scholars, and judges
6
The Founding Judges

Great judges such as Chief Justice John
Marshall and Associate Justice Joseph Story
were aware that they were laying the
foundation for a new system of law – a legal
system based on fundamental principles of
limited government and individual rights.
They interpreted the Constitution and the
law so that the results of their decisions served
those underlying purposes and policies.
7
McColloch v. Maryland (1819)

That the power to tax involves the
power to destroy; that the power to
destroy may defeat and render
useless the power to create; that
there is a plain repugnance in
conferring on one government a
power to control the constitutional
measures of another, which other,
with respect to those very measures,
is declared to be supreme over that
Justice John Marshall which exerts the control, are
propositions not to be denied.
8
Martin v. Hunter’s Lessee (1816)

If the construction contended
for be correct, it will follow,
that as the plaintiff may
always elect the state court,
the defendant may be
deprived of all the security
which the constitution
intended in aid of his rights.
such a state of things can, in
no respect, be considered as
Justice Joseph Story
giving equal rights.
9
The Era of Legal Formalism

In law, the late 19th century was a period
of stagnation, of conventional, formalistic
reasoning – dominated by a series of immensely
forgettable judges citing precedent, invoking
tradition, and issuing dreadful decisions such as
Plessy v. Ferguson (1896) and Williams v.
Mississippi (1898).
10
Plessy v. Ferguson (1896)

So far, then, as a conflict with the
Fourteenth Amendment is concerned,
the case reduces itself to the question
whether the statute of Louisiana is a
reasonable regulation, and, with
respect to this, there must
necessarily be a large discretion on
the part of the legislature. In
determining the question of
reasonableness, it is at liberty to act
with reference to the established
Justice Henry Brown usages, customs, and traditions of the
people…. 11
The Progressive Era

But in politics the late 19th century was a time
of great ferment – the women’s movement, the
labor movement, the child labor movement, the
public school movement, the temperance
movement, prison reform, reform of our treatment
of the insane and the mentally retarded, and the
sanitary movement growing out of the germ theory
of disease.
And the law eventually caught up!

12
Who Was Responsible for the Return
of Policy Analysis?

13
The Pragmatist Philosophers

Charles Sanders Peirce William James John Dewey

(1839-1914)
Pragmatism: A Democracy and
Founder of Pragmatism New Name for Education (1916)
Old Ways of
Thinking (1907) 14
American Philosophy of
“Pragmatism”

“Pragmatism” is an ends-means philosophy. It
is a way of telling right from wrong as well as a
guide to action.
First you must identify what your goal is – the
end you wish to achieve.
Then you must identify how you might
achieve that goal.
Finally, you must assess whether the means
you have selected is justified in light of all of the
consequences that will ensue.
15
The Legal Realists - Academicians

Roscoe Pound John Dickinson Karl Llewellyn Grant Gilmore
Outlines of The Law Some Realism The Death

Lectures on Behind Law About Realism of Contract
Jurisprudence (1929) (1931) (1954) 16
(1903)
The “Legal Realism” Movement

“Legal Realism” is the idea that the law
should be interpreted in light of the real-life
effects of the law on the lives of individuals and
on society as a whole.
It drew upon the explosion of knowledge
in fields such as psychology, sociology, and
economics.
17
What Legal Realists Believe

Legal realists have faith in their ability to predict the
consequences of their interpretation of the law
and to ascertain the underlying purposes of the
law.
Legal Realists are committed to reality-based

thinking, grounded in science.
Legal Realists believe that justice and fairness are

more important than cold logic or rigid
adherence to precedent.
18
The Great American Judges:
Judicial Realists

Oliver Louis Benjamin Learned

Wendell Brandeis Nathan Billings
Holmes Cardozo Hand
In the first half of the 20th century these four judges
introduced the method of “policy analysis”
19
into American law.
Holmes

“The life of the law has
not been logic; it has been
experience.”(1880)
Oliver Wendell Holmes 20

Other Aphorisms by Holmes

• He opposed the notion that law “can be
worked out like mathematics from some
general axioms of conduct.” (1897)
• “General propositions do not decide concrete

cases.” (1905)
• “A page of history is worth a volume of logic.”

(1921) 21
Two-Part Structure of Policy
Arguments


22
Predictive Statement of Fact

“The method I have tried
to employ in arguing cases
has been inductive,
reasoning from the facts.”
23
Louis Brandeis
The Brandeis Brief
in Muller v. Oregon (1908)

Summarizing hundreds of studies of the effect

of long hours of labor on women and their families. 24
Evaluative Judgment

“The final cause of law is the
welfare of society. The rule
that misses its aim cannot
permanently justify its
existence.”
25
Benjamin Cardozo
Cardozo on Riggs v. Palmer

In his masterpiece “The Nature of
the Judicial Process” (1922), Cardozo
analyzed the case of Riggs v. Palmer,
115 N.Y. 506 (1889), in which the
court had ruled that a person who
had murdered his grandfather could
not inherit under his will, even
though a statute provided that the
testator’s property is to be
distributed in accordance with the
terms of the will.
26
Benjamin Cardozo’s Explanation of
the Ruling in Riggs v. Palmer

“Conflicting principles were there in competition for
the mastery. One of them prevailed, and vanquished
all the others. There was the principle of the binding
force of a will disposing of the estate of a testator
[the author of a will] in conformity with law. ...
There was the principle that civil courts may not add
to the pains and penalties of crimes. ... But over
against these was another principle, of greater
generality, its roots deeply fastened in universal
sentiments of justice, the principle that no man
should profit from his own inequity or take
advantage of his own wrong.”
27
The Consequentialist Definition of
“Duty” in the Law of Tort

In the case of United States v.
Carroll Towing Co., 159 F.2d
169 (2d. Cir. 1947), Judge
Learned Hand articulated a
realist standard for assigning
liability under the law of tort.
Learned Billings Hand

28
Hand’s Formula
for the Law of Tort

“Since there are occasions when every vessel will
break from her moorings, and since, if she does, she
becomes a menace to those about her; the owner’s duty,
as in other similar situations, to provide against resulting
injuries Is a function of three variables: (1) The probability
that she will break away; (2) the gravity of the resulting
injury, if she does; (3) the burden of adequate
precautions.
Possibly it serves to bring this notion into relief to
state it In algebraic terms: If the probability be called P;
the injury, L; and the burden, B; liability depends upon
whether B is less than L multiplied by P: i.e., whether B <
PL.z”
29
The Source of an
Underlying Policy

An underlying policy is not chosen by the
individual judge – it is only identified by the
judge.
In Riggs v. Palmer, the predominant
underlying policy was to prevent a wrongdoer
from profiting from his crime.
In Carroll Towing, the predominant policy
was to identify an economically efficient
method of preventing damage and injury.
30
Elements of the Evaluative Judgment

• What is the purpose of the law – what are the
values that this particular law serves?
• How strong are those values?
• How likely is it that this interpretation of the
law will serve those values?
• Is there a competing policy, and how strong is
it?
31
Examples of Policies:
Traditional Principles of Equity

1. No person may profit from his own
wrongdoing
2. No person may be a judge in his own case
32
Competing Policies
of the Law of Tort

3. The law of tort must be interpreted to
maximize economic efficiency
4. The law of tort must be interpreted to
ensure the complete compensation of the
victims
33
Values Expressed in the Declaration
of Independence

5. All people are created equal
6. All people have certain unalienable rights
6. All just powers of government are derived
from the consent of the governed
7. The people have the right to establish a
government, and to place limits on the
powers of government
34
Famous Policy Arguments

Some of the most inspiring language in
American law consists of policy arguments.
Several examples follow:
35
Brown v. Board of Education (1954)

“To separate them from
others of similar age and
qualifications solely
because of their race
generates a feeling of
inferiority as to their
status in the community
that may affect their
hearts and minds in a way
unlikely ever to be
Chief Justice Earl Warren undone.”
36
Kras v. United States (1973)

“It may be easy for some
people to think that
weekly savings of less
than $2 are no burden.
But no one who has had
close contact with poor
people can fail to
understand how close to
the margin of survival
many of them are.”
Justice Thurgood Marshall
37
An Affair with Freedom
William Brennan

“The mists which have obscured the light
of freedom and equality for countless
tens of millions are dissipating. For
the unity of the human family is
becoming more and more distinct on
the horizon of human events. The
gradual civilization of all people
replacing the civilization of only the
elite, the rise of mass education and
mass media of communication, the
formulation of new thought structures
due to scientific advances and social
Justice William Brennan evolution – all these phenomena
hasten that day.”
38
Robert Jackson

Jackson at Nuremburg
Justice Robert Jackson 39
Wickard v. Filburn (1942)

“That appellee’s own contribution to the
demand for wheat may be trivial by itself is not
enough to remove him from the scope of
federal regulation where, as here, his
contribution, taken together with that of many
others similarly situated, is far from trivial.”
40
Board of Education v. Barnette
(1943)

“If there is any fixed star in our
constitutional constellation, it is that no official,
high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or
other matters of opinion or force citizens to
confess by word or act their faith therein. If
there are any circumstances which permit an
exception, they do not now occur to us.”
41
Korematsu v. United States (1944)

“Much is said of the danger to liberty from the
Army program for deporting and detaining these citizens
of Japanese extraction. But a judicial construction of the
due process clause that will sustain this order is a far
more subtle blow to liberty than the promulgation of the
order itself. … A military commander may overstep the
bounds of constitutionality, and it is an incident. But if we
review and approve, that passing incident becomes the
doctrine of the Constitution. There it has a generative
power of its own, and all that it creates will be in its own
image. Nothing better illustrates this danger than does
the Court’s opinion in this case.”
42
H.P. Hood & Sons v. DuMond (1949)

“Our system, fostered by the Commerce
Clause, is that every farmer and every craftsman
shall be encouraged to produce by the certainty
that he will have free access to every market in
the Nation, that no home embargoes will
withhold his export, and no foreign state will by
customs duties or regulations exclude them.”
43
Youngstown Sheet & Tube (1952)

“While the Constitution diffuses power the
better to secure liberty, it also contemplates
that practice will integrate the dispersed powers
into a workable government. It enjoins upon its
branches separateness but interdependence,
autonomy but reciprocity. Presidential powers
are not fixed but fluctuate, depending upon
their disjunction or conjunction with those of
Congress.”
44
The Realists Radically Change the
Basic Conception of Law

When interpreting the law, context and
consequences must be taken into account.
Law is not essentially rules, but rather

intersections of competing values.
In determining what the law is the courts must

balance those competing values.
45
The Nature of Policy Arguments

• Look to the future, not to the past
• Are concerned with consequences of
interpreting the law one way rather than
another
• Require the exercise of judgment by the court
in deciding which interpretation of the law
will result in consequences that are more
consistent with the values that the law is
intended to serve
46
Photo, “Red Right Returning,” by Ken Watson (2001) 47
48
Changing Nature of Materials and
Sources for Interpreting the Law

Traditionally, judges consulted statute
books, legislative history, and case reporters to
find the law.
But with policy analysis, judges

increasingly rely upon expert witnesses and
social science studies to determine what the law
is.
49
Footnote 11
in Brown v. Board of Education

11. K. B. Clark, Effect of Prejudice and Discrimination on
Personality Development (Midcentury White House
Conference on Children and Youth, 1950); Witmer and
Kotinsky, Personality in the Making (1952), c. VI;
Deutscher and Chein, The Psychological Effects of
Enforced Segregation: A Survey of Social Science Opinion,
26 J. Psychol. 259 (1948); Chein, What are the
Psychological Effects of Segregation Under Conditions of
Equal Facilities?, 3 Int. J. Opinion and Attitude Res. 229
(1949); Brameld, Educational Costs, in Discrimination and
National Welfare (MacIver, ed., (1949), 44-48; Frazier,
The Negro in the United States (1949), 674-681. And see
generally Myrdal, An American Dilemma (1944).
50
A Reality-Based Standard:
The Equality Principle

The principle of equality is itself
transcendent. The Equal Protection Clause –
added to the Constitution in 1868 – is the
proposition “all men are created equal” made
manifest in the law.
And because it is now in the Constitution it
is a supreme and paramount law, superior to all
other laws.
51
Abraham Lincoln and the Principles
of the Declaration

Abraham Lincoln persuaded the
American people that the
principles of the Declaration of
Independence were, and ought
to be, incorporated into the
United States Constitution.
Specifically, he insisted that the
idea that “all men are created
equal” should be added to the
Constitution.
52
My friend has said to me that I am a poor
hand to quote Scripture. I will try it again,
hozwever. It is said in one of the
admonitions of the Lord, “As your Father
in Heaven is perfect, be ye also perfect.”
The Savior, I suppose, did not expect that
any human creature could be perfect as
the Father in Heaven; but He said, “As
your Father in Heaven is perfect, be ye
also perfect.” He set that up as a
standard, and he who did most towards
reaching that standard, attained the
highest degree of moral perfection. So I
say in relation to the principle that all
men are created equal, let it be as nearly
reached as we can.
53
Speech at Chicago, 1858
“They meant to set up a standard
maxim for free society, which
should be familiar to all, and
revered by all; constantly looked
to, constantly labored for, and
even though never perfectly
attained, constantly approximated,
and thereby constantly spreading
and deepening its influence, and
augmenting the happiness and
value of life to all people of all
colors everywhere.”
Speech at Springfield, June 26, 1857

54
“Fourscore and
seven years ago our
fathers brought forth on
this continent a new
nation, conceived in
liberty and dedicated to
the proposition that all
men are created
equal.”
55
Yick Wo v. Hopkins (1886)
(equal rights for Chinese)

“’Class legislation, discriminating
against some and favoring others,
is prohibited; but legislation
which, in carrying out a public
purpose, is limited in its
application if, within the sphere of
its operation, it affects alike all
persons similarly situated, is not
within the amendment.’” quoting
Barbier v. Connolly (1884)
Justice Thomas Stanley Matthews 56

Reed v. Reed (1971)
(equal rights for women)

“By providing dissimilar
treatment for men and
women who are thus similarly
situated, the challenged
section violates the Equal
Protection Clause.”
Chief Justice Warren E. Burger 57

Cleburne v. Cleburne Living Centers, Inc.
(1985) (equal rights for disabled)

“The Equal Protection Clause
of the Fourteenth
Amendment commands that
no State shall ‘deny to any
person within its jurisdiction
the equal protection of the
laws,’ which is essentially a
direction that all persons
similarly situated should be
treated alike.”
Justice Bryon White 58
Lawrence v. Texas (2003) (equal
rights for gays and lesbians)

“The Equal Protection
Clause of the Fourteenth
Amendment ‘is essentially
a direction that all
persons similarly situated
should be treated alike.’”
Justice Sandra Day O’Connor 59

EXAMPLE:
Same-Sex Marriage Cases

Social science proves that same-sex couples are
the same as different-sex couples in respect to
marriage.
The principle of equality demands that they be

treated the same.
60
The Prop 8 Trial

In determining the
constitutionality of
Proposition 8, Federal District
Judge Vaughn Walker
admitted thousands of
exhibits and permitted lay
and expert witnesses to
testify on direct and cross
examination, creating a trial
record thousands of pages
long.
Judge Vaughn Walker 61
Plaintiffs’ Expert Witnesses

Dr. Nancy Cott, professor of American history at Harvard University and
director of the Schlesinger Library on the History of Women in America;
Dr. George Chauncey, a professor of history and American studies at Yale
University;
Dr. Lee Badgett, professor of economics at UMass Amherst and the director
of the Williams Institute at UCLA School of Law;
Dr. Edmund A. Egan, chief economist in the San Francisco Controller’s Office;
Dr. Letitia Anne Peplau, professor of psychology and vice chair of graduate
studies in psychology at UCLA;
Dr. Ilan Meyer, associate professor of sociomedical sciences at Columbia
University’s Mailman School of Public Health;
Dr. Gregory Herek, professor of psychology at UC Davis;
Dr. Michael Lamb, professor and head of the Department of Social and
Developmental Psychology at the University of Cambridge in England;
Dr. Gregory Segura, professor of political science at Stanford University.
62
Defendants’ “Expert” Witnesses

David Blankenhorn, MA in comparative social history,
University of Warwick, England. He conducted no peer-
reviewed research. Instead, he developed his expertise by
“reading articles and having conversations with people, and
trying to be an informed person about it”
Dr. Kenneth P. Miller, professor of government at Clarement

McKenna College. He was qualified as an expert in political
science generally but not on the political power of gays and
lesbians specifically.
The remainder of the defendants’ witnesses refused to

testify.
63
The Decision in the Prop 8 Case

On August 4, 2010, Judge Walker rendered his
decision. His opinion contains dozens of detailed
“findings of fact” each supported by multiple
exhibits and references to the trial record.
His decision may be found at

http://legaldocs.dreamwidth.org/1525.html?thr
ead=1269
64
Finding 48 in Prop 8 Trial

“Same-sex couples are identical to opposite-sex
couples in the characteristics relevant to the ability
to form successful marital unions. Like opposite-sex
couples, same-sex couples have happy, satisfying
relationships and form deep emotional bonds and
strong commitments to their partners.
Standardized measures of relationship satisfaction,
relationship adjustment and love do not differ
depending on whether a couple is same-sex or
opposite-sex.”
65
Finding 50

“Same-sex couples receive the same tangible
and intangible benefits from marriage that
opposite-sex couples receive.”
66
Finding 55

“Permitting same-sex couples to marry will not
affect the number of opposite-sex couples who
marry, divorce, cohabit, have children outside of
marriage or otherwise affect the stability of
opposite-sex marriages.”
67
Finding 56

“The children of same-sex couples benefit when
their parents can marry.”
68
Finding No. 70

“The gender of a child's parent is not a factor in a
child's adjustment. The sexual orientation of an
individual does not determine whether that
individual can be a good parent. Children raised by
gay or lesbian parents are as likely as children
raised by heterosexual parents to be healthy,
successful and well-adjusted. The research
supporting this conclusion is accepted beyond
serious debate in the field of developmental
psychology.”
69
The Decision of the Ninth Circuit

On February 7, 2012, a panel of the Ninth Circuit
affirmed Judge Walker’s decision on the ground
that Proposition 8 was adopted solely for the
purpose of treating same-sex couples differently
and for no other reason, and that it was
therefore unconstitutional.
The decision may be found at
http://www.scribd.com/doc/80680002/10-
16696-398-Decision
70
Half-Hearted Dissent of Judge Smith

“Here, the people of California might have
believed that withdrawing from same-sex
couples the right to access the designation of
marriage would, arguably, further the interests
in promoting responsible procreation and
optimal parenting. ‘The assumptions underlying
these rationales may be erroneous, but the very
fact they are 'arguable' is sufficient, on rational
basis review ….’”
71
Rosenfeld Study (2010)

Michael J. Rosenfeld (Stanford University), Nontraditional
Families and Childhood Progress Through School,
Demography, Volume 47 (3): 755-775 (2010), at
http://www.stanford.edu/dept/soc/people/mrosenfeld/d
ocuments/Rosenfeld_Nontraditional_Families_Children.p
df
In this examination of 45 studies, Rosenfeld found no

significant difference between the children of same-sex
couples and opposite-sex couples in their school
progress.
72
Williams Institute Study (2011)

M.V. Lee Badgett, Jody L. Herman, The Williams
Institute (U.C.L.A.), Patterns of Relationship
Recognition by Same-Sex Couples in the United
States, at
http://williamsinstitute.law.ucla.edu/wp-
content/uploads/Marriage-Dissolution-
FINAL.pdf (November, 2011)
73
More Than One-Fifth of U.S. Same-Sex Couples
Have Entered Civil Union or Marriage

“Over 140,000 same-sex couples, or 22% of all
same-sex couples in the United States, have
formalized their relationship under state law
within the United States.”
74
Women Are More Likely to Enter
Same-Sex Marriage

“Women are more likely to marry or formalize
their relationships by entering an alternative
legal status than are men. In eight states that
provided us data by gender, 62% of same-sex
couples who sought legal recognition were
female couples.”
75
Same-Sex Couples Are Less Likely
to Divorce

“In the states with available data, dissolution
rates for same-sex couples are slightly lower on
average than divorce rates of different-sex
couples. The percentage of those same sex
couples who end their legal relationship ranges
from 0% to 1.8% annually, or 1.1% on average,
whereas 2% of married different-sex couples
divorce annually.”
76
Marriage Rates of Same-Sex Couples
Will Be the Same

“If current trends hold, the marriage rate of
same-sex couples in Massachusetts eventually
will reach parity with the marriage rate of
different-sex couples in Massachusetts by
2013.”
77
Brief of American Professional
Associations

AMERICAN PSYCHOLOGICAL ASSOCIATION
AMERICAN PSYCHIATRIC ASSOCIATION
NATIONAL ASSOCIATION OF SOCIAL WORKERS
AMERICAN MEDICAL ASSOCIATION
AMERICAN ACADEMY OF PEDIATRICS
http://www.apa.org/about/offices/ogc/amicus/gill.
pdf (citing 86 scientific studies, filed with First
Circuit November 3, 2011)
78
Brief, continued

“Homosexuality is a normal expression of
human sexuality, is generally not chosen, and is
highly resistant to change.”
79
Brief, continued

“There is no scientific basis for concluding that
gay and lesbian parents are any less fit or
capable than heterosexual parents, or that their
children are any less psychologically healthy and
well adjusted.”
80
Frequency of Divorce Is Lowest in States
that Recognize Same-Sex Marriage

CDC Divorce Rates by State, 1999-2010:
http://www.cdc.gov/nchs/data/nvss/divorce_rates_90_95_99
-10.pdf
Paris Aichen, The Columbian, Gays’ divorce rate may hew

close to heterosexuals’ (January 23, 2012), at
http://www.columbian.com/news/2012/jan/23/gays-divorce-
rates-may-hew-close-to-heterosexuals/
Donesha Adridge, Medill Reports, Divorce rates lower in

states that allow same-sex marriage (March 1, 2012)at
http://news.medill.northwestern.edu/chicago/news.aspx?id=
201803
81
The Two-Part Structure
of Policy Arguments


82
The Imperatives of Policy Analysis

• When interpreting the law, consequences
must be taken into account
• Law is not absolute, but relative to context
• The courts must balance the competing values

served by the law
83
Policy Analysis Changes Our
Conception of the Law

Law is not essentially a collection of rules, but
rather intersections of values
84
Rule Rule Rule Rule Rule Rule Rule Rule
Rule Rule Rule Rule Rule Rule Rule Rule 85
86
End
87
Arguments:
IV. Identifying, Attacking, and Creating

Persuasive Legal Arguments
Wilson Huhn
Professor of Law, The University of Akron School of Law
© 2013
1

Text
Intent
Precedent
Tradition
Policy
2
Identifying the Types of Legal
Arguments
People v. Gibbons, 215 Cal.App.3d 1204,

263 Cal.Rptr. 905 (4th Dist. 1989)
3
Famous Legal Arguments:
1. John Marshall in Mccolloch
John Marshall demonstrates how to attack
an argument based upon plain meaning by
proving that the word is ambiguous.
4
2. John Marshall in McColloch
Marshall makes an intratextual
argument by comparing the word
“necessary” in the Necessary and Proper
Clause with the words “absolutely
necessary” from Article I, Section 10.
5
3. John Marshall in McColloch
Marshall makes an intertextual
argument comparing the language of the
Constitution to the language of the Articles
of Confederation to prove that the framers of
the Constitution intended to confer broader
implied powers upon the Congress.
6
4. Brandeis in Whitney
Brandeis makes an intent argument
regarding the Framers’ views on Freedom of
Expression.
7
5. Holmes in Holland
Holmes rejects text and intent in favor
of tradition in arguing that the nation’s
experience over a century should prevail on
the question of whether Congress has
power to legislate in this matter.
8
6. Warren in Brown
Warren rejected the intent of the
framers of the 14th Amendment as a guide
to decision because their intent was unclear
and because conditions had changed so
much that their specific views regarding
separate schools were no longer relevant.
9
7. Warren in Brown
Warren cites both precedent and policy
arguments in favor of overruling the
precedent of Plessy v. Ferguson.
10
8. Burger in Bowers
Burger makes a straightforward
tradition argument in favor of a law
criminalizing homosexual behavior.
11
9. Kennedy in Lawrence
Kennedy finds a number of ways to
rebut the tradition arguments regarding
sodomy laws. He says that these laws were
never enforced, that our traditions are
changing, that foreign countries have
declared these laws to be inconsistent with
human rights and that because of
globalization our traditions must come under
closer scrutiny. At the end he makes a
policy argument for striking down this law.
12
10. Black in Youngstown
In the Youngstown case, Black decided
against the President on textual grounds.
13
11. Frankfurter in Youngstown
In the same case Frankfurter found no
tradition of allowing a President to exercise
this type of power.
14
12. Jackson in Youngstown
12. Robert Jackson rejected text, intent,
tradition and precedent in this passage.
15
13. Jackson in Youngstown
Instead, Jackson composed an intricate
policy argument, built upon what he
regarded as the purposes of the doctrine of
Separation of Powers.
16
14. Abraham Lincoln at
Springfield
Abraham Lincoln rebuts the intent
arguments of Roger Taney and Stephen
Douglas regarding the phrase “all men are
created equal.”
17
15. Abraham Lincoln at Chicago
Lincoln uses original intent to justify
immigration and rebut prejudice.
18
Lewistown
Lincoln uses an intent argument to
entreat his audience to “come back” to the
truths of the Declaration of Independence.
19
Gettysburg
Lincoln uses intent to persuade people

that this country was built upon the principle
that “all men are created equal.”
20
18. Kennedy, O’Connor and
Souter in Casey
Justices Kennedy, O’Connor, and
Souter identify the four factors to consider in
deciding whether to follow or overrule
precedent, when decided to reaffirm Roe v.
Wade.
21
19. Harlan in Poe v. Ullmann
Justice John Harlan explains that
“tradition is a living thing,” and that there
have always been conflicting traditions.
22
20. Stevens in Clinton v. Jones
John Paul Stevens rebutted President
Clinton’s policy argument, in effect saying
that it was no big deal to require a sitting
President to give a deposition in a civil case.
How wrong he was!
23
21. Blackmun in Roe v. Wade
Blackmun’s casual reference to
constitutional text and his passionate policy
argument from Roe v. Wade.
24
B. How to Attack Each Type of
Argument
Intra-type attacks – Attacking an argument
on its own terms – contends that the
argument does not have strong basis in text,
intent, precedent, tradition, or policy.
Cross-type attacks – Attack an argument
by contending that there is a different type of
argument that is stronger.
25
Intra-type and Cross-Type
Attacks
There are 28 different intra-type attacks

on legal arguments, and two basic forms of
cross-type attacks.
26
Intra-type Attacks on Textual
Arguments
A. Attacks on Arguments Based upon Plain
Meaning
1. The text is ambiguous
2. The text has a different plain meaning
B. Attacks on the Canons of Construction
3. The canon of construction does not apply
4. A conflicting canon of construction applies
C. Attacks on Intratextual Arguments
5. There is a conflicting intratextual inference drawn
from the same text
6. There is a conflicting intratextual inference drawn
27
from different text
Intra-type Attacks on Intent
Arguments
7. The intent of the drafters was different from
what the litigant says
8. The litigant’s evidence of the drafters’ intent is
not sufficient
9. The drafters of the law did not anticipate current
events, so their intent is not relevant
10. The person whose intent was proven does not
count as a drafter, so it is irrelevant
28
Intra-type Attacks on Precedent
11. The court’s opinion was not holding but rather obiter
dictum
12. The opinion did not command a majority of the court
13. The opinion was not issued by a controlling authority
14. The case is distinguishable because of dissimilar facts
15. The case is distinguishable for policy reasons
16. There are two conflicting lines of authority
17. The case has been overruled
18. The case should be overruled
29
Intra-type Attacks on Tradition
Arguments
19. No such tradition exists
20. There have been competing traditions
21. A new tradition is emerging
30
Intra-Type Attacks on Policy
Arguments
22. The factual prediction is not accurate
23. The policy is not one of the purposes of
the law
24. The policy is not sufficiently strong
25. The policy is not served in this case
26. The policy is outweighed by a competing
policy
31
The Three Most Difficult Types of
Attacks to Master – Precedent
14. The Case Is Distinguishable on the

Facts
15. The Case is Distinguishable For Policy
Reasons
16. There Are Two Conflicting Lines of
Authority
32
Two Kinds of
Cross-type Attacks
One kind of cross-type attack questions

the “legitimacy” of an opposing legal
argument.
Another kind of cross-type attack

asserts that while the opposing argument
carries some weight, a different type of legal
argument is stronger.
33
Example of an Attack on the
Legitimacy of a Legal Argument
Robert Bork considered most types of

legal arguments to be “illegitimate.” For
Bork, the only “legitimate” type of legal
argument was one that was based on
“original intent.”
34
Another Example of a
Foundational Attack
Justice Antonin Scalia believes that the

only fundamental rights that Americans
possess are those that are “deeply rooted in
tradition.” If a right has not been traditionally
recognized, then it is not a constitutional
right.
35
Examples of Conflicts Between
Different Types of Arguments
• Text v. Intent
– Rule of Evidence Inconsistent with Official
Comment
• Text v. Policy
– Are there unenumerated fundamental rights?
• Precedent v. Policy
– Virtually any famous opinion by Judge
Cardozo
36
The Incommensurability
Problem
How can you evaluate the relative

strength of arguments of different types?
It is necessary to find a common frame

of reference to compare an argument of one
type to an argument of a different type.
37
The Values Served by the Different
Types of Legal Arguments
• Text – clarity and objectivity

• Intent – will of the people
• Precedent – consistency
• Tradition – coherence
• Policy – fulfilling values, achieving justice
38
Solution to the Incommensurability
Problem
Evaluate which of the fundamental values of

the legal system is most compelling in the
context of the particular case – clarity,
popular will, consistency, coherence, or
protecting values that
the law stands for.
39
Writing Persuasive Arguments and
Opinions
• Strengthen each argument within its type

• Make arguments of different types
• Weave arguments together so they
support each other – a cable not a chain
40
Trace Every Argument to Its Source
41
Blend Your Arguments Together
What sources of authority do you
find to be most persuasive?
Become aware of your own philosophy of

life, and understand how that affects your
interpretation of the law.
How do you tell right from

wrong?
42
Benjamin Cardozo
Benjamin Cardozo on James
“We are reminded by William James in a telling
page of his lectures on Pragmatism that every one of us
has in truth an underlying philosophy of life, even those
of us to whom the names and notions of philosophy are
unknown or anathema. There is in each of us a stream
of tendency, whether you choose to call it philosophy or
not, which gives coherence and direction to thought and
action. Judges cannot escape that current any more
than other mortals. All their lives, forces which they do
not recognize and cannot name, have been tugging at
them – inherited instincts, traditional beliefs, acquired
convictions; and the resultant is an outlook on life, a
conception of social needs, a sense in James’ phrase of
‘the total push and pressure of the cosmos,’ which, when
reasons are nicely balanced, must determine where
choice shall fall.” 43
End
44
Acknowledgements
• Artwork from Microsoft Clipart and www.clipart-free.com
• Permission Granted to Use Picture of River from
http://www.ambersoft.com/
45
Presentation Five:
The Stages of Legal
Reasoning:
Formalism, Analogy, and Realism
Wilson R. Huhn
© 2013
Tonight’s Presentation,
and How It Fits
The theory of The Five Types of Legal
Argument that was described in Presentations
One through Four is intensely practical for both
the study and the practice of law.
The theories on Formalism, Analogy and

Realism as set forth in Presentation Five are of
intellectual interest – a glimpse into the “deep
structure” of legal reasoning.
2
There Are Three Types of Legal
Reasoning
1. Formalism
2. Analogy
3. Realism
3
Why Are There Three Types of
Legal Reasoning?
The three types of legal reasoning satisfy

the different requirements for a system of
law.
4
Three Requirements for Any
System of Law
• The law must be logical in order to appeal

to reason
• The law must be consistent in order to

satisfy our sense of fairness
• The law must reflect morality in order to

command our obedience
5
How the Three Types of Legal
Reasoning Satisfy the
Requirements for a System of Law
• Formalism promotes objectivity and

certainty in the law
• Analogy promotes consistency and
coherence in the law
• Realism promotes flexibility and fairness in
the law
6
I. THE USE AND LIMITS
OF FORMALISM
(DEDUCTIVE LOGIC)
IN LEGAL ANALYSIS
7
Formalism
Formalism is the application of a rule

according to its terms to the facts of a
case.
8
Formalistic Reasoning Is
Deductive Logic
Law aspires to be logical in form, and clear

rules lend themselves to logical
application.
9
What Formalists Believe
Formalists consider law to consist of rules –

the blackletter law.
They believe that legal reasoning should be

purely logical.
They believe that there are “right answers”

in the law.
10
Cesare Beccaria and the
Legal Syllogism
“In every criminal case,
a judge should come to a
perfect syllogism:
the major premise
should be the general law;
the minor premise, the act
which does or does not
conform to the law;
and the conclusion,
acquittal or condemnation.”
Cesare Beccaria
11
(1738-1794)
Structure of Legal Rules
All legal rules take this form:
“If certain facts are true, then a certain legal

result applies.”
EXAMPLE: “If a person purposefully and without

justification or excuse causes the death of
another human being, then the person is guilty
of murder.”
12
What is a Syllogism?
• A syllogism is an argument of deductive logic.
• A syllogism has four parts:

– Question
– Minor Premise
– Major Premise
– Conclusion
Example of a Syllogism
Question: “Is Socrates mortal?”
Minor Premise: “Socrates is a human being.”
Major Premise: “All human beings are

mortal.”
Conclusion: “Socrates is mortal.”

The Brief of a Case Is a Syllogism
The four parts of a brief correspond
precisely to the four parts of a syllogism:
Issue ……………….. Question
Facts ……………….. Minor Premise
Law …………………. Major Premise
Holding ……………... Holding

The Brief of a Case Is
an Argument of Deductive Logic
The brief of a case is an argument of

deductive logic stated in categorical form –
a “syllogism.”
16
The Case of the Burglar
and the Sleeping Homeowner
If a burglar breaks into a home, sees the

homeowner sleeping on the couch, and
shoots the homeowner dead. If
apprehended, we would no doubt charge
the burglar guilty of murder. Murder is
defined as the act of “purposefully causing
the death of another human being without
justification or excuse.
17
Syllogism for the Burglar Case
Issue: Is the defendant guilty of murder?

Facts: The defendant is a burglar who
intentionally killed a sleeping homeowner to
reduce the risk of being caught.
Law: Any person who purposefully and without
another human being is guilty of murder.
Holding: The defendant is guilty of murder.
18
The Battered Spouse Case
A woman was horribly abused by her

husband for many years. One night he
came home drunk, waving a gun and
threatening to killer her. He then fell asleep
on the couch. She picked up the gun and
she shot him dead as he slept.
19
Syllogism for the
Battered Spouse Case
Issue: Is the defendant guilty of murder?

Facts: The defendant is a woman who had been
horribly abused by her husband for many years.
Shortly after he credibly threatened to kill her,
she shot him dead as he slept on the couch.
Law: Any person who purposefully and without
another human being is guilty of murder.
Holding: ?
20
Questioning Premises
In any logical syllogism, you may attack the

major premise or the minor premise.
In this case, the facts (the minor premise)

are not disputed.
The law, however, is not clear.

Two Ways to Attack the Major
Premise of a Legal Syllogism
• Questions of validity
– Is the major premise a correct statement of
the law?
• Questions of ambiguity
– Assuming that the statement of the law is
correct, are the terms contained in the rule
clear or are they ambiguous?
Questions of Validity
Is this a correct statement of the law?:
“A person who purposefully and without

justification or excuses causes the death of
another person is guilty of murder.”
Questions of Ambiguity
What do the terms “purposefully,”

“justification,” and “excuse” mean in the
context of this case?
Purposefullness
Issue: Did the defendant act purposefully?
Facts: The defendant is a woman who had
been horribly abused by her husband for
many years. Shortly after he credibly
threatened to kill her, she shot him dead
as he slept on the couch.
Law: ?
Holding: ?
25
Justification
Issue: Did the defendant act in self-
defense?
Law: ?
Holding: ?
26
Excuse
Issue: Was the defendant legally insane
when she killed her husband?
Law: ?
Holding: ?
27
The Reasoning in Judicial Opinions
Consists of Chains of Logical
Syllogisms
Example: Marbury v. Madison

Syllogisms Puzzle
Place the following legal syllogisms

from Marbury v. Madison in logical order.
Syllogism 1
Issue: Does the Supreme Court have original jurisdiction

to issue a writ of mandamus to the Secretary of State?
Fact: Section 13 of the Judiciary Act is not valid.
Law: The Supreme Court may exercise jurisdiction to

issue a writ of mandamus to the Secretary of State only if
Section 13 of the Judiciary Act is valid.
Holding: The Supreme Court lacks original jurisdiction to

issue a writ of mandamus to the Secretary of State.
30
Syllogism 2
Issue: Is Section 13 of the Judiciary Act valid?
Fact: Section 13 of the Judiciary Act is in

conflict with the Constitution.
Law: Statutes that are in conflict with the

Constitution are not valid.
Holding: Section 13 of the Judiciary Act is not

valid.
31
Syllogism 3
Issue: Are statutes that are in conflict with the
Constitution valid?
Fact: The framers intended for any statute in conflict

with the constitution to be invalid.
Law: The constitution is to be interpreted according

to the intent of the framers.
Holding: Statutes that are in conflict with the

Constitution are not valid.
32
Syllogism 4
Issue: Is Section 13 of the Judiciary Act in conflict with the
Constitution?
Fact: Section 13 of the Judiciary Act grants the Supreme Court

original jurisdiction to issue writs of mandamus to officers of the
United States, but Article III, Section 2, Clause 2 of the
Constitution prohibits Congress from granting the Supreme
Court original jurisdiction to issue writs of mandamus to officers
of the United States.
Law: If one law permits what another law forbids, the laws are in
conflict.
Holding: Section 13 of the Judiciary Act of the Constitution is in

conflict with the Constitution.
33
Syllogism 5
Issue: Does the Supreme Court have jurisdiction over
this case?
Fact: This is a case involving the Supreme Court's

exercise of original jurisdiction to issue a writ of
mandamus to the Secretary of State.
Law: The Supreme Court lacks original jurisdiction to

Holding: The Supreme Court lacks jurisdiction over this

case.
34
Syllogism 6
Issue: Does Article III, Section 2, Clause 2 of the Constitution prohibit
Congress from granting the Supreme Court original jurisdiction to issue
writs of mandamus to officers of the United States?
Fact: Unless Article III, Section 2, Clause 2 of the Constitution is

interpreted as prohibiting Congress from granting the Supreme Court
original jurisdiction to issue writs of mandamus to officers of the United
States, the second sentence of Clause 2 would be rendered
meaningless.
Law: The Constitution may not be interpreted in such a way as to

render any portion of it meaningless.
Holding: Article III, Section 2, Clause 2 of the Constitution prohibits

Congress from granting the Supreme Court original jurisdiction to issue
writs of mandamus to officers of the United States.
35
Syllogism 7
Issue: Is the Constitution to be interpreted according
to the intent of the Framers?
Fact: The intent of the Framers in drafting the

Constitution reflects the original will of the people.
Law: The original will of the people determines the

meaning of the Constitution.
Holding: The Constitution is to be interpreted

according to the intent of the Framers.
36
The Key to Solving the Puzzle
The holding of a previous syllogism in

the chain supplies the major or minor
premise of the next syllogism in the chain.
The Relation Among
Syllogisms 4, 3 and 2
Syllogism Four: Syllogism Two
Issue: Is Section 13 of the

Holding: Section 13 of Judiciary Act valid?
the Judiciary Act of the
Constitution is in Fact: Section 13 of the
conflict with the Judiciary Act is in conflict with
Constitution. the Constitution.
Law: Statutes that are in

Syllogism Three: conflict with the Constitution
are not valid.
Holding: Statutes that
are in conflict with the Holding: Section 13 of the
Constitution are not Judiciary Act is not valid.
38
valid.
The Progression of Syllogisms from
General to Specific
Base 7 3 Specific
Premises 6 4 2 1 5 Result
F F
6H 4H
L L F F F
2H 1H 5H
F F L L L
7H 3H
L L
40
The Final Syllogism
Syllogism No. 5:
Issue: Does the Supreme Court have jurisdiction over

this case?
Fact: This is a case involving the Supreme Court's

exercise of original jurisdiction to issue a writ of
mandamus to the Secretary of State.
Law: The Supreme Court lacks original jurisdiction to

Holding: The Supreme Court lacks jurisdiction over

this case. 41
The Initial Assumptions
Syllogism 6
Law: The Constitution may not be
interpreted in such a way as to render
any portion of it meaningless.
Syllogism 7:
Law: The original will of the people
determines the meaning of the
Constitution.
42
But Law is Not Purely Logical
In Marbury, Justice Marshall used a number

of other arguments, including policy arguments,
to support the conclusion that the Court had the
power to declare laws unconstitutional.
The Difference Between Easy
Cases and Hard Cases
Easy cases may be solved formalistically,
deductively, by applying a clear rule of law to
unambiguous facts. (Burglar and sleeping
homeowner case)
Hard cases are cases where the validity or the

meaning of the rule of law is in question. (Battered
spouse case)
Why Are There Hard Cases?
It may not be clear what the rule of law applies.
The applicable rule of law may be ambiguous.
Different types of legal arguments may yield

different answers as to what the law is
The resolution of the case may depend upon

identifying the different values that are at stake
and balancing these competing policy goals
Legal Reasoning is Logical in
Form, but Evaluative in Substance
“In form, the growth of the law is logical ….

On the other hand, in substance
the growth of the law … is in fact and
at bottom the result of more or less
definitely understood views of public
policy.”
Oliver Wendell Holmes

Stage Theory of Legal Reasoning
In hard cases, courts proceed from

formalism, to analogy, to realism, in order
to resolve the case.
47
II. FORMALISM, ANALOGY,
AND REALISM IN LEGAL
ANALYSIS
48
Analogy
Analogy is the application of a rule to a case

because the facts of the case are similar
to the fact portion of the rule.
49
Edward Levi on
“The basic pattern of legal reasoning

is reasoning by example. It is
reasoning from case to case.
It is a three-step process ….”
50
Levi – The Three Steps
of Legal Analogies
“The steps are these: similarity is seen

between cases; next the rule of law
inherent in the first case is announced;
then the rule of law is made applicable to
the second case.”
51
Three Gestational Surrogacy
Cases
1. In re Baby M (Formalism)
2. Johnson v. Calvert (Analogy)
3. Buzzanca v. Buzzanca (Realism)
52
1. The Baby M. Case
Facts: In this case, because Mrs. Stern was
unable to conceive, Mr. Stern impregnated
another woman, Mary Beth Whitehead,
who had agreed to serve as a “surrogate”
and to give up the child to the couple.
After Mrs. Whitehead gave birth she
changed her mind and attempted to keep
the child, claiming that she was the child’s
mother under the law.
53
Formalist Analysis in Baby M.
Issue: Is Mrs. Whitehead the lawful mother
of the child?
Facts: Mrs. Whitehead gave birth to the
child.
Law: A woman who gives birth to a child is
the lawful mother of the child.
Holding: Mrs. Whitehead is the lawful
mother of the child.
54
2. Johnson v. Calvert
Facts: A married couple, Mark and Crispina

Calvert, could produce gametes but Mrs. Calvert
could not carry a pregnancy. An embryo was
created from their egg and sperm, and the
couple entered into a contract with Mrs. Johnson
and her husband for the embryo to be implanted
into Mrs. Johnson and for her to carry the child
to term and to give the child to the Calverts.
Upon the birth of the child, Mrs. Johnson
changed her mind, and sought to keep the child.
Issue: Who is the mother in the eyes of the law?
55
Formalism
Based upon the rule that “The woman who

gives birth to a child is the lawful mother of
the child,” the formalist analysis would still
find that Mrs. Johnson is the lawful mother
of the child.
56
But …
If you find the formalist analysis

unsatisfactory because the people who
drafted the rule did not intend for it to
apply to a case of gestational surrogacy,
then you might look for other rules of law
that you could apply by analogy …
57
We could draw an analogy to the law of
contract
We could draw an analogy to adoption law.
We could draw an analogy to constitutional

law
58
Analogy to the Law of Contract
Is the surrogacy contract more like a
contract for the sale of goods or a contract
for the sale of services?
• If it is a sale of goods then the contract is
invalid because babyselling is illegal.
• If it is a sale of services then it can be
argued that the sale of pregnancy services
is lawful.
59
Analogy to Adoption Law
Is the arrangement between the surrogate and the
married couple more like a private adoption or
more like foster parenthood?
• If it is more like an adoption then the
arrangement is illegal, because the birth mother
must be given a chance to refuse to give up her
child following birth
• If it is more like foster parenthood, then the
child’s real parents may demand the return of
the child
60
Analogy to Constitutional Law
Is the work of serving as a gestational surrogacy
more like prostitution or slavery or is it simply a
legitimate job?
• If it is more like prostitution or slavery (forms of
exploitation) then the government can prohibit
contracts regarding the practice.
• If it is a legitimate service, then women and
couples should have the right to enter into these
arrangements and they should be enforced.
61
Result in Johnson v. Calvert
The court found that the surrogacy

agreement was not a contract for the sale
of a baby but rather was a contract for the
sale of gestational services, and it
enforced the agreement.
62
Realism
Realism is the development of a new rule of

law by balancing all of the relevant
interests and values that are at stake.
63
The Two-Part Structure
of Policy Arguments


consequences consistent with the
underlying purposes of the law?
64
3. Buzzanca v. Buzzanca
Luanne and John Buzzanca were both infertile. They
entered into agreements with an egg donor and a sperm
donor and a gestational surrogate to have the donated
embryo, genetically unrelated to either of them,
implanted into a gestational surrogate. John filed for
divorce one month before the child (Jaycee) was born. In
the divorce case, he claimed that he and Luanne were
not Jaycee's legal parents, while Luanne contended that
they were the legal parents. The surrogate who bore
Jaycee delivered her to Luanne and made no claim of
parentage.
65
Formalist Analysis
in Buzzanca
The trial court used formalist analysis and yet
made an unprecedented decision – he ruled that
Jaycee was born without legal parents. In
finding that Luanne was not the lawful mother,
the court stated:
“One, there's no genetic tie between Luanne and

the child. Two, she is not the gestational mother.
Three, she has not adopted the child. That,
folks, to me, respectfully, is clear and convincing
evidence that she's not the legal mother.”
66
Analogical Reasoning
in Buzzanca
The appellate court reviewed several of the
analogies that had been used in Johnson v.
Calvert, but found that they were not applicable
because there was no genetic relation between
the wife and the child in this case. It did find an
analogy that it thought appropriate – because
the husband had consented to the creation of
the embryo, it found this case analogous to a
husband’s consent to artificial insemination by
donor (AID) of his wife, and ruled that John and
Luanne were Jaycee’s lawful parents.
67
But …
If you find that none of the analogies to other

cases is particularly persuasive, then you
might find it necessary to develop a new
rule of law …
68
Realist Analysis
Using realism, a court balances all of the

relevant values and interests that are at
stake in developing a new rule of law and
arriving at a conclusion.
69
Values to Be Considered in
Developing a Parentage Rule for
Gestational Surrogacy Cases
• Protecting the intentions of the parties to a
contract or their consent to a procedure
• Guarding against the exploitation of women’s
bodies
• Establishing certainty in the law of parentage
• Preserving the opportunity for infertile couples to
procreate
• Protecting the rights of birth mothers and genetic
parents
• Protecting the best interests of children
• Protecting the rights of women to work 70
How Were the Foregoing
Values Discovered?
In the course of searching for

analogous cases – cases that have similar
facts or cases that involve a similar
constellation of values – we will identify the
values that are at stake in the case at hand.
71
Progression from Formalism, to
Analogy, to Realism
• Easy cases can be resolved
formalistically, by the application of an
existing rule according to its terms.
• In harder cases, where existing rules do
not literally apply, an existing rule may be
applied by analogy.
• In the hardest cases, where no existing
rules apply according to their terms or by
analogy, a new rule must be developed.
72
Analogy is the Bridge Between
Formalism and Realism
• In the easiest cases, courts use formalism – applying
rules according to their terms.
• In somewhat harder cases, courts use formalist
analogies – applying the rules of cases which are very
similar on the facts.
• In still harder cases, courts draw realist analogies to
cases which have similar values and interests at stake –
applying the rules of those cases to the case to be
decided.
• In the hardest cases of all, courts balance all of the
relevant values and interests identified in the previous
stage to develop a new rule to decide the case.
73
in Progressively Harder Cases
Formalism
Formalist Analogies
Realist Analogies
Realism
74
III. Lessons from the Field of
Developmental Psychology
Developmental psychologists have

observed the same progression from
formalism, to analogy, to realism in the
cognitive and moral capacity of the human
being.
75
Ernst Haeckel
Ontogeny recapitulates phylogeny
The physical development of the

individual goes through the same
stages as the development
of the species.
76
G. Stanley Hall
The psychological and social

development of the individual
retraces the development
of the human species.
77
James Mark Baldwin
Assimilation
and
Accommodation
78
Assimilation and Accommodation
Assimilation involves the person’s dealing

with the environment in terms of his
structures, while accommodation involves
the transformation of his structures in
response to the environment.
79
Jean Piaget
Stages of
Cognitive
Development
80
Piaget’s Stages of Cognitive
Development
• Sensorimotor Period (birth – 2 years)

• Preoperational Period (2 – 7)
• Concrete Operational Period (7 – 12)
• Formal Operational Period (after 12)
81
Reasoning by Analogy Appears to
Bridge Concrete Operations and
Formal Operations
• At about age 9, children learn to draw concrete

analogies between physical objects
• At about age 11, children learn to draw abstract
analogies between physical objects
• At about age 13, children learn to draw abstract
analogies between abstract concepts
82
Concrete Analogy Between
Physical Objects
Ink is to pen as paint is to ________
color
spray
brush
paper
83
Abstract Analogy Between Physical
Objects
Food is to body as water is to ______
storm
coat
ground
84
Abstract Analogy Between Abstract
Objects
Task is to ____________ as problem is to

solution.
attempt
completion
work
end
question
85
Laurence Kohlberg
Stages of
Moral
Development
86
Kohlberg’s Stages of Moral
Development
• Preconventional Thought (sensorimotor and preoperational period)
– Person learns to obey rules
– Stage 1 - Pleasure seeking, responds to reward or punishment
• Toddler or criminal mentality
– Stage 2 - Concept of bargain
• Deal, reciprocal obligation
• Conventional Thought (period of concrete operations)
– Person acquires the concept of “duty”
– Stage 3 - Follows rules to gain love and acceptance and avoid guilt
• “good boy,” “nice girl”
– Stage 4 - Follows rules because of sense of group identity
• “good citizen”
• Postconventional Thought (period of formal operations)
– Stages 5 and 6 – Person can evaluate the fairness of rules based on
considerations of consequences and application of universal precepts
87
Carol Gilligan’s Critique of
Kohlberg’s Theory
Gilligan contends that Kohlberg

missed “the heart” of moral
reasoning.
88
Carol Gilligan’s Ethic of Care
Gilligan characterized difficult moral

questions as arising from conflicting duties
or responsibilities to others, rather than
purely intellectual puzzles
Gilligan’s followers believe that moral

development depends on developing the
capacity for empathy
89
Ontogeny Recapitulates
Phylogeny
Ernst Haeckel’s insight into embryology

stimulated the science of child development.
The development of reasoning powers

in the individual also follows this path – from
formalism, to analogy, to realism
90
in Progressively Harder Cases
Formalism
Formalist Analogies
Realist Analogies
Realism
91
IV. THE STAGES OF LEGAL
REASONING IN THE
EVOLUTION OF RULES AND
STANDARDS
Rule:
“Drive at the Posted Speed Limit”
Rules are clear, arbitrary, and are applied

formalistically.
To apply a rule, we simply ask what are the

facts, and does the rule apply to the facts?
93
Standards
“Proceed cautiously on yellow light”
Standards are ambiguous, fair, and are

applied realistically.
To apply a standard, we must ask what are

the facts, what are the underlying values
and interests to be considered, and how are
those values and interests involved in the
case to be decided?
94
Evolution of a Rule into a Standard
Rules evolve into standards as the courts

recognize exceptions to a rule. As exceptions
accumulate, the courts may recognize an
underlying policy that determines whether to
recognize the exception to the rule. Eventually,
it is easier to state the law in terms of the
standard rather than in terms of the rule and its
many exceptions.
95
Example of a Rule
Turning into a Standard
Imagine yourself as a judge in traffic court for
20 years. Over that time, you have tried thousands
of cases. In many of those cases people had good
excuses for exceeding the posted speed limit –
taking an injured relative to the hospital, or you are
being chased by a dangerous criminal. You will have
developed a standard that people should obey the
posted speed limit except in emergencies where
speed is essential.
Because of the similarities among the
underlying reasons (values) justifying these
exceptions, a rule will evolve into a standard.
96
Evolution of a Standard into a Rule
Standards evolve into rules as the courts

acquire experience interpreting the
standard. Factual similarities between the
cases applying the standard may allow the
law to be articulated in terms of a rule.
97
Example of Standard Evolving Into
a Rule
Imagine yourself again as a long-time judge in

traffic court, and the applicable law is a
standard that “Automobiles may proceed at a
reasonable rate of speed.” After thousands
of cases you will know that in good weather a
reasonable rate of speed on country roads is
between 40 and 55 miles per hour.
Because of the factual similarities among the
various applications of the standard, a
standard will evolve into a set of rules.
98
Another Example of a Standard
Evolving Into a Rule
Congress adopted the residual exception to the
rule against hearsay in Rule 807, admitting
statements which have “equivalent
circumstantial guarantees of trustworthiness” as
the other hearsay exceptions and which are
more probative of a material fact than any other
evidence. As the courts interpret this standard,
there may emerge factual similarities in cases
where the residual exception is recognized, such
as the admission of grand jury testimony in
certain circumstances. At some point in time, it
may be easier to express the law in terms of
rules rather than as a standard.
99
Analogy is the Bridge Between
Formalism and Realism
• As rules evolve into standards, the courts

draw realist analogies among all of the
cases making exceptions to the rules.
• As standards evolve into rules, the courts
draw formalist analogies among all of the
cases applying the standards.
100
Realist Analogies and Formalist
Analogies Help the Law to Evolve
• Cases creating exceptions to rules
Realist Analogies Standards
• Cases interpreting standards

Formalist Analogies
Rules
101
Why Are There Three Stages of
Legal Reasoning?
• Formalism promotes objectivity and

certainty in the law
• Analogy promotes consistency and
coherence in the law
• Realism promotes flexibility and fairness in
the law
102
Not Hierarchical Stages,
But Stages of a Cycle
Formalism
Realism Analogy
103
END
104

5 - Types of Legal Arguments

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The Five Types of Legal Argument

Design Assistance by Patrick Tabatcher

Felix Frankfurter Sandra Day O’Connor

Common Fallacies: Ad hominem attacks, namecalling,

Hugo Black Antonin Scalia 33

“Plain Meaning” means that the law is

“Terms of Art” – words that

For purposes of this section … the term

As used in this chapter … the term

Other laws are vague and general – these

• Standards are easy to create but difficult to apply

• Standards are applied realistically

Equal Protection: Persons who are “similarly situated”

The Law of Tort: Persons must act according to what

… including two other types of textual

“Ambiguous words in a contract that is drafted

Remedial statutes must be broadly construed.

Is your cat welcome?

So “Dogs Allowed” means

So “Dogs Allowed” means

Dispositive Choice in Marbury:

Look to one portion of legal text to

Congress shall have power to make all Laws which

Article I, Section 10, Clause 2:

not Article I, Section 9 (the

In Presentation Two we shall look at the

Intent, Precedent, and Tradition

The Signing of the Constitution 5

If you had to choose just one, which is

This argument is simple and

As we saw earlier, arguments based on

• The text of the law itself or preamble

Article II, Articles of Confederation:

Each state retains its sovereignty, freedom, and

Records of comments and remarks on the

House and Senate committee reports

Transcripts of hearings before legislative

Advisory Committee Notes for the

Official Comments to the Uniform

News stories and editorials

Speeches, press releases, blog entries,

Other statements or testimony

Another common problem with

Did the framers of the Equal Protection

Did the Framers intend that Congress

The “common law” is that law that

Originally there were no written

Law was originally conceived as the will

Coke labored for the principle that

Both stood for the principle of judicial

In addition to codification, our law has

Today, the common law (judge-made

Even though most areas of the law are

The courts also

The courts perform one other function

In the United States, the courts have

The principle of “stare decisis” is what

“Stare decisis” means “to stand by the

has interpreted the law in

that law the same way. 36

Vertical stare decisis is a binding

The courts interpret the law

In law, to cite precedent is to assert