

###  Table of Contents

jailhouse logic : notes on legal reasoning and argument

  1.  Preface 
  2.  Legal Argument 
    *  Elements of an Argumentative Sequence 
    *  stasis critical dialogue 
    *  cicero- types and kinds 
    *  argument as sequence
    *  Claim as Set Intersection 
    *  Set Schema for a Categorical Argument 
    *  Toulmin Model- Data, Warrant-Bridge
  3.  Informal schemes 
    *  Abduction
    *  Argument From Sign
    *  Argument From Example
    *  Verbal Classification 
    *  Argument From Commitment 
    *  Argument From Expert Opinion 
    *  Argument From Evidence 
    *  Other argumentative schemes 
    *  example schemes
  4.  Aristotelian Rhetorical Enthymemes 
    *  qualitative opposites
    *  essence of terms
    *  _a fortiori_ 
    *  division and exclusion 
    *  inconsistency and alternatives 
    *  consequences 
    *  disproving the cause 
    *  spurious enthymeme 
    *  _Post hoc ergo propter hoc_ 
    *  omitted premise 
    *  polysyllogism 
  5.  Arguing from Implication 
    *  necessity 
    *  sufficiency 
    *  necessary AND sufficient 
    *  exclusive-or XOR to 
    *  tables of truth 
  6.  Arguing From Proposition 
    *  Modus ponendo ponens  \- mode that by affirming, affirms. 
    * Fallacy of  Affirming the consequent 
    *  Modus tollendo tollens  \- mode that by denying, denies. 
    * Fallacy of  Denying the antecedent 
    *  Modus ponendo tollens  \- mode that by affirming, denies. 
    *  Modus Tollendo Ponens  \- Disjunctive Syllogism 
    *  Reasoning From Oppositions
  7.  Fom Category 
    *  Law and the Syllogism 
    *  The Grammar of a Categorical Proposition 
    *  Quantity Quality Distribution 
    *  Premises as Set Relations 
    *  Table of Propositional Characteristics 
  8.  The Four Categorical Forms as Joined Sets 
    *  rVenn rectangular Venn diagrams 
  9.  From Premises 
    *  Categorical Syllogism 
    *  Figures of Term Arrangement
    *  Syllogisms as Set Intersections
      *  Mood BARBARA AAA-1 
      *  Mood CELARENT EAE-1 
      *  Mood FERIO EIO-1 
      *  Mood DARII AII-1
  10.  From faulty Premise Sets 
    *  Inconclusive Premises
    *  Syllogistic Fallacies
    *  The Fallacy of the Undistributed Middle Term
      *  Premises IA-1
      *  Premises AA-2
      *  Premises IO-3
      *  Premises AO-4
    *  The Fallacy of the Illicit Major / Illicit Minor Terms 
      *  Illicit Major AE-1
      *  Illicit Minor AA-4
  11.  The Domain of Logical Functions - Legal Context 
    *  Rules, Precedent
    *  narrowing
    *  Authority 
    *  Analogy 
    *  Common Law 
    *  Realism, Canons, Opinions 
    *  Specificity, Facts, Burden of Proof 
  12.  modes of practice 
    *  Types of Legal Argument 
    *  Legal Analysis Checkpoints 
    *  Arguing from jurisdiction,text, precedent 
    *  Ex Ante v. Ex Post 
    *  Type Text 
    *  Type Intent 
    *  Type Precedent 
    *  Type Tradition 
    *  Some Canons of Statutory Interpretation 
  13.  CRRACC 
  14.  Latin Glossary 
  15.  Tool Box 
  16.  End Notes

Back  contents

###  Legal Argument as Dialogue

To best understand the domain of legal argument, We begin with some elements of a critical dialogue, which we will apply to a classical example from Cicero. We will begin with some definitive elements, then document an example dialogue illustrative of the concepts, then proceed to summarize -excerpt cicero on important questions in the process of dialogue.

###  Elements of an Argumentative Sequence, Walton [c1]

  * A _dialogue_ is an orderly sequence of exchanges between two participants where each participant has a goal and the dialogue, as a whole, has some information goal. 
  * The argumentation stage of a dialogue is best thought of as a _sequence_ of connected sub-arguments, 
  * The participants may rely on a _presupposition_ a shared known or accepted statement, on a _presumption_ , a tentatively accepted statement which is presumed for the sake of argument. The presumption has an associated burden of proof between an unverified assertion and a supposition. 
  * The dialogue develops towards its information goal as participants develop and extend a set of _commitments_ , committed presumed propositions and tentative conclusions. The audience will infer its own estimate of unstated and stated commitments. 
  * The duty of the advocate in the dialogue then is to arrange sub-arguments as collections. These collections might include explicit, or merely implied presuppositions, and presumptions. presumptions as premises that imply an informal inference of a conclusion which if accepted as reasonable becomes a new presumption - commitment allowing the argument to proceed. The sequence of the dialogue then proceeds from the last commitment, a _defeasible_ ( can be defeated with new information) tentative conclusion. The previous commitments are used as premises for the following sub-arguments in the sequence. 
  * In this context, legal reasoning, from the Latin _rationem_ i> (nominative _ratio_ ) " reckoning, motive, cause" is the reckoning of a causal relationship between a sub-argument premises and its conclusion. From a rhetorical advocate's perspective this becomes the assembly of premises that imply the desired conclusion.

Below we have an example of a classical argumentative legal dialogue. It illustrates some of the elements above.

###  Ciceronian Stasis - A deliberative Scheme [c2]

_Stage_ |  _#_ |  _Speech_ |  _Notes_  
---|---|---|---  
Prosecutor  |  1  |  You killed your Mother.  |  Presupposition, or presumption if not yet committed   
Defense  |  1  |  I killed her justly.  |  Commitment to previous 'killing' presumption, becomes presupposition;Sub-argument, Presumption of Exculpatory "Just" rationale, but no backing   
Justice (Question- _zêtêma_ )  |  1  |  Did he kill her justly ?.  |  Audience perception of missing rationale   
Defense (Cause - _aition_ )  |  2  |  For she killed my father.  |  Answering the burden of proof for the previous presumption, not yet accepted, defeasible.   
Prosecutor  |  2  |  But your mother should not have been killed by you, her son;her crime could have been punished without committing a crime.  |  Presumption of revenge killing rationale accepted becomes shared commitment, but 'Just' ?   
Justice (A subject for decision - _krinomenon)_ |  2  |  Was it right for Orestes to kill his mother because she had killed his father ?  |  Exculpatory retort poses decision of justice.   
Defense (crucial point - _sunekhon_ )  |  3  |  My mother's disposition was such that her children above all were bound to exact the penalty.  |  Revenge matricide now shared commitment, but question of crime persists. Further rationale of family responsibility for punishment attempted as reply to

Heath,Substructure of Stasis, see ref.

_A Definition :_  demurreri  \- a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit.

In the dialogue above illustrating the Walton elements first defined, there are examples of questions requiring adjudication where Cicero has commented:

###  Cicero on questions of fact and definition

> ###  types of questions
> 
> VIII. Every subject which contains in itself any controversy existing either in language or in disputation, contains a question either about a fact, or about a name, or about a class, or about an action. Therefore, that investigation out of which a cause arises we call a stating of a case. A stating of a case is the first conflict of causes arising from a repulse of an accusation; in this way. "You did so and so;"--"I did not do so;" --or, "it was lawful for me to do so." When there is a dispute as to the fact, since the cause is confirmed by conjectures, it is called a conjectural statement. But when it is a dispute as to a name, because the force of a name is to be defined by words, it is then styled a definitive statement. But when the thing which is sought to be ascertained is what is the character of the matter under consideration, because it is a dispute about violence, and about the character of the affair; it is called a general statement. But when the cause depends on this circumstance, either that that man does not seem to plead who ought to plead, or that he does not plead with that man with whom he ought to plead, or that he does not plead before the proper people, at the proper time, in accordance with the proper law, urging the proper charge, and demanding the infliction of the proper penalty, then it is called a statement by way of demurrer; because the arguing of the case appears to stand in need of a demurrer and also of some alteration. And some one or other of these sorts of statement must of necessity be incidental to every cause. For if there be any one to which it is not incidental, in that there can be no dispute at all; on which account it has no right even to be considered a cause at all.

_Aside:_ case- a dispute about a fact, name, a class ( set, category) or an action, of type:

  * conjectural , factual 
  * naming, definitive 
  * general 
  * demurral, jurisdictional

> _Facts_
> 
> And a dispute as to fact may be distributed over every sort of time. For as to what has been done, an inquiry can be instituted in this way--"whether Ulysses slew Ajax;" and as to what is being done, in this way--"whether the people of Tregellae are well affected towards the Roman people; "and as to what is going to happen, in this way--" if we leave Carthage uninjured, whether any inconvenience will accrue to the republic." 
> 
> _Naming_
> 
> It is a dispute about a name, when parties are agreed as to the fact, and when the question is by what name that which has been done is to be designated. In which class of dispute it is inevitable on that account that there should be a dispute as to the name; not because the parties are not agreed about the fact, not because the fact is not notorious, but because that which has been done appears in a different light to different people, and on that account one calls it by one name and another by another. Wherefore, in disputes of this kind the matter must be defined by words, and described briefly; as, for instance, if any one has stolen any sacred vessel from a private place, whether he is to be considered a sacrilegious person, or a simple thief. For when that is inquired into, it is necessary to define both points--what is a thief, and what is a sacrilegious person,--and to show by one's own description that the matter which is under discussion ought to be called by a different name from that which the opposite party apply to it.

> ###  about kind
> 
> IX. The dispute about kind is, when it is agreed both what has been done, and when there is no question as to the name by which it ought to be designated; and nevertheless there is a question of what importance the matter is, and of what sort it is, and altogether of what character it is; in this way,--whether it be just or unjust; whether it be useful or useless; and as to all other circumstances with reference to which there is any question what is the character of that which has been done, without there being any dispute as to its name. Hermagoras assigned four divisions to this sort of dispute: the deliberative, the demonstrative, the judicial, and the one relating to facts. And, as it seems to us, this was no ordinary blunder of his, and one which it is incumbent on us to reprove; though we may do so briefly, lest, if we were to pass it over in silence, we might be thought to have had no good reason for abandoning his guidance; or if we were to dwell too long on this point, we might appear to have interposed a delay and an obstacle to the other precepts which we wish to lay down. 
> 
> If deliberation and demonstration are kinds of causes, then the divisions of any one kind cannot rightly be considered causes; for the same matter may appear to be a class to one person, and a division to another; but it cannot appear both a class and a division to the same person. But deliberation and demonstration are kinds of argument; for either there is no kind of argument at all, or there is the judicial kind alone, or there are all three kinds, the judicial and the demonstrative and the deliberative. Now, to say there is no kind of argument at the same time that he says that there are many arguments, and is giving precepts for them, is foolishness. How, too, is it possible that there should be one kind only, namely the judicial, when deliberation and demonstration in the first place do not resemble one another, and are exceedingly different from the judicial kind, and have each their separate object to which they ought to be referred. It follows, then, that there are three kinds of arguments. Deliberation and demonstration cannot properly be considered divisions of any kind of argument. He was wrong, therefore, when he said that they were divisions of a general statement of the case.

_Aside:_ _Hermagoras_ \- kinds of arguments

  * deliberative 
  * demonstrative 
  * judicial 
  * factual

> ###  what is the statement of the case 
> 
> X. ... But a deliberative argument, both as to the same portion of it and also at the same time, very frequently has a statement of its case both conjectural, and general, and definitive and in the nature of a demurrer; and at times it contains only one statement, and at times it contains many such. Therefore it is not itself a statement of the case, nor a division of such statement: and the same thing must be the case with respect to demonstration. These, then, as I have said before, must be considered kinds of argument, and not divisions of any statement of the subject.

> #####  questions answered 
> 
> XI. This statement of the case then, which we call the general one, appears to us to have two divisions,--one judicial and one relating to matters of fact. The judicial one is that in which the nature of right and wrong, or the principles of reward and punishment, are inquired into. The one relating to matters of fact is that in which the thing taken into consideration is what is the law according to civil precedent, and according to equity; and that is the department in which lawyers are considered by us to be especially concerned.

_Aside:_ 2 types og general

  * general judicial ( question of guilt and punishment) 
  * general factual ( equity, precedent specific to the case)

> _absolute and assumptive_
> 
> And the judicial kind is itself also distributed under two divisions,--one absolute, and one which takes in something besides as an addition, and which may be called assumptive. The absolute division is that which of itself contains in itself an inquiry into right and wrong. The assumptive one is that which of itself supplies no firm ground for objection, but which takes to itself some topics for defence derived from extraneous circumstances. And its divisions are four, --concession, removal of the accusation from oneself, a retorting of the accusation, and comparison. Concession when the person on his trial does not defend the deed that has been done, but entreats to be pardoned for it: and this again is divided into two parts,--purgation and deprecation. Purgation is when the fact is admitted, but when the guilt of the fact is sought to be done away. And this may be on three grounds,--of ignorance, of accident, or of necessity. Deprecation is when the person on his trial confesses that he has done wrong, and that he has done wrong on purpose, and nevertheless entreats to be pardoned. But this kind of address can be used but very rarely.

_Aside:_ general judicial

  * absolute-inquiry into right and wrong 
  * assumptive-derived from extraneous, defenses 
    * concessions 
    * removal 
    * retorting 
    * comparison ( for leniency? )

> _removal retort comparison_
> 
> Removal of the accusation from oneself is when the person on his trial endeavours by force of argument and by influence to remove the charge which is brought against him from himself to another, so that it may not fix him himself with any guilt at all. And that can be done in two ways,--if either the cause of the deed, or the deed itself, is attributed to another. The cause is attributed to another when it is said that the deed was done in consequence of the power and influence of another; but the deed itself is attributed to another when it is said that another either might have done it, or ought to have done it. The retorting of an accusation takes place when what is done is said to have been lawfully done because another had previously provoked the doer wrongfully. Comparison is, when it is argued that some other action has been a right or an advantageous one, and then it is contended that this deed which is now impeached was committed in order to facilitate the accomplishment of that useful action. 
> 
> _jurisdictional_
> 
> In the fourth kind of statement of a case, which we call the one which assumes the character of a demurrer, that sort of statement contains a dispute, in which an inquiry is opened who ought to be the accuser or pleader, or against whom, or in what manner, or before whom, or under what law, or at what time the accusation ought to be brought forward; or when something is urged generally tending to alter the nature of, or to invalidate the whole accusation. Of this kind of statement of a case Hermagoras is considered the inventor: not that many of the ancient orators have not frequently employed it, but because former writers on the subject have not taken any notice of it, and have not entered it among the number of statements of cases. But since it has been thus invented by Hermagoras, many people have found fault with it, whom we considered not so much to be deceived by ignorance (for indeed the matter is plain enough) as to be hindered from admitting the truth by some envy or fondness for detaction.

_Cicero, Inventione. 1. 8-11_ also, _The Substructure of Stasis-theory_ , see references.

Schematically we are describing a sequence of affirmations and responses with an evolving set of knowledge commitments. The task of the advocate is to use sub-argument to move the commitment set forward towards an agreed set or propositions that are persuasive to the audience on the issue of decision. This concept from cicero becomes important in later discussion on so called 'commitments' , evolving information sets in arguments.

###  Argument as Sequence

 _schema_ : an argumentative sequence of ub-arguments

###  Argument Claim as Set Intersection Assertion

Before proceeding to the idea of sub argument warrants (Toulmin), it might be helpful to introduce the schematics of categories. In the above dialogue, there is an attempt to place the lement in the category of a killing , labeled _S_ into the category (set) of excused crimes _P_. So the argument looks for premises that would place this particular element, member of the set, of killings, into an intersection set _S ∩ P ._ with excused crimes, as we illustrate below.

###  Stasis Claim as Set Intersection

 _schema_ : categorical argument in cicero

In the field of english composition, rhetoric, there is also an application of the cicero framework of argument in dialogue. Some salient features are discussed here:

####  ciceronian concepts in rhetorical argument

 Zetema  issue, points of disagreement

---  
 Aition  cause, fault

 krinomenon  \- subject to decision, the product of dialectic between contradictory utterances.

_sunekhon_ \- defendant's response, in the triad of _stasis_

-Hermagoras' theory contains a "triad," "aition-sunekhon-krinomenon" We know this triad indicates the following system: the prosecution's charge; followed by the defendant's response— a conceding, but also a presentation of a proposition of justification; then, a question is ascertained for the jury. This type of disputation leads into another round, or "phase," of "conflicting propositions" that defined for the jury another central issue, or stasis, see K. Ware, ref.

Hermagoras' four basic questions:

  * Fact – Did something happen? What are the facts? Is there a problem/issue? How did it begin and what are its causes? What changed to create the problem/issue? Can it be changed? 
  * Definition – What is the nature of the problem/issue? What exactly is the problem/issue? What kind of a problem/issue is it? To what larger class of things or events does it belong? What are its parts, and how are they related? 
  * Quality – Is it a good thing or a bad thing? How serious is the problem/issue? Whom might it affect (stakeholders)? What happens if we don't do anything? What are the costs of solving the problem/issue? 
  * Policy – Should action be taken? Who should be involved in helping to solve the problem/address the issue? What should be done about this problem? What needs to happen to solve this problem/address this issue? (Brizee)

Stasis, BYU rhetoric, see ref.

some concepts we've introduced, mainly identification of questions involved in a critical dialogue - argument:

  * dialogue, sequence of sub argument, presupposition,presumption, commitments, and defeasibility 
  * rationale, backing, zetema - issue,

Aition - cause, dialectic,

krinomenon - subject to decision, triad of stasis ( charge, response-concession-proposition, a question )

  * questions of fact, definition , quality-seriousness, policy 
  * questions of: general judicial, general factual, absolute-inquiry, assumptive, jurisdiction. 
  * arguing from sets-categories .

This is a classical macro view from above, whereas the machinery of the sub argument is more detailed micro in perspective, the major focus of the tools described in this text. The superscript reference links to the end notes provide additional readings and citations. Next are summaries of the Toulmin model, aristotle's rhetoric , informal defeasible argumentation.

###  References [c1] [c2]
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###  Toulmin Model of Argument [t1]

Professor Toulmin introduced a perspective on argument useful for considering all types of reasoning including informal means later considered by Professor Walton.

###  Toulmin: Warrant with Backing

 _schema_ : toulmin model of argument

Whereas a formal logical analysis uses the dichotomy of premises and conclusions when analyzing arguments, Toulmin distinguishes six different kinds of elements: Data, Claim, Qualifier, Warrant, Backing and Rebuttal.

###  The Toulmin Argument Model

  * Elements: 
    * _Claim_ : The Claim is the original assertion that we are committed to and must justify when challenged (97/90). It is the starting point of the argument. [But there may be warrant-establishing arguments, not just warrant-using arguments.]

    * _Datum_ : The Datum provides the basis of the claim in response to the question: What have you got to go on? (97–8/90)

    * _Warrant_ : The Warrant provides the connection between datum and claim. A warrant ex- presses that '[d]ata such as D entitle[s] one to draw conclusions, or make claims, such as C'. Warrants are 'general, hypothetical statements, which can act as bridges, and autho- rise the sort of step to which our particular argument commits'. They are 'rules, principles, inference-licences or what you will, instead of additional items of information'. (98/91) Qualifier: The Qualifier indicates the strength of the step from datum to claim, as conferred by the warrant (101/94)

    * _Backing_ : The Backing shows why a warrant holds. Backing occurs when not a particular claim is challenged, but the range of arguments legitimized by a warrant (103–4/95–6). Rebuttal: A Rebuttal can indicate 'circumstances in which the general authority of the war- rant would have to be set aside' or 'exceptional circumstances which might be capable of defeating or rebutting the warranted conclusion' (101/94).

  * Features: 
    * Many, if not most, arguments are substantial, even defeasible 
    * Standards of good reasoning and argument assessment are not universal, but context-dependent 
    * Logic is generalised jurisprudence

#### illustration:

Datum: Anne is one of Jack's sisters. Claim: Anne has red hair. Warrant: Any sister of Jack's will (i.e. may be taken to) have red hair. Backing: All his sisters have previously been observed to have red hair. Qualifier: Presumably Rebuttal: Anne has dyed/gone white/lost her hair ...

Note how Toulmin has added a qualifier and rebuttals, even though the backing assumes that all sisters have been checked. But Toulmin says rightly that normally an argument like this occurs later than at the time of establishing the warrant by the backing; hence making it non-demonstrative/subject to exceptions/defeasible/..., hence substantial, and not analytic (in Toulmin's sense).. Checking hair colour today is not a guarantee for hair colour tomorrow.

_Argumentation in Artificial Intelligence_ , see references.

So the advocate proceeds from data to claim using a warrant to bridge the jump between the two backed by a means of bridging legitimate to the audience. Formal and Informal logic are often included in such legitimate means in legal and policy argument. Hitchcock's elucidation of the warrant-backing mechanism is valuable:

####  JUSTIFIED APPLICABLE WARRANT

If one's reasoning is to justify one's conclusion, that conclusion must follow from one's premisses in accordance with a justified general warrant.

The phrase 'in accordance with' means that the warrant actually applies to the inference. In other words, the warrant is semantically equivalent to some generalization of the reasoning's associated conditional

'if p1 and ... and pn , then c',

where p1, ..., pn stand for the premisses and c for the conclusion (with qualifiers and defeaters removed). The requirement that the warrant actually apply to the inference is self-evident; obviously the warrant that argon is an inert gas has nothing to do with the quality of an inference from the speed clocked on a radar device to the conclusion that the car was speeding.

A subtle danger in reasoning, which reasoners may not notice, is the use of a generalization of the converse of the associated conditional. For example, one may reason from hearing a train-like whistle that a train is in the vicinity. Reflecting on why one thinks this follows, one might propose the generalized warrant: If a train is in the vicinity, then I hear a whistle like the one I just heard. But this is the converse of the required warrant, which is rather: If I hear a whistle like the one I just heard, then a train is in the vicinity. This warrant may not be justified for example, one may be aware that there are no train tracks in one's vicinity, and that one's neighbour is a train afficionado who habitually plays recordings of trains at high volume.

In addition to being applicable, the warrant must be general. No conclusion follows in just one particular case; if it follows in one case, it follows in parallel cases. An applicable warrant picks out a class of such cases. It is important to realize that there may be several ways of doing so. In general, warrants generalize over the repeated content expressions of one's reasoning, and they must generalize over at least one content expression that occurs both in a premiss and in the conclusion (Hitchcock, 1985). If more than one content expression is repeated, then the reasoning has several potential warrants for the inference. Furthermore, the extent to which one generalizes over a given content expression is variable. In the whistle example, generalizing over the implicit time constant 'now' to all times produces the warrant: Whenever I hear a whistle here that sounds like this, a train is in the vicinity. Generalizing to a given time of day produces the warrant: Whenever at about 7 p.m. I hear a whistle here that sounds like this, a train is in the vicinity. Generalizing to a given time interval like the calendar year produces the warrant: Whenever in the current calendar year I hear a whistle here that sounds like this, a train is in the vicinity. And so on.

The requirement that the warrant be general is not a requirement that it be universal. Warrants, as Toulmin pointed out, can be modally qualified, as holding for the most part, or ceteris paribus, or even just sometimes. Such qualifications, along with qualifications of the epistemic status of the warrant, imply imperfect support for the conclusion, which may or may not be explicitly marked in one's reasoning. Finally, the warrant must be justified. It is neither necessary nor sufficient that the warrant actually hold, i.e. that the generalization is correct (whether universally, for the most part, ceteris paribus, or just sometimes). Correctness is not sufficient, because reasoners need to draw inferences in accordance with warrants of which they are actually aware.

Thus, for example, a logic student in the 1920s who was thinking about axiomatized Peano arithmetic could not use the correct generalization that no consistent axiomatization of arithmetic is complete to draw the conclusion that axiomatized Peano arithmetic is incomplete, because this generalization had not yet been shown to be true. Nor is correctness necessary. Fallible human reasoners with limited resources have no direct access to truth, or more broadly to correctness. They must make do with what at any given time they are justified in accepting. Hence good reasoners must be ready to revise their cognitive commitments, including the warrants in accordance with which they reason, in the light of new good evidence.

In Toulmin's model, warrants are justified by backing. His conception of backing, and his distinction between warrant-using and warrant-establishing arguments, is linked to his strong fielddependency thesis, about which many reservations have been expressed, for example in several chapters of Norris (1992). In fact, there seems no reason to postulate a sharp difference in kind between warrant-using reasoning and warrant-establishing reasoning. If one is reasoning to a conclusion that will later serve as a warrant for further reasoning, the conclusion is one's claim and the 'backing' for that claim constitutes one's grounds; the inference from grounds to claim will have its own warrant. In good medical reasoning, for example, conclusions about individual patients are reached using so-called 'evidence-based' generalizations about risk factors, diagnosis,prognosis or treatment. The evidence that justifies such generalizations

tends to take the form of clinical trials and other analytical studies, the conclusions from which are incorporated through meta-analysis and systematic review into authoritative clinical guidelines and references. Reasoning from the results synthesized in a systematic review to a clinical guideline is, in Toulmin's terminology, another instance of reasoning from grounds to a claim, only at a higher level than reasoning that applies a clinical guideline to the observed circumstances of a particular patient.

from : David Hitchcock , Good Reasoning on the Toulmin Model, see ref.

We've proceeded from the classical cicero concept of argument as a sequence of sub arguments, each being a triad of charge, response, and question; to a model where conclusions follow from premises based on a generalized warrant with backing. We next illustrate some examples of these argumentative schemes in informal logic.

###  References   [t1] 
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###  Argumentation Schemes=Walton [en1]

We summarize some definition elements and commentary from Walton and others on informal types of argument. These are useful tools in themselves and also a helpful introduction for later formal methods.

####  definitions

_Abduction_ is normally thought of as being one of three major types of inference, the other two being deduction and induction. The distinction between deduction, on the one hand, and induction and abduction, on the other hand, corresponds to the distinction between necessary and non-necessary inferences. In _deductive inferences_ , what is inferred is necessarily true if the premises from which it is inferred are true; that is, the truth of the premises guarantees the truth of the conclusion... _Inductive inferences_ .. may be characterized as those inferences that are based purely on statistical data, such as observed frequencies of occurrences of a particular feature in a given population.

The term "abduction" was coined by Charles Sanders Peirce in his work on the logic of science. He introduced it to denote a type of non-deductive inference that was different from the already familiar inductive type... Abduction belongs to what the logical empiricists called the "context of justification"—the stage of scientific inquiry in which we are concerned with the assessment of theories—for Peirce abduction had its proper place in the context of discovery, the stage of inquiry in which we try to generate theories which may then later be assessed. As he says, "[a]bduction is the process of forming explanatory hypotheses. It is the only logical operation which introduces any new idea" , abduction encompasses "all the operations by which theories and conceptions are engendered" Deduction and induction, then, come into play at the later stage of theory assessment: deduction helps to derive testable consequences from the explanatory hypotheses that abduction has helped us to conceive, and induction finally helps us to reach a verdict on the hypotheses, where the nature of the verdict is dependent on the number of testable consequences that have been verified..

ABDUCTION:` Given evidence _E_ and candidate explanations { _H1_ ,..., _Hn_ } of _E_ , if _Hi_ explains _E_ better than any of the other hypotheses { _Hj_ } , Infer that _Hi_ is closer to the truth than any of the other hypotheses.

A noteworthy feature of abduction, which it shares with induction but not with deduction, is that it violates monotonicity, meaning that it may be possible to infer abductively certain conclusions from a subset of a set S of premises which cannot be inferred abductively from S as a whole.

_Abduction, Peirce on Abduction, Stanford Ency. Philo.[c1] _

While it is important to understand formal deduction, including reasoning from premises or propositions, and to consider inductive reasoning including forms of analogical reasoning, informal arguments are most often encountered in practical examples. Walton's research in this area examines several argumentative schemes which are helpful in crafting legal or policy advocacy arguments useful for practitioners.

### Abduction and Presumptive Inference

A given set of facts can be viewed as a set of statements that describe the so- called "facts", or what are presumed to be the facts in a given case. They are called "facts" because they are presumed to be true statements, or at least their truth is not in question for the present purposes. The variable E stands for an explanation. But what is an explanation? According to the account on which the argumentation scheme below is based, the concept of explanation is dialectical, in the following sense. A set of statements E is judged to be a satisfactory explana- tion of a set of facts F if and only if E is a set of statements put forward by an explainer in a dialogue that gives the explainee in the dialogue a better understand- i ng of F.

An explanation, so defined, is a response offered to a particular type of question in a dialogue. The satisfactoriness of an explanation, so considered, de- pends on the type of dialogue the two parties are engaged in, on how far the dialogue has progressed, on what has been said in the dialogue before the explana- tion was attempted, and on the collective goal the dialogue is supposed to fulfill. So conceived, abduction is a form of argument that has the same kind of structure of an inference to the best explanation as postulated by the accounts of Peirce and the Josephsons. But instead, in the argumentation scheme presented below, the struc- ture of the abductive form of argument is more explicitly dialectical.

_Abductive Argumentation Scheme_ F is a finding or given set of facts. E is a satisfactory explanation of F. No alternative explanation E' given so far is as satisfactory as E. Therefore, E is plausible, as a hypothesis.

The term 'hypothesis' in the conclusion suggests that the abductive argument is a form of presumptive argumentation in a dialogue. The conclusion is only a tenta- tive assumption, relative to the progress of the dialogue to a given point. It is not proved beyond doubt by the premises, but only sets in place an assumption that

_Abductive, presumptive and plausible arguments,_ , D.W. Walton. see ref. [en1]

Walton, Argumentation Schemes, gives several examples of applications called "Argument By" types, as excerpted below:

###  Argument by Sign

In many cases, there is a causal or explanatory link between the two things, but not in all cases:

Case 3.4: Bob is covered with red spots. Therefore, Bob has the measles. Case 3.5: The barometer just dropped. Therefore, we will have a storm. Case 3.6: Bob is biting his nails. Therefore, Bob is worried about something. These inferences have the following general form, where A is a proposition describing a finding or observation; and B is another proposition, a conclusion drawn on the basis of what has been observed. A is true in this situation. B is generally indicated as true when its sign, A, is true, in this kind of situation. Therefore, B is true in this situation.

This type of inference is our first approximation of the argumentation scheme for the argument from sign. Argument from sign is based on a known correlation or association between two propositions A and B that is not absolute, but more suggestive (presumptive) in nature; see also ARGUMENT FROM EVIDENCE TO A HYPOTHESIS, ARGUMENT FROM CORRELATION TO CAUSE

The Argument from Sign fits into an Abduction paradigm. But where is the Toulmin Warrant and Backing ? The Warrant seems to be that the conclusion is the best of searched explanations, and the backing is an empirical search of possible explanations, fitted empirically to the problem at hand.

###  Argument From Example

Argument from example is the most common type of reasoning in debating. The most important characteristic is "not the number of items used, but their typicality" .. Argument from example is usually used to support a generalization of some kind, and hence Hastings called this kind of argument "argument from example to a descriptive generalization."

Perelman and Olbrechts-Tyteca (1969) pointed out the distinction between illustration and example: "Whereas an example is designed to establish a rule, the role of illustration is to strengthen adherence to a known and accepted rule, by providing particular instances which clarify the general statement" (p. 357). Illustration and example have different functions in discourse.

The conclusion of an argument from example is a generalization that can take any one of three forms:

  * A universal or strict generalization has the form "For all x, if x has property F then x has property G (without exception)." 
  * A probabilistic generalization takes the form that most, many, or a certain percentage of things that have property F are likely to also have property G. 
  * A presumptive (defeasible) generalization states that typically or normally (subject to exceptional cases) if x has F then x will also have G.

Whichever of these three forms the argument from example takes, generally the argumentation scheme has the following structure.

In this particular case, the individual _a_ has property F and also property G. _a_ is typical of things that have F and may or may not also have G. Therefore, generally, if [ a similar instance to _a_ ] _x_ has property F, then x also has property G.

[ _Questions:_ ] -How strong is the generalization? If the generalization holds only for a narrow range of cases, it is not very reliable. In such cases, the argument may hold, but may be weak. -Were there special circumstances present in the example that would impair its generalizability? Presumptive generalizations are inherently defeasible, or subject to exceptions. One can always examine a cited example to look for indications that special circumstances are present in it.

The Argument from Example may then be seen as the bolstering of the case that a Rule derived from an illustrative instance or precedent, may be especially applicable to the problem of hand, because the example supports the illustrative case. Is this a kind of data based from particulars to general ( inductive) type of reasoning, albeit with a single added observation point?

###  Argument From Verbal Classification

This kind of argumentation is frequently used in eristic dialogue where one side verbally classifies the point of view of the other side in a negative way, using negative or "vituperative" terminology to describe it. Case 3.8: Your point of view is heresy. Therefore, your point of view is wrong. The argumentation scheme for the argument from verbal classification is the following: _a_ has a particular property F. For all x, if x has property F, then x can be classified as having property G. Therefore, _a_ has property G.

e.g. _Case 3.8_ : Your point of view is heresy. Therefore, your point of view is wrong.

One danger inherent in the use of this type of argumentation is the fallacy of begging the question. If no evidence is given for the premise which can be backed up independently of the conclusion, the argument in Case 3.8 could be circular. In other words, the proponent may be claiming both that Bob's point of view is wrong because it is heresy, and that Bob's point of view is heresy (only) because it is wrong. This type of argumentation can be fallacious if it is an attempt to evade fulfilling the burden of proof to support the premise (without already assuming the acceptance of the conclusion).

The critical questions matching this argumentation scheme are the following. 1. Does a definitely have F, or is there room for doubt? 2. Can the verbal classification (in the second premise) be said to hold strongly, or is it one of those weak classifications that is subject to doubt?

Assertions or Allegations are made with words. Getting to the essence and implications of a chosen semantic assertion is a means to elucidate the assertions associations more clearly, and then use these implications to defeat the conclusion. This technique is used in the definitional phase of the Cicero stasis as mentioned previously, and in certain Aristotle Topics to be discussed later.

###  Argument from commitment

In this type of argumentation, the proponent claims that the respondent is, or should be committed to some particular position on an issue, and then claims that the respondent should also be committed to a particular action, or line of conduct, on the grounds that the position implies (by practical reasoning) the action, in the given circumstances. A simple example is the following. Case 3.9: Bob: Ed, you are a communist, aren't you? Ed: Of course. You know that. Bob: Well, then you should be on the side of the union in this recent labor dispute. If Ed denies that he is on the side of the union in the dispute, then he will have to explain why. Otherwise, it will appear that he is practically inconsistent in claiming that he is a communist, but that he is also against the union side in this case. The argument from commitment, is the basis of, and, in some instances, leads to the circumstantial _ad hominem_ argument.

_Bias Example_ If an arguer x is biased, then it is less likely that x has taken the evidence on both sides of an issue into account in arriving at conclusion A. Arguer y is biased. It is less likely that y has taken the evidence on both sides of this issue into account.

see also CIRCUMSTANTIAL ARGUMENT AGAINST THE PERSON

Assertions, Allegations are not merely semantic but often rest on presumptions, commitments to agreed presuppositions. The implications of these commitments can be used to defeat or substantiate

###  Argument From Expert Opinion

According to Rescher (1976), there is a third kind of reasoning, called plausible reasoning, and one characteristic of it is that it has a negation rule that is different from that of deductive logic or the probability calculus. According to Rescher, plausible reasoning is inherently presumptive, dialectical, and defeasible in nature. Consistently with Rescher's approach, an argumentation scheme for the argument from expert opinion was formulated in Walton (Inf. Log., 1989). D is a domain of knowledge or expert opinion. E is an expert in domain D. E asserts that A is known to be true. A is within D. Therefore, A may (plausibly) be taken to be true. Example: The Cardinal is an expert in theology, the question of heresy is within the domain of theology. The Cardinal has described your beliefs as heresy. Therefore you are a heretic. The five critical questions matching this argumentation scheme, as given in Walton (Inf. Log., 1989) can be concisely summarized as follows.

  * Is E a genuine expert in D?
  * Did E really assert A?
  * Is A relevant to domain D?
  * Is A consistent with what other experts in D say?
  * Is A consistent with known evidence in D?

see also ARGUMENT FROM POSITION TO KNOW, ARGUMENT FROM POPULARITY

The Court's have various criteria for the acceptance of expert opinion:

_Daubert factors:_

  1. Testability: "whether it [the evidence, theory or technique] can be (and has been) tested" 
  2. Error Rate: "the known or potential rate of error" 
  3. Peer Review: "whether the theory or technique has been subjected to peer review and publication

Amendment to FRE, Rule 702 
  1. sufficiency of facts or data 
  2. reliability of principles and methods 
  3. reliability of application of these principles and methods to the facts of the case

D.Golden and D. Walton, Argument from Expert Opinion

But expert opinion is but one form of evidence to be consider. A more general informal specification:

###  Argument From Evidence to a Hypothesis

This type of argumentation is typical of experimental verification or falsification of a hypothesis in scientific reasoning. Argument from evidence to a hypothesis takes two basic forms, or argumentation schemes, one of which is positive and the other negative. The positive form, called argument from verification of a hypothesis, has the following argumentation scheme. If A (a hypothesis) is true, then B (a proposition reporting an event) will be observed to be true. B has been observed to be true, in a given instance. Therefore, A is true... This argument is a case of argument from evidence to a hypothesis. Paradoxically, as noted by Salmon (1984), an argument of this type has the form of affirming the consequent, the deductively invalid form of reasoning, 'If A then B; B; therefore A.' Looked at from this point of view, it may appear that the argument from verification is a fallacy. What this overlooks is that argumentation from verification is not deductively valid. Nor is it meant to be a deductive argument of any sort, or a conclusive argument generally... [Rather] this type of argumentation is of a probabilistic, or in many cases only of a presumptive nature.

_Example:_ If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is fuel in the tank. Therefore it is probable that the generator is running (unless the alternator is broken?)

The negative form, called argument from falsification of a hypothesis, has the following argumentation scheme. If A (a hypothesis) is true, then B (a proposition reporting an event) will be observed to be true. B has been observed to be false, in a given instance. Therefore, A is false. This type of argument has the form of _modus tollens_ , a valid form of reasoning in deductive logic. In contrast to the argument from verification, the argument from falsification is conclusive, in the sense that the hypothesis is refuted by even one negative instance.

_Example:_ If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is no fuel in the tank. Therefore the generator cannot be running.

see also inductive versions e.g. ARGUMENT FROM CORRELATION TO CAUSE, ARGUMENT FROM CAUSE TO EFFECT

The three critical questions matching this argumentation scheme:

  1. . Is it the case that if A is true then B is true? 
  2. Has B been observed to be true (false)? 
  3. Could there be some reason why B is true, other than its being because of A being true?

Other argument schemes are familiar and useful:

###  Other Argumentative Schemes

  * _Argument from Correlation to Cause_ There is a positive correlation between A and B. Therefore, A causes B. 
  * _Argument from Cause to Effect_ Generally, if A occurs, then B might occur. In this case, A will most likely occur. Therefore, in this case, B might occur 
  * _Argument from Consequences_ A is a proposition that can be brought about or made true by an agent. If A is brought about, then good consequences may plausibly occur. Therefore, A should be brought about. 
  * _Argument from Analogy_ Generally, case C1 is similar to case C2. A is true in case C1. Therefore, A is likely true in case C2. 
  * _Argument from Ethos_ If _x_ is a person of good moral character, then what _x_ contends (A) should be accepted (as more plausible). _y_ is a person of good moral character. Therefore, what _y_ contends (A) should be accepted (as more plausible). 
  * _Argument from an established rule_ \-

For all x, if doing A is the established rule for x, then (subject to exceptional cases), x must do A (subject to penalty). Doing A is the established rule for individual y. Therefore, y must do A (subject to penalty).

  * _Exception -Argument from a precedent_ \-

The existing rule says that for all x, if x has property F then x has property G. But in this case C, a has property F, but does not have property G. Therefore, the existing rule must be changed, qualified, or given up, or a new rule must be introduced to cover case C.

Note-There is a distinction between illustration and example, illustration, and precedent. An example is designed to establish a rule, whereas an illustration elucidates an existing rule, and an argument from precedent distinguishes a case in order to nullify a proposed rule application in favor of a qualified rule used in a precedent.

Examples are perhaps helpful:

###  Examples of Informal Arguments

  * _Argument From Sign_

Bob is biting his nails. Therefore, Bob is worried about something.

  * _Argument From Example_

Bob is an example of someone biting his nails. Bob has told us he is nervous ( and we believe this is typical of people biting their nails). John is observed to be biting his nails. Therefore, John is probably also nervous.

  * _Argument from Verbal Classification_

Your point of view is heresy, Therefore, your point of view is wrong.

  * _Argument from Commitment_

Your point of view is a particular heresy, this heresy believes so and so, therefore you believe so and so.

  * _Argument from Expert Opinion_

The Cardinal, an expert in theology, has described your beliefs as heresy. Therefore you are a heretic for holding such beliefs.

  * _Argument from Evidence to a Hypothesis_

1. If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is fuel in the tank. Therefore it is probable that the generator is running

2. If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is No fuel in the tank. Therefore the generator is not running

  * _Argument from Correlation to Cause_

Heresy is known to be correlated with rebellion, therefore heresy causes rebellion.

  * _Argument from Cause to Effect_

Generally if heresy occurs, then rebellion might occur. In this case, we know you will most likely become a heretic. Therefore you will likely become a rebel.

  * _Argument from Consequences_

In general we know those who embrace heresy slip into rebellion with resulting bad consequences. Therefore you should not embrace heresy.

  * _Argument from Analogy_

In general we can see that Bob and John are similar in so many respects. And yet we know Bob is a secret heretic. Therefore it is likely that John is also a secret heretic.

  * _Ethotic Argument ( from Ethos )_

In general a person of good moral character, then we should weight his contentions with greater merit. The Cardinal is a man of good moral character. Therefroe we should accept his warnings on heresy with great weight.

  * _Argument from Established Rule_

The established rule is that all judges must punish the heretic with banishment. John is a heretic. Therefore the judges must punish him with banishment.

  * _Exception-from Established Rule Argument from a Precedent_

John the heretic must be punished with banishment. But there is a precedent where a repentant heretic was not banished. Therefore the rule of banishment should not be implemented when there are mitigating circumstances.

From the classical and Toulmin model, we provided examples of argumentation schemes illustrating informal logic. Coming back to the classical tradition of Aristotle provides further examples of topics of argument summarized in the next section before proceeding to formal logical analysis.

####  Argumentation Schemes=Walton [e1]
Back  contents

### Aristotle Informal Argument [a1]

There is some confusion on the contrast between the classical definition of enthymeme ( a kind of non-deductive rhetorical argument) and later descriptions ( deductive assertions with missing premises). Hitchcock's summary of enthymemes is followed by Aristotle excerpts on these helpful rhetorical-argumentative devices:

#####  hitchcock on enthymemes

Just as examples only partially resemble inductions, so enthymemes only partially resemble syllogisms. A syllogism is an argument in which something other than the premises follows necessarily through them ... Enthymemes and syllogisms share the feature "that, certain things being so, something else results through them either universally or for the most part.

In an enthymeme, however, the conclusion may follow only for the most part, not universally (i.e. not necessarily). As Aristotle puts it, enthymemes are from probabilities and signs.. i.e. either from for- the-most-part generalizations which merely make a particular instance probable or from a premise which is merely a sign that the conclusion is true.

_David Hitchcock, Aristotle's Theory of Argument Evaluation_

So we continue with Walton's focus on informal logic to the classical foundations with several examples of the enthymeme from , see ref.: _Aristotle's Rhetoric, II - 22-24_ :

#####  Enthymemes-lines of argument:

-Demonstrative -Refutative -invalid enthymemes, non-syllogisms

We will now consider the various elementary classes of enthymemes. (By an "elementary class" of enthymeme I mean the same thing as a "line of argument.") We will begin, as we must begin, by observing that there are two kinds of enthymemes. One kind proves some affirmative or negative proposition; the other kind disproves one. The difference between the two kinds is the same as that between syllogistic proof and disproof in dialectic. The demonstrative enthymeme is formed by the conjunction of compatible propositions; the refutative, by the conjunction of incompatible propositions.

We may now be said to have in our hands the lines of argument for the various special subjects that it is useful or necessary to handle, having selected the propositions suitable in various cases. We have, in fact, already ascertained the lines of argument applicable to enthymemes about good and evil, the noble and the base, justice and injustice, and also to those about types of character, emotions, and moral qualities. [1397a] Let us now lay hold of certain facts about the whole subject, considered from a different and more general point of view. In the course of our discussion we will take note of the distinction between lines of proof and lines of disproof: and also of those lines of argument used in what seems to be enthymemes, but are not, since they do not represent valid syllogisms. Having made all this clear, we will proceed to classify Objections and Refutations, showing how they can be brought to bear upon enthymemes.

Aristotle, op.cit, unless noted otherwise.

Consider an enthymeme of a semantic elucidation similar to Waltons Argument Scheme by Verbal Classification. An Essence of Terms Enthymeme is more obviously an Argument by Verbal Classification.

####  Qualitative Opposites

1. One line of positive proof is based upon consideration of the opposite of the thing in question. Observe whether that opposite has the opposite quality. If it has not, you refute the original proposition; if it has, you establish it. E.g. "Temperance is beneficial; for licentiousness is hurtful." Or, as in the Messenian speech, "If war is the cause of our present troubles, peace is what we need to put things right again.

####  Essence of Terms

7. Another line of proof is secured by defining your terms. Thus, "What is the supernatural? Surely it is either a god or the work of a god. Well, any one who believes that the work of a god exists, cannot help also believing that gods exist." Or take the argument of Iphicrates, "Goodness is true nobility; neither Harmodius nor Aristogeiton had any nobility before they did a noble deed." He also argued that he himself was more akin to Harmodius and Aristogeiton than his opponent was. "At any rate, my deeds are more akin to those of Harmodius and Aristogeiton than yours are." Another example may be found in the Alexander. "Every one will agree that by incontinent people we mean those who are not satisfied with the enjoyment of one love." A further example is to be found in the reason given by Socrates for not going to the court of Archelaus. He said that "one is insulted by being unable to requite benefits, as well as by being unable to requite injuries." All the persons mentioned define their term and get at its essential meaning, and then use the result when reasoning on the point at issue. 8. Another line of argument is founded upon the various senses of a word. Such a word is "rightly," as has been explained in the Topics.

####  Relative Likelihood - _a fortiori_

4. Another line of proof is the _a fortiori_. Thus it may be argued that if even the gods are not omniscient, certainly human beings are not. The principle here is that, if a quality does not in fact exist where it is more likely to exist, it clearly does not exist where it is less likely. Again, the argument that a man who strikes his father also strikes his neighbours follows from the principle that, if the less likely thing is true, the more likely thing is true also; for a man is less likely to strike his father than to strike his neighbours. The argument, then, may run thus. Or it may be urged that, if a thing is not true where it is more likely, it is not true where it is less likely; or that, if it is true where it is less likely, it is true where it is more likely: according as we have to show that a thing is or is not true. This argument might also be used in a case of parity, as in the lines:

Example: Thou hast pity for thy sire, who has lost his sons; Hast none for Oeneus, whose brave son is dead?

#### Logical Division and Exclusion

9. Another line is based upon logical division. Thus, "All men do wrong from one of three motives, A, B, or C: in my case A and B are out of the question, and even the accusers do not allege C." 12. Another line of argument consists in taking separately the parts of a subject. Such is that given in the Topics: "What sort of motion is the soul? for it must be this or that." The Socrates of Theodectes provides an example: "What temple has he profaned? What gods recognized by the state has he not honoured?"

####  Inconsistency and Alternatives

22. Another line of argument is to refute our opponent's case by noting any contrasts or contradictions of dates, acts, or words that it anywhere displays; and this in any of the three following connexions. (1) Referring to our opponent's conduct, e.g. "He says he is devoted to you, yet he conspired with the Thirty." (2) Referring to our own conduct, e.g. "He says I am litigious, and yet he cannot prove that I have been engaged in a single lawsuit." (3) Referring to both of us together, e.g. "He has never even lent any one a penny, but I have ransomed quite a number of you." 23. Another line that is useful for men and causes that have been really or seemingly slandered, is to show why the facts are not as supposed; pointing out that there is a reason for the false impression given. Thus a woman, who had palmed off her son on another woman, was thought to be the lad's mistress because she embraced him; but when her action was explained the charge was shown to be groundless. Another example is from the Ajax of Theodectes, where Odysseus tells Ajax the reason why, though he is really braver than Ajax, he is not thought so. 26. Another line is, when a contemplated action is inconsistent with any past action, to examine them both together. Thus, when the people of Elea asked Xenophanes if they should or should not sacrificeto Leucothea and mourn for her, he advised them not to mourn for her if they thought her a goddess, and not to sacrifice to her if they thought her a mortal woman.

An Argument by Consequences one might describe as a values-policy appeal common in adjudication advocacy.

#### Consequences

13. Since it happens that any given thing usually has both good and bad consequences, another line of argument consists in using those consequences as a reason for urging that a thing should or should not be done, for prosecuting or defending any one, for eulogy or censure. E.g. education leads both to unpopularity, which is bad, and to wisdom, which is good. Hence you either argue, "It is therefore not well to be educated, since it is not well to be unpopular": or you answer, "No, it is well to be educated, since it is well to be wise." The Art of Rhetoric of Callippus is made up of this line of argument, with the addition of those of Possibility and the others of that kind already described. 14. Another line of argument is used when we have to urge or discourage a course of action that may be done in either of two opposite ways, and have to apply the method just mentioned to both. The difference between this one and the last is that, whereas in the last any two things are contrasted, here the things contrasted are opposites. For instance, the priestess enjoined upon her son not to take to public speaking: "For," she said, "if you say what is right, men will hate you; if you say what is wrong, the gods will hate you." The reply might be, "On the contrary, you ought to take to public speaking: for if you say what is right the gods will love you; if you say what is wrong, men will love you." This amounts to the proverbial "buying the marsh with the salt." It is just this situation, viz. when each of two opposites has both a good and a bad consequence opposite respectively to each other, that has been termed divarication.

The Causal enthymeme may be related to certain propositional implications in formal logic discussed later.

####  Disproving the Cause or Choice

24. Another line of argument is to show that if the cause is present, the effect is present, and if absent, absent. For by proving the cause you at once prove the effect, and conversely nothing can exist without its cause. Thus Thrasybulus accused Leodamas of having had his name recorded as a criminal on the slab in the Acropolis, and of erasing the record in the time of the Thirty Tyrants: to which Leodamas replied, "Impossible: for the Thirty would have trusted me all the more if my quarrel with the commons had been inscribed on the slab." 25. Another line is to consider whether the accused person can take or could have taken a better course than that which he is recommending or taking, or has taken. [1400b] If he has not taken this better course, it is clear that he is not guilty, since no one deliberately and consciously chooses what is bad. This argument is, however, fallacious, for it often becomes clear after the event how the action could have been done better, though before the event this was far from clear.

see argument from  evidence  to a hypothesis, eg.: If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is No fuel in the tank. Therefore the generator is not running

The mere appearance of logical flow from antecedent to consequent is not a proper enthymeme.

####  Spurious Enthymemes

II.24.1.Among the lines of argument that form the Spurious Enthymeme the first is that which arises from the particular words employed. (a) One variety of this is when -- as in dialectic, without having gone through any reasoning process, we make a final statement as if it were the conclusion of such a process, "Therefore so-and-so is not true," "Therefore also so-and-so must be true" -- so too in rhetoric a compact and antithetical utterance passes for an enthymeme, such language being the proper province of enthymeme, so that it is seemingly the form of wording here that causes the illusion mentioned. In order to produce the effect of genuine reasoning by our form of wording it is useful to summarize the results of a number of previous reasonings: as "some he saved -- others he avenged -- the Greeks he freed." Each of these statements has been previously proved from other facts; but the mere collocation of them gives the impression of establishing some fresh conclusion.

_example of colocation :_ we have proven to be true that the defendant was in the neighborhood,that he had no alibi near the time of death, and we showed this to be true, and we also proved that he was hated by the victim,therefore it must also be true that he is the author of this dastardly crime.

####  _Post hoc ergo propter hoc_ (after this, therefore because of this)

II.24.7. Another line consists in representing as causes things which are not causes, on the ground that they happened along with or before the event in question. They assume that, because B happens after A, it happens because of A. Politicians are especially fond of taking this line. Thus Demades said that the policy of Demosthenes was the cause of all the mischief, "for after it the war occurred."

Note e.g. The rooster crows before sunrise, therefore the crowing rooster causes the sun to rise.

We'll fully develop the concept of a syllogism later, but the modern concept of the enthymeme requires some mention of it here:

###  Enthymeme as a Syllogism with Missing Premise?

[Consider the following enthymeme discussed in Hitchcock(1998): ]

(1) 'A damp forest environment will lead to the decay of bones before fossilization is possible. Since most primates live in these forests, it will obviously be rare to find bones of any members of these species.'

"This argument resembles many2 actual arguments in this respect: its con- clusion seems to follow3 from its premisses, but we cannot translate it into any logical system The usual explanation of this discrepancy is that the argument has an unstated premiss.4 If this unstated premiss is explicitly added to the argument, then the argument's conclusion turns out to follow logically from the new set of premisses. The argument's conclusion can thus be said to follow conditionally from its original premisses, that is, on condition that the unstated premiss meets one's theoretical condition for premiss adequacy (whether this be truth, acceptance by a dialectical interlocutor, acceptability, being known, or whatever). In such a case one can say that the argument's conclusion follows from the original unsupplemented set of premisses, in some extended sense of 'follows from'. Thus we might say that (1) has an unstated premiss:

(2) It will be rare to find bones of any members of a species which lives in an environment which leads to the decay of bones before fossilization is possible.

If (2) is added as a premiss, then the argument's conclusion follows logically from the new set of premisses. So this argument's conclusion follows from its stated premisses on condition that this unstated premiss is adequate. And in fact it is an adequate premiss: it is true, and known, and would be accepted by any reasonable interlocutor that it will be rare to find bones of any members of a species which lives in an environment which leads to the decay of bones before fossilization is possible. So in an extended sense the conclusion of (1) follows from its stated premisses." But is this a misconception?

Note: e.g.: John is a Heretic => so John is deserving of banishment. _missing premise:_ All heretics deserve banishment.

see: David Hitchcock, Does the Traditional Treatment of Enthymemes Rest on a Mistake? , _Argumentation 12: 15–37_ , 1998; The Brevity of the Enthymeme, Aristotle's Rhetoric,Stanford Encyclopedia of Philosophy

####  Cardinal Mercier: polysyllogism and Enthymeme

_58. Varieties of the Categorical Syllogism._ \-- The categorical syllogism has for its premises two categorical propositions. It will be useful to note some of its possible structural modifications. Such are the forms of reasoning called epicheireme, polysyllogism and sorites, enthymeme.

The _epicheireme_ (epi and cheirô to take in hand) now{1} designates a syllogism one or both premises of which is immediately accompanied by the proof.

The _polysyllogism_ is a series of syllogisms in which the conclusion of each serves as premise for the next. In practice the polysyllogism is condensed, under the form of _sorites_ (sôros, heap), into a series of propositions where the predicate of the first becomes the subject of the second, and so on, in such a way that the predicate of the last in the series may he coupled with the first subject. [ A heap sorites may amount to a spurious enthymeme, see above]

_Example:_ The human soul forms abstract thoughts; a being capable of abstract thoughts is spiritual; a spiritual being is by nature imperishable; a being naturally imperishable cannot be annihilated; a spiritual being that cannot be annihilated will live with an immortal life; therefore the human soul is immortal.

_______________________________________

{1} In Aristotle epicheireme means an attempt at demonstration as opposed to a demonstration properly so called. ... The enthymeme is commonly reckoned among the more or less disguised forms of the syllogism, as though it consisted merely in leaving one of the premises to be understood, not expressed. This is too secondary a circumstance to justify giving the enthymeme a place of its own among the forms of syllogism. As a matter of fact Aristotle understood by enthymeme a syllogism the conclusion of which is only more or less. probable.

Elements of Logic, Mercier, see ref.

enthymemes

  * generalizations which merely make a particular instance probable or from a premise which is merely a sign that the conclusion is true. 
  * Demonstrative, or Refutative 
  *     * Qualitative Opposites 
    * Essence of Terms 
    * Relative Likelihood - a fortiori 
    * Logical Division and Exclusion 
    * Inconsistency and Alternatives 
    * Consequences 
    * Disproving the Cause 
    * spurious pseudo- polyysylogisms 
    * Post hoc ergo propter hoc 
    * epicheireme 
  * a syllogism with a missing premise 
  * a spurious? heap sorites , or valid polysyllogism

From a overview of argument at the macro level, we've moved to a survey of informal sub-arguments including semi-deductive defeasible abductions and arguments from types of signs, schemes, Aristotelian enthymemes. In practice these are perhaps more common than the formal deductions covered next. The latter have the advantage of deductive validity.

### References [a1]
Back  contents

###  Arguing From Implication [d1]

Before we examine the legal syllogism, and its set theoretic schematics, its important to understand its building blocks, simple propositions, which often are stated in terms of implication, necessity, and sufficiency:

###  preliminaries

####  Propositions and Premises

A _proposition_ is a declarative sentence which is true or false. Two sentences may express the same proposition in different ways. Sentences that do not include propositions include questions, exhortations, or imperatives.

A _premise_ is a proposition which becomes an assumption to be used as the basis for reasoning to some proposition the _conclusion_.

An _argument_ is a process that proceeds from premises to a conclusion by means of deduction or inference.

Rosdatter, Logic, see ref.

####  logical consequence - Entailment

Recall that a logical _modality_ , mode, a particular way of expression, is a classification of logical propositions according to their asserting or denying the possibility, impossibility, contingency, or necessity of their content. An _entailment_ is the relationship between sentences, i.e. one sentence, the conclusion, will be true if all the others, premises, are also true. According to Tarski, the logical consequence relation as it is employed by typical reasoners is an entailment that involves Modality

  * requires a modal element, necessity

Tarski countenances an implicit modal notion in the common concept of logical consequence. If X is a logical consequence of K, then not only is it the case that not all of the elements of K are true and X is false, but also this is [modularity] _necessarily_ the case. That is, X follows from K [entailment] only if it is not possible for all of the sentences [premises] in K to be true with X false.

  * is formal : logical consequence is not dependnet on the empirical instance

The epistemological consideration is that one might think that knowledge that X follows logically from K should not essentially depend on being justified by experience of extra-linguistic states of affairs

  * is a priori, not influenced by empirical knowledge

Tarski says that by virtue of being formal, knowledge that X follows logically from K cannot be affected by knowledge of the objects that X and the sentences of K are about. Hence, our knowledge that X is a logical consequence of K cannot be influenced by empirical knowledge.

The terms "a priori" and "a posteriori" are used primarily to denote the foundations upon which a proposition is known. A given proposition is knowable a priori if it can be known independent of any experience other than the experience of learning the language in which the proposition is expressed, whereas a proposition that is knowable a posteriori is known on the basis of experience. For example, the proposition that all bachelors are unmarried is a priori, and the proposition that it is raining outside now is a posteriori.

A Priori, Logical Consequence, IEP, see ref.

A statement of consequence, or entailment may consist of a single premise antecedent with a consequent.

####  Sequents

A _sequent_ is an expression relating a set of premises to a conclusion from some argument. For example two premises have an associated conclusion.

1st premise: Phi 1  ϕ1,  2nd premise: Phi 2  ϕ2 from which we know  ⊢  conclusion Psi  ϕ

####  A Conditional Sequent

If we know that we can reason from an antecedent hypothesis _p_ to a consequent conclusion _q_ , then the conditional statement : if _p_ , then _q_ , is written as:

ϕ1:  _p_ ⇒ _q_

which is represented by various equivalent statements:

  * If p, then q, 
  * p implies q, 
  * q if p, p only if q, 
  * q provided p, 
  * q whenever p, q when p, 
  * p is a sufficient condition for q ( if we observe p to be true, then we can conclude that q is true ), 
  * q is necessary condition for p ( q being true is necessary for p also to be observed true, since p => q )

see conditional, sequent, in ref. PW.

Examples:

  1. If it is Raining, the Grass is Wet. 
  2. If capital punishment deterred murder, it would be justified 
  3. *If someone employs gloves in a crime, he will generally use two gloves together. 
  4. **If Alfred is Betty's father, then Betty is Alfred's daughter.

Further definitions and examples of implication:

###  Necessary, and Sufficient

####  A Necessary Condition

Let _ p ⇒ q  _ be a conditional statement. Then _q_ is a necessary condition for _p_. That is, if _ p ⇒ q  _ then it is necessary that _q_ be true for _p_ to be true. This is because unless _q_ > is true, _p_ can not be true. Examples:

  1. If he committed murder, he committed homicide. Murder implies Homicide. Homicide is necessary (but not sufficient) for murder. 
  2. If it is Raining, the Grass is Wet. Rain implies the grass is wet. The grass is wet is necessary (but not sufficient) for it to be raining. 
  3. If I flew to New York, then I travelled to New York. Flying to New York implies travel to New York. Travel to New York is necessary for flying to New York.

####  A Sufficient Condition

Let _ p ⇒ q  _ be a conditional statement. Then _p_ is a sufficient condition for _q_. That is, if _ p ⇒ q  _ then for _q_ to be true, it is sufficient to know that _p_ is true. This is because of the fact that if you know that _p_ is true, you know enough to know also that _q_ is true.

  1. If he committed murder, he committed homicide. Murder implies Homicide. Murder is sufficient for homicide.. 
  2. If it is Raining, the Grass is Wet. Rain implies the grass is wet. Rain is sufficient for the grass to be wet. 
  3. If I flew to New York, I travelled to New York. Flying to New York implies travel to New York. Flying to New York is sufficient to travel to New York, but not necessary since one could have travelled in other transport.

####  Necessary and Sufficient

Let _ p ⇔ q  _

where _ ⇔  _ denotes the bi-conditional operator.

Then it can be said that p is necessary and sufficient for q.

This is a consequence of the definitions of necessary and sufficient conditions.

####  Exclusive Or - ⊕ - XOR

_p ⊕ q = ( p ∨ q ) ∧ ¬ ( p ∧ q ) _

p is exclusive-or to q is the same as saying that : either p or q is true, and that both p and q cannot be true at the same time.

Note that the bi-conditional ( 2 way implication ) of two statements is equivalent to the negation of the exclusive or:

_( p ⇔ q ) ⊣⊢ ¬ ( p ⊕ q ) _

Examples :

  * He should receive the death penalty if and only if he is the true murderer

is equivalent to the negation of:

He should receive the death penalty, or be guilty, but not both.

  * Alfred is the Father of Betsy if and only if Betsy is the daughter of Alfred.

is equivalent to the negation of:

Alfred is either the Father of Betsy, OR Betsy is the daughter of Alfred, but not both.

So we have an idea of one way implication, two way implication ( if and only if), and their relationship with exclusion and disjunction. A truth table lays out the possibilities of truth or falsehood for two statements p, q and whether the propositions also hold truth values. Related concepts of inverse, converse, and contrapositive also follow.

###  Truth Tables

####  Direction of Implications

p  |  q  |  p ⇒ q  |  p ⇐  q  |  p ⇔  q  |  p ⊕  q  |  ¬p ∨ q   
---|---|---|---|---|---|---  
T  |  T  |  T  |  T  |  T  |  F  |  T   
T  |  F  |  F  |  T  |  F  |  T  |  F   
F  |  T  |  T  |  F  |  F  |  T  |  T   
F  |  F  |  T  |  T  |  T  |  F  |  T

In the Truth table we see that the statement that 'p if and only if q' is equivalent to both 'p implies q' and 'q implies p' both being true. The XOR exclusive or statement is False when the 'if and only if' statement is True.

Consider a stylized engine with two basic mechanical requirementsL a charged battery and fuel in the tank. The motor runs automatically if both conditions are true. If the engine is running p, it implies the battery is charged q1. If the engine is running p, it implies there is fuel in the tank q2.

_ p ⇒ q1  p ⇒ q2  _

The engine is running is Sufficient to show that the battery is charged and there is fuel in the tank. The engine is running implies the battery is charged, and there is fuel. he battery being charged is necessary for the engine to be running, but it is not sufficient.

The presence of fuel is necessary for the engine to be running but not sufficient. If BOTH q1 and q2 are true, the engine is running p.

_ p ⇒ q1 ∧ q2  q1 ∧ q2 ⇒ p  _ Or _ q1 ∧ q2 ⇔ p ⇔ ¬ ( (q1 ∧ q2) ⊕ p )  _

####  Conditional Disjunction

_p ⇒ q _ is logically equivalent to: _¬p ∨ q _

The engine is running implies there is fuel in the car, which is equivalent to: 'The engine is running' is NOT true, OR 'There is fuel' is True. i.e. if there is no fuel, then the engine is not running must be true.

####  The Contrapositive of Implication

_p ⇒ q _ is logically equivalent to: _¬q ⇒ ¬p _

The engine is running being true implies there is fuel, alternatively, No fuel implies the engine is not running. Or, every republican voter is in the USA, is equivalent to, all non USA residents, are not republican voters. Thus showing the existence of one non resident republican voter to be false ( the contrapositive) disproves the original implication's stated truth value.

####  Inverse

_¬ p ⇒ ¬ q _

not necessarily true

####  converse

_¬ q ⇒ ¬ p _

is equivalent to the contrapositive of the inverse with its same truth value, not necessarily true from the first implication.

#### negation

_¬ ( p ⇒ q ) _

denying the implication

### some defeasibility tactics

  * The bi-conditional can be defeated by finding an instance of exclusive-or (disjunction) or by defeating one direction of implication. 
  * Implication can be defeated by showing an instance of where q necessity is not necessary, or p sufficiency is invalid. 
  * Can argument be shown to be a discussion of the inverse, or its contra-positive ( the converse )? If so, then the truth of material implication does not necessarily follow.

### Symbols:

⊢ therefore, shows ⇒ right arrow, implies ⇐ left arrow, implies ⇔ bi-conditional if and only if ⊬ does not prove ∧ and ∨ or ¬ not ⊕ exclusive or - xor ⊢ provable ⇔ bi-conditional if and only if ⊣⊢  logically equivalent to

Based on these preliminaries, we can reason from the truth of a statement and its related implication premise, as discussed in the next section on arguing from propositions.

####  References: [d1]
Back  contents

###  Arguing From Proposition

We begin here with the most elementary of conclusions from two premises.

###  Propositional Logical Modes [d2]

###  Modus ponendo ponens - mode that by affirming, affirms.

ϕ1: _p_ ⇒  _q_ ϕ2:  _p_ ⊢  ϕ : _q_

 more explication of the formalism here can be found in the PW and other references linked above, supplementary excerpts or paraphrased cited separately [[d1] ]

Examples:

  1. If it is Raining, the Grass is Wet. It is raining. ⊢  The grass is wet. 
  2. If capital punishment deterred murder, it would be justified Capital punishment deterred murder. ⊢  It is justified. 
  3. *If someone employs gloves in a crime, he will generally use two gloves together. Someone employed gloves in a crime. ⊢  He used two gloves together. 
  4. **If Alfred is Betty's father, then Betty is Alfred's daughter. Alfred is Betty's father.. ⊢  Betty is Alfred's daughter.

####  Example of a similar argument from Trial

_O.J. Simpson Trial Transcript:_ WE SUGGEST THAT MOST KILLERS DON'T LEAVE ONE GLOVE AT THE SCENE AND CARRY THE OTHER ONE TO PRIVATE PROPERTY, UNDER ANY CIRCUMSTANCES, AND I SUSPECT THAT EVERY DETECTIVE WHO IS ASKED IF HE HAS HAD THAT EXPERIENCE WILL HAVE TO SAY NO. SO THE LIKELIHOOD IS THAT WHEN THE KILLERS LEFT THE SCENE BOTH GLOVES WERE THERE OR BOTH WOULD HAVE BEEN TAKEN, _F. Lee Bailey, MARCH 15 1995 9:47 A.M.,Open Court without the Jury present_

####  Schema-Modus ponendo ponens

Discussion- Can we impose a set theory explanation of the implication and truth of p premises. For all x an element of events that are true, and in event set P (not p) then since P is a subset of S, they are also in S. So the truth of event p (being in P) implies q ( it is also in S).

#####  Modus ponendo ponens

 _schema_ : Modus ponendo ponens \- mode that by affirming, affirms - the rule of material detachment

#### Discussion: Modus ponendo ponens

  * Examples (1) and (4) have tautological qualities. 
    * (1) If water is falling on the grass, the grass has water on it ( its wet). 
    * (4) If Alfred is the father of Betty i.e. she is his daughter, then Betty is Alfred's daughter. 
  * Example (2) has an embedded value judgement from the use of the words 'would be justified.' 
  * Example (3) is a statement of probabilities ( 'in general' ), and a caricature of an argument posed by F. Lee Bailey to the Judge in the O.J. Simpson trial, excerpted below. It has a quality of a set assertion. This is not true for all conditionals but we could include the set of events of gloves used in a crime as a non-identical subset of 'gloves used together.' It will be useful later to use schematics to discuss such categorical relations, so we can illustrate such a relationship in the image below:

####  Fallacy of Affirming the consequent

Let p ⇒ q be a conditional statement. Let its consequent q be true. Then it is a fallacy to assert that the antecedent p is also necessarily true.

ϕ1: _p_ ⇒ _q_

ϕ2: _q_ ( not ⊢ )  ⊬ ϕ : _p_

The Conditional and its Converse are not Equivalent:  _p_ ⇒ _q_ does not imply  _q_ ⇒ _p_ The converse of a true conditional is not necessarily true. Examples:

  1. If it is Raining, the Grass is Wet. The grass is wet. _⊬_ It is raining.(No it could be wet from garden hose). 
  2. If capital punishment deterred murder, it would be justified It is justified. _⊬_ Capital punishment deterred murder. ( No it could be justified by other means) 
  3. *If someone employs gloves in a crime, he will generally use two gloves together. He used two gloves together. _⊬_ Someone employed gloves in a crime. 
  4. **If Alfred is Betty's father, then Betty is Alfred's daughter. Alfred is Betty's father.. ⊢  Betty is Alfred's daughter. Yes, not fallacious, semantically they are equivalent ( tautology -)

If something necessary is not present, we can deny the antecedent:

###  Modus tollendo tollens \- mode that by denying, denies.

ϕ1: _p_ ⇒ _q_ ϕ2: _¬ q_ ⊢ ϕ: _¬ p_

If we can conclude p ⇒ q, and we can also conclude ¬ q , then we may infer ¬ p.

Set theoretic: ( P is a subset of Q. x is not in Q. Therefore, x is not in P. )

\-- If there is no fuel in the gas tank, the engine is not running.

\-- If a murderer used gloves, it follows he used gloves that fit. The gloves do not fit O.J. O.J. was not the murderer who used these gloves

Discussion- First distinguish events as instances of true statements from membership in a set ( or sets) of true statements. If the intersection of S and P is equal to S, then an event in S implies an event as a member of the set P, moreover the event not being in P ( not in P is Not q statement ) implies not being in S ( p statement ).

####  Modus tollendo tollens

 _schema_ : Modus tollendo tollens -denying the consequent

_Trial Transcript:_ I want you to remember these words. Like the defining moment in this trial, the day Mr. Darden asked Mr. Simpson to try on those gloves and the gloves didn't fit, remember these words; if it doesn't fit, you must acquit. _Closing Argument, Johnnie L Cochran, Jr,SEPTEMBER 27, 1995 9:15 A.M_

#### Fallacy of Denying the antecedent

ϕ1: _p_ ⇒ _q_ ϕ2: _¬ p_ _⊬ ϕ: ¬ q_

Let p ⇒ q be a conditional statement. Let its antecedent p be false. Then it is a fallacy to assert that the consequent q is also necessarily false. Note the Contrapositive of of the conditional: _p ⇒ q_ is the statement: _¬q ⇒ ¬p_ Examples ( Fallacies ) :

  1. If it is Raining, the Grass is Wet. It is NOT raining.  (does not _⊢_ ) _⊬_ The grass is NOT wet. 
  2. If capital punishment deterred murder, it would be justified Capital punishment HAS NOT deterred murder.  ⊬ It is NOT justified. 
  3. *If someone employs gloves in a crime, he will generally use two gloves together. Someone DID NOT employed gloves in a crime.  ⊬ He did NOT use two gloves together. 
  4. **If Alfred is Betty's father, then Betty is Alfred's daughter. Alfred is NOT Betty's father..  Yes implies ⊢ Betty is NOT Alfred's daughter. ( Not a Fallacy because of semantic tautology)

_Excerpt :_ Importantly, there may be valid instances of invalid argument forms.4 5 (An argument form is said to be invalid if there is even one instance of an argument having that form which is invalid.) An example would be the substitution instance where A is "Alfred is Betty's father" and C is "Betty is Alfred's daughter". In this substitution instance, the sentences named by 'A' and 'C' are not logically independent, but are semantically related is such a way that it is not semantically possible for A to be false and C to be true. That is, on this substitution instance the valuation (or possible situation) which makes denying the antecedent an invalid form of argument is not logically possible. But, the logical impossibility of this situation is not explained formally (in terms of the truth-functional relationships which obtain no matter how the variables in the argument schema are interpreted), but rather semantically (in terms of the semantic relationships which obtain between the individual statements which compose the interpretation of the argument scheme). Cases of this sort demonstrate the failure of the assumption of semantic atomism inherent in truth-tables.6 On the truth-tables above (tables 1 and 3), it is assumed that all possible combinations of truth-values can be distributed over the atomic sentences. But, on certain substitutions (e.g., the one just considered), where the atomic sentences have a specific semantic relationship to one another, this assumption fails.

In many of the cases where the interpretation of the sentence- variables would provide a semantically valid instance of denying the antecedent as a form of argument, the conditional premise occurring in the argument actually understates the actual relationship between the antecedent and consequent. To return to our example above, it is not merely the case that Alfred being Betty's father is a sufficient condition for Betty being his daughter (i.e., A e C), but it is also a necessary condition (i.e., C e A). Contrariwise, Betty being Alfred's daughter is not merely a necessary condition for Alfred being her father; it is also a sufficient condition. So, the actual relationship between A and C is better captured by the bi- conditional claim 'A / C'. (Indeed, failure to use this stronger claim in the argument would violate the Gricean Maxim of Quantity (1967/1989, 28).) Yet, when the stronger claim is used, the argument is not merely semantically valid, but it is also a formally valid instance of modus tollens.

Golden,Walton; Denying the Antecedent, see ref.

###  Disjunctives

In the previous section we discussed the truth relationship between implication and disjunction, ie.

_p ⇒ q_ is equivalent to : _¬p ∨ q_

and _( p ⇔ q ) ⊣⊢ ¬ ( p ⊕ q )_

Disjunction also has useful argumentative deductions:

####  Modus ponendo tollens- mode that by affirming, denies.

If two statements can not both be true, and one of them is true, it follows that the other one is not true.

ϕ1: ¬ ( _p_ ∧ _q_ )  ϕ2: _p_ ⊢ ϕ : _¬ q_

Example Either O.J. transported a glove to his home, or someone else did (Not both). Detective Fuhrman transported the glove Therefore O.J. Simpson did not transport the glove from the murder scene.

_Trial Transcript:_ THE PROSECUTION HAS OPENED THIS DOOR RATHER DELIBERATELY, KNOWING FULL WELL THAT THERE WOULD BE QUESTIONS AS TO WHETHER OR NOT THE SOMEONE, AND THERE HAS TO BE SOMEONE, WHO TRANSPORTED THAT GLOVE TO ROCKINGHAM COULD HAVE BEEN DETECTIVE FUHRMAN, _F. Lee Bailey, Ibid._

#####  Schema-Modus ponendo tollens

True events not being able to be both true means that membership in one set of events precludes if from being in another set under this condition. This is a statement about the two sets being disjoint, having a null intersection.

#####  Modus Ponendo Tollens

 _schema_ : Modus Ponendo Tollens \- mode that by affirming, denies

####  Disjunctive Syllogism - Modus Tollendo Ponens \- mode that by denying, affirms.

ϕ1: ¬ ( _p_ ∧ _q_ )  ϕ2: ¬ _p_ ⊢ ϕ : _q_

If either of two statements is true, and one of them is known not to be true, it follows that the other one is true.

p ∨ q , ¬ p ⊢ q

Either O.J. transported a glove to his home, or someone else did (Not both). O.J. Simpson did not transport the glove Therefore someone else transported the glove from the murder scene.

Two premise implication arguments motivate reasoning from oppositions, and later we find stronger results in categorical arguments.

###  Reasoning From Oppositions

_Excerpt :_ Framing a argument sequentially as dynamically evaluating possibilities as successive choices between two exclusive categories Walton calls 'reasoning from opposition'. In this cross examination we see the attorney use facts of previous depositions to support such choices between dichotomies (bold emphasis). Notice how the cross establishes commitments then uses these to construct eithor-or categories to suggest the detective's duplicity in arranging private time to plant evidence. From the previous section we see then that sub-arguments are proposed inferences from information sets built dynamically in the argument as successive commitments. [ O.J. Simpson Case: 3/14/95 ]. Q. Did you instruct Vannatter to go and talk to Kaelin, that ties up two of the four people that were with you in the house of the five, doesn't it? Having a conversation. MS. CLARK: Calls for speculation. THE COURT: Overruled. Q. Do you understand my question? A. No. Q. Would you agree with me, Detective Fuhrman, that everybody has to be someplace? A. I agree. Q. _And that one person can't be in two places._ A. Agreed. Q. So that if you caused two people to join together in a conversation, at a specific place, _it is unlikely, it is unlikely that they will be at any other places until the conversation is over?_ A. I would agree with that. Q. Okay. Now, I will ask you one more time. Did you use words of instructions to Phil Vannatter telling him without suggesting any subject matter to go talk to Kaelin? A. Not in that manner but yes I did. Q. You had already formulated a plan that you were going to look out beyond the building in the darkness for something, correct?

Macagno, Walton; Dichotomies, see ref.

###  References [d2]
Back  contents

###  Categorical Propositions [cp1]

Here we expand the set of tools to include arguments from two premises, but conditional on the premises being propositions about set membership, that is categorical propositions. From two premise categorical propositions we can deduce ( show to be definitely true conditional on the truth of the praises) conclusions. This logical tool set addition is broadly the topic of 'syllogism'.

First some background on the importance of syllogism in applied legal argument, and then a more precise definition of categorical propositional statements:

###  Law and the Syllogism

In every criminal cause the judge should reason syllogistically. The major should be the general law; the minor the conformity of the action, or its opposition to the laws; the conclusion, liberty or punishment. If the judge be obliged by the imperfection of the laws, or chooses to make any other, or more syllogisms than this, it will be an introduction to uncertainty. _An Essay on Crimes and Punishments, CCesare Bonesana di Beccaria, 1764_

Aristotle argues that every valid argument [deduction], in a broad sense, can be "reduced" to an argument, or series of arguments, in something like one of the forms traditionally called a syllogism... All Aristotle's logic [then] revolves around one notion: the deduction ( _sullogismos_ ). A thorough explanation of what a deduction is, and what they are composed of, will necessarily lead us through the whole of his theory. What, then, is a deduction? Aristotle says: A deduction is speech ( _logos_ ) in which, certain things having been supposed, something different from those supposed results of necessity because of their being so. _Aristotle's Logic, Stanford Encyclopedia of Philosophy_

A case brief is in the form of a syllogism, an argument of deductive logic. {The] parts of a case brief correspond precisely to the parts of a syllogism. The question is the issue; the minor premise is the facts section; the major premise is the applicable law; and the holding of the court is the conclusion. But to characterize a brief as a single argument of deductive logic, a single syllogism, is misleading. In law school, law professors typically ask students to identify "the issue" or "the holding" of a case, implying that for every case there is only one issue and one holding. But on closer inspection it becomes apparent that... the reasoning of the court in any particular case is not a single argument of logic as the form of a brief would suggest, but many arguments or syllogisms. A case brief is in fact a chain of logical arguments, proceeding from the root premises of the court to its final decision. _The Use and Limits if Syllogistic Reasoning in Briefing Cases, Wilson Huhn, Santa Clara Law Review, 42.3, 2002_

Grammar often appears pedantic but its understanding in the analysis of propositions is useful in characterizing the validity of conclusions based upon certain grammatical elements, as we shall see.

###  Grammar of a Categorical Proposition

 _schema_ : grammatical elements

In re-stating certain facts from classical and linguistic sources on 2 premise categorical arguments, we can derive schematically and grammatically conclusions about valdiity.

for more, see ref. [cp1]

###  Linguistic Terms

#### Subject – A set of focus

A subject is a grammatical relation that exhibits certain independent syntactic properties, such as the following:

  * -The grammatical characteristics of the agent of typically transitive verbs 
  * -The grammatical characteristics of the single argument of intransitive verbs

#### Predicate – a Set of relatedness

A predicate is the portion of a clause, excluding the subject, that expresses something about the subject.

#### Quantifier - All, None, or Some

A quantifier is a determiner that expresses a referent's definite or indefinite number or amount. and functions as a modifier of a noun, or pronoun.

#### Copula – joining

Joining membership (subset) or exclusion (are not )

A copula is an intransitive verb which links a subject:

  * -to a noun phrase, 
  * -adjective, 
  * or to an other constituent which expresses the predicate.

The clarity in describing predicate, subject, copula, and quantifier is important in later defining so called 'distribution', that is the modality of particular vs. universal, and what this implies for the validity of certain conclusions.

###  References [cp1]
Back  contents

###  Qualities of Propositions [cp1]

The elements of a categorical proposition determine various characteristics which will then become important in understanding the possibility of forming certain valid conclusions from premises with these characteristics. So we define these because they are useful for evaluating the validity of asserted deductive conclusions from these premises.

###  Quantity Quality Distribution

When discussing the grammar and domain of categorical statements, we refer to four standard forms with A,E,I,O notation by classical convention:

All S are P. (A form) No S are P. (E form) Some S are P. (I form) Some S are not P. (O form)

Quantity  refers to the amount of members of the subject class that are used in the proposition. If the proposition refers to all members of the subject class, it is universal. If the proposition does not employ all members of the subject class, it is particular. For instance, an I-proposition ("Some S are P") is particular since it only refers to some of the members of the subject class. Thus the quantity of a categorical proposition is determined by whether or not it refers to all members of its subject class (i.e., universal or particular). The question "How many?" is asking for quantity.

The Quality  of a categorical proposition is determined by whether the asserted class relation is one of exclusion or inclusion (i.e., affirmative or negative). Quality refers to whether the proposition affirms or denies the inclusion of a subject within the class of the predicate. The two possible qualities are called affirmative and negative.[3] For instance, an A-proposition ("All S are P") is affirmative since it states that the subject is contained within the predicate. On the other hand, an O-proposition ("Some S are not P") is negative since it excludes the subject from the predicate.

Distribution:  A distributed term is a term of a categorical proposition that is used with reference to every member of a class. If the term is not being used to refer to each and every member of the class, it is said to be undistributed. For the subject to be distributed, the statement must be universal (e.g., "all", "no"). For the predicate to be distributed, the statement must be negative (e.g., "no", "not").

It becomes apparent that when we discuss categories we are discussing membership in sets, and it may be helpful then to view categorical propositions as statements of set relationships.

In our discussion we describe propositions and arguments as set relations which we can formalize here in the case of the standard categorical propositions.

###  Premises as Set Relations

**Premise Statements .** ( _Set Equivalents_ ) , regarding premises of type _{ A, E, I, O }_  
---  
_A_ |  S _A_ P =  |  S ⊆ P  |  ('all Ss are Ps'),  |  S is a subset of P   
_E_ |  S _E_ P =  |  S ∩ P = ∅  |  ('no Ss are Ps'),  |  The intersection of S and P is empty null   
_I_ |  S _I_ P =  |  ¬(P ∩ S = ∅)  |  ('some S is P'),  |  S,P intersection is non-empty   
_O_ |  S _O_ P =  |  ¬(S ∩ P = S)  |  ('some S is not P').  |  S,P intersection is not = S, ie the relative complement, S/P is not empty

_Table_ : Premise Statements are assertions about Set Relationships

#### The Four types of Categorical Propositions are complementary

It may be helpful to relate the four standard propositions to each other along the dimensions of quality, quantity, and distribution. The four forms are related to each other in the variation of quality, quantity, and distribution For example A seems to be a kind of opposite to O because on all these dimensions it is opposite. The same with E and I. This becomes important in reasoning through possible deductive conclusions based upon these characteristics. Universal are A,E , Particular are I,O. Affirmative are A,i., Negative are E,O. A has distributed, undistributed – O its opposite E has distributed, distributed, I its opposite. Recall also that "For the subject to be distributed, the statement must be universal (e.g., "all", "no"). For the predicate to be distributed, the statement must be negative (e.g., "no", "not")."

The table below is important for reference when later evaluating possible fallacies in deduction to conclusions from premises of the various forms:

###  Categorical Propositional Characteristics

characteristics table   
---  
_Statement Symbol_ | _Form_ | _Quantity_ | _Quality_ | _Distribution_  
_Subject_ | _Predicate_  
_A_ | All S is P  | universal | affirmative | distributed |  undistributed   
_E_ |  No S is P  | universal  |  negative  |  distributed  |  distributed   
_I_ |  Some S is P  |  particular  |  affirmative  |  undistributed  |  undistributed   
_O_ |  Some S  not P  |  particular  |  negative  |  undistributed  |  distributed

#### distribution , negativity, particularity

_Note_ Negativity and Particularity define distribution amongst sentence predicate and subject.

  * quality 
    * Negative propositions (E,O) have distributed predicates. 
    * Positive propositions (A,I) have undistributed predicates 
  * quantity 
    * Universal propositions(A,E) have distributed subjects. 
    * Particular propositions (I,O) have undistributed subjects.

Intuitively particularity in the subject is undistributed, it refers to only part of a set. How is negativity intuitively distributed in the predicate? 'No S is P' says there is not one S is the Entire set of P, it is distributed in reference to P. 'Some S is Not P' is referring to some part of S ( particular, distributed subject) but it removes that 'Some' from all of P, distributed to the entire predicate set P.

Here then it is perhaps already recognizable that conclusions must match premise characteristics in some way. When we discuss some subset , some particular elements, we cannot reason from this 'Some' to a universal 'All'.

###  References [cp1]
Back  contents

###  The Four Categorical Forms [cp1]

A useful way to derive conclusions from premises is to graph, make a schematic of what the premises are actually stating in terms of set relationships and membership. Traditionally this is done with Venn diagrams but this can also be shown with rectangular diagrams clearly labeling subsets , and using modern (microsoft excel) graphical methods to show intersection using color including transparency, and mixing at intersections. We can call these rectangular venn diagrams _rVenn_ B diagrams, and proceed to discuss propositions further.

###  The Four Categorical Forms as Joined Sets

Consider two sets S and M, S in blue and M in red, with set intersections displayed as mixed colors. These two sets represent a propositional premise, the S set being the subject term, and the M the middle term. If we introduce a third set the predicate ( set P in green ) we now have an additional premise, the two premises making a syllogism's foundational premises, with a resulting conclusion coming by necessity ( if valid ) from the two premises. M is shaded in Red, S in Green. Shading Indicates emptiness of the region due to intersection / disjointness constraints. Dotted fill pattern indicates existence of elements in this region.

In the scheme below we illustrate the nine sets defined by the two premises, subject, predicate, and the middle term. Historically these were illustrated with circular black and white diagrams but with modern technology we can display intersections as mixes of colors, and automate graphing of rectangular subsets. Set 1 is the non-intersecting subset of M, 5 the non-intersecting subset of S, 7 the non-intersecting subset of P. Set 2 is the intersection of M and S.4 the intersection of M and P, and 6 the intersection of S and P. This leaves set 3 the intersection of all three sets S,P, and M. Again M is red, S is blue, P is green,transparent, with set intersections of 2 or 3 of the sets showing different colors. Set 3 is consequently the darkest as a mixture of S,M, and P intersecting in that region.

#####  rVenn syllogism sets

 _Schema_ : Syllogism Premises as Set Relations

Note below that S and M intersect at sets 2 and 3.

#####  rVenn Sets S and M

 _Schema_ : Premise as Intersection of S and M

Sets M and P intersect at subsets 3 and 4:

#####  rvenn ets M and P

 _Schema_ : Premise as Intersection of M and P

Now we can begin to consider the four propositions as set intersections. We'll begin with the conventional relation of the subject and the middle term. The A proposition has 'All S is M' which is depicted as a shadowing out of sets 5 and 6 ( as empty ) defining S entirely within M lying in sets 2,3 colored as purple ( a mix of red M and blue S) but note that we have no information on whether these two sets are empty or not-- that depends on M in part.

#####  rVenn All S is M

 _Schema_ : Universal Affirmative 'A'

The standard proposition E, 'No S is M', shadows the intersection of S and M, leaving only the non-intersecting sets 5 and 6 in blue, and 1 and 4 ( of M ) in red.

##### rVenn No S is M

 _Schema_ : Universal Negative 'E'

The standard form I states that 'Some S is M', which we depict with diagonal lines indicating information that one or both of the intersecting sets 2,3 are non-empty, i.e. some of the elements of S lie inside M . Again we do not know exactly where as this depends on information on M.

#####  rVenn Some S is M

 _Schema_ : Particular Affirmative 'I'

The standard proposition O states 'Some S is Not M' which is depicted with diagonal lines in exterior sets 5, 6 outside the intersecting sets with M ( 2, 3 ). The O statement does not give us any information on whether sets 2,3 are empty, nor any information as to whether one of sets 5,6 may be empty. This would require information on M and third set P ( for set 6).

#####  rVenn Sets S iw Not M

 _Schema_ : Particular Negative 'O'

#### Discussion

Note that we have denoted regions of S and M with numerals. This square diagram then shows regions 1,4 as that part of M distinct, disjoint from S. Regions 5 and 6 are spatial areas of S not intersecting with M Regions 2, 3 are the intersection of S and M.

  * In the figure describing A, All S is M, sub spaces 5,6 are shaded showing all CS is inside M. 
  * in E, No S is M, intersection sub spaces 2,3 are shaded meaning there is a blocked (empty) intersection. 
  * In I , sub spaces 5, 6 are dotted asserting there are elements inside this space outside M. 
  * In O, subspaces 2,3 are dotted indicating existence of elements in the intersection.

The employment of rectangular Venn diagrams ('rVenn") in a microsoft excel application framework seems slightly novel ( not found in the references). Automatic heuristic solution of multi-premise argument problems is the subject of a separate text work.

###  References   [cp1] 
Back   contents

###  Arguing From Premises [cp1]

With a better schematic understanding of categorical premises we can now solve heuristically standard problems in the Aristotelian logic of syllogisms, deductions from two premises.

###  Categorical Syllogism

A syllogism is an argument with two premises and one conclusion. The premises are categorical propositions. There are three propositions with three terms. And each term appears exactly twice.

The three terms in the standard categorical syllogism are the major, the minor and the middle terms. By convention, _the major term_ is the predicate term of the conclusion. _The minor term_ is the subject term of the conclusion. _The middle term_ is the term that appears twice in the premises.

The categorical syllogism is presented in _standard form_ when its propositions are arranged in the order of the major premise, the minor premise and the conclusion. Again by convention, the _major premise_ is the premise that contains the major term, and the _minor premise_ is the premise that contains the minor term. There are different ways to arrange the terms in a premise and we call such arrangements for the three propositions the _Figure_. The figure describes the relative placement of major, and minor terms in each of the beginning two propositions. We call the collection of types of statements in the syllogism ( three statements) the _Mood_ of the syllogism.

#### Nomenclature

We call the term which is the predicate of the conclusion _the major term_ and the term which is the subject of the conclusion _the minor term_.

  * The _major term_ in a standard form categorical syllogism is then in the major premise and is the predicate term of the conclusion and often symbolized as P. 
  * The _minor term_ in a standard form categorical syllogism is then in the minor premise and is the subject term of the conclusion and often symbolized as S. 
  * The _middle term_ in a standard form syllogism is then in both of the two beginning propositions ( premises) but not in the conclusion. It is often symbolized as M.

#### Major and Minor premises

The premise containing the major term is the major premise, and the premise containing the minor term is the minor premise.

  * The _major premise_ is the first premise in a standard form categorical syllogism. It contains the middle term M and the major term P. 
  * The _minor premise_ is the second premise in a standard form categorical syllogism. It contains the middle term M and the minor term S. 
  * The _mood_ of a standard form categorical syllogism is a list of the types of its three component propositions, beginning with the major premise. 
  * A _standard form_ is a consistent way of organizing deductive arguments in a syllogism and is arranged as follows:

\---

Major Premise

\---

Minor Premise

\---

Conclusion

\---

  * Premises are either _Universal_ referring to an entire set, or _Particular_ referring to some elements in the set. 
  * Premises are either _Affirmative_ affirming or _Negative_ denying membership relations 
  * _Distribution_ \- The form { A, E, I, O } of a proposition inside a syllogism has a distribution for the terms. The subjects ( grammatically ) in the premises are _distributed_ if they are universal {A,E} , _undistributed_ if particular {I,O}. The predicate ( indirect object of the intransitive copula ) is distributed in Negative Propositions { E, o} , undistributed in the Affirmative {A, I }.

unless cited otherwise, facts here are omnipresent features in all discussions of syllogism, see ref.

As described, the mood of a syllogism consists of the letter names of the propositions that make it up. The _figure_ from {1,2,3,4 } of a syllogism is determined by the placement of the middle terms. Using the notation M=Middle term, S=Minor term, and P=Major term; then its placement as grammatical subject or predicate in the premises yields the figures below and the corresponding valid syllogism for each figure, preceded by its associated name.

### Figures of Premises

_Figure 1_

\---

M - P

\---

S - M

\---

=====

\---

S - P

\---

\----------

\---

Barbara AAA-1

\---

Celarent EAE-1

\---

Darii AII-1

\---

Ferio EIO-1

\---  | _Figure 2_

\---

P - M

\---

S - M

\---

=====

\---

S - P

\---

\----------

\---

Cesare EAE-2

\---

Camestres AEE-2

\---

Festino EIO-2

\---

Baroco AOO-2

\---  | _Figure 3_

\---

M - P

\---

M - S

\---

=====

\---

S - P

\---

\----------

\---

Disamis IAI-3

\---

Datisi AII-3

\---

Bocardo OAO-3

\---

Ferison EIO-3

\---  | _Figure 4_

\---

P - M

\---

M - S

\---

=====

\---

S - P

\---

\----------

\---

Calemes AEE-4

\---

Dimatis IAI-4

\---

Fresison EIO-4

\---

\---

---|---|---|---

\---

RVenn schematic diagramming of various 2 premise categorical arguments:

### Syllogisms as Set Intersections

###  Mood BARBARA AAA-1

 Sch. Barbara AAA-1 All S is P

\---

Here we sketch a heuristic elimination of set memberships based on the constraints imposed by the premises in order to deduce a conclusion schematically:

_Barbara AAA-1_ 2 Universal affirmative premises

\---

_Heuristic:_

  * 1. _1st (Major) Premise_

\---

A : All M , the Middle term, is a member of P, the Major term;

\---

or : M ⊂ P, or M is restricted to subsets 3,4 
  * 2. _2nd (Minor)Premise_

\---

A: All S, the Minor Term, is a member of M, the middle term,

\---

or S ⊂ M, but S is restricted to subsets 2,3 (M) but M is already restarted to 3,4 so S must be only in subset 3 a subset of P. 
  * C. _Conclusion_

\---

From above, A: All S ( Subject of the conclusion, Minor Term) is in 3, contained in P (Predicate, Major Term) ∴ AAA-1 has a valid conclusion from its AA premises in figure 1. 
  * _Distribution_ AA-1 : M is distributed in 1st Major Premise, P is undistributed (A); M is undistributed in 2nd Minor Premise, S is distributed (A). This agrees with conclusion with S being distributed and P undistributed.

_Example_ -Law Florida 776.012 Use of force in defense of person.

  * 1. A: All Unlawful entry (M) presumes a reasonable fear of great bodily harm permitting the use of deadly defensive force without retreat (P) 
  * 2. A: All Burglary (S) is unlawful entry (M). 
  * C. A: All Attempted Burglary (S) can be met lawfully with deadly force (P).

\---

Premises of exclusion also grey out possible set conclusions.

### Mood CELARENT EAE-1

![Syllogism Mood Celarent
                             No M is P, All S is M, therefore
                             No S is P , EAE-1](celarent-eae-1.png)

 Sch. Celarent EAE-1 No S is P

Another heuristic elimination resulting in the deduced conclusion:

_Celarent EAE-1_ Universal negative and affirmative premises

\---

  * 1. _1st (Major) Premise_ E : No M, middle, is in P, Major. or M ∩ P = ∅; or M is restricted to subsets 1,2 excludes 3,4 ( grayed out ). 
  * 2. _2nd (Minor)Premise_ A: All S (Minor Term) is (contained in ) M or S ⊂ M, or S is restricted to subsets 2,3 (M), excludes 5,6 but M is already restarted to 1,2 (not 3) so S must be only in subset 2, and subset 2 is not a subset of, distinct from, P. 
  * C. Therefore ∴

\---

A: No S is (contained in) P. EAE-1 is valid. 
  * _Distribution_ EA-1 : M and P are both distributed in the Negative Affirmative 1st Major Premise (E), P is undistributed; M is undistributed in 2nd Minor Premise, S is distributed (A). In the conclusion No S is P, both S and P are distributed, in agreement with the premises.

_Example_

\---

  * 1. E; No Justifiable homicide (M) is Murder (P). 
  * 2. A: All killing of unlawful entry burglars (S) is justifiable homicide (M). 
  * C. E: No killing of burglars (S) is Murder (P).

\---

Modality here includes a particular , non-universal premise.

### Mood FERIO EIO-1

![Syllogism Mood Ferio
                             No M is P, Some S is M,
                             Some S is Not P](ferio-eio-1.png)

 Sch. FERIO EIO-1 Some S is Not P

\---

_FERIO EIO-1_ Universal negative ,particular affirmative premises

  * 1. _1st (Major) Premise_ E : No M (Middle term) is (contained in) P (Major term) or M ∩ P = ∅; or M is restricted to subsets 1,2 excludes 3,4 ( grayed out ). 
  * 2. _2nd (Minor)Premise_ I: Some S (Minor Term) is (contained in ) M but M is restricted to 1,2 , or Some S must be in 2 the remaining subset intersection of S and M. but subset 2 is outside of P, so some S lies outside P. i.e. Some S is Not P ( proposition O ). 
  * C. Therefore ∴ A: Some S is Not (contained in) P. EIO-1 is valid. 
  * \---

_Distribution_ \- EI-1: M and P are both distributed in the Negative Affirmative 1st Major Premise (E), I is Particular so S is undistributed in 2nd Minor premise with M distributed. In conclusion, Some S is Not P, CS is undistributed and P is distributed, in agreement with the premises.

_Example_

\---

  * 1. E: No justifiable homicide is Murder 
  * 2. I: Some Killing is Justifiable Homicide. 
  * O: ∴ Some killing is Not Murder.

\---

### Mood DARII AII-1

![Syllogism Mood DARII
                             All M is P, Some S is M,
                             therefore Some S is P ](darii-aii-1.png)

 Sch. DARII AII-1 Some S is P

\---

_DARII AII-1_ Universal, particular affirmative premises

  * 1. _1st (Major) Premise_ A : All M (Middle term) is P (Major term) or M ⊂ P, or M is restricted to subsets 3,4 
  * 2. _2nd (Minor)Premise_ I: Some S (Minor Term) is (contained in ) M but M is restricted to 3,4 excluding 1,2 so some S is in 3 ( 2 excluded , 4 does not intersect S). Since 3 intersects P, Some S is in 3 inside P 
  * C. Therefore ∴

\---

I: Some S is (contained in) P. AII-1 is valid. 
  * _Distribution_ M is distributed in 1st Major Premise, P is undistributed (A); I is Particular so S is undistributed in 2nd Minor premise with M distributed The conclusion Some S is P, has S undistributed, P undistributed, in agreement with the premises.

_Example_

  * 1.A. (All) Unlawful entry (M) presumes a reasonable fear of great bodily harm permitting the use of deadly defensive force without retreat (P) 
  * 2. I: Some Entry not Burglary (S) is unlawful entry (M) 
  * C. I: therefore; Some Non Burglary Entry (S) can be met lawfully with deadly force (P).

\---

###  Heuristic Applications to Critique of Logical Arguments

In this section we have developed a glossary of terms to describe categorical propositions and syllogisms constructed from such assertions. We can identify the major, minor, and middle terms of the two premises, describe their quality, quantity, and distribution. This will be important in the next section when we apply rules of validity which use these definitions to exclude invalid conclusions from consideration. More importantly perhaps, in this section we've presented a schematic method of describing syllogisms of intersections of three set (S,M,P ) with seven subspaces. Subspaces 1, 5, 7 are disjoint subsets of the premise term classes. Subspaces 2,3,4, 6 are overlapping intersections, 2,3 between S and M, 3,4 between M and P, and 3,6 between S and P, with 3 being the intersection of all three sets S,M, P. Once we graph the logical assertions of the premises ( darkened for universal blocking , dotted for particular existence), then we can see what remains. We can then examine counter examples to invalidate possible conclusions from consideration, and reach a valid conclusion, or remain without a valid conclusion due to insufficient information.

In the next section there will be a presentation of the rules for valid syllogisms, and the associated formal fallacies that arise from violation of these rules. We can use the heuristic above to gain some intuition for the rules and fallacies because we are interested in being able to asses legal and other argumentative logical assertions. Moreover the heuristic and the rules provide a tool box for critique of legal and rhetorical arguments made by others or by one's own efforts in fashioning arguments, briefs, and essays with deductive conclusions. Later sections will apply the tools to Legal arguments made in selected Court rulings .

\---

###  Arguing From Premises [cp1]

\--- 
Back  contents

###  Inconclusive Premises [syl2]

###  Rules to Avoid Logical Fallacies

We should now be able to identify whether a proposition is particular or universal, or affirmative or negative, and whether a categorical term is distributed or undistributed. Aristotle's proofs by contradiction (finding counter-examples to conclusions) derived valid conclusions for every possible set of premises yielding defined sets of valid MOODs for each figure, and associated rules for validity enumerated below. The modern treatment differs somewhat from Aristotle's so called meta-theoretical results.

###  Syllogistic Fallacies Metatheoretical Results: Excerpts

_The Fallacy of Four Terms_

-A syllogism must contain exactly three terms in Two Premises.

\- the fallacy of four terms is called from the point of view of informal logic, the fallacy of equivocation.

_The Fallacy of the Undistributed Middle Term_

-The middle term must be distributed at least one time. Violating this rule results in the fallacy of the undistributed middle. (When checking for this and the next rule, it is useful to mark the distribution of every term in the syllogism.)

-In syllogistic logic, failing to distribute the middle term over at least one of the other terms is the fallacy of undistributed middle. Also called the fallacy of maldistributed middle.

Example: All collies are animals. All dogs are animals. Therefore, all collies are dogs.

The middle term ("animals") is in the predicate of both universal affirmative premises and therefore is undistributed. This formal fallacy has the logical form: All C are A. All D are A. Therefore, all C are D.

_Illicit Major or Minor Process_

-No term that is undistributed in the premise may be distributed in the conclusion. The violation of this rule is either the fallacy of the illicit major or the fallacy of the illicit minor depending on whether the minor or major term contains the fallacy

-The Fallacy of the Illicit Major occurs when the major term is undistributed in the premiss but is distributed in the conclusion

-The Fallacy of the Illicit Minor occurs when the minor term is undistributed in the premiss but is distributed in the conclusion

_N.B._ This restricts the type of conclusion possible but not all conclusions, that is an undistributed minor may be undistributed in the conclusion possibly, but not a distributed presence in the conclusion.

_Two Negative Premises_

-A syllogism cannot have two negative premises and yield a valid conclusion.

-When a syllogism has exclusive premisses, all that is being asserted is that S is wholly or partially excluded from part or all of the M class, likewise for the P class; but since this statement is true for every possible syllogism, the premisses entail no information.

_> The Fallacy of an Affirmative Conclusion from a Negative Premise _

-If an affirmative conclusion is entailed, then both premises must be statements of class inclusion. Since class inclusion is only obtained by affirmative statements, if the conclusion has one class is partly or wholly contained in the other, then the premisses must assert that the middle class is contained by the minor class and contained in the major class.

_Metatheoretical Results-_ Having established which deductions in the figures are possible, Aristotle draws a number of metatheoretical conclusions, including: [some duplication of Cofi Rules above ]

  * No deduction has two negative premises 
  * No deduction has two particular premises 
  * A deduction with an affirmative conclusion must have two affirmative premises 
  * A deduction with a negative conclusion must have one negative premise. 
  * A deduction with a universal conclusion must have two universal premises

He also proves the following metatheorem: All deductions can be reduced to the two universal deductions in the first figure.

References: Excerpts above from the following: Stanford Encyclopedia of Philosophy, Internet Encyclopedia of Philosophy, RationalWiki.Org, philosophy.lander.edu, see ref.

It is perhaps helpful to diagram schematically examples of violations of the fallacy rules so as to gain further intuition about their implications. It is clear that the rules do not preclude the possibility of some conclusions, but that merely they do not mandate a conclusion, that is form a valid deduction, because there is insufficient information to make such a conclusion.

### Four Examples of the Fallacy of the Undistributed Middle

Recall the figures for syllogisms, These are merely different ways to express the standard form with alternate ordering of (P,M) in the ( 1st ) Major Premise, and (S,M) in the (2nd) Minor Premise: _Figure 1: M,P ; S,M ; -- > S,P Figure 2: P,M ; S,M ; --> S,P Figure 3: M,P ; M,S ; --> S,P Figure 4: P,M ; M,S ; --> S,P _

Notice the Middle Term always appears twice but in different permutations in each figure. The placement of M in a given premise determines its

_Distribution_. So if in an _A_ proposition if A is the grammatical subject there, it will be distributed, but if it takes the grammatical predicate then it is undistributed. In other words we can't say anything about the  distribution of the middle term  just by looking at the form of the proposition, we need to know its placement in a given figure, with one exception, the form _E_ is distributed in both grammatical subject and predicate. Therefore any proposition set ( Mood ) with an _E_ in the premises cannot have an undistributed middle.

Below we find four examples of the undistributed middle for each figure. As we stated the _E_ form is not present.

###  Premises IA-1 - undistributed middle

 Fig. The fallacy of the undistributed middle IA_-1

###  Heuristic IA-1

  * 1st Major Premise _I_ 'Some S is P' has M particular and therefore undistributed-- it does not refer to the entirety of the M class. This categorical statement places some elements in set p indicated by diagonal lined subsets 3, 4. 
  * 2nd Minor Premise _A_ 'All S is M' has M undistributed as the predicate of the sentence. It does not give any information about the entirety of the M set. It restricts CS to subsets 2,3 with sets 5,6 disjoint from M being greyed out. 
  * Consequently we cannot rule out S being in subsets 2 or 3 exclusively or in particular so a valid deductive conclusion is not available.

_Example IA-1:_

  * 1. Some Mammals (M) are Whales (P) 
  * 2. All humans (S) are Mammals (M) 
  * _Invalid Conclusion:_ Some humans are Whales

###  Premises AA-2 - undistributed middle

 Fig. The fallacy of the undistributed middle AA_-2

### Heuristic AA -2

  * 1st Major Premise _A_ 'All P is M' , M is undistributed. P is restricted to 3,4; 6,7 greyed out. 
  * 2nd Minor Premise _A_ 'All S is M' , M is undistributed. S restricted to 2,3 ; 5,6 greyed out. 
  * No information as to whether All, None, or Some S is in subset 3 intersecting with P.

_Example AA-2 :_

  * 1. All Whales (P) are Mammals (M). 
  * 2. All humans (S) are Mammals (M) 
  * _Invalid Conclusion:_ All humans are Whales

###  Premises IO-3 - undistributed middle

 Fig. The fallacy of the undistributed middle IO_-3

###  Heuristic IO -3

  * 1st Major Premise _I_ 'Some M is P' , M is particular and thus undistributed in this premise. Sybsets 3,4 have a diagonal indicating some elements of M are in one of these sets. 
  * 2nd Minor Premise _O_ 'Some M is Not S' , M is particular and thus undistributed in this premise. This places a diagonal in 1, 4 subsets (diagonal) indicating some elements of M are in one or both of these sets. 
  * Notice these two premises gave us information about M but little information about S's relation to P. So the middle term did not provide useful bridging information to say something inconclusive about S;s relation to P.

_Example IO-3 :_

  * 1. Some Mammals (M) are Whales (P) 
  * 2. Some Mammals(M) are Not in the category of those who swim (S) 
  * _Invalid Conclusion:_ Some Whales do not swim

###  Premises AO-4 - undistributed middle

 Fig. The fallacy of the undistributed middle AO_-4

###  Heuristic AO -4

  * 1st Major Premise _A_ 'All P is M' , M is affirmative predicate of the statement and thus undistributed. This greys out subsets 6,7 restricting P to 3,4. 
  * 2nd Minor Premise _O_ 'Some M is Not S' , M is particular and thus undistributed. Diagonal in 1,4 indicates elements of M present somewhere in those sets. 
  * We de not know if S or P have an intersection in 3 consequently no deductive conclusion is valid.

_Example AO-4:_

  * 1. All Whales (P) are Mammals (M) 
  * 2. Some Mammals (M) are Not Ocean dwellers 
  * _Invalid Conclusion:_ Some Whales are Not Ocean dwellers

A second meta-theoretical result restricts conclusions based on the distribution of major , minor terms.

###  The Fallacy of the Illicit Major / Illicit Minor

###  Illicit Major AE-1

 Fig. The fallacy of the Illicit Major AE_-1

This fallacy restricts distributed conclusions from undistributed major or minor terms.

##### illicit major

  * 1st Major Premise: ' All M is P ' restricts M to subsets 3,4, greys out 1,2 . P is undistributed, M distributed. 
  * 2nd Minor Premise: 'No S is M', S and M are distributed. S is restricted to sets 5,6, greys out 2,3, leaving 1,2,3 greyed out from premise 1. 
  * S COULD intersect P at 6 but is not restricted in doing so.

_Illicit Major-Example AE-1:_

  * 1. All M whales is P live in the ocean ( Major term P is undistributed in this premise) 
  * 2. No S fish are M Whales 
  * _Invalid Conclusion:_ No fish S live in the ocean P ( it is _Illicit_ to have an undistributed P distributed in the conclusion )

###  Illicit Minor AA-4

 Fig. The fallacy of the Illicit Minor AA_-4

##### illicit minor

  * All (major) P is M (middle), restricts P to subsets 3,4 , greys out 6,7 M is undistribtued, P distributed. 
  * All M (middle)are S (minor term). M is distributed, S undistributed. M is restricted to 2,3, greying out 1,4 in addition to 3,4 above. 
  * Valid conclusion ( if P has elements) - AAI-4, Some S are P. If p has elements they must be in 3 a subset intersecting S and M. An Invalid Conclusion would have the minor term distributed in the premise eg. 'All S are P'.

_Illicit Minor-Example AAA-4:_

  * 1. All humans (P) are primates (M). 
  * 2. All primates (M) are mammals (S). 
  * Valid: AAI-4 Some mammals S (undistributed) are human P. Invalid-Illicit Minor AAA-4: All Mammals (distributed) are Human.

Our former discussion of material implication in terms of set relations proceeded to characterizing graphically categorical propositional forms into various rVenn diagrams of set inclusion and disjunction. From there we could describe how schematically certain valid conclusions could be deduced by various premise forms by necessity of excluding or including elements in specific set intersections.

So called metatheoretical results with regard to fallacious conclusions and distribution have then been described as mere possibilities , not deductions, arising from insufficient information about regions of set inclusion and exclusion.In this process, a heuristic graphical analysis method shows how to reason through premises to possible conclusions, and to failures of deduction from insufficient information.

###  References [syl2]
Back  contents

###  Legal Context [s1]

###  Rules and Precedent

In the text so far we have summarized a selection of logical tools in the areas of:

  * argument as evolving sub-arguments with commitments in a stasis critical dialogue 
  * sub-arguments as a process of moving from data to claim via a warrant with backing 
  * sub-arguments as informal schemes of inference including abduction 
  * sub-arguments as rhetorical or semi-deductive enthymemes of persuasion in 
  * deductions as relationships following from assertions of material implication (necessity and sufficiency) 
  * deductions from claims of exclusivity- disjunction. 
  * deductions from assertions of set-membership i.e. categorical syllogisms

But of the rich tool set featured, where shall it be applied? The answer is the context, or presumption set, of the domain of argument. The present context is legal and the scholars Schauer, Alexander, and others identify its salient features. Below we present a cross comparison of scholarly identificaiton of these features with some explication.

Before attempting to better describe how our logical tool set functions on the domain of legal reasoning, we begin with a discussion, definition of _stare decisis_. Courts look to other court's rulings as authorities and the structure of this authority is important to later developments.

####  _Stare Decisis_ and Structure

Stare decisis can be vertical or horizontal. Hor- izontal stare decisis is the practice of a court deferring to its own decisions, while vertical stare decisis is the practice of a lower court adhering to the deci- sions of courts with supervisory jurisdiction, or courts "with the power to reverse" the judgment.10 Because this Article focuses on horizontal stare deci- sis, references to "stare decisis" are to horizontal stare decisis unless otherwise noted.

It is also important to draw a critical yet oft-overlooked11 line between horizontal stare decisis, where a court follows its own decision, and that of comity, where a court defers to a decision of another court with equal jurisdic- tion.12 The federal appellate power is subdivided by statute into appellate courts within each of thirteen circuits.13 Three-judge panels wield each circuit's power to "hear and determine" most cases,14 and a decision of a three-judge panel in a circuit court is generally given deference by later panels in that cir- cuit. This exercise of intracourt horizontal stare decisis is in contrast to any deference extended from one circuit court to a decision from a different circuit court, which is a matter of intercourt comity.15 The distinction between intracircuit and extracircuit precedent is enormous: circuits are far less willing to extend comity than they are to ignore the demands of stare decisis.

District courts have a structure similar to that of circuit courts. Congress has established 94 judicial districts, each with one district court and assigned district judges.17 By statute, "the judicial power of a district court with respect to any action, suit or proceeding may be exercised by a single judge."18 Thus, analogous to circuit courts, stare decisis in a district court would attach (if at all) to a decision made by a judge in that district, while comity would govern the deference extended to decisions of other district courts.

To say that horizontal stare decisis applies to a decision is the beginning of the inquiry, as a later court must decide how much weight stare decisis gives a prior precedent.19 Stare decisis runs the gamut from very strong to very weak.20

At the strong end is precedent that is absolutely binding, as is typically the case among circuit court panels.21 A less strong version requires adherence to prece- dent, even if wrongly decided, unless changed circumstances call into question the viability of the earlier decision.22 For example, the Supreme Court23 today is willing to revisit precedent only after considering several factors: "workabil- ity . . . the antiquity of the precedent, the reliance interests at stake, and . . . whether the decision was well reasoned."24 The Court is more willing to over- turn precedent in constitutional cases where Congress is unable to reverse the Court's decision,25 and in cases interpreting procedural rules where reliance interests are minimal.26

Weaker forms of stare decisis only require deference to precedent so long as that precedent offers a reasonable interpretation or reaches a plausible view of the legal issue (even if viewed as incorrect).27 The weakest version is when authority is "persuasive" only.28 Confusingly, there is an oft-overlooked differ- ence between precedent that is persuasive authority and precedent that is fol- lowed because it is persuasive.29 To say, as some have done, that precedent should be followed to the extent it is persuasive is to extend no deference at all. Courts follow litigant's briefs to the extent that they persuade the judges, but this involves no deference. In contrast, precedent that is persuasive author- ity receives some weight beyond its immediate ability to persuade, perhaps based on the position of the court issuing a decision or the reputation of the authority's author.31 As explored in greater detail in later sections, courts have adopted stronger or weaker stare decisis at different times, in different circum- stances, and at different places in the judicial hierarchy.

Joseph W. Mead, Stare Decisis in the Inferior Courts of the United States , see  ref .

####  Schauer's identified contextual features

The structure of horizontal and vertical _stare decisis_ is a framework for the legal finding of authority from which we find issued rules of decision making with regard to legal decisions, that is , to the resolution of legal arguments. The logical tools are here used not jut for persuasion but for identification of truth values in determining and allocating perceived justice. So the scholar's often begin with Rules, as outlined in Schauer reference (S0):

_References_ are labeled S0, S1, A1, etc. in the end notes found following the heading footnotes for each section. Excerpts from public domain sources may also have a partial citation with a full reference in the end notes. Original summaries or comments have no citation or reference, but may quote a previous excerpt.

###  Rules

_S.0.2.1 ruleness -_ What the Rule " _Says_ , its specific language,its "RULENESS is Primary, without regard to whether or not it produces a bad result.

_A.1. settlement -_ A rule, for this purpose, is a general prescription that sets out the course of action individual actors should follow in cases that fall within the predicate terms of the rule. To settle potential controversies effectively, the rule must prescribe, in understandable and relatively uncontroversial terms, a certain response to a certain range of factual circumstances

_S.0.2.2 rules dominate -_ Legal Adjudications Based on Rules Represent the Majority of Practical Legal Problems It is a big mistake to assume that rules are nothing but gray areas and fuzzy edges.

_S.0.2.3 rules are universal -_ Rules are General and therefore Over or Undr Inclusive

_S.0.2.4 rules are formal -_ Predictability, Uniformity of treatment, and restraint of judicial discretion mandate formalism.

Schauer's treatment of rules has a comparison with Alexander-Sherwin:

#####  The Natural and Rue Models of Reasoning

Within a natural model of reasoning, however, a rule announced in a past case has only the weight it commands in all- things-considered moral reasoning. In other words, judges approach previously announced judicial rules as rule-sensitive particularists,26 taking into account the value of maintaining the rule as one of many reasons for decision. ...however, rule-sensitive particularism is always threatened with collapse into pure case-by-case particularism: if all judges are rule-sensitive particularists and all judges know this, then the value they accord to rules as rules in their reasoning will approach zero and they will end up reasoning like pure particularists.

The rule model of precedent entails a different attitude towards rules. In this model, prior judicial rules operate as serious rules, preempting the question whether the reasons for the rule justify the outcome it prescribes in a particular case. ...The rule model of common-law decisio nmaking also entails a different role for judges. Under a rule model, rules announced in judicial opinions acquire authoritative status... The important comparison, in other words, is not between full implementation of values and flawed implementation of values, but between the flaws of unconstrained reasoning and the flaws of rules

To perform the function of settlement, rules must be general enough to prescribe results in classes of future cases, determinate enough to provide answers without direct consideration of the values the rules are designed to serve, and "serious" in the sense that they preempt further reasoning and determine results ... A precedent rule exists only when the precedent judge intended to adopt or endorse a rule and the rule can be stated in a form that is capable of governing future disputes. If these conditions are met, the precedent court can fairly be viewed as the author of the rule. If, however, the conditions we have described are not present, the current judge is not following a precedent rule. The current judge is either constructing a norm from the facts and outcomes of prior cases or simply positing a new rule.

see Alexander, Demystifying,  ref .

_applications_

  * begin with textualism what the rule says, its rare that cases and applicable rules are fizzy with regard to text 
  * the rules settle controversies, stare decisis structure establishes a r of applicability for settlement 
  * Rule of Law is mainly formalism, rule by Rules found in written law, or common law decisions governed by stare decisis.

Reject arbitrary moral particularism in favor of serious rule sensitivity: " The important comparison, in other words, is not between full implementation of values and flawed implementation of values, but between the flaws of unconstrained reasoning and the flaws of rules". (S0).

###  Rule Adherence as Positivism

_Definition :_ Positive laws may be promulgated or "posited" by an entity vested with authority to prescribe the rules for a particular community. The belief that the only legitimate sources of law are those written rules and regulations laid down by the government is known as Positivism. _West's Encyclopedia of American Law_

##### Example : Due Process as Positive Law

In guaranteeing adherence to positive law, the right to due process, too, has meaning and content apart from the reasons for its adoption. This point often goes unappreciated. For example, Professor Lane V. Sunderland's essay on the exclusionary rule correctly concluded that the Fifth Amendment's Due Process Clause "might be paraphrased to say that any deprivation of life, liberty or property must be in accordance with the law of the land, or, at the very least, according to the commands of the authoritative legal declaration of the American law of the land, the Constitution." However, Sunderland quickly pivot- ed. Instead of adhering to the rule he had just stated, Sunderland proposed "limiting exclusion to instances of substantial violations of the law of the land or due process of law."129 In this way, Sunderland ended up endorsing something like the good-faith exception floated in Herring. But that amended view conflated the meaning of the due process right at issue with a particular conception of the right's "pur- pose."130 For example, Sunderland relied on Professor Rodney Mott's statement that the Magna Carta was adopted in part as a "pro- test . . . against the use of brute force in a flagrant and unusual man- ner."131 Perhaps, but that one purpose plainly did not exhaust either the goals or the meaning of the "law of the land" provision. Confirm- ing as much, Mott also stated that "the desire to prevent forfeitures and exactions except by a recognized legal procedure was one of the el- ements of Magna Charta chapter thirty-nine as it was sealed at Runnymede."132

The distinction between meaning and purpose also sheds light on why the prevailing exclusionary theories have such staying power, even though, as discussed in Part I, they cannot explain many of the exclusionary rule's core features. In short, the prevailing theories sup- ply non-historical reasons to accept a positive-law conception of due process. So, for example, one reason to insist on adherence to law is that doing so reduces the government's incentive to commit violations. Another reason is to correct the unjust effects of illegal government actions.134 And yet another is to preserve the ethical norm of judicial integrity, or to strengthen judicial review of executive action. Though exclusionary doctrine follows none of those potentially conflicting values to its logical conclusion, each value helps explain and justify a narrower and more historically grounded rule — namely, that deprivations of life, liberty, and property must adhere to positive- law procedures. Adapting language and reasoning that the Court has used to describe many other constitutional rights, one might say that, through the Due Process Clauses, the choice of how much deterrence, equitable restoration, judicial integrity, and judicial review has already been made for us. The original meaning of the Due Process Clauses thus affords much more than a textually and historically defensible home for the abstract values that motivate the exclusionary rule. It also provides a lens that focuses our intuitions, yielding legally defensible c onclusions.

R. Re on Due Process, see ref.

#### CRRACC

Rule is a fundamental aspect of the CRRACC breif protocol. Recall CRRACC as Conclusion (and Issue), Rule, Rule proof, Application, Counter-Argument, Conclusion has an emphasis on rules having more definition below.

> ### CRRACC-Rule statement and rule synthesis 
> 
> The rule statement synthesizes key elements of the cases relevant to the issue in your case into a general statement of the rule. ... 
> 
> Existing legal authority consists of constitutions, statutes, regulations, and decisional law, as well as past judicial decisions that have interpreted other sources of legal authority such as constitutions and statutes. The ostensible job of the court is to give effect to the intent of past lawmakers, e.g., legislators and regulators, in the context of a novel set of facts. Nonetheless, judges can sometimes make or change law themselves, acting on the same motives that legislators and regulators have: they want to address social problems, clarify, modify, or set aside lawmaking efforts of the past, or establish fair and efficient rules to help resolve novel disputes. However, all judicial decisions must rest upon and incorporate some preexisting legal rules and the rationale or policy behind those rules. 
> 
> When the source of a rule is decisional law, keep in mind that a rule might not be stated explicitly or completely in a single case or group of cases; rather, it must be drawn out from the factual context in which the holdings in these cases have arisen. The writer of a rule statement engages in rule synthesis, pulling together common threads from multiple cases and reconciling discrepancies among them. A complete articulation of a synthesized rule accounts for all these threads and discrepancies. Accurate rule synthesis certainly requires the writer to consider the hierarchy of authorities, including the primary or secondary 3 nature of the authority, the mandatory or persuasive 4 nature of the authority, and the recency5 of the authority... \----------------------------------- 
> 
> 3 Primary authority comprises constitutions, statutes, administrative regulations, and court decisions. Secondary authority refers to treatises, law review articles, and other published commentaries. 
> 
> 4  Mandatory authority is law (i.e., primary authority) that is binding on the court deciding the case. For example, decisions made by the New York Court of Appeals are binding on all lower courts in New York. Persuasive authority is law that is not binding on the court, although the court may, in its discretion, look to that law for guidance. For example, a Connecticut court is not bound by New York decisions; however, due the to the larger volume of New York cases, New York decisions may provide a richer exploration of the varying factual contexts or the policy analysis behind a particular legal rule than can be found in Connecticut case law. As a result, a Connecticut court may choose to look to New York case law for guidance. For the same reasons, a federal court in one circuit may choose to attach importance to the decisions of another circuit even though it is not bound by those decisions. Out of respect for the legal analysis of particular judges or particular decisions, a court may also attach importance to dicta in relevant cases. 
> 
> 5 A court is never bound by its own prior decisions. If two cases would be considered mandatory authority in a given jurisdiction, but the cases are inconsistent, the more recent case is binding. For cases that are merely persuasive authority, more recent opinions carry more persuasive value, all other things being equal.

_Reference:_ IRAC/CRRACC Format, see  CRRACC ref.

Rules come from text and precedent and precedent in how rules were applied. We return to Schauer (S0) , supplemented by Alexander, Goodhart:

###  Precedent

_S.0.3.1 direction in precedent -_

  * _Vertical_ \- Lower courts are normally expected to obey the previous decisions of higher courts within their jurisdiction, and this relationship of lower to higher in the "chain of command" is usefully understood as vertical. 
  * _horizontal -_ Horizontal precedent is thus not a matter of higher or lower courts, but rather an artificial or imposed hierarchy from earlier to later. The earlier decision is superior not because it comes from a higher court; rather, the earlier decision becomes superior just because it is earlier

#####  Implicit Precedent

The settlement function of rules also dictates that precedent rules must be posited by a rule-making authority – in this case, a prior judge. Authoritative rule making is an intentional act. The task of the rule maker is to determine the best prescription for future cases that can be captured in the form of a rule. Rule-making authorities, including judges, are expected to bring their powers of reason and expertise to bear on the choice of rules. It follows, for us, that authoritative rules take their meaning from their author's intent. ... the important point is that precedent rules come into existence when they are posited by a past judge and mean what that judge intends them to mean. The requirement that precedent rules must be posited does not necessarily mean that they must appear in canonical form in a prior opinion. Often a rule is detectable in explanatory remarks and citations even if the precedent court did not state the rule explicitly and flag it as a prescrip- tion for future cases. As long as the judge had a rule in mind and the rule is capable of restatement in determinate, canonical form, positing can occur in an informal way.46 Recognition of informal rules expands the capacity of the common law to settle future controversy: given prevailing patterns of judicial opinion writing, insistence on explicit rules would result in too few rules and too little settlement.

Alexander, A1. II.IV.B, see ref.

_S.0.3.2 Precedent is Judicial Constraint -_ Courts are constrained by precedent, that is obliged to follow a precedent whether they think the reasoned outcome is correct or just, because the legal values of predictability and uniformity of result ( rule by law ) are important.

_S.0.3.3 - Stare decisis is useful Unreasonableness_

  * Oliver Wendell Holmes: it was "revolting" that courts would be bound by precedents which "persist...for no better reasons than . . . that so it was laid down in the time of Henry IV." 
  * Jeremy Bentham on stare decisis: "acting without reason, to the declared exclusion of reason, and thereby in opposition to reason." 
  * stability in what is legal is useful

_S.0.3.4 Material facts and Ratio Decidendi -_

  * the ratio decidendi of the precedent case—the basis or rationale for the court's decision

like rules, precedent cases have justifications or rationales lying behind their outcomes, and a precedent case is a good precedent, and thus binding, for all subsequent cases falling within the ratio decidendi of the precedent case

  * material facts are those that are legally relevant, based on a rule

If a preexisting legal rule makes some part of the precedent case material, then we need to look to the source of the understood rule and just apply that, rather than thinking that it is the precedent case that is exerting the constraint. ...It is thus difficult to understand how materiality can come from the statement of even material facts by themselves. If a rule external to those facts determines materiality, it is that rule and not the precedent case that is carrying the load. And if the determination of materiality does not come from a rule external to the case, then it looks as if the idea of precedential constraint might be illusory.

###  Goodhart on ratio decidendi

IN discussing the nature of a precedent in English law Sir John Salmond says :

"A precedent, therefore, is a judicial decision which contains in itself a principle. The underlying principle which thus forms its authoritative element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decidendi which alone has the force of Iitw as regards the world at large." 1

The rule is stated as follows by Professor John Chipman Gray:

"It must be observed that at the Common Law not every opin­ ion expressed by a judge forms a Judicial Precedent. In order that an opinion may have the weight of a precedent, two things must concur: it must be, in the first place, an opinion given by a judge, and, in the second place, it must be an opinion the for­ mation of which is necessary for the decision of a particular case; in other words, it must not be obiter dictum." 2

_Conclusion_ The rules for finding the principle of a case can, therefore, be summarized as follows :

  * (1) The principle of a case is not found in the reasons given in the opinion. 
  * ( 2) The principle is not found in the rule of law set forth in the opinion. · 
  * ( 3) The principle is not necessarily found by a considerltion of all the ascertainable facts of the case and the judge's decision. 
  * (4) The principle of the case is found by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them. 
  * ( 5) In finding the principle it is also necessary to establish what facts were held to be immaterial by the judge, for the principle may depend as much on exclusion as it does on in­ clusion.

  * The rules for finding what facts are material and what facts are immaterial as seen by the judge are as follows. 
  * (1) All facts of person, time, place, kind and amount are immaterial unless stated to be material. 
  * (2) If there is no opinion, or the opinion gives no facts, then all other facts in the record must be treated as material. 
  * (3) If there is an opinion, then the facts as stated in the opinion are conclusive and cannot be contradicted from the record. 
  * (4) If the opinion omits a fact which appears in the record this may be due either to (a) oversight, or (b) an implied finding that the fact is immaterial. The second will be assumed to be the case in the absence of other evidence. 
  * (5) All facts which the judge specifically states are immate­ rial must be considered immaterial. 
  * (6) All facts which the judge impliedly treats as immaterial must be considered immaterial. 
  * (7) All facts which the judge specifically states to be mate­ rial must be cop.sidered material. 
  * (8) If the opinion does not distinguish between material and immaterial facts then all the facts set forth must be considered material. 
  * (9) If in a case there are several opinions which agree as to the result but differ as to the material facts, then the prin­ ciple of the case is limited so as to fit the sum of all the facts held material by the various judges. 
  * (10) A conclusion based on a hypothetical fact is a dictum. By hypothetical fact is meant any fact the existence of which has not been determined or accepted by the judge.

Arthur L. Goodhart, "Determining the Ratio Decidendi of a Case", see ref.

_S.0.3.5 Holdings versus Dicta -_

  * _Holding_ \- the legal rule that, as applied to the facts of the particular case, generates the outcome. .. 
    * a new rule created by the court 
    * echo of a previous stated court's rule 
    * a rule distilled from multiple precedents 
    * a combination of the material facts and the court's outcome? 
    * determination of materiality comes from a previous rule identification of material features of the case , as relevant to a rule's RULENESS. 
  * _Dicta_ an obiter dictum— Latin, some thing said in passing; may be an important factor in genralizing holding to become later precedent

a reason is necessarily broader than the outcome that it is a reason for,39 giving a reason is saying something broader then necessary to decide the particular case. And that seems to be dicta. What is technically dicta— not totally necessary for the result—is precisely what it is that makes it possible for us to generalize from a very specific ruling and thus to use as a precedent in the future.

_S.0.3.6 Overruling Precedent -_ a decision to bind or distinguish, with outright overruling carrying a heightedn burden

####  Alexander : Acceptance of Judicial Rules

The procedural history of a decision might reveal that the court announced a rule and intended it to operate as a rule in future cases, but that the parties never engaged in full debate about the future consequences of the rule.59 If so, later courts could disregard the rule. A requirement of adequate deliberation might not be practical, however, at least in the context of current legal practice. Evidence of deliberation, such as judicial notes and records of oral argument, tends to be scant and difficult to obtain.

Further, regular inquiry into the deliberations leading up to adoption of rules might undermine the prescriptive effect of precedent rules. Following a rule against one's best judgment is not rational; therefore a legal system that relies on serious precedent rules to settle controversy necessarily depends a general disposition among judges to follow precedent rules without much reflection.60 Intensive scrutiny of the deliberations of past judicial rulemakers could undermine the practice of unreflective rule-following.

A second possible check on undesirable judicial rules is a precondition of acceptance over time. According to this condition, precedent rules would become binding when, but only when, they had been "taken up" by a sufficient number of judges.61 A condition of acceptance over time limits the precedential effect of judicial rules to rules that have been studied and approved by multiple judges working in a variety of contexts: rules come to represent a kind of collective wisdom. One difficulty with a precondition of acceptance over time is indeterminacy. There is no non-arbitrary point at which a rule has been sufficiently "taken up" by subsequent courts, and quantifying the extent of acceptance required would be impractical. The indeterminacy of acceptance, however, is like the indeterminacy of baldness and heaps: there comes a point at which one knows it has occurred.63

A more difficult question analytically is what exactly must be accepted. The intended meaning of a rule may change as judges apply the rule over time. For example: a prior opinion contains the rule "domestic household animals are permissible in residential neighborhoods." The judge who announced the rule intended the term "household animals" to include horses and chickens. Subsequent courts have continued to apply the rule. Recently, however, courts applying the rule have used the term "household animals" in a more restrictive way, to mean pets such as dogs and cats. As we have explained, one implication of the settlement function of rules is that the meaning of rules is a function of their authors' intent. This raises the question, if precedent rules are not binding until taken up by later judges, who is the author whose intent governs the meaning of the rule? The authority of the original judge is incomplete because that judge alone cannot establish a binding precede rule: the endorsement of subsequent judges is necessary to place the rule in force. This suggests that the subsequent judges who accept a precedent rule are its authors. However, the meaning intended by subsequent judges cannot be the meaning of the rule because that meaning has not yet been accepted over time. Nor, for that matter, can the original judge's intended meaning be the meaning of the rule, because that meaning has not met the test of acceptance. It appears, therefore, that no effective precedent rule exists until a further round of acceptance occurs, with all endorsers concurring in the meaning of the rule as posited by some prior judge. This further requirement, of course, adds greatly to the indeterminacy of the rule, and so is at odds with the objective of settlement that motivates the rule model of the common law.

Larry Alexander and Emily Sherwin, Demystifying Legal Reasoning: Part II see ref.

We cannot escape a focus on precedent and analogy when examining common law procedures.

#####  Stanford: The form of judgments

Although the idea of the _ratio decidendi_ is a staple of legal practice, it is notable that it is a construct from a precedent rather than an explicit feature of most legal judgments. Judgments are highly discursive texts and very rarely identify their own rationes. What is more, even if a court chooses to explicitly formulate the ratio of its decision, this precise formulation is not itself regarded as binding on later courts.

It is often said that this creates a marked contrast with statutes, where a canonical formulation of the legal rule being laid down is provided. Given the flexibility open to later courts to determine the ratio of the earlier decision, it is misleading to think that decisions lay down binding rules for later courts. However, although there is a contrast with legislation here, it can be exaggerated. In both situations the propositions of law for which a case or statutory provision is authority must be derived from the case or statute and is not identical with the text of either. The real difference between precedent and statute lies in the fact that in the case of statutes legal systems have elaborate conventions of interpretation to assist in the process of deriving the law from a legislative text, whereas in the case of precedents they do not. But this simply shows that the law derived from precedents may be vaguer and more indeterminate than that derived from (many) statutes; it does not establish that precedents do not create legal rules. ... 2.1.2 The practice of distinguishing

An integral part of legal reasoning using precedents is the practice of distinguishing. Distinguishing involves a precedent not being followed even though the facts of the later case fall within the scope of the ratio of the earlier case. As the later case falls within the scope of the earlier ratio (i.e., within the scope of the rule), one might expect that the decision in the later case must be the same (unless the court has the power to overrule the earlier case and decides to do so). In legal reasoning using precedents, however, the later court is free not to follow the earlier case by pointing to some difference in the facts between the two cases, even though those facts do not feature in the ratio of the earlier case.

Take the trust example: in a later case the recipient of trust property may not have paid for the property, but may have relied on the receipt in entering into another arrangement (e.g. in using the property as security for a loan). The later court may hold that the recipient is entitled to retain the property and justify its decision by ruling that where (i) the defendant has received trust property (ii) in breach of trust and (iii) has not paid for the property, but has (vii) relied upon the receipt to disadvantageously alter her position, then the defendant is entitled to retain the property. (This result would still leave the beneficiary with a claim against the trustee for the value of the property.)

The effect of distinguishing, then, is that the later court is free not to follow a precedent that, prima facie, applies to it, by making a ruling which is narrower than that made in the precedent case. The only formal constraints on the later court are that: (1) in formulating the ratio of the later case, the factors in the ratio of the earlier case (i.e., (i)–(iii)) must be retained, and (2) the ruling in the later case must be such that it would still support the result reached in the precedent case. In short, the ruling in the second case must not be inconsistent with the result in the precedent case, but the court is otherwise free to make a ruling narrower than that in the precedent. Hence the more accurate statements of the doctrine of precedent are to the effect that a later court must either follow or distinguish a binding precedent—a disjunctive obligation.

Precedent and Analogy in Legal Reasoning, 2.1.1, Stanford.see ref.

#### Re; Precedent and Narrowing

|  _Best Reading Does Apply_ |  _Best Reading Doesn't Apply_  
---|---|---  
_Apply Precedent_ |  _Follow_ \- applying a precedent when it is best read TO apply.  |  _Extend_ \- extend the precedent to a new set of facts even if the two cases are significantly different   
_Don't Apply Precedent_ |  _Narrow_ \- restricting application of a precedent when it is best read to apply, distinct from overruling, the narrowed precedent remains available for future application, though within a narrower compass.  |  _Distinguish_ \- not applying a precedent where it is best read NOT TO apply

####  Narrowing

  * Narrowing as Stare Decisis- achieving correctness, practicality, candor, fidelity, and: Fit. — Fit means preserving the overall coherence of legal doc- trine. This value is often redundant with correctness, as courts gravitate toward the legal answer that best fits in with other principles. Under Ronald Dworkin's influential jurisprudential theory, for instance, fit is largely constitutive of correctness, and every legal argument can be framed as an argument about fit. 
  * Narrowing as Avoidance- Legitimate narrowing is the decisional-law analogue to the statutory- law canon of constitutional avoidance. When courts interpret either a precedent or a statute, they are looking at a document with legal force 
  * Narrowing Rules-the Court sometimes narrows not because the precedent at issue arrived at an erroneous outcome but rather because it was decided on an overbroad ground. The Court frequently solves this problem by narrowing rules. 
  * Aspirational narrowing- arises in concurring opinions, which frequently propose rationales that are narrower than the majority's. These separate writings suggest ways in which the Court might later cut back on unduly broad reasoning while maintaining fidelity to an earlier ruling's outcome or fundamental logic. More interesting—and ambitious—are dissenting opinions that propose narrowing while disagreeing with a current majority as to both reasoning and result. 
  * ...

Richard M. Re, Narrowing Precedent,see ref.

###  domain notes

_applications_ see ref. for paraphrased context above.

  * structure of stare decisis 
    * horizontal deference to court's own decisions 
      * intra court 
      * inter court comity- different circuit 
    * vertical deference to supervisory courts 
    * weight of deference 
      * absolutely binding 
      * weaker if reasonable, plausible 
      * merely persuasive 
  * Scope of authority

Existing legal authority consists of constitutions, statutes, regulations, and decisional law, as well as past judicial decisions that have interpreted other sources of legal authority such as constitutions and statutes"

  * Rule synthesis

pulls together threads and reconciles discrepancies from various decisions taking into account the hierarchy of authority and weight.

  * Implicit Precedent

As long as the judge had a rule in mind and the rule is capable of restatement in determinate, canonical form, positing can occur in an informal way.

  * precedent is judicial restraint, useful, unreasonable 
  * _ratio decidendi and facts_ \-

the reason for the decision, not just the material facts, determine the weight of deference to a case.

a fact is material when a legal rule makes it legally important. It is a legal rule that tells us when two things are similar, and thus it is a legal rule that tells us the level of generality at which the facts should be understood and described by the deciding court.

finding the principle

The principle of the case is found by taking account (a) of the facts treated by the judge as material, and (b) his decision as based on them. ... also necessary to establish what facts were held to be immaterial by the judge, for the principle may depend as much on exclusion as it does on in­ clusion.

  * obiter dictum

What is technically dicta— not totally necessary for the result—is precisely what it is that makes it possible for us to generalize from a very specific ruling

  * overruling requires a higher standard 
  * acceptance over time-

A condition of acceptance over time limits the precedential effect of judicial rules to rules that have been studied and approved by multiple judges working in a variety of contexts: rules come to represent a kind of collective wisdom

  * judicial precedential indeterminacy 
  * Options 
    * Narrowing- not applying when best read to apply 
      * distinct from over ruling, precedent still remains valid 
      * a solution to a previous overbroad rule application 
    * Distinguishing- not applying when best read NOT to apply

Distinguishing involves a precedent not being followed even though the facts of the later case fall within the scope of the ratio of the earlier case ... the doctrine of precedent are to the effect that a later court must either follow or distinguish a binding precedent—a disjunctive obligation.

    * Extending to new facts - following 
    * Follow - best read to apply

###  Sources [s1]
Back  contents

###  CContext - Authority [s2]

Both text and precedent suggest rules but on what relative and persuasive authority?

###  Authority

_S.0.4.1 Authority is Content Independent, Backward Looking -_

With respect to both rules and precedents, the key idea is that they are authoritative. Their force derives not from their soundness but from their status, and philosophers of law refer to this feature of authority as content-independence.

_S.0.4.2 Binding v. Persuasive -_

binding authorities are those that a lower court must follow or distinguish.. persuasion and authority are fundamentally opposed notions. It is far better to describe these nonbinding sources as nonmandatory or, more felicitously, optional

_S.0.4.3 authority is competitive-_

authorities be authoritative without being absolutely authoritative. The existence of an authoritative reason is not inconsistent with there being other outweighing authoritative reasons or outweighing reasons of other kinds.

_S.0.4.4 not all authorities should be taken seriously -_

neither the optionality nor the nonabsoluteness of the use of an authority is inconsistent with that authority's authoritativeness. To cite something is typically to imply that it is to be taken seriously

_S.0.4.5 how do authorities become authoritative -_

what counts as legal authority, and thus what counts as a legitimate source of law, is the product of an evolving practice in which lawyers, judges, commentators, and other legal actors gradually and in diffuse and nonlinear fashion determine what will count

S0 schauer, also summaries of cited alexander, sherwin et. al; see ref.

####  steps in determining legal authority

  * Step 1: Are the Legal Issues in Your Case Governed by Federal or State Law?

Do the Legal Issues you've identified in your case fall within state, federal, or both state and federal jurisdiction (criminal, civil, environmental) ?

  * Step 2: Which Court Are You In?

First, ask yourself whether you are in federal or state court. Second, ask yourself whether you are in a trial court, a mid-level appeals court, or a supreme court.

  * Next identify the competing jurisdictions 
    * Higher courts bind lower courts within their particular state or circuit. With the exception of the U.S. Supreme Court, courts of appeals and state courts do not bind courts outside the state or circuit in which they are located. That is, a federal Supreme Court decision is mandatory on all lower federal courts, both courts of appeals and district courts. A federal circuit decision is mandatory on all federal courts within its circuit, but not federal courts in other circuits.

    * Federal courts usually bind only other federal courts, not state courts. Similarly, state courts usually bind only other state courts. Thus, a decision by the U.S. Ninth Circuit Court of Appeals, a federal court, mandatory on federal courts within the boundaries of the Ninth Circuit. It is not mandatory on California state courts, even though California is geographically within the Ninth Circuit. Similarly, a California Supreme Court decision would bind other California state courts, but not the Ninth Circuit or other state courts (like Nevada state courts).

    * Federal courts bind other federal courts only when they interpret and apply federal law while state courts bind other state courts only when they interpret and apply state law. Sometimes a federal court must apply a state's law. In that case, the state's interpretation of that law is mandatory on the federal court. Even so, the federal court can still decide whether the state's interpretation is consistent with federal law. Similarly, state courts must sometimes decide issues of federal law, but they are not bound by federal courts except the U.S. Supreme Court. The U.S. Supreme Court, a federal court, is mandatory on state courts when it decides an issue of federal law, such as Constitutional interpretation. Other federal courts—district and appellate—are not mandatory on state courts.

#####  competing types of authorities in state courts

where  |  binding authority  |  persuasive authority   
---|---|---  
State issue in state trial court  |  That state's state appeals court, That state's highest court  |  All federal courts, Other states' state courts, Other state trial courts in the same state   
State issue in state appeals court  |  That state's highest court  |  All federal courts, Other states' state courts, State trial courts in the same state, Other state courts of appeals in the same state   
State issue in state's highest court  |  That state's highest court  |  All federal courts, Other states' state courts, State trial courts in the same state, State courts of appeals in the same state

Mandatory ,GULC,georgetown univ, see ref.

###  authority and interpretation

We disagree with the foundation of Rosenkranz's argument. In our view, the federal judiciary has no authority to create binding rules of interpretation that it will use to construe federal statutes. To the extent the rules of interpretation help attain results that merely mirror the meaning that one would otherwise derive from a statute, the rules are harmless because they merely articulate the proper way of divining meaning at the time they are applied. 12 But to the extent that the rules of interpretation create an artificial meaning that is divorced from the meaning that one would discover in the absence of the rules of interpretation, we think that such rules of interpretation are constitutionally problematic. In what way does the "judicial power of the United States" grant the federal judiciary the authority to create counterintuitive rules of interpretation that then require the Congress affirmatively to circumvent them? We doubt that the judicial power-the power to decide cases-gives the federal judiciary the power to dictate interpretive rules to Congress. The courts cannot dictate (or constrain) how Congress must express itself...

To think that the meaning of words comes from the application of artificial rules of construction promulgated by branches of the federal government is to adopt an unfortunate government- centric view of words and their meaning. It suggests that the same statute might mean one thing to a federal court and quite another to the state court (assuming that each court is allowed to apply its particular favorite contrived rules of interpretation). We will be so bold as to say that words and sentences have meaning even in the absence of government. More importantly, we believe that words have meanings independent of whatever arbitrary rules that others might create in a bid to stack the deck away from particular substantive outcomes. Such attempts to put a "thumb" on the scale should be recognized for what they are: attempts to drag statutes away from their actual meaning and towards the substantive preferences of those who create the rules of interpretation.24 Without a congressional power to add to the constitutional requirements for passing federal legislation, Congress cannot pass mandatory prospective rules of interpretation. As should be obvious, we believe that neither the federal courts nor the Congress has any constitutional authority that enables them to require future Congresses to jump through physical or linguistic hoops prior to legislating.

Imposing Mandatory Prospective, Alexander, see ref.

###  Dworkin and Persuasive Authority

Widespread judicial practice, therefore, appears to support the conclusion that persuasion is rarely part of the equation when per-suasive authorities are being used. Yet although at first glance the idea of persuasive authority seems to be as empirically inaccurate as it is conceptually oxymoronic, the matter may not be quite so simple. Because the concept of persuasive authority is traditionally offered in opposition to the concept of mandatory authority, the distinction between the two hinges on whether the decisionmaker has a choice to use the authority. And here the contributions of Ronald Dworkin can be instructive. When Dworkin distinguishes rules from principles,50 he relies in part on the fact that the judge must apply51 a rule that applies to the facts at hand but has a choice about whether to apply a principle. Both rules and principles have scopes—they apply by their own terms to some but not all acts and events.52 But under Dworkin's distinction, the defining characteris-tic of a rule is that it must be applied whenever its triggering acts or events occur, while principles are never mandatory in this sense, even if it appears on their face that they apply to the matter at hand

The value of Dworkin's analysis for our purposes here has little to do with any alleged distinction between rules and principles. Rather, Dworkin helps us grasp a valuable distinction between seemingly applicable authorities that must be applied and other seemingly applicable authorities whose application is optional and not obligatory. Transposing Dworkin's distinction between manda-tory rules and less mandatory principles to the question of author-ity encourages us to distinguish mandatory from optional authori-ties. And "optional,"53 rather than "persuasive," seems a word much better suited to capturing the distinction we are after be-tween that which must be used and that which may be ignored. A judge in the Southern District of New York is required to follow Second Circuit and Supreme Court decisions but is not required to follow or even notice the conclusions of the Eastern District of New York, the New York Court of Appeals, the Third Circuit, Wigmore on Evidence, the Harvard Law Review, the High Court of Australia, the Constitutional Court of South Africa, or the Euro-pean Court of Human Rights. Yet, although the Southern District judge may ignore all of the items on this list of optional authorities without fear of sanction, she is permitted by the applicable profes-sional norms to use them, in a way that she is not permitted, for fear of criticism and professional embarrassment if nothing else, to provide citations to astrology, private conversations with her brother, articles in the National Enquirer, and (slightly more con-troversially) the Bible...

With this account of what are sometimes called "prima facie" rights and obligations in hand, we can see with little difficulty how authorities can be authoritative without being conclusively authori-tative. The existence of an authoritative reason is not inconsistent with there being other outweighing authoritative reasons or out-weighing reasons of other kinds. When a court rules that even the crisp rules of an applicable statute must yield at times to the de-mands of justice,71 it is saying that an undeniably applicable statute is to be understood as prima facie but not absolutely outcome producing. In this sense, it is certainly true that most authorities are not binding or controlling in an absolute way. And the suggestion that treating some source as authoritative requires that the pre-scriptions emanating from that source must be followed,

Authority and Authorities,schauer , see ref.

The hierarchy of legal authority ( and jurisdiction) is idiosyncratic with regard to region and issue,e.g. Texas.

###  example texas courts

 _schema_ : texas courts hierarchy

Authority and jurisdiction depend on both the type of issue and the level of possible punishment.

###  Texas Hierarchy and Jurisdiction

### State Highest Appellate Courts

---  
_Supreme Court_ (1 Court -- 9 Justices) \-- Statewide Jurisdiction -- Final appellate jurisdiction in civil and juvenile cases.  |  _Court of Criminal Appeals_ (1 Court -- 9 Judges) \-- Statewide Jurisdiction -- Final appellate jurisdiction in criminal cases.

### State Intermediate Appellate Courts

_Courts of Appeals_ (14 Courts -- 80 Justices) \-- Regional Jurisdiction -- Intermediate appeals from trial courts in their respective courts of appeals districts

### State Trial Courts of General and Special Jurisdiction

_District Courts_ (458 Courts -- 458 Judges) (360 Districts Containing One County and 98 Districts Containing More than One County) \-- Jurisdiction --

  * Original jurisdiction in civil actions over $200, divorce, title to land, contested elections. 
  * Original jurisdiction in felony criminal matters. Juvenile matters. 
  * 13 district courts are designated criminal district courts; some others are directed to give preference to certain specialized areas.

###  County Trial Courts of Limited Jurisdiction

_County-Level Courts_ (510 Courts -- 510 Judges)   
_Constitutional County Courts_ (254) (One Court in Each County)

  * Original jurisdiction in civil actions between $200 and $10,000. 
  * Probate (contested matters may be transfered to District Court). 
  * Exclusive original jurisdiction over misdemeanors with fines greater than $500 or jail sentence. 
  * Juvenile matters. 
  * Appeals de novo from lower courts or on the record from municipal courts of record.

_Statutory County Courts_ (238) (Established in 88 Counties plus 1 Multi-county Court)

  * All civil, criminal, original and appellate actions prescribed by law for constitutional county courts. 
  * In addition, jurisdiction over civil matters up to $200,000 (some courts may have higher maximum jurisdiction amount).

_Statutory Probate Courts_ (18) (Established in 10 Counties

  * \--Limited primarily to probate matters.

### Local Trial Courts of Limited Jurisdiction

_Justice Courts1_ (817 Courts -- 817 Judges2) (Established in Precincts Within Each County)

  * Civil actions of not more than $10,000. 
  * Small claims. 
  * Criminal misdemeanors punishable by fine only (no confinement). 
  * Magistrate functions.

_Municipal Courts_ (926 Cities -- 1,288 Judges2)

  * Criminal misdemeanors punishable by fine only (no confinement). 
  * Exclusive original jurisdiction over municipal ordinance criminal cases. 
  * Limited civil jurisdiction. 
  * Magistrate functions.

COURT STRUCTURE OF TEXAS, see ref.

### domain notes

Authority

  * Content Independent

With respect to both rules and precedents, the key idea is that they are authoritative. Their force derives not from their soundness but from their status, and philosophers of law refer to this feature of authority as content-independence

  * Binding, Mandatory, and Optional Persuasive Authorities

Distinguishing must be explained

  * There are Competing 'Binding' Authorities

balancing between authorities gives discretion, advocates can argue balancing to steer a decision to a given outcome

  * Are some authorities to be Prohibited?

authoritativeness- some authorities shouldn't be taken seriously

  * How Do Authorities Become Authoritative?

evolving custom, traditions

  * how a rule is properly interpreted is within the context of proper authority, as is the weight of an optional persuasive citation. 
  * highly idiosyncratic by issue and region:

"The power of the lawyer is in the uncertainty of the law" , Jeremy Bentham

###  Sources [s2]
Back  contents

###  Analogical Reasoning in Argument [an1]

If argument is not a chain, but an argued inter-woven cable, then text and case precedent provide tentative defeasible rules. The advocate identifies rules with similarity in the target case, but what determines the metric of relevant similarity?

###  Analogy

_S.0.5.1 - precedent vs. analogy_

  * Some features of the source case, chosen from a set of likely analogs, are found in the target case, and consequently the target case should be decided in a similar fashion. 
  * the analogy is chosen because of its ability to persuade allowing justification of a judicial preference, whereas the mandatory precedent binds creating judicial restraint.

_S.0.5.2 - Similarity by Rule Precedent_

  * there are relevant or irrelevant similarities btweeen case 
  * the determination of relevance may be determined by a previous controlling case's decision as to what features are important, or not. 
  * the previous rule's determination of relevant features turns the argument of analogy into an argument over precedent. 
  * eventually competing analogies are determined by what a court finds to be a persuasive comparison of target and source.

_S.0.5.3 -Does the Rule Determine the Analogy?_

  * does the analogy compel the choice of a rule? 
  * does the choice of a rule determine the analogy ?

> A principal motivation for the skeptical challenge is a worry on the part of the skeptics that often the court in the second case is pretending that the analogy preexists the rule that determines relevance, when it is in fact the other way around. The rule determines the analogy, but the analogy does not determine the rule. And pretending that the analogy is doing the work—that the analogy itself without the rule drives the result— masks the fact that the second court is choosing the rule that determines relevance. To the skeptics, the problem is that the second court is making a choice but acting as if some natural and deep similarity is dictating the result. The impetus for the skeptics, therefore, is that too much of the praise of analogical reasoning in law is a disingenuous celebration of what is in reality a quite creative exercise on the part of the second court.

_S.0.5.4 Legal Analogy is Incremental -_

Thinking by analogy involves building on pre-existing perceptions of similarity and thus an incremental process of legal change? [ but not if it nullifies judicial restraint and permits the invention of new rules ]

####  Others on Analogical Legal Argument

#####  Stanford on Analogy

An analogical argument in legal reasoning is an argument that a case should be treated in a certain way because that is the way a similar case has been treated. Arguments by analogy complement arguments from precedent in two ways: (i) they are used when the facts of a case do not fall within the ratio of any precedent, in order to assimilate the result to that in the analogical case; and (ii) they are used when the facts of a case do fall within the ratio of a precedent, as a basis for distinguishing the case at hand from the precedent. The force of an argument from analogy is different to that from precedent. An indistinguishable precedent must be followed unless the court has the power to overrule the earlier decision and does so. By contrast, arguments from analogy vary in their strengths: from very 'close' analogies (which strongly support a result) to more 'remote' analogies (which weakly support a result). Analogies do not bind: they must be considered along with other reasons in order to reach a result. That an analogy is rejected in one case does not preclude raising the analogy in a different case.

Analogies, like precedents, arise within a doctrinal context. The case at hand raises a legal issue, e.g. does the impersonation of a boyfriend vitiate the victim's consent in the law of rape, is cross-burning protected 'speech' within the First Amendment to the US Constitution, does the defence of duress require the defendant to have acted as a reasonable person would have done? Other cases dealing with the validity of consent or the scope of protected 'speech' or reasonableness in defences provide potential analogies. An analogy may either be to another case or to another legal doctrine, and the analogy rests on there being some common characterisation of the facts in both cases or the two doctrines which is relevant to the issue. So knives may be analogous to guns if the issue concerns weapons, but knives may also be analogous to teaspoons if the issue concerns cutlery. Duress may be analogous to provocation if the issue concerns defences, but duress may also be analogous to incitement if the issue concerns complicity. Two doctrines or sets of facts are not analogous in the abstract, but in the context of a legal issue.[17]

Two questions arise about analogical reasoning. Firstly, by what process does a decision-maker identify the 'common characterisation' between the case at hand and the analogous one? Secondly, what type of justificatory force does the common characterisation provide? On the first question, just as no two cases are identical in every respect, so no two cases are such that some common characterisation of the facts cannot be found. But not every case is thought to provide an analogy, so what limits or directs the selection of analogies? The answer to this question flows into the issue of the justificatory force of analogies. What sort of reason does an analogy provide for deciding the instant case in the same way?

It is widely agreed that the existence of an analogy depends ultimately upon the justification for the analogical decision. The facts in a case may fall outside the ratio of an existing precedent, and thus the court is not bound by the precedent. On the other hand the justification for the earlier decision may apply to the later case, and thus provide an argument from analogy. Take the case of the impersonation of a boyfriend in the law of rape. Assume that there is authority for the proposition that the impersonation of a husband vitiates consent for the purposes of rape. Whether the impersonation of a boyfriend is analogous depends upon why such a marital impersonation vitiates consent. If it is thought that part of the significance of being married is the sharing of physical intimacy with that particular person, then the rationale is applicable to other close personal relationships. If instead the rationale is that consent to an impersonator involves committing an act of adultery, i.e., an act different in kind to that consented to, then although the two situations are obviously very similar, the analogy will fail.

It is often argued that reasoning by analogy and distinguishing precedents are mirror images of each other: given the facts of two cases, the question is whether there is a good reason for treating them differently (e.g. Eisenberg 1988, 87). In the case of distinguishing, a precedent must be followed unless there are good reasons for treating it differently. In the case of analogy, it is said, a precedent must be extended unless there are good reasons for treating the instant case differently. But this is misleading, since the symmetry is incomplete. A precedent cannot be distinguished on grounds that would, in substance, imply that the precedent was wrongly decided: it must be treated as correctly decided. A precedent need not be extended, however, if later courts regard its rationale as unpersuasive. A longstanding doctrine of the common law was that a husband could not commit the offence of rape against his wife. By the twentieth century the rule was increasingly recognised to be archaic and objectionable. Thus, unlike the question of impersonation discussed above, no one suggested that the rule should be extended to cohabiting couples.[18] Where a decision is not regarded as misguided, however, it does provide an argument for being followed. The later court may still decide, however, that it would not be desirable, all things considered, to do so.

The explanation for the justificatory force of such resemblances is, however, controversial. There are two major alternative accounts, the one relying on principles, the other on reasons.

philosophy, stanford, see ref. p4.

#####  distinguishing and analogy

The distinguishing mode of legal reasoning is usually employed by the court when the court makes exceptions to the otherwise applicable precedent. Eisenberg argues that the distinguishing mode of reasoning will be 'consistent' if it satisfies the following conditions: 1) "the social propositions that support the adopted rule do not apply to the case at hand, 2) The case at hand implicates a social proposition that does not apply to the typical case covered by the adopted rule."

Eisenberg argues that this mode of legal reasoning incorporates features from 'adopted rule' and 'result-based' approach in sense that the court does not overrule the precedent but creates an exception that was overlooked by the previous decision, and it does not contradict but goes in line with the precedent rule. Thus, if distinguishing mode of reasoning as specified by Eisenberg applied in Brown the precedent vindicating the racial segregation would still be valid unless it is overruled. Deciding whether or not social propositions justify for distinguishing or overruling the precedent leaves substantial discretion to judges.

Regarding the reasoning by analogy Eisenberg contends that it is the 'mirror image' of the distinguishing mode of legal reasoning in sense that an exception is made by the court to cover unregulated matter demanded by social propositions. In case of distinguishing the precedent the rule 'literally' applies to the case at hand but the social propositions require modification or reformulation to comply with unregulated social phenomenon whereas analogical reasoning implies that the precedent rule is not 'literally' applicable. By analogy the court broadens or narrows the rule from precedent to cover the issue at stake because 'there is not a good social reason to treat the case at hand differently'.

Common Law and American Constitutional Interpretation,see ref.

##### classificatory analogy

An initial line of thought may be that the use of analogies in classification is due to the vagueness and open texture of legal rules. The application of a legal rule requires that the categories used in the rule apply to the facts of the case. Whether a category applies to the facts depends upon it satisfying the criteria for belonging to that category. Sometimes it is unclear whether the criteria are satisfied: has this breach of a contractual term deprived the innocent party of 'substantially the whole benefit' of the contract?18 Where the answer isn't clear, lawyers turn to cases with similar facts to see how courts have resolved them in order to find some guidance. There are a number of reasons, however, for thinking this analysis is too simple. First of all, it is sometimes uncertain or unclear what the applicable grounds for a classification are. A group of cases may have been held to fall within a particular category, but either no proposed test or analysis of the basis for the classification has been given or none has achieved widespread acceptance.19

Secondly, there may be accepted grounds for the classification, but grounds that are regarded as partial, merely indicating the sorts of considerations relevant to the classification without providing a comprehensive account. It is rare for a case, or even series of cases, to provide a set of necessary and sufficient conditions for classification. Thirdly, even if there are clearly accepted grounds for the classification, understanding the content of the grounds will depend in part on familiarity with the cases decided according to it. This is not only due to the very abstract way in which some grounds are couched (eg a duty of care in negligence requiring there to be 'proximity' between the parties20). Understanding the legal meaning of 'intention', or 'employee', or 'trust', turns in part on knowing how those terms have been applied in particular cases. The dependence on decided cases also helps to explain why the classification of a case may be arguable even though it does seem to fall squarely under the accepted grounds, since there may be similar cases that have been held not to fall within the category.

... Classificatory analogies assist in deciding whether or not to allocate a new case to an existing category. The use of analogies in classification makes sense of the common idea that analogies are based on relevant similarity between the facts of cases. The similarities that matter are those related to the characterisations and functions of the concept in the existing cases, and is a matter of degree. Sometimes both the inclusion and the exclusion of the new case would be well supported by the shape of the existing concept. In these cases a court has to decide whether, on balance, there is sufficient similarity to the existing cases to include the new case. In a sense the use of classificatory analogies involves an exercise in 'artificial reason' of the kind sometimes thought characteristic of the law.30 It is 'artificial' because it goes beyond what would be thought rational in non-legal contexts. If the classification of a novel set of facts is unclear, it would normally be enough to conclude just that, or if a decision was needed, to base the classification on

considerations of what would be the best in the circumstances of this case, or for the future determination of cases of this kind. It is a particular feature of legal decision-making that the classification should also be consistent with previous cases, ie with the existing decisions that the law has made, even when these earlier cases could quite reasonably have been decided otherwise. The point is that even if the line being drawn between cases is, in a significant sense, arbitrary, it is being drawn in a systematic way, rather than leaving arguable cases to be decided on an ad hoc basis by individual courts. The use of analogies cannot of course eliminate the need for courts to make judgements about the relevant similarities, but it seeks to reduce and constrain the degree of individual judgement involved. It thereby seeks to bring the use of classification closer to the rule of law ideal where the outcome of the case does not depend upon the individual views of the particular decision-maker, but upon the common understanding of what the law requires.

Analogical Reasoning in the Common Law, Grant Lamond

##### Sunstein-An Objection Answered?

3· The Search for Relevant Differences- The Inevitable Need for Criteria Never Supplied by Analogical Reasoning. - The final objection to analogical reasoning is that the process has yet to be adequately specified, and that when it is, it will emerge as a primitive and failed substitute either for a more general theory or for the effort to reach reflective equilibrium. This is, I believe, the most powerful objection to analogical reasoning; in an important sense, it is correct. But the nature of the objection, and the possible responses, are sur­ prisingly complicated. The objection begins with a simple point. The method of analogy is based on the question: Is case A relevantly similar to case B, or not? Is a ban on ... like a ban on the use of contraceptives in marriage, or like a ban on incest? Is a restriction on abortion like a restriction on murder, or like a compulsory kidney transplant? To answer such questions, one needs a theory of relevant similarities and differences. By itself, analogical reasoning supplies no such theory. It is thus dependent on an apparatus that it is unable to produce.

In short: Everything is a little bit similar to, or different from, everything else. Perhaps better: Everything is similar in infinite ways to everything else, and also different from everything else in the same number of ways. n115 At the very least one needs a set of criteria to engage in analogical reasoning. Otherwise one has no idea what is analogous to what.

By themselves, factual situations tell us little until we impose some sort of pattern on them. n116 We say that something is like something else only because we have a principle that tells us so (or because we simply perceive the world this way). If this is true, it might seem better simply to identify the principle and the criteria, if we have them, rather than to proceed through analogies.

Thus, for example, if we are asking what sorts of speech are protected by the First Amendment, we might ask some questions about the purposes of that amendment, or the scope of its coverage, [*775] and then apply our answers to various cases -- rather than refusing to specify the general theory in advance and spending time examining the endless cases that are the staple of free speech law: perjury, misleading commercial speech, conspiracies, false cries of fire in a crowded theater, and so forth. On this view, reasoning by analogy is necessary only because of our failure to develop general principles, which ought to be evaluated in their own right. ...

We might conclude that in hard cases in law, any "choice," if made well, is not a black box, but is instead founded on policies or principles that usually play a part in legal reasoning as it currently stands. And if the relevant grounds for choice are not in the current resources of legal reasoning, so much the worse for (current) legal reasoning. We should then change legal reasoning to ensure that it contains the appropriate resources for choice.

The process of reasoning by analogy is not science, and it cannot be anchored in anything other than what human beings actually believe.. But surely this does not disqualify it as a mode of reasoning. It may even be said to be the central feature of the common law method, prevalent of course in American constitutional law. And when analogical reasoning is working well, it provides a deep challenge to ordinary understandings of the rule of law -- and to the occasionally prominent movements toward codification and the replacement of analogical reasoning with clear rules, to be laid down by the legislature or courts in advance.

Sunstein, On Analogical, see ref.

####  Alexander: Analogical Reasoning in the Law (ARIL) is Chimerical

##### AWR-analogy-warranting rule

Brewer's account of ARIL begins with abductive reasoning. There is a "context of doubt." 4 For example, the court is unsure whether the case before it-Case A-is more "like" Cases B, C, and D, which would dictate one result, or is more "like" Cases X, Y, and Z, which would dictate another result. The court provisionally abduces a rule that would sort the existing cases-an "analogy-warranting rule" or "AWR."35 It then confirms or disconfirms the AWR by reference to explanatory orjustificatory rationales--"analogy-warranting rationales" or "AWRas."

The court may adjust the AWRs to fit both the AWRas and the cases, adjust the AWRas to fit both the AWRs and the cases, or adjust both the AWRs and the AWRas until the court reaches ajustificatory or explanatory equilibrium. 7 Finally, the court applies the AWRs it has thus confirmed to the case before it, Case A.38 Brewer continues:

> Perhaps the single most important feature of argument by analogy is this: in order for an argument by analogy to be compelling- to have what I have called rational force-there must be sufficient warrant to believe that the presence in an "analogized" item of some particular characteristic or characteristics allows one to infer the presence in that item of some particular other characteristic. It is this sufficient warrant that I have labeled 'analogy-warranting rule.' An analogy-warranting rule states the logical relation between those characteristics of compared items that are known to be shared and those that are inferred. Another important component in a compelling argument by analogy is what I have called the 'analogy-warranting rationale.' Without undue linguistic legislation, one may distinguish rules from rationales in this way: rationales stand to rules in the two closely associated relations of explanation and justification-that is, rationales explain and justify rules. 
> 
> Accordingly, AWRs stand in these relations to AWRas. An analogy warranting rule states the logical relation that obtains between the shared characteristics, on the one hand, and the inferred characteristics, on the other. An analogy-warranting rationale explains why, in the "eyes of the law" (when the analogical argument is legal), or for the purposes of the argument (when the analogical argument is nonlegal), the logical relation among the characteristics articulated by the analogy-warranting rule either does obtain or should obtain.

... In other words, for Brewer, ARIL is not reducible to the application of rules. If it were, then in our reasoning we could dispense with the precedent cases-the examples-and merely apply the rules to the case at hand. What makes ARIL different from rule application is the abductive search for an AWR in a context of doubt about the rule, and the confirmation of that rule by reference to AWRas (as well as the search for any "disanalogy-warranting" rules and rationales4").

_Tracking ARIL to Its Lair: Immanent Legal Principles_

Thus far, I have attempted to show that ARIL cannot be ordinary moral reasoning that takes into account past legal decisions, and that ARIL cannot be ordinary empirical inquiry into legislative intent (or public understanding) that takes into account examples in legal texts. If we look for ARIL in those precincts, we shall not find it.

There is an alternative location where I believe ARIL can be found: ARIL is the method of divining legal principles immanent in the case decisions and in the decisions of legislative bodies. ARIL is not the method for understanding canonical legal texts, as I have explained. Nor is it the method for applying canonical texts, which is merely deductive. Rather, ARIL functions when a case is not controlled by a canonical text, as when no extant text covers the case, or when the text that covers it is not canonical and can be disregarded, such as some accounts of judicial texts. What ARIL directs a court to do in such situations is to find the legal principles immanent in the legal materials and apply those principles to the case at hand.

Now, what are immanent legal principles? I am going to give the best account of them I can, but because I am quite skeptical about the normative status of immanent legal principles, my account should be viewed warily.

Immanent legal principles are legal norms that are not posited by any legal decisionmaker. As I said, if they were posited norms, they would be subjects not for ARIL but for interpretation - empirical inquiry - and deduction. Rather than being posited norms, immanent legal principles arise from the posited legal materials, and justify them. For example, the court in MacPherson could be described as having found in the array of past cases - though not in their stated rationales - the legal principle that it announced regarding negligence and privity, which principle justified the decisions in both MacPherson and in the precedent cases.

Just as immanent legal principles are not posited norms, neither are they moral norms. Although they "justify" past legal decisions, they do not do so morally, at least not straightforwardly. If they were moral norms, then, as I have argued, they would be discovered through the method of reflective equilibrium, not through ARIL.

ARIL as the method for discovering immanent legal principles squares rather well with Brewer's account of ARIL. A court faced with an array of past decisions, shorn of their nonauthoritative rationales, abduces a principle (the AWR) that would fit with those past decisions. It tests that principle for plausibility against background [*80] moral considerations (the AWRas). If the principle both fits the decisions and is morally attractive, the principle is the principle immanent in those decisions and is the gauge of relevant "likeness" and "unlikeness" in analogical reasoning from the cases.

I think that this story about immanent legal principles is the best account that can be given of ARIL. Notice that on this account ARIL appears to be, as many of its advocates contend, not some mystical, intuitive grasping of "likeness" and "un-likeness," but a form of practical reasoning. Notice also that on this account ARIL explains how past cases can constrain future decisions - as the principle of stare decisis requires - even though the past cases are shorn of their rationales. Notice finally that on this account ARIL truly is a distinctive methodology of practical reasoning, one that can support the autonomy of law.

Even as I have presented this account of ARIL so far, it has problems. For example, because ARIL is supposed to operate on judicial decisions and not the rationales for those decisions - else it would be merely interpretation and deduction - we need some way to overcome the problem to which I earlier adverted: judicial decisions are accessible to later courts only through their rationales.

Larry Alexander, Bad Beginnings, see ref. A3.

###  domain notes

  * a persuasive comparison, shared features between: 
    * source case

chosen from amongst source analogs

_similarity features defined by precedent_ When these arguments about the relevance or irrelevance of various similarities and differences arise, the determination may hinge on the extent to which a previous case, especially a controlling one, has announced which similarities are relevant and which are not

    * target case

the ability to conclude that the latter [ source ] is analogous to the former [ target ] is a function of the existence of relevant similarities that are perceived to outweigh any relevant differences

_determination of relevance_
      * a Rule with explicit determination criteria 
      * the court creatively chooses a rule of relevance

The rule determines the analogy, but the analogy does not determine the rule. And pretending that the analogy is doing the work—that the analogy itself without the rule drives the result— masks the fact that the second court is choosing the rule that determines relevance. To the skeptics, the problem is that the second court is making a choice but acting as if some natural and deep similarity is dictating the result. The impetus for the skeptics, therefore, is that too much of the praise of analogical reasoning in law is a disingenuous celebration of what is in reality a quite creative exercise on the part of the second court.

doctrinal context:

Two doctrines or sets of facts are not analogous in the abstract, but in the context of a legal issue.[

  * differs from use of precedent

Law's use of precedent thus differs substantially from law's use of analogy, for in the latter [analogy ] a previous decision is selected in order to support an argument now, while in the former [ precedent ]a previous decision imposes itself to preclude an otherwise preferred [analogous ? ] outcome.

\---

An indistinguishable precedent must be followed unless the court has the power to overrule the earlier decision and does so. By contrast, arguments from analogy vary in their strengths: from very 'close' analogies (which strongly support a result) to more 'remote' analogies (which weakly support a result).

  * rules, rationales warranting analogy 
    * ARIL- Analgogical Reasoning in the Law 
    * AWR - analogy-warranting rule

first the court abduces a provisional rule warranting the analogy AWR. \--- An analogy warranting rule states the logical relation that obtains between the shared characteristics, on the one hand, and the inferred characteristics, on the other

    * AWRas - analogy-warranting rationales

second the court dis-confirms or confirms the provisional AWR by reference to a rationales AWRas. \--- An analogy-warranting rationale explains why, .. the logical relation among the characteristics articulated by the analogy-warranting rule either does obtain or should obtain.

  * moves incrementally using traditional patterns of thinking, principles:

By themselves, factual situations tell us little until we impose some sort of pattern on them. n116 We say that something is like something else only because we have a principle that tells us so (or because we simply perceive the world this way). If this is true, it might seem better simply to identify the principle and the criteria, if we have them, rather than to proceed through analogies. ... nd if the relevant grounds for choice are not in the current resources of legal reasoning, so much the worse for (current) legal reasoning. We should then change legal reasoning to ensure that it contains the appropriate resources for choice. [sunstein].

\---

ARIL [Analogical Reasoning in Law ] functions when a case is not controlled by a canonical text, as when no extant text covers the case, or when the text that covers it is not canonical and can be disregarded, such as some accounts of judicial texts. What ARIL directs a court to do in such situations is to find the legal principles immanent in the legal materials and apply those principles to the case at hand.

###  Sources [an1]
Back  contents

###  common law [cm1]

So far we have surveyed micro issues , that is, rules, authority, and precedent; and how these might be put together through analogical or rule based analogy, to reach a particular finding in a case, justified post hoc, or through application of pre-existing rules after finding relevant similarities. We can say that "Common Law" characterizes this process at the macro level:

###  Common Law

_S.0.6.1 The Defeasibility of Common Law-_

All courts may distinguish a case, and defeat the constraint of an earlier precedent

In fact, the idea that common law rules state exceptionless general- izations can itself be developed in two ways, depending, this time, not on the meaning of the rules themselves, but on the set of conventions within which they are thought to be embedded. Some writers argue that, once a common law rule has been introduced in an earlier case, it must then govern any later case to which it applies, unless the court in the later case wishes to overrule the earlier decision and has the au- thority to do so; this position can be described as the serious rule model of constraint.2 Other writers favor a more flexible approach, according to which, although only certain courts, depending on their place in the judicial hierarchy, have the authority to overrule earlier decisions, all courts have the power of distinguishing—the power, that is, of identify- ing important differences between the facts present in earlier cases and those of later cases, and so modifying the rules set out earlier in order to avoid inappropriate later application. On this approach, the defeasi- bility of precedential constraint is captured not by assuming that the common law is based on special defeasible rules, perhaps governed by their own defeasible logic, but simply by supposing that common law rules, once introduced, are subject to later modification. _\-- Horty, Constraint, see ref._

The rule derived from A collection of earlier precedents is the source, the common law, yet it is defeasible; the target case can be distinguished by particularism.

To speak of a rule of the common law, therefore, is to refer to a rule that is extracted from a collection of judicial opinions. "It is the merit of the common law," OliverWendell Holmes observed, "that it decides the case first and determines the principle afterwards."2 Not only are common-law rules created in the process of deciding specific cases, but they are also defeasible.3 That is, any common-law rule tentative, remaining continuously open to defeat in a particular case or subject to modification as new situations arise. It is characteristic of common-law method that judges have the power to change the rules in the very act of applying them, typically in the context of a hitherto unforeseen situation in which the existing rule would produce a poor outcome. Thus, H. L. A. Hart maintained that a rule that ends with an "unless" clause is still a rule,4 and stressed that it was an important feature of the common law that the list of possible "unlesses" could not ever be exhaustively set out in advance. Judge Posner expressed the same idea in arguing that legal rules are always and necessarily subject to "ad hoc exceptions."

_S.0.6.2 Change in the Common Law -_

The derived common law rules that bind are often those chosen from a conventional set .

What the common law appears to believe, however, may not actually be so. In recent years psychologists have explored what is sometimes called the availability heuristic, according to which people commonly take what is most visible, apparent, or proximate to them as representative of some larger range of events, and they do so even when that most available example is not in reality especially representative... ... Lord Mansfield and his successors believed, the common law corrects its mistakes continuously, progressively substituting smaller mistakes for larger ones as it approaches perfection and thus works itself pure.

_S.0.6.3 Change in the Common Law as Customs Change -_

The derived rules are chosen by convention , custom; so is the common law merely judicial custom?

It is rarely clear whether custom is the common law itself—customary law as opposed to statute law—or whether the common law sees its task as, in part, reflecting the changing customs of the society of which it is a part, or whether the custom that the common law embodies is a judge-made legal custom, as opposed to the custom of the society at large. But regardless of whether it is custom or reason, and regardless of whose custom customary law is about, it is hard to deny that it is a central feature of the common law that common-law courts will look to the society in which they sit, and not simply to previous cases, in deciding when what appears to be an existing common-law rule is in need of change.

_S.0.6.4 Is the Common Law Law? -_

Incrementally Adaptive and ultimately defeasible, the derived conventional rules still function as rules, that is Law.

But if the common law treats its rules as rules and treats its precedents as rules as well, even if not absolutely so, then common-law rules, even if developed incrementally and by accretion over time rather than being laid down at a particular moment by a legislature, will still function as rules, and the common law will still accurately be able to be characterized as law.

_S.0.6.5 Equity and Predictability -_

Common law is unreasonably sub-optimal when it permits replicability to over rule particular justice \-- but this is socially necessary for law to function as law.

we recognize that equity in the broadest sense has its place in a legal system, even as we recognize, with Bentham, that a system based entirely on the idea of equity would fail to serve the Rule of Law values of certainty, predictability, and settlement, which are often as important as the values of direct substantive justice.

Decision making based on serious rules offers several advantages... It is, first of all, simple, involving nothing more than a straightforward application of rules, and so leading to the advantage of efficiency. It possesses, in addition, the advantage described by Melvin Eisenberg as replicability, according to which individuals who are affected by the judgments of decision mak- ers can replicate the reasoning of those decision makers. Many other virtues follow from replicability. For example, as Eisenberg notes, individuals who can replicate the reasoning of decision makers are in a better position to appreciate their competence, and so more likely to comply with the resulting decisions; or, in cases of incompetence, those who can replicate the underlying reasoning are in a better position to question that reasoning at the appropriate points.

Most important, replicability implies a degree of predictability, since individuals who can replicate a court's reasoning in previous cases will be able, in the same way, to predict its reasoning in future cases. And if individuals are able to anticipate the decisions a court might reach in future cases, they can plan their actions accordingly, leading to the further advantage of social coordination...

Decision making with serious rules, then, has these advantages— efficiency, replicability, predictability, social coordination—as well as many others. Indeed, its sole disadvantage seems to be that, by screening off from consideration all features of particular situations except those that trigger the application of existing rules, this form of decision making can lead, at times, to suboptimal results, or at least to decisions that do not seem to be best, all things considered.[Hordy]

Schauer, and Horty, Constraint, see ref.

#####  IDENTIFICATION OF PRECEDENT RULES

What is the explicit binding rule?

Another question about the rule model of the common law arises from the perspective of later judges: what acts and statements by past courts count as binding precedent rules? Legislative rules may require interpretation, but identifying the rule is not a problem. Because courts traditionally have been reluctant to legislate overtly, their rules can be harder to recognize. Judicial opinions typically focus on the immediate task before the court – resolution of a particular case. They are likely to contain a narrative description of the facts of the dispute, references to precedent cases, and a more or less complete explanation of the court's reasoning, but they may not explicitly announce a rule for future cases.

General, determinative, serious, and intentionally posited

Several necessary conditions for the existence of a serious precedent rule follow from our understanding of the function of authoritative rules. ... communities recognize rule-making authorities for the purpose of settling controversy and uncertainty about the application of shared moral values. To perform the function of settlement, rules must be general enough to prescribe results in classes of future cases, determinate enough to provide answers without direct consideration of the values the rules are designed to serve, and "serious" in the sense that they preempt further reasoning and determine results.

The settlement function of rules also dictates that precedent rules must be posited by a rule-making authority – in this case, a prior judge. Authoritative rule making is an intentional act. The task of the rule maker is to determine the best prescription for future cases that can be captured in the form of a rule. Rule-making authorities, including judges, are expected to bring their powers of reason and expertise to bear on the choice of rules. It follows, for us, that authoritative rules take their meaning from their author's intent. We will have more to say about intent-based interpretation of rules in Chapter 5. For now, the important point is that precedent rules come into existence when they are posited by a past judge and mean what that judge intends them to mean.

most often explicit, yet there may be implicit rules drawn from an abduction process on the domain of, a conventionally chosen, case collection

The requirement that precedent rules must be posited does not necessarily mean that they must appear in canonical form in a prior opinion. Often a rule is detectable in explanatory remarks and citations even if the precedent court did not state the rule explicitly and flag it as a prescription for future cases. As long as the judge had a rule in mind and the rule is capable of restatement in determinate, canonical form, positing can occur in an informal way. Recognition of informal rules expands the capacity of the common law to settle future controversy: given prevailing patterns of judicial opinion writing, insistence on explicit rules would result in too few rules and too little settlement. Thus, it is possible, and probably desirable, to include implicit precedent rules within the rule model of the common law. At the same time, it is important to maintain a distinction between rules implicitly posited by prior courts and norms drawn (or "abduced") by later courts from the data of past decisions.. A precedent rule exists only when the precedent judge intended to adopt or endorse a rule and the rule can be stated in a form that is capable of governing future disputes. If these conditions are met, the precedent court can fairly be viewed as the author of the rule. If, however, the conditions we have described are not present, the current judge is not following a precedent rule. The current judge is either constructing a norm from the facts and outcomes of prior cases or simply positing a new rule. As we explain in our discussion of legal principles in Chapter 3, a norm constructed from past facts and outcomes is not posited (either by the past judge or by the cur- rent judge); nor does it constrain the current judge's decision in any meaningful way.

Alexander, A1, see ref.

###  abduction v. analogy in the common law

####  analogs

There is a source reference _S_ , it is a case, or a feature of a case, or a feature that is derived from a set of cases.

(1) The Source _S_ is known to be similar to a target case under adjudication _T_. The similarities are relevant and identifiable as qualities _Q_.

(2) Source _S_ has some further feature - qualities _Q f_.

(3) Therefore, _T_ also has the feature _Q f_, or some feature _Q*_ is similar to _Q f_

(1) and (2) are premises. (3) is the conclusion of the argument. The argument form is inductive (from particular to general), the conclusion is not guaranteed to follow from the premises (it is defeasible).  | ####  legal Abduction

Given evidence _E_ , a set consisting of source case analogs _S i_, an element of _E_ = _{ S i }_, Note that the collection of cases may have been chosen by convention, or because they share by analogy known identifiable features _Q_.

Then we are searching for an Optimal (O) explanatory rule _H O _ from the evidence _E_ , from a collection of possible candidate explanatory rules _H_ = { _H i _} that explain the decisions in _E_ , and yet remain reasonable as an application to our target interest case _T_ which then becomes a weighted addition to the evidence.

if _H O _ explains _E_ better than any of the other hypotheses in _H_ , then infer that _H O_ is closer to the truth (optimal implicit rule ) than any of the other hypotheses. The solution then becomes a posited shared feature quality _Q f_ of the evidence source and target.

---|---

The source case S, has material facts, or a _ratio decidendi_ that provide some known relevant similarity to the target case T. It also retains some further qualitative features _Q f_. We then infer that _T_ then shares some other feature Q* equivalent or similar to _Q f_. The goal is to find a rule (the hypothesized further quality feature) for deciding the target case from the shared qualities with the source.  | The question here is what is the criterion for the choice of an optimal explanatory rule, _H O_ or _Q f_. It seems that it must be for the most part explanatory of most of the results in evidence _E_ , sources' material facts and _ratio decidendi_ , but also reasonable in the sense that the derived rule is general, determinative, serious, that is, able to function as a settlement rule for future cases, a ready analog?

adapted from stanford, philo. ,see ref, to legal analogy, abduction.

II. PRECEDENT AND THEORIES OF COMMON-LAW JUDICIAL REASONING

  * a judge may:

    * (i) think that, ignoring past decisions, that the plaintiff should prevail and; 
    * (ii) ultimately decide for the plaintiff after this conviction is strengthened by reviewing past decisions. 
  * Or, the judge may decide based on (partial justification ) constraints and can:

    * (i) think that, ignoring past decisions, a case should be decided for one party on the basis of certain reasons and 
    * (ii) ultimately decide for that party but give different reasons because of the way a past case or cases were decided. 
  * Or fully constrained against her a priori judgement

    * (i) think that, in absence of precedent, a case should be decided for one party and 
    * (ii) decide the case for the other party because of t he way in which a previous case or cases were decided. 
  * _Rule-based_ theories explain judicial reasoning as the process of extracting rules from past cases and following those rules in current cases. How the extraction process works varies among the individual theories, but the reasonable ones claim that it depends on the intentions of the author(s) of the past opinions. Once the rules are extracted, judicial reasoning is simply a matter of seeing which rule applies in the current case...

  * _constraint -_ the rule-based view, precedential constraint occurs when "the decision maker feels constrained and compelled to make what she now believes to be the wrong decision."20 This may not be the most intuitive way of putting the point, but the idea is this: as mentioned above, when a judge is constrained by a rule of precedent, she is deciding the case contrary to how she would decide it if there were no precedents. Further, adds the rule theorist, she is not deciding to apply the rule due to concerns for the consistency, or predictability, or integrity of the law, or any other concerns related to the value of maintaining a rule.21 That is, it is not the case that she would decide for the plaintiff but ultimately decides for the defendant because doing so renders the law more consistent, or makes the results of legal proceedings more predictable, or has some other benefit in virtue of maintaining a rule. Concerns for predictability, consistency, and so on are reasons for implementing a system of precedential reasoning. They are not, on a rule theorist's view, reasons relied upon by a judge constrained by precedent. Rather, for such a judge the status of the rule as precedential preempts any reasons for or against applying the rule.22

  * _distinguishing the same as overruling?-_ The ability to differentiate distinguishing from overruling, which judges and other legal practitioners appear to treat as distinct processes, gives analogical theories an advantage over the rule theories. Even assuming that distinguishing is not essential to judicial reasoning, being able to explain it is still a virtue, albeit slight. However, rule theorists argue that this virtue is illusory because analogical reasoning cannot explain precedential constraint, which is essential to judicial reasoning.32 Their arguments take two forms: (1) essentially a psychological argument that analogical reasoning cannot explain the mental state required for a judge acting under precedential constraint; (2) a more normative claim about the data to be explained, namely, that distinguishing cannot be part of a system of reasoning that involves precedential constraint and hence any theory that allows distinguishing should be rejected...

Effacing the distinction between distinguishing and overruling has dramatic consequences; for example, it renders illusory a critical distinction in U.S. federal and state court structure, namely, the distinction between appellate courts, which have the power to distinguish any precedent and to overrule precedent established by lower-level courts, and district courts, which may only distinguish precedent. If distinguishing is merely overrul- ing, then trial courts are no more constrained by precedent than the highest appellate courts. This creates a deep divide between the theory and prac- tice of judicial reasoning by putting a low priority on what appears to be an important distinction.

  * premises and sub-arguments about analogy and precedent: 
    * (P5) If a judge has the power to distinguish cases, then she may distinguish cases on the basis of any factual difference. 
    * (P6) Between any two cases there is at least one factual difference. 
    * (C1) Hence a judge with the power to distinguish may distinguish any case from any other case. 
    * (P7) If a judge may distinguish a current case from all past cases, then she is not under precedential constraint with respect to the current case. 
    * (C2) Hence, if judge has the power to distinguish, then she is not under prece- dential constraint with respect to any case. That is, she is not constrained by precedent at all. 
    * (P5t ) If a judge has the power to distinguish cases, then she may distinguish cases on the basis of any novel reason. but just any novel reason cannot justify distinguishing the cases 
    * (P6t ) Between any two cases there is at least one novel reason. 
    * (P6tt ) Between any two cases there is at least one novel reason in favor of the party that the judge wants to prevail. 
  * _Post Hoc_ \- Admittedly, this reply works only if we hold the reasoner's set of reasons static. If the reasoner is able to revise the set of reasons after making a judgment, then it is possible for the judgment to cause the reasoner to revise the set of reasons by taking any (or nearly any) new fact as a reason in favor of the judgment. Revising the set of reasons in this way means that a distinction is always available to prevent a judge from deciding the case contrary to her lights.

_Rigoni,Common Law Judicial Reasoning, see ref._

###  domain notes

_Common law_ , that is, the application of conventionally chosen ( by custom ) precedent rules involves:

  * a source collection and a target case 
  * rules defeasible by particularism 
  * rules chosen from a proximate conventional set 
  * the question of whether the common law is merely judicial custom? 
  * a moving paradigm, adaptive and defeasible but still law 
  * societal utility considerations: replicability leads to equity, predictability, efficiency of social coordination 
  * ultimately the purpose of a settlement function, using rules derived as 
    * explicit and intentionally posited rules 
    * implicit, in abduction from a collection 
  * consideration of the analogical process in source application: 
    * begins from 
      * a priori judicial preference or choice, the argument strengthened by past decisions 
      * judicial 'reasons' then reasons _given_ are based on past decisions 
      * past decisions overruling judicially chosen reasons 
    * _Rule Based ?_ Once the rules are extracted, judicial reasoning is simply a matter of seeing which rule applies in the current case 
    * _authority constrains_ a judge the status of the rule as precedential preempts any reasons for or against applying the rule 
    * analogy is not explanatory because: 
      * analogical reasoning cannot explain the mental state required for a judge acting under precedential constrain 
      * normatively, distinguishing cannot be part of a system of reasoning that involves precedential constraint 
      * but this effaces the distinction between overruling and distinguishing, an important facet of instiutional practice. 
    * Between any two cases there is at least one novel reason in favor of the party that the judge wants to prevail, ultimately giving judicial discretion to distinguish, effectively overrule, making the precedent rule defeasible and illusory? 
    * Post hoc justification - the court chooses reasons after it makes a judgement, not reasonably, but rhetorically. 
  * inevitably involves analogy in determining a set of relevant source cases as evidence, and then abduction to the optimal explanatory rule that may function as an adequate tool for settlement in future cases.

###  Sources [cm1]
Back  contents

###  Realism, Interpretation, Opinion [r1]

###  Realism : Law as Deception

_S.0.7.1 after the fact justification -_

ather than first looking to the law and then deciding how to rule, Hutcheson and Frank maintained that judges first decided—or intuited; hence Hutcheson's reference to the judicial "hunch"—how they wanted to rule and only then consulted the law. Like a lawyer who starts with her client's position and then searches for legal support to buttress it, Hutcheson and Frank believed that judges started, after determining the facts, with a view of the correct outcome and then looked for cases and statutes and other legal materials to provide an after-the-fact justification— a rationalization—for what they had already decided.... ...predicting legal outcomes is best accomplished through the enterprise of discovering through systematic empirical (and external) study just what makes a difference in deciding case

_S.0.7.2 hard cases-_ after the fact justification may mainly apply to hard cases, not to cases where the precedential rules are explicit and fit neatly within the facts under consideration.

_S.0.7.3 realism depends on the judge-_

these components of the Realist position are ultimately empirical [questions that depend on the court, issue, judge].

_S.0.7.4 advocating to the judicial bias-_

The lawyer may not articulate it in so explicit or transparent a way, but the good lawyer will nevertheless frame an argument to appeal to the actual bases for judicial decision-making.

_S.0.7.5 CLS is realism extended-_

Just as Legal Realism included perspectives on law other than those represented in the legal-reasoning focus of Hutcheson, Frank, Green, and Llewellyn, for example, so too, to repeat, Critical Legal Studies has elements unconnected with Legal Realism and indeed unconnected with the questions of legal reasoning, legal argument, and judicial decisionmaking. But insofar as parts of Critical Legal Studies were explicitly concerned with these topics, much of these scholars' work is best seen as carrying on the Realist program

#####  Law and Ideology

The view that law is a reflection of ideology was taken up again in the 1970s and 80s, with the emergence of the Critical Legal Studies movement. Critical Legal Studies was a radical school of thought shaped by a number of influences: the Marxist and realist traditions; the philosophical perspective of 'deconstruction;' and the politics of issues such as feminism, environmentalism and anti-racism. The movement takes up the realist idea that law is fundamentally indeterminate, and echoes Marxist views about how the interests of the powerful shape law. Exponents offer some astute observations about the ways in which law is taught and practiced in order to give the misleading impression of law's certainty and legitimacy. Particular legal doctrines are targeted for papering over the inconsistent and arbitrary features of legal decision-making; the rule of law, for example, is criticized for a naïve view of the form of law as unaffected by law's content and the social context in which law operates. The indeterminacy of law can produce a variety of results; Duncan Kennedy, for example, points out the surprising ways in which the ideology of formal legal reasoning can remedy injustice, even if ideology often disables such remedies as well. Thus the ideology view can now be taken to reflect a consensus among radicals of all stripes on the role of law as a dissembling force to safeguard the unjust relations of the status quo.

Law and Ideology, Stanford Ency. Philo., P2 , see ref.

###  Interpretation of Statutes

_S.0.8.1 Broad generalizing rules are rare-_

the broad phrases in the constitutional text—Justice Robert Jackson once called them "majestic generalities"—are best understood as initiating a process of common law development that is largely unconstrained by the words in the document. In the modern United States, however, as in most other developed common-law countries, examples such as these are very much the exception rather than the rule. Far more typical in contemporary America is the Occupational Safety and Health Act of 1970, whose twenty-nine detailed sections occupy forty-four pages in the United States Code and are supplemented by another eighty-eight pages of regulations in the Code of Federal Regulations.

_S.0.8.2 Types of textual problems-_

  * the statutory language itself provides a plausible answer 
  * the statutory language itself does not provide an answer 
  * the statutory language itself provides a bad answer

Once we move beyond the easy cases, however, the matter becomes less tractable, for at this point we encounter hard cases of two different varieties. One type of hard case arises out of linguistic indeterminacy. The words of the statute do not provide a determinate answer to the dispute before the court, either because the language is vague, as with "equal protection of the laws," "reasona ble efforts," and "undue delay," or because language that is determinate for other applications is indeterminate with respect to the matter at issue, as with the question whether bicycles or baby carriages or skateboards are vehicles that should be kept out of the park. But there is another type of hard case, and this type is not a function of linguistic indeterminacy at all. Rather, it is the hard case that is hard just because a linguistically determinate result—the war memorial constructed from a vehicle, the obstruction of the mail caused by the legitimate arrest of a mail carrier in Kirby, the missed deadline in Locke—can plausibly be argued not to be the best, or even a very good, legal outcome. These are hard cases, but not because the language gives no answer. They are hard precisely because the language gives an answer, but the answer that the language gives appears to be the wrong answer.

_S.0.8.3 The Textualism presumption -_

  * _Textualism_ so called textualism allows for an exception in cases of obvious absurdity or readily apparent drafting error. Absurdity aside, the arguments for taking the text as (almost) always preeminent are not restricted to arguments derived from the Rule of Law value of being wary of the discretion of individual decision-makers, even if they are judges. What is perhaps even more important, as briefly noted above, is the argument from democracy itself. When a legislature enacts a statute, it enacts a set of words, and at no time does it vote on a purpose or a goal or a background justification apart from the words. It certainly does not vote on the intentions expressed in the speeches or writings of individual legislators. ... 
  * The same idea might be expressed in terms of a presumption. Judges typically start with the text, and they presume that what the text says is what the statute means. ... But this presumption, like many others, is rebuttable. The presumption shifts the burden of proof, as it were, but it remains possible to argue that the text should not be followed when doing so would frustrate the statute's purpose or the legislator's intent or produce an absurd or unreasonable result 
  * it would be a mistake as well to neglect the important fact that the text, even if it is the starting point, is often not the ending point, and that the final determination of the meaning of a statute is not always the same as the meaning of the words or phrases or sentences that the statute happens to contain.

_S.0.8.5 Canons of Construction -_ SEE [ canons of statutory interpretation]

Nevertheless, the canons do in their entirety suggest that even determining the literal meaning of the statute is not always a straightforward process. But they suggest as well that whatever techniques are used, the process of statutory interpretation is typically one that begins with a close reading of the text, possibly supplemented by interpretive aids such as the canons of statutory interpretation. And so although at the extremes the interpretation of statutes may have characteristics reminiscent of pure common-law development, to ignore the way in which the actual language of a statute is the starting point for analysis of cases in which a statute is relevant is to ignore a dominant feature of modern legal systems.

##### the authors of the law

There is an interesting problem here, however. If courts are directed to imagine hypothetical authors who differ from the actual authors along certain dimensions, there have to be additional constraints added to keep from completely undermining the ability of actual authors, whether private or legislative, to have their intended meanings heeded. This is because any symbols can be employed to communicate any intended meaning. Thus, as an example, if the doctrine of lenity instructs courts to "interpret" criminal statutes narrowly, what stops them from interpreting those statutes ridiculously narrowly? It would not be the actual intended meaning of the actual author, for we have already dispensed with that in invoking the doctrine of lenity. Nor would it be the actual meaning of the words; for, as we emphasized in the preceding chapter, actual words – certain shapes and sounds – do not carry a meaning if there is no author intending a meaning by those words. So the doctrine of lenity and the var- ious other similar doctrines that, in service of substantive policies, con- stitutional and nonconstitutional, direct judges to disregard the actual intended meanings, need to supplement the characteristics of the target hypothetical authors beyond those we have mentioned. So if the hypo- thetical legislators of criminal statutes are supposed to be motivated to limit the scope of criminal liability, judges need to know by how much. Or if the hypothetical drafter of a testamentary document is supposed to be disinclined to disinherit the spouse, judges need to know by how much. And so on. Otherwise, criminal liability would disappear, and so would the ability to disinherit spouses.

The most obvious supplement to add here is that the hypothetical legislature or will drafter uses, say, standard English – perhaps definitions listed first in a designated dictionary – and standard grammar. Doing so will in most cases put limits on the hypothetical authors that will prevent courts from undermining all criminal liability in the name of lenity and undermining the ability of drafters of private documents such as wills and contracts to accomplish their ends.

One doctrine that directs courts to disregard actual intended mean- ings for substantive policy reasons but that raises a worry of a different kind is the doctrine of interpreting statutes to avoid having to resolve constitutional questions – the so-called Ashwander doctrine in United States constitutional law.8 The problem with Ashwander is not that it directs courts to look to what a hypothetical legislature would have meant by a statute rather than to what the actual legislature meant. The doctrine of lenity does that as well. The problem is that, at least arguably, although the doctrine of lenity is a doctrine commanded by the Consti- tution, the authority of which is superior to that of the legislature, the Ashwander doctrine does not implement any higher-order legal norm. Interpreting to avoid constitutional issues is not itself a constitutional command. So when a court following Ashwander disregards the actual intended meaning of a statute and "interprets" as if the statute were authored by a hypothetical legislature intending the statute steer clear of any constitutional limits, the court is exercising only the power it has as a court to interpret statutes and not the power it possesses to strike down unconstitutional statutes. And in following Ashwander, courts make leg- islatures go through hoops not found in the Constitution in order to have their intended meanings implemented. It might be concluded that use of the Ashwander presumption represents a violation of the constitutional separation of powers.9

Alexander, demystifying, see ref.

_S.0.9.1 Opinions are disingenuous-_

judicial opinions are not fully candid. They read in the language of legal or rule-based motivation or compulsion, but their goal is to provide support or justification for decisions reached for different reasons.

_S.0.9.2 words matter -_

The existence of rulelike language in a binding judicial opinion, or a statement of a legal principle in such an opinion, at the very least shifts the burden of argument. The lawyer seeking to deny the effect of what that or some higher court has previously said may struggle to urge that the words are mere dicta or that the actual holding of the earlier case is other than what the earlier court's words say, but in such a case the lawyer has a burden of explanation or persuasion that the lawyer who can simply point to the pertinent language does not. Words matter, in law as well as in life, and there are few advocates who relish having to argue against what some binding or influential court, especially the court before which they are now arguing, has actually said on some previous occasion.

_S.0.9.3 ratio and dicta -_

Much of the foregoing discussion connects with the traditional distinc- tion between the holding of a case (roughly, but only roughly, equivalent to what in Great Britain is called the ratio decidendi) and the dicta that a court may also offer in the process of issuing an opinion. According to the traditional distinction, the holding of a case consists of what is neces- sary to support the result in that case.21 Everything else is obiter dicta, or dicta for short, and as such is more easily dismissed in subsequent cases or by subsequent courts. As it was traditionally expressed, the holding of a previous case, or a case from a higher court, was binding, but every- thing else—the dicta—could legitimately be disregarded. The traditional view is captured by the following from a classic English introduction to law: "[Obiter dictum] is a mere saying by the way, a chance remark, which is not binding upon future courts, though it may be respected ac- cording to the reputation of the judge, the eminence of the court, and the circumstances in which it came to be pronounced

Every time a court gives a reason for its decision, it necessarily opines about cases other than the one before it,23 and thus, strictly speak- ing, all statements of reasons have an aura of dicta surrounding them. And even if there are some reasons that are necessary to the outcome, it is never necessary that those reasons be stated at one level of generality rather than another. Because Judge Cardozo in MacPherson v. Buick Mo- tor Company24 could have announced that the reason for the outcome in that particular case was that automobile manufacturers were liable regardless of privity to the ultimate consumers for injuries caused by de- fective parts in those automobiles, was his actual reason—about manu- facturers and not just about automobile manufacturers—broader than necessary because it encompassed manufacturers of products other than automobiles? Even then, would it have been broader than necessary be- cause it included manufacturers of automobiles other than Buicks? As we saw in Chapter 3, trying to identify what a case stands for without refer- ence to the case's own statement of what it stands for is elusive at best. It may well be, therefore, that any attempt to locate the distinction be- tween holding and dicta in an alleged difference between what is neces- sary for the decision and what is not will turn out to be little more than an argument in a subsequent case about which was the holding and which was the dicta, with no clear answer to that question being pro- vided by the very case alleged to be binding. In Parents Involved in Com- munity Schools v. Seattle School District No. 1,25 for example, a 2007 Su- preme Court case dealing with affirmative action and racial assignment in the public schools, both the majority and the dissent accused the other of relying on mere dicta from earlier cases, and the lesson of this may be the skeptical one that dicta is little more than a statement of a previous court that an advocate or subsequent court now wants to discount, and that a holding is the statement of a previous court upon which a lawyer or judge now wishes to rely.

_S.0.9.4 reasons for -_

But now that we see just how rare it is for the legal system in general to give reasons for its decisions, the practice of providing abbreviated reasons for the benefit of the parties only does not seem nearly so aberrational. Even when we focus only on appellate courts, a part of the legal system in which opinion-writing and reason- giving is the norm, we now see that doing so has its costs as well as bene- fits. And the benefits are not restricted to matters of efficiency and practi- cal necessity. Once we understand that giving reasons commits, even if not absolutely, the reason-giving court to certain outcomes in other and future cases, the court that wishes to tell the parties why it decided the way it did but does not wish to commit itself can use the noncitable or no-precedential-effect opinion as a way of respecting the parties' desire for reasons while retaining maximum flexibility. As long as there is no in- dication that judges are using the practice to justify laziness—and there is no evidence at all of that—then it is hard to find much fault with a prac- tice likely to increase as the workload of the courts increases as well. Moreover, there is little indication that the workload crisis in the appel- late courts is likely to subside, and as a result the practices of the non- opinion, the so-called unpublished opinion, the noncitable opinion, and the no-precedential-effect opinion are probably with us to stay. The dis- cursive appellate judicial opinion will remain a central feature of the common law, but even in the common law, law is and will continue to be far more than just judicial opinions.

###  Sources [r1]
Back  contents

###  Making Rules: Presumptions and Burdens [b1]

### Specificity of Rule Making

_S.0.10.1 rules v. standards -_ a question of vagueness

rather than thinking of a distinction between rules and standards, it might be better to think of a location on the vagueness-precision continuum, and "How vague?" or "How precise?" may be far more useful questions to ask.

_S.0.10.2 Particulars and Context -_ a tension between predictability and particular justice

The use of vaguer directives at the standards end, conversely, will typically reflect a judgment that individualized or case-by-case determination is what is most important, preferring to endure the errors of individualized judg- ment to the errors that will come from the over- and underinclusiveness of rigid and precise rules. Indeed, something like this goal is what led the Supreme Court to make the Federal Sentencing Guidelines somewhat less rulelike. But there is no strategy that will be best in all contexts, and thus the lesson may be that the determination of how much officials should be allowed to look at the particular context of a particular instance—how much the official should be operating under a standard rather than a rule, or vice versa—will itself be a contextual determination.

_S.0.10.3 Balance of Specificity -_ predictable unreasonableness

The allocation of decision-making authority between the present and the future thus presents the fundamental trade-off in the question about rules and standards. Highly specific directives—rules—will maximize certainty, constraint, and predictability, but they will do so at the cost of retaining the ability to achieve exactly the correct result in some currently unanticipated case or situation. And much vaguer directives— standards—will hold open the ability of some future decision-maker to make just the right decision.

_S.0.10.4 Availability as Judicial Bias -_ judicial myopia

It is likely, for example, to assume that many of these other cases will look like the case before it, an assumption consistent with what psychologists refer to as availability22— the belief that that which is most cognitively accessible to us is representative of some larger class of acts or events or cases. But often the facts on which an appellate court must focus are not at all representative, and to that extent making broad rulings in the context of concrete cases may not be the best way to lay down broad principles of law.

_S.0.10.5 Breadth and Vagueness-_ specificity binds forward to particulars

the Court in a different hypothetical variation on the real Miranda case might have decided that flexibility was more important than guidance. It might have decided, for example, that it could not in 1966 predict all of the future possibilities for police conduct and misconduct, or that the case it had before it—an actual controversy involving the state of Arizona and a particular individual named Ernesto Miranda in the context of a particular criminal case with particular facts—did not provide sufficient information for the Court to be making broad rules for the future.

footnote: Ronald Dworkin has fostered a not inconsiderable amount of confusion by distin- guishing rules from principles, and then defining rules as precise and absolute and principles as vague and overridable. Ronald Dworkin, Taking Rights Seriously at 22–28 (1978) (explaining that rules are "all-or-nothing," while principles may not apply in a particular case and yet remain valid). Dworkin's error lies in part in assuming that the dimensions of precision and weight operate in tandem, when in fact they appear to be largely independent of each other. There are precise but overridable rules, and there are vague but highly stringent standards (or even abso- lute standards, as with Kant's vague but nonoverridable categorical imperative), and even if we assume equivalence between what Dworkin means by "principles" and others mean by "stan- dards," it is still not the case either that the precision of rules is a marker of their stringency or that the vagueness of standards is a marker of their overridability. Joseph Raz has observed, against Dworkin, that "we do not normally use the rule/principle distinction to mark the differ- ence between prima facie and conclusive reasons or between the standards which establish them," Joseph Raz, Legal Principles and the Limits of Law, in Marshall Cohen, ed, Ronald Dworkin and Contemporary Jurisprudence 73, 82 (Rowman & Allanheld 1983), and Raz seems plainly correct. See also Frederick Schauer, The Convergence of Rules and Standards, 2003 NZ L Rev 303, 306 (noting that Dworkin "mistakenly . . . conflates the dimension of specificity with the dimension of stringency"); Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 13–14 (Clarendon 1991) (preferring a distinc- tion between "conclusive and overridable rules" to the one drawn by Dworkin).

Schauer S0, and 'Do Cases Make Bad Law?' Schauer,see ref.

An aside on reflexive equilibrium in judicial law making:

###  dworkin's fallacy

According to Dworkin's interpretive jurisprudence, the law consists of the set of norms that would be accepted after a process in which "the interpreter settles on some general justification for the main elements of [legal] practice" and then reforms it by "ad­ just[ing] his sense of what the practice 'really' requires so as better to serve the justification."56 This adjustment is like reflective equilibrium: It is neither metaphysically realist (a response to a goal or norm standing outside of legal practice as a whole), nor conventionalist (an arbitrary decision to change the legal practice, creating a rupture in its continuity). Since it is like reflective equilibrium, there are pre-existing answers to hard cases faced by judges, de­ spite disagreement among judges about how these cases should be decided.- This is because critical reflection on legal practices re­ veals pre-existing law, just as critical reflection on linguistic practices reveals re-existing meaning.

Dworkin is wrong, however, to see a connection between theories of meaning and theories of law. The failure of the traditional theory of meaning and the success of the interpretive alternative give us no reason to reject conventionalism or to accept interpretivism in jurisprudence.

This fact is best seen by considering words other than "law.'' Let us assume that the interpretive theory of meaning is true of scientific terms like "gold." That would mean that the proper standards for using the word "gold'' are those that would result from critical reflection upon our practice of calling things "gold." This critical reflection can reveal standards that, although only latent within the linguistic practice, have always been binding upon its members. If such a view is correct, there could be a pre-existing answer to the question of whether something should be called "gold/' even if there is currently fundamental disagreement about what should be called "gold."

Nevertheless, it would be absurd to conclude from the fact that the meaning of "gold" is fixed by an interpretive practice that gold is an interpretive practice-rather than, say, a heavy, yellow, duc­ tile metal. If the interpretive theory of meaning is correct, one de­ termines what should be called "gold" by participating in the inter­ pretive practice of using the word "gold." And, at this point, such participation involves ca11ing heavy, yellow, ductile metals-not in­ terpretive practices-"gold." Now consider the term "convention." An example of a convention is members of a group going to the central clock at Grand Central Station when separated during a visit to New York City, even though they had not agreed upon a place to meet under such circumstances. The central clock at Grand Central Station is the appropriate place to meet .only because of convergence of belief: It is only because each member thinks of i t as the appropriate place to meet-and knows that the others do as well-that it is the appropriate place to meet. To the extent that there is disagreement about the place to meet, there is no appropriate place to meet­ and so no convention-at al1.

Now consider the term "convention." An example of a convention is members of a group going to the central clock at Grand Central Station when separated during a visit to New York City, even though they had not agreed upon a place to meet under such circumstances. The central clock at Grand Central Station is the appropriate place to meet .only because of convergence of belief: It is only because each member thinks of i t as the appropriate place to meet-and knows that the others do as well-that it is the appropriate place to meet. To the extent that there is disagreement about the place to meet, there is no appropriate place to meet­ and so no convention-at al1. The interpretive theory of meaning can apply just as easily to "convention" as it can to "gold" or "law." lf it does, then the mere fact that we all currently agree that something should be called a "convention" would not be a sufficient reason to think it is indeed a convention. We could be wrong about what conventions are and reform our use of the term "convention" as a result, all the while preserving its meaning. In short, the practice of using the term "convention" would not be a convention.Instead it would be interpretive-the standards for applying "convention" would be those that result from our critical reflection on our practice of using the term.

Nevertheless, it would be absurd to conclude from this that conventions are not conventions-that norms of conventions can be binding upon participants even when there is disagreement. If the interpretive theory of meaning is correct, one can figure out what should be called "convention" only by participating in the interpretive practice of using the term "convention." Such participation involves calling practices ''conventions" only when and to the extent that there is agreement, without looking to norms of those practices that might arise later through critical reflection.

To be sure, the practice of using the term "convention" can be transformed through critical reflection. It is highly unlikely, how­ ever, that the practice will be transformed to such an extent that conventions will turn out not to be conventional. Because critical reflection is undertaken from the perspective of the prereflective commitments of the linguistic practice itself, any change in our conception of conventions is likely to be far less radical. Using the interpretive theory of meaning to justify an interpretive theory of the law is no less a mistake than using it to derive an interpretive theory of gold or conventions. Yet that is exactly what Dworkin does. Let us call this mistake "Dworkin's fallacy.,

Dworkin's Fallacy,see ref.

#####  Levels of Generality of Rule Makers' Intentions

A norm that directs interpreters to correct rule makers' mistakes regarding how their actual intended meanings square with their more general purposes is one that threatens completely to undermine the rule makers' role of determining what ought to be done. Because rule makers always intend to achieve Goodness and Justice – to "do the right thing" – if they are acting legitimately, the interpreter can sub- stitute his own views about what Goodness and Justice require for any specific intended meaning of the rule makers and still claim to be hon- oring their (more general) intent. For the interpreter will undoubtedly believe that, had the rule makers been disabused of all their mistakes of fact, mistakes of means-end reasoning, and mistakes in reasoning about values, they would have enacted (intended to mean) what the interpreter would have enacted (intended to mean). In effect, a norm allowing the

For a different constitutional implication of the various levels of generality of the inten- tions of authorities, see Note, Legislative Purpose, Rationality, and Equal Protection, 82 Yale L.J. 123 (1972). interpreter to disregard the more specific intended meanings in favor of more general purposes will convert the interpreter into the rule maker (and, of course, make the interpreter's determination subject to being corrected by a subsequent interpreter, and so on).22 As we said earlier, in our discussion of Lessig's theory of interpretation,23 if the rule makers' mistakes are always to be corrected by interpreters, then there will be no rule makers: if the interpreters are tantamount to the rule makers, there can never be rule makers for interpreters to interpret.

One might reply that although a norm directing interpreters to fol- low the rule maker's most general purposes would undermine that rule maker's role, a norm directing interpreters to follow the purposes char- acterized at some intermediate level of generality would not undermine that role. The interpreters could correct the rule maker's specific intended meaning by reference to somewhat more general purposes, but not by reference to Goodness and Justice.

There are two problems with such a response, however. First, to speak of levels of generality of purpose as if there were a discrete number of ways the rule maker's purposes could be described is in some ways quite misleading. There is no one way to describe the levels of generality or to count them. Thus, it is impossible for a norm to specify the pre- cise level of generality interpreters should look to in following the rule maker's purposes.

Second, and more important, the choice to correct the rule maker's specific intended meaning in light of the rule maker's more general pur- poses but not in light of the rule maker's most general ones seems quite arbitrary. In some cases, for example, the rule maker might specifically intend a meaning that is inconsistent with a more general purpose she has, but which is in fact consistent with Goodness and Justice. In such a case she has done the right thing, although she has made two mistakes in reasoning from means to ends that happily cancel each other. The hypothesized norm directing interpreters to follow the rule maker's pur- poses characterized at an intermediate level of generality would result in

Alexander, demystifying, see ref.

###  The Fact

_S.0.11.1 Law v. Fact-_ an unclear boundary

In reality, however, juries make many decisions that partly involve determinations of law, such as whether someone's actions were "reasonable" or whether the defendant's actions "caused" the plaintiff's injury. Conversely, judges commonly make factual determinations

_S.0.11.2 exclusion of evidence-_

Judges sitting without juries often treat the rules of evidence casually and appear to have little hesitancy in announcing that be- cause there is no jury, most of the exclusionary rules of evidence will simply be ignored. Moreover, exclusionary rules such as the hearsay rule and the original documents rule (often called the "best evidence" rule) are increasingly subject to a host of exceptions, and various other exclusionary rules have been officially eliminated or unofficially ignored. We may still be a long way from Bentham's preferred system of Free Proof, but we are also a long way from the highly rule-based and largely exclusionary system that generated Bentham's anger in the first place.

_S.0.11.3 Facts and the Appellate Process-_

what is germane here is the fact that on this factual proposition there was again virtually no finding below, and the Court reached its conclusion, ..., on the basis of several newspaper articles, presumably located by the Justices (or, more likely, their law clerks) through a Nexis search. Brown, Sullivan, Mapp, and Bush v. Gore are all constitutional cases in the Supreme Court, but it would be a mistake to think of the phenomenon as restricted to constitutional law. When Holmes insisted that the "life of the law has not been logic; it has been experience," he made it clear that appellate judges, in both following and creating "the path of the law," would have to rely on empirical and factual determinations, a phenomenon extensively theorized almost a century later by Melvin Eisenberg in showing how reliance on what he called "social propositions" is an essential element in common-law reasoning.

###  The Burden of Proof

_S.0.12.1 Burden of Proof -_

Whether it is the burden of proof for the case as a whole, or the bur- den of persuasion on a particular issue, or the burden of production of evidence, it is important to bear in mind an important theme: these de- vices are all called "burdens" for a reason. From the point of view of an advocate, these burdens, like most other burdens, are almost by defini- tion something that you do not want to have. The burden of proof is, for entire cases or for components parts of them, something a lawyer wishes her opponent to have, and often much of legal argument consists of at- tempting to persuade a judge (or jury) that your opponent has the burden of proof. It is an exaggeration to say that once you have saddled your op- ponent with the burden of proof on some issue, your job as an advocate is done. As we know in the criminal law, even high burdens of proof are met with great frequency. Still, the advocate who can persuade the decision-maker that the other side has the burden of proof has gone a long way toward success, and as a result, arguments about the burden of proof are as frequent in legal argument as arguments about the law and the facts themselves.

_Evidentiary Standards_

The burden of proof determines which party is responsible for putting forth evidence and the level of evidence they must provide in order to prevail on their claim. In most cases, the plaintiff (the party bringing the claim) has the burden of proof. The burden of proof has two components.

  * The plaintiff must satisfy the burden of production, which has also been referred to as the burden of going forward. As the terms suggest, this burden requires the plaintiff to put forth evidence in the form of witness testimony, documents, or objects. After the plaintiff presents his or her case-in-chief, the burden of production shifts to the defendant, who then has the opportunity to provide evidence either rebutting the plaintiff's evidence or supporting the defendant's own arguments. 
  * _Civil_
    * _Preponderance of the Evidence_

The plaintiff must satisfy the burden of persuasion. This burden determines which standard of proof the plaintiff must follow in presenting evidence to the judge or jury. A standard of proof determines the amount of evidence the plaintiff or defendant needs to provide in order for the jury to reach a particular determination. In most civil cases, the burden of persuasion that applies is called "a preponderance of the evidence." This standard requires the jury to return a judgment in favor of the plaintiff if the plaintiff is able to show that a particular fact or event was more likely than not to have occurred. Some scholars define the preponderance of the evidence standard as requiring a finding that at least 51 percent of the evidence favors the plaintiff's outcome

BURDEN OF PROOF— PREPONDERANCE OF THE EVIDENCE When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true. You should base your decision on all of the evidence, regardless of which party presented it. US curts, see ref.

    * _Clear and Convincing Evidence_

In some civil cases, the burden of proof is elevated to a higher standard called "clear and convincing evidence." This burden of proof requires the plaintiff to prove that a particular fact is substantially more likely than not to be true. Some courts have described this standard as requiring the plaintiff to prove that there is a high probability that a particular fact is true. This standard sets a higher threshold than the preponderance of the evidence standard, but it does not quite rise to the widely recognized standard used in criminal cases, known as "beyond a reasonable doubt

BURDEN OF PROOF—CLEAR AND CONVINCING EVIDENCE When a party has the burden of proving any claim or defense by clear and convincing evidence, it means you must be persuaded by the evidence that the claim or defense is highly probable. This is a higher standard of proof than proof by a preponderance of the evidence. You should base your decision on all of the evidence, regardless of which party presented it. See Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (defining clear and convincing evidence). See also Murphy v. I.N.S., 54 F.3d 605, 610 (9th Cir.1995) (the burden of proving a matter by clear and convincing evidence is "a heavier burden than the preponderance of the evidence standard"). In certain civil cases, the higher standard of proof by "clear and convincing evidence" applies. See, e.g., Chapter 15 ("Trademark") Instruction 15.20 (Defenses—Abandonment—Affirmative Defense—Defendant's Burden of Proof), Instruction 15.22 (Defenses—"Classic" Fair Use), and Instruction 15.23 (Defenses—Nominative Fair Use). _US courts, see ref._

    * _Substantial Evidence_

In administrative law proceedings, the standard of proof that most commonly applies is the substantial evidence standard. This standard requires the plaintiff or moving party to provide enough evidence that a reasonable mind could accept as adequate to support a particular conclusio

  * _Criminal_ _Beyond a Reasonable Doubt_

The "beyond a reasonable doubt" standard is the highest standard of proof that may be imposed upon a party at trial, and it is usually the standard used in criminal cases. This standard requires the prosecution to show that the only logical explanation that can be derived from the facts is that the defendant committed the alleged crime, and that no other logical explanation can be inferred or deduced from the evidence. The United States Supreme Court in Victor v. Nebraska, 511 U.S. 1 (1994), described this standard as "such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof . . . . What is required is not an absolute or mathematical certainty, but a moral certainty."

_Probable Cause_

In the criminal law context, there are a few additional standards that apply in specific circumstances. Another well-known standard is the probable cause standard. This standard focuses on balancing effective law enforcement practices against the Fourth Amendment guarantee against unreasonable invasions into citizens' privacy. In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court outlined the totality of the circumstances test that applies to determining whether a police officer had probable cause to conduct a search and seizure, and for magistrate judges to use when issuing warrants. The standard requires police officers and judges "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband evidence of a crime will be found in a particular place."

_Reasonable Belief and Reasonable Suspicion_

Other standards used to evaluate evidence in the criminal context include reasonable belief and reasonable suspicion. Any police actions that are subject to these standards of proof must be based on grounds that are reasonable in light of the circumstances. Stated differently, a reasonable suspicion occurs when a police officer "observe[s] unusual conduct which lead him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing with may be armed and dangerous.." Terry v. Ohio, 392 U.S. 1 (1968).

_Credible Evidence_

Another common standard of proof used in some criminal law proceedings is the credible evidence standard. Credible evidence is evidence that is not necessarily true but that is worthy of belief and worthy of the jury's consideration. Some have defined this standard as requiring the jury to conclude that the evidence is natural, reasonable, and probable in order for it to be credible.

Evidentiary Standards and Burdens, see ref.

####  Burdens

_9th Circuit Model Jury Instructions_ _Types of Evidence_

  * 2.1 STIPULATED TESTIMONY

The parties have agreed what [witness]'s testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court.

  * 2.2 STIPULATIONS OF FACT

The parties have agreed to certain facts [to be placed in evidence as Exhibit __] [that will be read to you]. You should therefore treat these facts as having been proved.

  * 2.3 JUDICIAL NOTICE

The court has decided to accept as proved the fact that [state fact], even though no evidence has been introduced on the subject. You must accept this fact as true.

  * 2.8 IMPEACHMENT EVIDENCE—WITNESS

The evidence that a witness [e.g., has been convicted of a crime, lied under oath on a prior occasion, etc.] may be considered, along with all other evidence, in deciding whether or not to believe the witness and how much weight to give to the testimony of the witness and for no other purpose.

_Burdens_

  * 1.3 BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE

When a party has the burden of proof on any claim [or affirmative defense] by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim [or affirmative defense] is more probably true than not true.

  * 1.4 BURDEN OF PROOF—CLEAR AND CONVINCING EVIDENCE

When a party has the burden of proving any claim or defense by clear and convincing evidence, it means you must be persuaded by the evidence that the claim or defense is highly probable. This is a higher standard of proof than proof by a preponderance of the evidence.

  * Criminal 3.2 CHARGE AGAINST DEFENDANT NOT EVIDENCE— PRESUMPTION OF INNOCENCE —BURDEN OF PROOF

The indictment is not evidence. The defendant has pleaded not guilty to the charge[s]. The defendant is presumed to be innocent unless and until the government proves the defendant guilty beyond a reasonable doubt. In addition, the defendant does not have to testify or present any evidence to prove innocence. The government has the burden of proving every element of the charge[s] beyond a reasonable doubt.

  * 1.6 WHAT IS EVIDENCE

The evidence you are to consider in deciding what the facts are consists of:

1. the sworn testimony of any witness;

2. the exhibits which are received into evidence; and

3. any facts to which the lawyers have agreed.

  * _Criminal Defenses_ 6.1 Alibi 6.2 Entrapment 6.2A Sentencing Entrapment 6.3 Entrapment Defense—Whether Person Acted as Government Agent 6.4 Insanity 6.5 Duress, Coercion or Compulsion (Legal Excuse) 6.6 Necessity (Legal Excuse) 6.7 Justification (Legal Excuse) 6.8 Self-Defense 6.9 Intoxication—Diminished Capacity 6.10 Mere Presence 6.11 Public Authority or Government Authorization Defense

Manual of Model Civil, Criminal Jury Instructions, 9th cir. see ref.

_S.0.12.2 Presumtions -_

Most presumptions arise in the context of facts. But presumptions can be legal as well as factual. Consider the structure of American equal pro- tection doctrine, for example. It is now well settled that state classifica- tions based on race, religion, ethnicity, and national origin are presump- tively unconstitutional and will be upheld only if the state demonstrates a compelling interest in using such a classification, and demonstrates as well that there is no less restrictive (of equality) alternative that it can use to achieve that interest.17 Here the question is one not of fact but of law, but we are still talking about a presumption. The law is presumed uncon- stitutional, but the state may rebut that presumption by satisfying a heavy burden of justification. Conversely, when a statute draws a classi- fication within this category of "suspect" classifications, it is presumed to be constitutionally permissible and will be invalidated only if the chal- lenger meets its burden of proving that the classification is irrational.

_Presumption_

A conclusion made as to the existence or nonexistence of a fact that must be drawn from other evidence that is admitted and proven to be true. A Rule of Law.If certain facts are established, a judge or jury must assume another fact that the law recognizes as a logical conclusion from the proof that has been introduced. A presumption differs from an inference, which is a conclusion that a judge or jury may draw from the proof of certain facts if such facts would lead a reasonable person of average intelligence to reach the same conclusion.

A conclusive presumption is one in which the proof of certain facts makes the existence of the assumed fact beyond dispute. The presumption cannot be rebutted or contradicted by evidence to the contrary. For example, a child younger than seven is presumed to be incapable of committing a felony. There are very few conclusive presumptions because they are considered to be a substantive rule of law, as opposed to a rule of evidence.

A rebuttable presumption is one that can be disproved by evidence to the contrary. The Federal Rules of Evidence and most state rules are concerned only with rebuttable presumptions, not conclusive presumptions.

. a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence. One can present facts to persuade the judge that the presumption is not true. Examples: a child born of a husband and wife living together is presumed to be the natural child of the husband unless there is conclusive proof he is not; a person who has disappeared and not heard from for seven years is presumed to be dead, but the presumption could be rebutted if he/she is found alive; an accused person is presumed innocent until proven guilty. These are sometimes called rebuttable presumptions to distinguish them from absolute, conclusive or irrebuttable presumptions in which rules of law and logic dictate that there is no possible way the presumption can be disproved. However, if a fact is absolute it is not truly a presumption at all, but a certainty.

_Legal Dictionary, presumption_ , see ref.dict.

_S.0.12.3 deference -_

the relationship among the burden of proof, deference, and the standard of review is more apparent. It seems quite sensible, therefore, to say that because an administrative agency is presumed to have come to the correct conclusion within its domain of expertise, then it is entitled to deference, and thus that its decision may be overturned only if the challenger can meet the burden of proving that the agency decision was, say, arbitrary and capricious. There is only one relationship in the previous sentence, but deference, presumption, the burden of proof, and the standard of review are all different ways of describing that same relationship from different angles.

_Chevron Deference-_ One of the most important principals in administrative law, established by the Supreme Court in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The case raised the issue of how courts should treat agency interpretations of statutes that mandated that agency to take some action. The Supreme Court held that courts should defer to agency interpretations of such statutes unless they are unreasonable. _wex legal dictionary_ , cornell.edu.

####  Standards of Review on Appeal

  * _Generally_ \- he standard of review focuses on the deference an appellate court affords to the decisions of a District Court, jury or agency.

####  Decisions by judges are traditionally divided into three categories,

> 
    * denominated questions of law (reviewable de novo)

    * questions of fact (reviewable for clear error) 
    * matters of discretion (reviewable for abuse of discretion)." 
  * _Arbitrary and Capricious_ \- Review of agency determinations is limited to whether the agency's action was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, or if it was taken without observance of procedure required by law.

  * _Substantial Evidence_ \- Substantial evidence means more than a mere scintilla; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

  * _Reasonableness_ \- An agency action raising predominantly legal rather than factual issues may be reviewed under a reasonableness standard. "The scope of judicial review under this standard is narrow and an agency's interpretation of its own policies and prior orders is entitled to deference."

Standards of review, see ref.

=================================

###  Sources [b1]

\--- 
Back  contents

###  Tactics: Arguing from Types   [ty1]

There now exists a tool box of informal and deductive inference tools to be used in a sequence of sub- arguments. These may operate as functions on the domain of legal context (rules, precedent, authorities, presumption, deference, etc). A participant in the dialectic may assert a defeasible application of a rule to a set of relevant facts, and the respondent will counter with sub arguments designed to defeat the assertion. The goal is to persuade the judge or audience to the merits of an alternative application, using types of arguments summarized here.

###  The Five Types of Legal Arguments

  * The _Five Types of Legal Argument_ Arise From: 
    * legal _Text_
    * _Intent_ \- legal purpose behind text 
    * _Precedent_ -judicial holdings as to what the law Is 
    * _Traditions_ -customs 
    * _Policy_ \- values-interests-policy 
    * Function as Rules of Recognition-

H.L.A. Hart said, "To say that a given rule is valid is to recognize it as passing all the tests provided by the rule of recognition and so as a rule of the system".

    * Are Rules of Evidence for Determining What the Law Is 
    * Embody the Underlying Values of Our System of Laws 
  * _Text_
    * Plain meaning-

Text is to be interpreted according to its plain meaning. When courts interpret legal text according to plain meaning, it is equivalent to saying that the text is so clear that it does not require resort to any of the other methods of interpretation.

    * Canons of Construction- semantic and substantive 
    * Intratextual Arguments-

Intratextual arguments use one portion of the legal text to interpret another portion. In effect, the entire legal document—the constitution, statute, regulation, ordinance, or contract—may be used as a codex or dictionary to interpret the meaning of specific provisions

  * _Intent_ \- The second source of law is the intent of the people who wrote the text. 
    * The Intent Behind the Constitution, Statutes, Regulations, Contracts, and Wills 
    * Evidence of Intent 
      * Evidence of Intent in the Text Itself, 
      * Previous Versions of the Text 
      * The History of the Text 
      * Official Comments, e. Contemporary Commentary 
  * _Precedent_ \- stare decisis (which literally means "to stand by things decided") 
  * _Tradition_ \-

Justice Felix Frankfurter:

Deeply embedded traditional ways of conducting government cannot supplant the Constitution or legislation, but they give meaning to the words of a text or supply them. It is an inadmissibly narrow conception of American constitutional law to confine it to the words of the constitution and to disregard the gloss which life has written upon them

  * _Policy_ _The Structure of Policy Arguments_ Policy arguments are consequentialist arguments that consist of a predictive statement and an evaluative judgment:  This is an argumentaiton scheme by [ consequences  ] 
    * _The Predictive Statement_ \- . The factual premise of a policy argument is referred to as "legislative fact" to be determined by the court as a matter of law, as contrasted to questions of "adjudicative fact" to be determined by a jury.174 Judicial notice of "legislative facts" is not subject to the limitations of Rule 201 or any other rule of evidence. 
    * _The Evaluative Judgment_ \- Once a court has predicted how a proposed interpretation of the law will affect society, it must then proceed to determine whether or not these consequences are acceptable or unacceptable. This judgment requires the court to articulate the underlying purposes of the law, which is often difficult and controversial. 
  * strategic Rule pruning

Rules are always articulated in words, which always leave gaps and ambiguities. Indeed, all expressions of rules are naturally incomplete. The role of the legal system is to determine how to complete the rules, and thus how to apply them, in particular circumstances. There are many ways in which rules can be interpreted, and the canons of interpretation catalogued in the book can be deployed strategically to result in the desired outcome. One of the lawyer's jobs is to be suspicious of the possibility that opponents will engage in extensional pruning in order to evade their responsibilities. Lawyers police extensional pruning when preparing contracts and when preparing laws. More broadly, they look for loopholes.

Legal argument, dispassionate in nature, is based on reasoned persuasion, and the reasoning is based on the legal analytical technique. This analytical technique always involves determining what rules apply. As we have seen, this is often uncertain and contentious. There is always room for argument, either about the effects of competing rules or about the intended scope of the proposed rule. There is also room for innovation—for identification of rules that might not obviously or conventionally be seen as applicable but that may be implicated by the observed facts. Creative lawyers will avoid prematurely categorizing a claim as one type of claim or another but will be open to different categorizations. Strategic lawyers will seek to frame their claims in a way that maximizes their chances of winning.

Trachtman,Tools, see ref.

Huhn, The Five Types, see ref.

Part of making a legal argument is the foundational work of analysis, with associated research, to identity competing authorities and interpretations. This activity has a set of associated steps or checkpoints in its internal process:

###  Some Checkpoints for Mastering Legal Analysis -

  * _Legal analysis_ is: (1) isolating individual components of the law, and (2) forming a cohesive combination _Statements of law_ , or _Rules_ , see  Rules, Precedent
  * Often a series of laws will apply, see  super textualism 
  * _Statutes_ are the primary source of law today. It is essential to develop your skill in reading and understanding statutes. First and foremost, be alert in reading a statute, as every word and their placement may be important. _Tools_ for analyzing and interpreting statutes include: 
    1. Using tabulation to explode a statute i 
    2. Viewing the section at issue using its structure 
    3. Case law interpreting the statute 
    4. The plain meaning rule 
    5. Legislative history— 
    6. Similar statutes in the same jurisdiction 
    7. Similar statutes in different jurisdictions that have been addressed by those courts. 
    8.  Canons of construction 
    9. Law review articles and scholarly commentary 
  * Read the Cases

often contain (1) a caption, (2) a summary and head notes, (3) the disposition, (4) procedural facts, 5) underlying facts, (6) an indication of the issues being addressed, (7) statements of the law and their explanation, (8) an application of the law, and (9) the holding, which is the court's decision on the issue along with the essential supporting facts or reasons. Cases may also contain statements of policies that the law is meant to promote, and dicta—statements included in the opinion that are not necessary to the court's holding. Look for statements of dicta that give examples or how a rule or standard might or might not be met.

  * In _reading a case strategically_ for how it affects the client and the client's situation use this checklist: 
    * Where does the case come from and what level of court decided it? 
    * ... 
    * Does the case contain any useful dicta? 
    * In legal analysis you will need to (1) distill the legal principles from multiple cases and explain what they are and how they relate to each other, and (2) apply those principles to the facts of your client's situation and predict or advocate the outcome. 
  * In dealing with _multiple cases_ use this process: 
  * Read the cases in the order of most recent, to oldest. It is likely that later courts will have synthesized (at least partially) the cases for you—meaning they will have distilled the legal principles from prior cases, fit them together, and explained them. 
  * For each case, write out its holding on each issue in a short parenthetical. 
  * Sort and group the cases. Create a chart with that sets out the issues as categories, then sort the cases based on which issue (s) they address. Then for each issue/category group the cases by result: those that met the overall standard or requirements and those that did not. Once your chart is complete look for patterns, trends or _factors_ that point to a result. see  Specificity

Rule applicability is deductive

legal reasoning is essentially about applying rules to facts: "The simple but often criticized formula 'R + F = C', or 'Rule plus facts yields conclusion' is the essential truth. " Accordingly, he took deductive reasoning in the form of a practical syllogism to be of central importance in legal reasoning: To justify a decision is to apply a pertinent rule to the facts of the case.8 He was, however, careful to point out that there is more to legal reasoning than deduction and that the non-deductive elements, such as the weighing of arguments in difficult cases of statutory interpretation, are the ones most in need of study.

Since any ruling can be universalized, the judge must be able to decide which of two or more universalized rulings he should choose. MacCormick called this the problem of secondorder justification and explained that it must involve two distinct types of interpretive argument, namely (i) arguments from consistency and coherence, and (ii) consequentialist arguments.12 For, he explained, any ruling must make sense both in the legal system and in the world. A given ruling meets the consistency requirement if, and only if, it does not contradict any other norm in the legal system; it meets the coherence requirement if, and only if, it makes sense in the legal system.13 Consequentialist arguments, on the other hand, ask the judge to choose the ruling that yields the best consequences. This type of argument comes into play only if the arguments from consistency and coherence do not yield an answer to the interpretive question.

Deduction, Spaak, see ref.

  * Distill and synthesize the legal principles from the cases. Once you have sorted, grouped and charted the cases, reread them individually and take down the statements of law and what the court says about them for each issue. Then determine which of the statements of law are elements, and which are factors. Then for each issue fit the statements of law from each case together is as logical and cohesive whole as possible. This usually means going from general statements of law to more specific statements and from broad statements of law to more narrow statements. 
  * Organize and present you legal analysis using the _IRAC_ (Issue, Rule/Law, Application, Conclusion) or _CRAC_ (Conclusion, Rule/Law, Application, Conclusion) formats. These formats organize and deliver information in a way that is thorough, comprehensive, and easy for the reader to understand. 
  * Use the _IRAC_ Cheat Sheet below to create the building blocks for the analysis and discussion sections of memoranda and briefs, modifying it to CRAC if needed: 
    * _I: Issue_
      * Set out the issue you will address. Issues are questions that must be answered in order to solve a legal problem. 
      * To identify the issues that you must resolve, you need to identify: (1) the elements or factors of the applicable law, and (2) the facts that tend to prove or disprove each element of the standard. In the beginning, it is helpful to use the "Whether [a particular element is met], when [set out the essential facts]" format. More advanced drafters may wish to modify this rather rigid format, but master it first as it is an excellent default format. 
    * _R: Rules/Laws_
      * Set forth and explain the applicable laws in order of broad to specific/general to narrow. Illustrate your rules and explanations with examples from the cases. This will require you to DISTILL and SYNTHESIZE laws and explanations from all the applicable cases. Often, detailed or narrow laws are used to explain broader laws. 
      * Think of this section as one comprised of three components: Law, Law-Explanation, and Law-Illustration. 
    * _A: Application/Analysis_
      * Begin with the conclusion regarding whether the facts in your case or matter meet or fail to meet the basic law you have laid out in the prior section, with a cite to your strongest case(s). This is the topic sentence. Then in order of broad to narrow, strongest to weakest: 
        1. Tell the reader why the facts meet or fail to meet the laws that have been set out and explained, with citations to supporting cases (these are your "assertions"), and 
        2. Show the reader how the facts meet or fail to meet the laws that have been set out and explained by comparing and contrasting them to the facts in the cases cited in the rule/law section—be sure to pinpoint cite to these cases as you discuss them and your client's facts. 
      * In a separate paragraph address any arguments, laws, or cases the other side is likely to rely on (i.e., address _counter arguments_ ). Think of the application as the "tell and show" section. The goal is to show that your conclusions and assertions are sound and well supported. 
      * Do not introduce or refer to any new laws, explanations, factors, cases or facts in the Application section. They must first be set out in the rule/law Section or the Statement of Facts. 
    * _C: Conclusion_
    * If the issue or sub-issue is complicated or involves several counter arguments, briefly restate the conclusion, its principal justification, and include a citation to your essential case(s). Often you may eliminate this step because the topic sentence of the application clearly sets out your conclusion on the issue or sub-issue.

Mastering Legal Analysis , see ref.

Within the five types of legal arguments, backed by a process of legal analysis, are procedural and jurisdictional attacks as well as counter-point rebuttals:

### arguing from jurisdiction, text, precedent

  * 3. Arguing in a Legal System: Procedure 
    * 3.1 Argue About Arguing: Why Procedure Matters

Process and substance are intertwined, and often inseparable. If your opponent has the better substantive argument, counter with procedural arguments that can change the substantive rules or that can make your opponent's argument more difficult to make.

    * 3.2 Argue for Procedural Benefit: To Win on Substance, Maximize Your Procedural Advantage

Point: You have done something wrong. Counterpoint: The procedure that you propose to follow, or have followed, in determining that I have done something wrong is unfair or otherwise defective

    * Other 3.3 Argue That It's None of the Tribunal's Business: There Is No Jurisdiction 3.4 Argue That There Is Something Wrong with This Tribunal: Bias, Conflict of Interest, Recusal, and Voir Dire 3.5 Argue for a Characterization of the Case That Makes Your Side More Appealing 3.6 Argue for Application of the Rules That Will Result in Your Victory 3.7 Argue That Your Opponent Is Wrong,Too: Counterclaims 3.8 Argue That It's None of the Complainant's Business: Standing 3.9 Argue That the Complainant Is Tainted: In Pari Delictus, Tu Quoque, Clean Hands, and Contributory Negligence 3.10 Argue That It's Too Early: Ripeness and Exhaustion of Lesser Remedies 3.11 Argue That It's Too Late: Statutes of Limitations, Prescription, and Repose 3.12 Argue That Your Opponent Must Prove His Case Before You Must Prove Yours: Burdens of Proof 3.13 Argue That Even If the Complainant Wins, He Deserves Nothing: Remedies and Enforcement 3.14 Argue That It's Already Been Decided: Res Judicata, Collateral Estoppel, Repose, and Double Jeopardy 3.15 Argue That a Process Was Followed (or Flawed): P 
  * 4. Arguing About the Meaning of Texts: Interpretation 
    * 4.1 Plain Meaning and the Dictionary

Even dictionary meanings do not necessarily indicate or exhaust the meaning of a word in context. Indeed, the context of the contract or law may suggest a non-dictionary meaning for a word. So, dictionaries are of only limited use, and plain meaning is not necessarily simple to determine. What if the legislators or parties to the agreement use words in a special way? What if a clothing manufacturer and its customer use the word "inflammable" in their contract (erroneously) to mean that the clothing cannot burst into flames. What if it is understood that a "ton" is a metric ton? Under these circumstances, why should the parties be limited to the plain meaning, as opposed to the meaning they intended?

    * 4.2 Original Intent and Evolution

1. Subjective original intent: Ask what the authors had specifically in mind. 2. Objective original intent: Ask what the words that the authors used generally meant at the time the authors used them. 3. Objective original intent with intended evolutionary change: Ask what the words that the authors used generally meant at the time the authors used them, but also assume that the authors intended for their words to develop new meanings as the world changed over time and language in common contemporaneous use adapted.

    * 4.3 Context, Purpose, and Principles

Point: This contract or statute should be interpreted in such a way as to (a) effect its principles or (b) achieve its purpose. Counterpoint: How do you know what its principles are, or what its purpose is, and how far the legislators or parties intended to effect that principle or achieve that purpose? There are few things we would wish to achieve at any cost, or without qualification.

    * 4.4 Four Corners Versus Preparatory Materials: The Parol Evidence Rule Arguments can arise about what is the "real" deal—whether the original deal was changed, and whether it could be changed by later (or earlier) discussions.

Point: The formal (or more comprehensive) arrangement overrides any prior or subsequent informal modifications. Counterpoint: You should be responsible for what you said, even if it was not included in the formal arrangement. Counter-counterpoint: If you meant to rely on it, you should have asked that it be included in the formal arrangement. Counterpoint 2: The specific point made outside the comprehensive arrangement controls the more general statement in the comprehensive arrangement. (See lex specialis discussed in 4.10.)

    * 4.5 Extensional Pruning

Point: I intended a narrow meaning of the operative phrase used in my commitment to you: just the site on which I worked. Counterpoint: I assumed, I believe rightfully, that you intended the ordinary broader meaning of the operative phrase.

    * 4.6 Interpretation Versus Construction

Point: The contract is incomplete insofar as it fails explicitly to allocate responsibility for the situation that has occurred, so we should construct an allocation of responsibility that we believe the parties would have established if they had addressed it. Counterpoint: Nonsense—let the chips fall where they may. We should let the responsibility that has not been explicitly allocated remain where it falls without intervention. If I had been allocated an additional responsibility, I would have charged you a higher price.

    * 4.8 Effet Utile, the Presumption of Consistent Usage, and Meaningful Variation

Point: Each word must be ascribed utility and meaning, the use of different words must mean different things, and the use of the same words must mean the same thing. Counterpoint: Agreements and laws are sometimes completed after little sleep and in a hurry, and draftsmen are not perfect. We should be cautious in setting a standard so high that it will frustrate the imperfectly expressed intent of the parties.

    * 4.9 Avoid Absurdity

Point: The application of this contractual provision or law to the case at hand would be absurd—we cannot assume that the authors intended an absurd outcome. Counterpoint: We should apply the text as written, and leave it to the authors to amend their text if the language is defective or if the application to a particular type of case is undesirable. Counter-counterpoint: The authors assumed that tribunals and others working with these rules would avoid absurd results. Counter-counter-counterpoint: How do you know what they thought was absurd, except by examining the text?

    * 4.10 Lex Specialis: The Assumption That the Specific Trumps the General

Point: We have two conflicting principles, so the more specialized one should take priority over the more general one. Counterpoint:? Counter-counterpoint: The more specific principle obviously reflects the more specific intent of the legislators or of the parties to the contract. Counter-counterpoint: Lex specialis seems to be a way of inferring the intent of the parties as to which norm should trump the other. If there is better evidence of intent, we should use it.

Lex specialis-Principle- Specialized laws prevail over general laws The Principle is based on the presumption that, in enacting a law or drafting a contract provision, a lawmaker or contract drafter does not want to create a law or contractual provision that would be devoid of any scope of application. This would be the case if the general rule always prevailed. ; Rule of validation/Lex validitatis If, however, the parties have chosen a specific law to be applied to their contract, that choice must be respected, irrespective of whether that law invalidates the contract. ; from _Trans-Lex dictionary of law_

    * 4.11 Expressio Unius (and Ejusdem Generis): Examples Matter

Point: We listed the types of things included, and the thing at issue is not on the list—therefore, it is not included and can be presumed to be intentionally excluded. Counterpoint: The thing at issue is of a similar type to those on the list, raising the same concerns. The listing should be understood as a specification of examples, and the interpreter should construe the list to include other things of similar type. Counter-counterpoint: The draftsman of the text knew about those other things, and so it makes sense to assume that they were intentionally excluded.

expressio unius est exclusio alterius- a principle in law: when one or more things of a class are expressly mentioned others of the same class are excluded from _Meriam Webster. dict._

    * 4.12 Clear Statement Rules, Interpretation Against the Draftsman, and the Rule of Lenity In criminal cases, it may be unfair, and a violation of rights to due process of law, to prosecute someone criminally under a vague rule. If it is vague, it may be difficult to determine how to comply, and the rule may be subject to inconsistent interpretation and application. The rule of lenity says that vague criminal statutes should be construed in favor of the defendant.

Point: Any ambiguity in this agreement should be resolved against the position of the person responsible for drafting it. Counterpoint: It takes two to tango: this document was accepted by both of us, so we are both responsible for it. It would be strange to punish those who take on the responsibility of drafting by having a rule that resolves ambiguity against their interests.

Rule of Lenity- a judicial doctrine requiring that those ambiguities in a criminal statute relating to prohibition and penalties be resolved in favor of the defendant if it is not contrary to legislative intent. It embodies a presupposition of law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment. The courts while construing an ambiguous criminal statute that sets out multiple or inconsistent punishments should resolve the ambiguity in favor of the more lenient punishmen from _uslegal dictionary_

    * 4.13 Reductio Ad Absurdum, the Camel's Nose, the Slippery Slope, the Parade of Horribles, and the Thin Entering Wedge

Point: If we accepted your principle, while the results would not be unacceptable in the case at hand, the result would be absurd, or horrible, in other cases where it might be extended. Counterpoint: All things in moderation—there is no need for such an extension, and the absurd or horrible cases you posit are not before us. Counter-counterpoint: But it is the principle of the thing; once we establish the principle that you argue for, we will not be able to hold back the absurd and the horrible.

  * Arguing From Precedent 
    * 5.3 Rationes Decidendi: The Essence of Decisions

Point: We should follow the precedent set by a prior case. Counterpoint: There are many distinctions between that case and this one—you cannot know that the factors that caused the decision in the prior case are all present in the current one. Counter-counterpoint: Those are indeed distinctions—but they don't make a difference. The salient factors—the ones that make a difference—are the same. Counter-counter-counterpoint: How do you know which are the salient factors?

Point: The present case is governed by the precedent encapsulated in the ratio decidendi of a long line of cases. Counterpoint: No, the present case is distinguished from that line of cases by salient facts and is governed instead by the ratio decidendi of a different line of cases.

    * 5.4 Obiter Dictum and Cheap Talk

Point: The present case is governed by the precedent encapsulated in the ratio decidendi of a long line of cases. Counterpoint: The alleged ratio decidendi that you propose was mere obiter dictum—it was not necessary to the decision of that case and so should not guide us now.

    * 5.5 Exceptions that Swallow the Rule

Point: You have broken the rule. Counterpoint: That rule is so tattered with exceptions that it no longer makes sense to apply it at all. Counter-counterpoint: The fact that there are exceptions shows that we are still serious about applying the rule (this is a case in which the exception may indeed prove the rule).

{Firstly},It may seem natural to think that whether or not a qualifying condition constitutes an exception to a rule is purely a stylistic matter. It is a question of whether the qualification happens to be included in the statement of the rule, or whether it is left to the decision-maker to articulate on her own. If this is so, exceptions are best thought of as a superficial conceptual category. Whether a qualification to a rule is an exception is a matter of whether it is feasible to include the qualification in the statement of the rule. Since any rule is subject to many circumstances in which the rule will fail to apply, every rule will have a number of unarticulated conditions that constitute exceptions to it.

The second is connected with the first, although it stands in some apparent tension with it.. This is the idea that the myriad that apply to a rule without being included in a statement of it do not in fact fall outside the scope of the rule. They are an implicit part of the rule, despite their formal exclusion from its statement. For the ones excluded lurk within the rule anyway; one has only to read between the lines to see them. This view seems connected with a general tendency to exaggerate the importance of interpretation in rule-following, and to suppose that any problem about the applicability of a legal rule can be solved by interpreting it correctly? On this way of looking at the matter, the rule has swallowed the exception, for if all of a rule's qualifications are an implicit part of the rule itself, then there is no qualification outside a rule that could count as a true exception to it.s So once again, the topic of exceptions seems a confusion. Exceptions may exist as a superficial linguistic matter, but they disappear once the true structure of rules of prohibition is understood.

...It is famously Dworkin's point to argue that matters are otherwise where principles are concerned. For unlike with rules, there are many instances in which valid principles will not dictate the outcome of cases to which they apply. Presumably we should not describe these as cases in which an exception defeats the principle, since Dworkin says that the conditions that qualify a principle "are not, even in theory, subject to enumeration". 16 It is reasonable to suppose that a qualifying condition can only constitute an exception if the thing it qualifies would be dispositive of the outcome in the absence of the qualification in a case to which it applies. On Dworkin's account, then, there is no room for talk of exceptions anywhere in a legal system. For there is no such thing as an exception to a rule, since any articulated exception is only a more precise statement of the rule. The point is that a rule cannot fail to dictate the outcome of a case where it applies and still be a rule. A principle, on the other hand, might fail to dispose of a given case to which it applies, but we cannot speak of an "exception" here either, since a principle might fail to dispose of a case even in the absence of the qualifying condition. There is no such thing as an exception to something that fails to dictate the outcome of particular cases.

Finkelstein, Claire Oakes, "When the Rule Swallows the Exception" (2000). Faculty Scholarship. Paper 1007. pdf

    * 5.6 Breaking Precedent

Point: All our precedents suggest that the law is against you, and there are no available bases for distinguishing the present case. Counterpoint: It is time to change the rule; there is no reason to adhere to consistency with a foolish rule.

    * 5.8 Specificity and Delegation

Point: The judge has gone beyond the specific language of the statute, engaging in excessive and undemocratic judicial legislation. Alternatively, the referee has gone beyond the specific rules of the game. Counterpoint: The judge or the referee is charged with making decisions. Where the law or the rules of the game are set in general terms, we can infer that the legislator or rule-maker implicitly delegated to the judge or referee discretion to fill in the details.

  * Arguing From Facts 
    * 6.1 Determining the Salience of Facts

Point: Facts X, Y, and Z are the basis of my claim against you. Counterpoint: In this type of case, X and Y are relevant, but Z is not. And without W, they are insufficient to complete a claim against me.

    * 6.4 Brandeis Briefs and Scientific Experts

Point: I have statistical evidence that use of your product is strongly correlated with harm, and we have tested and ruled out all conceivable alternative causes. Counterpoint: That is only circumstantial evidence and cannot be accepted as proof of responsibility. Counter-counterpoint: Circumstantial evidence is indeed not necessarily conclusive, but strong correlation, combined with careful evaluation and rejection of alternative causes, is highly suggestive.

    * 6.6 Exclusion of Evidence

Point: The evidence proves my case. Counterpoint: The key piece of evidence is inadmissible and so cannot be considered as part of your case.

    * 6.7 Estoppel: Blocking Argument

Point: I have fundamental concerns about our project. Counterpoint: The process that we have been following allowed opportunities to make this point and you did not do so in the allotted time. It is too late.

    * 6.8 Presumptions: Shifting the Burden of Proof

Point: The law, or society, makes a presumption regarding facts, and based on that presumption, you are assigned responsibility. Counterpoint: That presumption is not based in reality: there are many circumstances in which it cannot be expected to be true. Counter-counterpoint: Presumptions need not be based in reality, but may still be appropriate in order to transfer the burden of proof.

Trachman, The Tools of Argument, see ref.

It may be that using the types-tools above will be most persuasive when framed as an ex ante argument:

###  Ex Ante and Ex Post

[ There are ] two distinct ways of thinking about a problem. The first can be called the _ex post_ perspective. It involves looking back at a disaster or other event after it has occurred and deciding what to do about it or how to clean it up. The second perspective is called the _ex ante_ point of view. It involves looking forward and asking what effects the decision about this case will have in the future-on parties who are entering similar situations and haven't yet decided what to do, and whose choices may be influenced by the consequences the law says will follow from them. (The first perspective also might be called static, since it accepts the parties' positions as given and fixed; the second perspective is dynamic, since it assumes their behavior may change in response to what others do, including judges.) Part of what makes judicial decisions interesting is that courts think in both of these ways when they decide cases, and the two styles of thought can point to different conclusions. Does a court's decision settle the dispute between these parties or does it make a rule for others in the future? It almost always does both.

... It's only natural to think in an ex post fashion when a lawsuit comes up: here are two parties in a vigorous dispute, perhaps blaming each other for a disaster. Their attention is fixed on the past and what should be done about it. They don't care what effect the decision has on others down the line; they just care who wins right now. (That's especially true in a case involving a random accident. The bank in our example may be a little different; it may be worried both about winning the case and about the rule in the long run, because it deals with these situations repeatedly.) But the court has to care about both perspectives, for it will be declaring a winner now and making a rule that affects others later.

Ward Farnsworth, The Legal Analyst, Chicago,2007

###  Sources: [ty1]
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###  Tactics 2   [ty1]

###  Type and Cross Type Argumentation

###  Text

  * Intra-Type Attacks on Textual Arguments 
    * A. Intra-Type Attacks on Plain Meaning Arguments 
      * 1. The Text Is Ambiguous

Justice Marshall responded by observing that human language is inherently ambiguous, and he identified the ambiguity inherent to the word "necessary:"

Is it true, that this is the sense in which the word necessary is always used?...Such is the character of human language, that no word conveys to the mind, in all situations, one single definite idea....[The word necessary] has not a fixed character peculiar to itself. It admits of all degrees of comparison....A thing may be necessary, very necessary, or indispensably necessary

For example, one prominent clear statement rule established by the U.S. Supreme Court holds that absent a clear statement to the contrary, statutes are not to be interpreted to intrude upon the sovereignty of the states by regulating state activities. ... A related principle of interpretation comes up in contracts, where it is sometimes argued that if there is an ambiguity in the contract, it should be resolved in a way that is adverse to the party responsible for the drafting of the contract.

supplement commentary this section: Trachman,see ref.

      * 2. The Text Has a Different Plain Meaning

For example, in Smith v. United States, the defendant had bartered a gun in exchange for narcotics, and was charged with violating a federal statute that made it unlawful to "use" a firearm during the commission of a drug trafficking offense. The majority held that the statute unambiguously applied to the facts of the case and affirmed the defendant's conviction. In contrast, the dissent concluded that the "ordinary meaning" of the statutory language required that the firearm be used "as a weapon."

_Existential Pruning_

If you are a politician caught with what some think is a lie (with your pants down, so to speak), or a party to a contract trying to wiggle out of your obligations, you might switch to a narrow meaning of a term. This is "extensional pruning:" initial use of words with what appears to be their commonly accepted meaning but subsequent transition to a narrower definition in order to avoid obligations or refutation. In ordinary conversation, we might expect others to use words in the sense of their ordinary meaning, and the powerful ordinary meaning canon of interpretation would protect our expectations. But unless you have a way to investigate and get a definitive adjudication in a court of law or in the court of public opinion, the wiggle might succeed.

You can imagine how this could come up in a contract setting. A construction company might agree in its contract to clean up the work site at the conclusion of its construction activities, but it might later interpret this language not to include cleaning up spills or detritus that flows or otherwise finds its way off the work site. It moves from an implicit broad meaning of "work site" to a narrower one. _Trachman, Ibid._

\--------

To deny that the plain meaning rule has any force or validity opens the door to violation of a fundamental objective in statutory interpretation. This position leads to a denial of legislative supremacy in the statutory field. Under such a view, statutes never are binding on a court as they never are clear. A court can always make whatever rule it wishes and decide cases in any way it wishes, despite statutory meanings because it cannot be restricted by statutory language.

Another focal point for attack on statutory interpretation doctrine, the rules concerned with intent of the legislature, also deserves further analysis. This attack involves the question of what is meant by the term legislative intent, a phrase used very loosely. . . . The legislative intent or purpose concept is the usual device applied to cancel out the effect of some other rule of interpretation that gives a contrary result,

Quintin Johnstone, _An Evaluation of the Rules of Statutory Interpretation_ (1954). Faculty Scholarship Series. Paper 1908.

    * B. Intra-Type Attacks on the Canons of Construction 
      * 3. The Canon of Construction Does Not Apply

Another canon, "remedial statutes are to be liberally construed," does not apply unless the statute in question is remedial. In objecting to the use of this canon of construction, Justice Scalia remarked that "there is not the slightest agreement on what its subject—the phrase 'remedial statutes'—consists of."

also see  canons

      * 4. A Conflicting Canon of Construction Applies

Another example of "competing canons" is the conflict between expressio unius est exclusio alterius (the negative implication) and ejusdem generis (extension by  Analogy  to similar cases). This conflict is easy to illustrate. Suppose that there is a sign outside a restaurant that says, "Dogs Allowed." May I bring in my cat? The canon expressio unius would suggest that the mention of dogs implicitly negates the inclusion of cats, while a variant of the canon ejusdem generis suggests cats are allowed because the rule should be extended to other housepets.

and see

also see  specificity 
    * C. Intra-Type Attacks on Intratextual Arguments 
      * 5. There Is a Conflicting Intratextual Inference Drawn from the Same Text

In Barron v. Baltimore, the Supreme Court was called upon to decide whether the Just Compensation Clause of the Fifth Amendment was applicable against the States. The language of the Fifth Amendment appears to be universal, declaring "nor shall private property be taken for public use, without just compensation." It does not state whether it is binding on the federal government, on the states, or on both. In Barron the Supreme Court noted that Art. I, sec. 10 of the original Constitution expressly stated that "No state shall" enter into treaties, coin money, or pass any ex post facto laws. From this the Court concluded that, "[Had] the framers of [the] amendments intended them to be limitations on the powers of the state governments, they would have imitated the framers of the original constitution, and have expressed that intention."

      * 6. There Is a Conflicting Intratextual Inference Drawn from Different Text

Rawle pointed to the language of the First Amendment, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press...." Rawle observed that, in contrast to the First Amendment, the remaining provisions of the Bill of Rights are not by their terms limited to Congress, and he concluded that the other Amendments are alike applicable to the States as to the national government

for this section we summarize Huhn, unless otherwise cited, see ref.

###  Intent

  * Intra-Type Attacks on Intent Arguments 
    * : 
      * 7. The Intent Was Different

"Who were our fathers that framed the Constitution? I suppose the ''thirty-nine'' who signed the original instrument may be fairly called our fathers who framed that part of the present Government. It is almost exactly true to say they framed it, and it is altogether true to say they fairly represented the opinion and sentiment of the whole nation at that time", Lincoln then proceeded to prove that virtually all of these individuals had either voted for or expressed support for federal legislation controlling slavery on federal land, demonstrating that the intent of the framers on this point was directly contrary to what Chief Justice Taney had found in Dred Scott.

      * 8. The Evidence of Intent Is Not Sufficient

In Brown v. Board of Education, Chief Justice Earl Warren: "Reargument was largely devoted to the circumstances surrounding the adoption of the Fourteenth Amendment in 1868. It covered exhaustively consideration of the Amendment in Congress, ratification by the states, then existing practices in racial segregation, and the views of proponents and opponents of the Amendment. This discussion and our own investigation convince us that, although these sources cast some light, it is not enough to resolve the problem with which we are faced. At best, they are inconclusive. The most avid proponents of the post-War Amendments undoubtedly intended them to remove all legal distinctions among "all persons born or naturalized in the United States." Their opponents, just as certainly, were antagonistic to both the letter and the spirit of the Amendments and wished them to have the most limited effect. What others in congress and the state legislatures had in mind cannot be determined with any degree of certainty."

      * 9. The Framers of the Law Did Not Anticipate Current Conditions

Justice Warren stated: An additional reason for the inconclusive nature of the Amendment's history, with respect to segregated schools, is the status of public education at that time. In the South, the movement toward free common schools, supported by general taxation, had not yet taken hold.... Even in the North, the conditions of public education did not approximate those existing today.

      * 10. The Person Whose Intent Was Proven Did Not Count

Justice William Rehnquist, in Printz v. United States, "Even if we agreed with Justice Souter's reading of the Federalist No. 27 [authored by Hamilton], it would still seem to us most peculiar to give the view expressed in that one piece, not clearly confirmed by any other writer, the determinative weight he does. That would be crediting the most expansive view of federal authority ever expressed, and from the pen of the most expansive expositor of federal power. Hamilton was "from first to last the most nationalistic of all nationalists in his interpretation of the clauses of our federal Constitution."

it is impossible to begin to speak about interpretation without mentioning the debate between the originalists—those who wish to assign to the U.S. Constitution only and precisely the meaning intended by the founders—and those who believe that the words of the Constitution should be interpreted by reference to current circumstances and values. This debate is not just relevant for constitutions. Interpreters of statutes or contracts, which are generally more recent and more malleable than constitutions, must also choose between original intent and a more evolutionary method of interpretation. ..three approaches to original intent.

1. Subjective original intent: Ask what the authors had specifically in mind.

2. Objective original intent: Ask what the words that the authors used generally meant at the time the authors used them.

3. Objective original intent with intended evolutionary change: Ask what the words that the authors used generally meant at the time the authors used them, but also assume that the authors intended for their words to develop new meanings as the world changed over time and language in common contemporaneous use adapted. All three of these approaches are attempts at fidelity to the purpose of the legislators or parties to a contract, and any of the three can be understood as consistent with the wishes of the authors of the text.

trachman, see ref.

###  Precedent

  * Intra-Type Attacks on Precedent Arguments 
    * : 
      * 11. The Court's Opinion Was Not Holding but Rather Obiter Dictum

The principle of stare decisis, which provides that the deciding court and all lower courts within the same jurisdiction are bound by the judicial opinion, applies solely to the holding of the court, and not to obiter dictum.

In Walz v. Tax Commission,Justice Burger: In attempting to articulate the scope of the two Religion Clauses, the Court's opinions reflect the limitations inherent in formulating general principles on a case-by-case basis. The considerable internal inconsistency in the opinions of the Court derives from what, in retrospect, may have been to[o] sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles.

see  Rules, Precedent
      * 12. The Opinion Did Not Command a Majority of the Court

Factors affecting the precedential weight of dissenting and concurring opinions also include the prestige of the author and whether the reasoning of the majority opinion has been overruled. For these reasons, as well as their soaring prose, the dissenting opinion of the elder Justice Harlan in Plessy v. Ferguson, the dissenting opinions of Justice Holmes in Abrams v. United States and Lochner v. New York, and the concurring opinion of Justice Brandeis in Whitney v. California, are today justly considered authoritative. In the First Amendment context, Robert Bork refers to this as "the triumph of Holmes and Brandeis.

      * 13. The Opinion Was Not Issued by a Controlling Authority

Courts must follow the decisions of higher courts within the same jurisdiction, and apply the doctrine of stare decisis to previous decisions of the same court. The precedential weight of decisions by other courts depend upon the location, level, and reputation of the court issuing the decision.

see  Authority 
      * 14. The Case Is Distinguishable Because of Dissimilar Facts

In, Winterbottom v. Wright, a British court had imposed no liability on the manufacturer of a wagon that had collapsed and injured a passenger. Dissenting in the McPherson case, Chief Justice Bartlett cited Winterbottom, and drew the following factual analogy: "In the case at bar the defective wheel on an automobile moving only eight miles an hour was not any more dangerous to the occupants of the car than a similarly defective wheel would be to the occupants of a carriage drawn by a horse at the same speed; and yet unless the courts have been all wrong on this question up to the present time there would be no liability to strangers to the original sale in the case of the horse-drawn carriage."

see  Facts 
      * 15. The Case Is Distinguishable for Policy Reasons

Justice Cardozo,[ skipping factual analogies, and focusing on object essence] noted, that the "trend" of the law had been to extend liability to any defective product that was inherently dangerous [essence], "Whatever the rule... may once have been, it has no longer that restricted meaning. A large coffee urn may have within itself, if negligently made, the potentcy of danger, yet no one thinks of it as an implement whose normal function is destruction. What is true of the coffee urn is equally true of bottles of aerated water."

      * 16. There Are Two Conflicting Lines of Authority

When there are competing lines of authority from prior case law, it is important to not simply identify which facts of the previous cases are most similar to the case at hand. It is also necessary to identify which values or policies from previous case law are at stake in the case at hand, and to identify which rule from the prior cases best serves those policies.

Justice Cardozo: 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.

      * 17. The Case Has Been Overruled

A judicial decision that has been expressly overruled, of course, has no precedential force, but in some cases it may be unclear whether a prior decision has been overruled in its entirety, [e.g.] the Fifth Circuit Court of Appeals held that the Supreme Court had silently but effectively overruled Regents of the University of California v. Bakke by subsequent decisions of the Supreme Court striking down affirmative action programs outside the educational setting. The Fifth Circuit guessed wrong. In 2003 the Supreme Court reaffirmed its holding in Bakke in the case of Grutter v. Bollinger.

      * 18. The Case Should Be Overruled

see overruling and  narrowing

###  Tradition and Policy

  * Intra-Type Attacks on Tradition Arguments 
    * : 
      * 19. No Such Tradition Exists 
      * 20. There Have Been Competing Traditions 
      * 21. A New Tradition Is Emerging 
  * Intra-Type Attacks on Policy-Values 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 
      * 24. The Policy Is Not Sufficiently Strong

###  Cross-Type

  * #### Foundational Cross-Type Arguments

    * Foundational or "privileged factor" theories assert that only certain kinds of arguments are valid; as a result, they deny the legitimacy of other kinds of argument

      * Text, Intent vs. Policy

In dissent, Justice Hugo Black argued that the framers intended to incorporate the Fifth Amendment's "right to silence" into the Due Process Clause of the Fourteenth Amendment, and that the defendant's conviction would therefore have to be reversed. But Justice Black did not simply say that his textual and original intent arguments were more persuasive than Justice Frankfurter's balancing approach. Instead, he contended that Frankfurter's legal argument was illegitimate:

This decision reasserts a constitutional theory spelled out in Twining v. New Jersey, that this Court is endowed by the Constitution with boundless power under "natural law" periodically to expand and contract constitutional standards to conform to the Court's conception of what at a particular time constitutes "civilized decency" and "fundamental liberty and justice." I would not reaffirm the Twining decision. I think that decision and the "natural law" theory of the Constitution upon which it relies degrade the constitutional safeguards of the Bill of Rights and simultaneously appropriate for this Court a broad power which we are not authorized by the Constitution to exercise

      * Text vs. Tradition

Foundationalism is not limited to conservative jurists. Justice Black usually rejected policy arguments in favor of textual arguments in order to expand individual rights, as he did in Adamson. Similarly, in Roth v. United States355 Justice Black concurred in Justice Douglas' dissenting opinion, in which they took a literal, textual approach to obscenity cases. Justice Douglas stated: "The First Amendment, its prohibition in terms absolute, was designed to preclude courts as well as legislatures from weighing the values of speech against silence."356 In addition, a critic of Justice Scalia contends that the courts should reject arguments based on tradition because tradition "favors majoritarianism over individual rights, encourages social conformity, fuses social biases and prejudices into the Constitution, and fails to constrain judicial discretion.... [I]t is clear that... these interpretive techniques merely mask substantive political values that the Justice holds."357 A more measured response to a foundational argument based upon "tradition" is not to reject tradition altogether, but to observe that it is not the only valid type of legal argument. As Justice Kennedy has stated, "history and tradition are the starting point but not in all cases the ending point" of constitutional analysis

  * ####  Relational Cross-Type Arguments

[Footnote] The incommensurability problem may be resolved by resort to a hierarchy among constitutional modalities: "Sometimes...the strongest arguments within the different categories will point irreversibly to different conclusions. In such cases,...[t]he implicit norms of our constitutional practice...require that the claims of the different kinds of arguments be ranked hierarchically." .. Fallon ranks constitutional arguments in the following order: text, intent, structural argument, precedent, and value arguments. ..For example, in the case of a conflict between text and intent, he concludes: "When arguments from text and from the framers' intent prove resistant to accommodation, their hierarchical authority demands recognition. And while the range of permissible accommodations is broad, the hierarchical ordering of categories of argument presumes that there are limits." Id. at 1.

    * Text versus Intent 
    * Precedent versus Policy 
    * Text versus Policy

> When a check is stolen and the thief forges the indorsement of the true owner (the payee), the owner of the check may sue to recover the amount of the check. But who is liable to the owner? In Denn v. First State Bank,418 the Minnesota Supreme Court was called upon to determine whether the owner of the check could sue the depositary bank (the bank that allowed the thief to deposit the stolen check into the thief's checking account). At the time of the decision, a provision of the Uniform Commercial Code stated that a depositary bank that acted "in good faith and in accordance with reasonable commercial standards" was not liable in conversion to the true owner of the check.419 
> 
> But there was a compelling policy argument in favor of imposing liability on the depositary bank. The Code allowed the owner of the check to sue the payor bank (the bank on whom the check was written) for conversion, and the payor bank could then sue the depositary bank for breach of warranty. Accordingly, it would be far more efficient—it would avoid circuity of action—to allow the owner of the check to recover directly from the depositary bank. The Minnesota Supreme Court cited a decision by the California Supreme Court (Cooper v. Union Bank420) and a decision by a Pennsylvania trial court (Ervin v. Dauphin Trust Co.421) that held that this policy of efficiency was powerful enough that the law ought to be interpreted to permit the owner of the check to sue the depositary bank. Despite the force of this reasoning, the Minnesota Supreme Court felt constrained by the text of the U.C.C. to dismiss the case against the depositary bank. The Minnesota Supreme Court said: 
> 
> The arguments of the Ervin and Cooper courts are persuasive, but we are compelled to reach an opposite conclusion. We can ignore neither the plain language of the statute which expressly includes depositary and collecting banks in its description of representatives nor the comments which appear to exclude such banks from liability.422 
> 
> The Denn case may be contrasted to the decision of the federal district court in United States Fidelity & Guaranty Co. v. Federal Reserve Bank of New York.423 In that case a thief had deposited a phony check into his account at Fidelity. The check was fraudulently encoded so that it would be misrouted in the check collection process. Fidelity sent the check through the collection process, but because of the misencoding the check was diverted and delayed among the collecting banks. Meanwhile, Fidelity allowed the thief to withdraw the funds from its checking account, leaving Fidelity with the loss when the check was finally returned unpaid with the explanation that the check was not drawn on a real account. Some of the banks in the collection process may have been negligent in handling the check, but Fidelity was grossly negligent by allowing the thief to withdraw the funds. Accordingly, the defendant banks claimed that Fidelity should not be allowed to recover from them, because of Fidelity's own negligence. The problem with this defense was that although the U.C.C. expressly recognized the defense of contributory or comparative negligence in a number of other situations arising under Article 3 of the U.C.C., the Code did not make negligence a defense in the type of lawsuit brought by Fidelity under Article 4. The federal court stated: 
> 
> The primary difficulty with defendant's theory is that it is not expressly sanctioned by the U.C.C....There is no express requirement that the plaintiff demonstrate its own due care as a prerequisite to recovery, nor is there any mention of comparative negligence. There is simply no mention of the effect, if any, of a plaintiff's negligence on its recovery.424 
> 
> Nevertheless, the federal court expressly chose to elevate policy over text: 
> 
> [T]o adhere blindly to the limitations imposed by those rules, if to do so would violate the policies which the U.C.C. otherwise seeks to promote, would be unwise and unjust. Nor does the Code demand such adherence. As Judge Knapp noted in his seminal Northpark decision, "the history of the U.C.C. makes it abundantly clear that, especially in the context of those provisions which impose a duty of care, the Code's watchword is 'flexibility.''' I do not, therefore, find the lack of a rule of contributory or comparative negligence in Article 4 to be an insuperable barrier to defendants' claim that such a rule should be imposed.425 
> 
> Why did the federal court choose to follow policy rather than text in the Fidelity case, while the Minnesota Supreme Court in Denn chose text over policy? The answer lies in the relative strength of the textual and policy arguments, and the comparative importance of objectivity versus flexibility in the context of each case. The text was clearer in Denn than in Fidelity, while the policy in Fidelity (denying recovery to someone who contributed to the loss) was stronger than the policy in Denn (judicial economy). In Denn the need for objectivity outweighed the competing policy consideration, while in Fidelity the reverse was true

    * Text versus Precedent

> The Civil Procedure case of Ankenbrandt v. Richards446 presents an interesting conflict between text and precedent. The issue in Ankenbrandt was whether the federal courts have jurisdiction to adjudicate domestic relations cases in diversity cases.447 The federal courts have jurisdiction in cases that involve questions of federal law (federal question cases), and in cases that are decided under state law where the plaintiff and the defendant are citizens of different states (diversity cases). The current statute governing diversity cases, which was adopted in 1948, gives the federal courts jurisdiction over "all civil actions" between citizens of different states.448 The statute, however, was inconsistent with longstanding precedent establishing a "domestic relations exception" to diversity jurisdiction, originating with the 1858 Supreme Court decision in Barber v. Barber.449 Under that case, and the cases that followed it, the federal courts had no jurisdiction to hear domestic relations cases between citizens of different states. The majority in Ankenbrandt followed precedent instead of the plain language of the statute. Previous versions of the diversity-of-citizenship statute, like the current version, made no reference to a "domestic relations exception," but the federal courts had consistently interpreted those laws as if the federal courts had no jurisdiction in domestic relations cases. The Ankenbrandt court thought it particularly significant that for over a century Congress had acquiesced to the courts' interpretation of a similar diversity statute by failing to amend it: 
> 
> We thus are content to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which it was seemingly based, but rather on Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948, when the statute limited jurisdiction to "suits of a civil nature at common law or in equity."450 
> 
> The Court specifically invoked the principle of "statutory stare decisis:" "Considerations of stare decisis have particular strength in this context, where 'the legislative power is implicated, and Congress remains free to alter what we have done.'"451 Accordingly, the majority of the Supreme Court held that the 1948 statute, like the previous versions of the law, should be interpreted as prohibiting the federal courts from exercising jurisdiction in domestic relations cases. 
> 
> Justice Blackmun concurred in the result, but insisted that the majority of the court had misinterpreted the statute. He thought that the plain meaning of the diversity-of-citizenship statute was that the federal courts do have subject matter jurisdiction over domestic relations cases. He stated: "The diversity statute is not ambiguous at all."452 He concluded, however, that the federal courts were free to abstain from exercising jurisdiction in domestic relations cases.453 
> 
> In Ankenbrandt, the majority of the Supreme Court chose precedent over text, in part because they concluded that this result better reflected the likely Congressional intent. As in the cases described in the previous chapters, what made Ankenbrandt a hard case was the conflict among the different types of legal arguments.

Huhn, Five Types, see ref.

###  Sources: [ty1]
Back  contents

###  Some Canons of Statutory Interpretation [cn1]

###  Linguistic Terms

  * _Expressio unius_ : expression of one thing suggests the exclusion of others. 
  * _Noscitur a sociis_ ("it is known from its associates"): interpret a general term to be similar to more specific terms in a series. 
  * _Ejusdem Generis_ ("of the same kind, class, or nature"): interpret a general term to reflect the class of objects reflected in more specific terms accompanying it. - . According to this doctrine of statutory construction "general words [that] follow specific words in a [statute] are construed to embrace only objects similar in nature to those objects enumerate by the preceding specific words 
  * Follow ordinary usage of terms, unless Congress gives them a specified or technical meaning. 
  * Follow dictionary definitions of terms, unless Congress has provided a specific definition. Consider dictionaries of the era in which the statute was enacted. Do not consider "idiosyncratic" dictionary definitions. 
  * "May" is usually precatory, while "shall" is usually mandatory. 
  * "Or" means in the alternative. 
  * Punctuation rule: Congress is presumed to follow accepted punctuation standards, so that placements of commas and other punctuation are assumed to be meaningful.

Unless cited otherwise, see : A GUIDE TO READING, INTERPRETING AND APPLYING STATUTES1, GULC; and THE REHNQUIST COURT'S CANONS OF STATUTORY CONSTRUCTION, seee ref.

###  Textual Integrity

  * Each statutory provision should be read by reference to the whole act. Statutory interpretation is a "holistic" endeavor. 
  * AVOID: 
    * interpreting a provision in a way that would render other provisions of the Act superfluous or unnecessary. 
    * interpreting a provision in a way inconsistent with the policy of another provision. 
    * interpreting a provision in a way that is inconsistent with a necessary assumption of another provision. 
    * interpreting a provision in a way that is inconsistent with the structure of the statute. 
    * broad readings of statutory provisions if Congress has specifically provided for the broader policy in more specific language elsewhere. 
  * Interpret the same or similar terms in a statute the same way. 
  * Specific provisions targeting a particular issue apply instead of provisions more generally covering the issue. 
  * Provisos and statutory exceptions should be read narrowly. 
  * Do not create exceptions in addition to those specified by Congress.

###  Georgetown Rules

  * _Expressio unius_ ("inclusion of one thing implies the exclusion of the other") Where certain terms have been explicitly set forth in a statute, that statute may be interpreted not to apply to terms that have been excluded from the statute. 
  * Shepardize (or KeyCite) the Statute, Determine: (a) whether the statute parts of the statute have been repealed or otherwise invalidated; (b) whether the statute has been amended; and (c) whether there are any court decisions that can guide your analysis of the statute. 
  * Consult Primary Sources "Primary sources" such as statutory definitions, case law, and administrative regulations often contain specific instructions on how the terms and provisions of a statute should be interpreted and applied. Once you have determined which statutory terms and provisions are relevant to your legal problem, you may find it helpful to consult one or more of the following sources of authority as you construct your own interpretation of the statute. 
  * The Whole Act Rule- The whole act rule is an approach to statutory interpretation that assumes that when a certain term or phrase is used multiple times throughout a statute, that term or phrase should be interpreted in a consistent manner. This rule assumes that the legislatures draft statutes in a way that is "internally consistent in its use of language and in the way its provisions work together."12 Below are several tools you might use to preserve consistency and coherence in your interpretation of a statute. 
  * Rule to Avoid Surplusage This rule is based on the principle that each word or phrase in the statute is meaningful and useful, and thus, an interpretation that would render a word or phrase redundant or meaningless should be rejected.16

In interpreting any legal text, the textualist often turns to the "superfluity canon," which was founded on the "conclusion that we shall not presume the legislature to waste words when enacting laws." Also referred to as the "textual integrity canon," this maxim urges the interpreter of a text to "[a]void interpreting a provision in a way that would render other provision[s] of the [text] superfluous." Essentially, this "surplusage canon[]" presumes that a statute will not contain "linguistic surplusage." This canon will apply with particular force in a textualist interpretation of the Constitution, "since a textualist strongly presumes that each word in the Constitution has meaning rather than being surplusage.

Durden, textualist canons, see ref.

  * Presumption of Consistent Usage (and Meaningful Variation) The presumption of consistent usage means that the legal reader should assume that "the same meaning is implied by the use of the same expression in every part of the ct.

in discussing statutory construction, explains that courts usually129 apply the "unitary principle" \- the principle "that courts presume that a single term has a single meaning when it recurs multiple times within a statute"131 and "that a term occurring a single time in a single statutory provision should have a single meaning. " Professor Seigel then distinguishes the "weak unitary principle" – where courts often use this principle merely as one important factor of determining meaning133 – from the "strong unitary principle" – where the unitary principle is treated as an inviolable decree. According to Professor Seigel, the Supreme Court declared the inviolability of the unitary principle in Clark v. Martinez. The Court further declared that even the suggestion that a court not follow the unitary principle would be a "'novel' and 'dangerous' . . . affront to the separation of powers."136 _Ibid._

  * Rule- IF the language of a statute is plain and unambiguous it must be given effect Counter-rule- UNLESS a literal interpretation would lead to absurd or mischievous consequences or thwart the manifest purpose 
  * Rule- If the terms of the statute have received judicial construction before enactment the terms should be understood according to that construction Counter-rule- UNLESS the statute clearly requires them to have a different meaning 
  * Rule- Every word and clause must be given effect Counter-rule- UNLESS inadvertently inserted into the statute or if repugnant to the rest of the statute, certain words may be rejected as "surplussage" 
  * Rule- Words are to be interpreted according to the proper grammatical effect of their arrangement within the statute Counter-rule- UNLESS strict adherent to the rules of grammar would defeat the purpose of the statute

..."Intra-textualism has its roots in the familiar principle of statutory construction that, ordinarily speaking, 'identical words used in different parts of the same act are intended to have the same meaning.'"141 While the subtleties and complexities of intratextualism go far beyond the concept that the same word or phrase means the same thing in a different location in the Constitution, 142 intratextualism generally strives to achieve the ideals of the same word/same meaning canon.143 Intratextualism provides an example of how the same word/same meaning canon applies within a single document. However, other textualists have used the same word/same meaning canon to determine the meaning of a state constitution, which has the same words as the United States Constitution. As noted by one commentator, "Presumably, the state constitutional provision that is worded identically to its federal counterpart carries the same meaning, while differences in wording point to differences in meaning." This conclusion may be based on the traditional notion that a legislative body will be presumed to understand the meaning of a term when it uses that term; so, when a state adopts a constitution in 1970 (for example) with "the phrase search and seizure," that phrase "mean[s], in general, what th[at] same phrase means in the federal Constitution." As explained, by one commentator, a state court may "assume, without deciding, that parallel state and federal constitutional provisions have identical meaning and then decide the case accordingly."146 When this occurs, "[t]he unexpressed presumption appears to be that a state constitutional provision framed in the same words as a federal provision was intended to apply exactly like its federal model." _Ibid_

  * Rule- A statute cannot go beyond its text Counter-rule- To effect the purpose of the statute, the statute may be implemented beyond its text

###  Multiple Statutes as a Super-Text

EXCERPT:

Ordinary meaning and internal statutory context are conventional criteria for determining statutory meaning, even if Justice Scalia's reliance on these criteria is anything but conventional. Much more controversial is his treatment of multi­ ple statutes as a single document written by an ideal drafter who integrates them into a super-text. He applies to multiple texts the same maxims of linguistic usage which are often applied to a single statute: similar terms in different statutes are given the same meaning;82 express inclusions in one statute exclude similar meanings in other statutes which do not contain similar language (expressio unius exclusio alterius); and a specific statute governs the general.

These are familiar doctrines in statutory interpretation. They attract considerable support because they may implement legislative intent as well as the textualist's approach. For ex­ ample, the prevalence of special statutes over the general often prevents the unintentional repeal of a prior specific statute. And interpreting similar language to have the same meaning makes sense when similar purposes underlie two statutory pro­ visions. A textualist, however, is not concerned with whether repeal by general language is unintentional or whether similar language reflects similar statutory purposes. The textualist simply assumes that multiple statutes have been carefully and coherently drafted by a single author, even though that is an obvious fiction.85 Indulging the fiction of an ideal drafter makes sense, however, from several perspectives attractive to a textualist like Justice Scalia. It deters judicial speculation about the purpose of a particular statute, and it might en­ courage careful drafting by Congress. It may even protect reader reliance interests if the typical reader treats the multi­ ple statutory texts as an integrated document. But this "textualism with a purpose" has little to do with the way ordinary language is used. People do not routinely integrate language usage over time with the care of an ideal drafter. And legislatures often (though not inevitably) fail to write with such care, reacting instead to problems at hand.

The most problematic example of the super-text approach is application of the expressio unius maxim to multiple stat­ utes. For example, in West Virginia University Hospitals v. Casey Justice Scalia supported his inference that the statutory term "attorney's fees" did not include fees for experts by contrasting the language of the interpreted statute with other stat­ utes which referred to both attorneys and experts. This attracted a dissent by Justice Stevens, who focused on the his­ tory and purpose of the particular statute being interpreted. He stated:

> We should look at the way in which the Court has interpreted the text of this statute in the past, as well as this statute's legislative his­ tory, to resolve the question before us, rather than looking at the text of the many other statutes that the majority cites in which Congress expressly recognized the need for compensating expert witnesses.

The underlying assumption behind the expressio unius maxim runs counter to what we know about how legislatures oper te. Even within a single statute, the idea that express references exclude what is not specifically stated is foreign to the political reality of a busy legislature attending to problems called to its attention. The unstated is more likely to have been disregarded rather than purposefully omitted.

The notion of an integrated super-text focuses attention on a problem which a judge looking at the internal context of a single statute must confront, but which does not bother the super-textualist. The assumption behind looking at "internal context" to interpret statutory language, insofar as it is based on ordinary usage, is that both drafter and reader share com­ mon assumptions about how the language is used. However, the fact that the legislature codifies text at a particular place in the statutory code does not mean that all of the surrounding language was drafted at the same time. When statutory language is added to the code at a later date, the drafter may or may not have meant the surrounding text to be part of an inte­ grated document. Statutory readers might read the text as a whole, which is more than enough for a textualist committed to reading multiple texts as a super-text. But a judge concerned with the legislative drafter's intent regarding the use of lan­ guage will want more evidence that the drafter was cognizant of the surrounding language before relying on internal context. For example, in two cases Justice Stevens dissented from the Court's assumption that the same words had the same meaning in different parts of the same statute when the texts were drafted at different times, there was no evidence that the drafter was aware of the surrounding text, and there was strong evidence that legislative purpose would not be served by interpreting the words to have the same meaning.88 Justice Scalia was on the Court when the second of these cases was decided, and he joined the majority's super-text approach.

> _Insertion: an alleged inconsistency in textualism?_ [ in reviewing ] three textualist canons of construction, in light of a plain meaning interpretation of the Takings Clause, to demonstrate the ultimate failure of each canon. To recap, plain language textualists assert a plain or obvious meaning to a word or words. The three canons chosen necessarily follow from the obviousness of words or their obvious non-existence. Using these canons creates an interpretational conundrum that a plain language textualist cannot solve using any form of plain meaning textualism. The text alone cannot explain how the two Due Process Clauses, with the exact same language, have vastly different meanings; nor can the text alone be used to explain why the use of the word "property" in the same constitutional amendment has two different meanings; nor can textualism explain how an amendment, whose words exclude the Takings Clause but include the Due Process Clause, still includes the Takings Clause. Ultimately, this Article does not assert that textualism and canons of construction cannot or should not be used to interpret the Constitution. Instead, this Article demonstrates that the purportedly facile interpretational methodology known as plain meaning textualism creates a facade of objectivity, concealing subjective predilections of the interpreter. _Ibid_

A comparison of Justice Scalia's textualist approach to integrating statutes into a super-text with the way Justice Frankfurter treated multiple statutes is especially interesting in view of the alleged affinity between the two Justices. In United States v. Monia, the majority held that the plain language of the Sherman Act granted a witness immunity regardless of whether the witness claimed the privilege against self-incrimination. In his dissent, Justice Frankfurter stated that whether a witness could obtain immunity without claiming the privilege against self-incrimination "cannot be answered by closing our eyes to everything except the naked words of the [statute.] The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification." He observed that although three statutes (including the statute at issue) provided immunity regardless of whether the witness claimed the privilege, fourteen statutes provided immunity only where the witness claimed the privilege. In his view, "the process of construing a statute cannot end with noting literary differences. The task is one of finding meaning; and a difference in words is not necessarily a difference in the meaning." He stated,, "if a single draftsmen had drafted each of these provisions in all seventeen statutes, there might be some reason to believe that the differences in language reflected a difference in meaning."96 However, he refused to indulge in the fiction that statutes were written by a "single draftsman."97 He concluded that the Sherman Act required the witness to claim immunity despite the plain language to the contrary and even though the Sherman Act differed in statu­ tory text from the other statutes which did grant immunity without it being claimed by defendant. In Keifer & Keifer v. Reconstruction Finance Corp.,

Justice Frankfurter inter­ preted a statute to include a waiver of immunity by a govern­ ment corporation, even though the statute's language did not explicitly provide a waiver.10° Forty other statutes provided a waiver and he would not impute incoherence to statutory law.1D1 This was "not a textual problem; for Congress has not expressed its will in words;" the judge's task was the "ascertainment of policy immanent ... in a series of statutes."102 Fi­ nally, in United States v. Hutcheson, Justice Frankfurter engaged in what the dissent called "a process of construction never ... heretofore indulged by this Court," by interpreting a later statute denying a labor injunction to be an implicit repeal of a prior criminal statute.

The difference between Justices Frankfurter and Scalia is palpable. It is hard to imagine Justice Scalia stating that inter­ pretive questions "cannot be answered by closing our eyes to everything except the naked words of the [statute.]" Or that the "task is one of finding meaning[] and a difference in words is not necessarily a difference in meaning."106 Or that interpretation is "not a textual problem for Congress has not expressed its will in words."107 But, then, Justice Frankfurter considered a statute a "living organism[],"108 a phrase Justice Scalia is un­ likely to apply to a statute. For Justice Frankfurter, multiple statutes do not present a textual problem, but a problem of pol­ icy coherence for which the judge is responsible.

. Popkin on supertextualism, see ref.

###  Sources: [cn1]
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###  Logical Latin [L1]

  * _A contrariis_ \- To the contrary, _Ab absurdo_ \- From the absurd, _Reductio ad absurdum_ \- eduction to absurdity.

From this it is clear that, of two contradictories [ __A contrariis_ _ ] one must necessarily be true, and the other false; because, if they were both together true or false, we should be affirming and denying something of a thing in the same relation, which would be absurd [ __Ab absurdo_ _ ] ; and because from the truth of one we infer the falseness of the other, and vice-versa.

...

Indirect arguments are those in which the truth of a thesis is proved by demonstrating the falseness of its contradictory. To demonstrate the falseness of this contradictory, we should show the false or absurd consequences that inevitably result from it; and from these consequences deduce the falseness of the source from which they flow, according to the axiom: What is false results only from what is false. Under this aspect, that is to say, inasmuch as the contradictory of the thesis is carried on to its false and absurd consequences, the indirect argument is called an __argumentum vel reductio ad absurdum__ ; e.g., if I were to say, in proving man's free-will: If man were not free, he would not be responsible, for he would be incapable of responsibility; if incapable of responsibility, he would be incapable of merit, of sin, of reward, and of punishment; but all this we know to be we argue indirectly when we say, we know that the moon's interposition between the sun and the earth occasions an eclipse of the sun; but, if the moon were a transparent body, her interposition would not obscure the sun's light; hence she cannot be transparent; hence she must be opaque. The indirect mode of argument is often used in mathematical demonstration, e.g., one line is proved to be equal to another, by proving that it cannot be greater, and that it cannot be less; it must be either greater, or less, or equal; so, when we have shown that it is neither greater nor less, we have indirectly proved that it must be equal.

  * _A pari_ \- For the same, Argument based on the similarity and equality of the facts _Argumentum a pari_

Argument by analogy may be threefold, viz.: __A pari__ , when the relation between the things is one of simple similarity; e.g., Fortitude is commendable; therefore, a pari, is temperance commendable. "When the sun shines brightest, sensible, vision is not the most distinct; therefore, a pari, in the sunshine of prosperity our intellectual vision is not the most piercing. And the parent used an argument a pari when, in consoling his

  * _A posteriori_ \- After the fact, _A priori_ \- Before the fact

Truths a priori and a posteriori. Propositions of which we have only to know and compare the component terms, in order to recognize their truth, are called a priori truths, e.g., the whole is greater than one of its parts. Such truths are as such always universal and necessary. Propositions for which we require some further reason than this comparison of terms, in order to recognize their truth, are called a posteriori truths, e.g., heat extends bodies. These truths may be universal and necessary; but they are not always so; e.g., this blotting-paper is pink, is both singular and contingent; and the universal proposition, Heat extends bodies, is only hypothetically necessary.

...

Thus, in demonstrating anything __a priori__ , we proceed from what is prior to what is posterior in the order of things, quite independently of our knowledge; while in demonstration __a posteriori__ , on the contrary, we begin with the matter of our previous knowledge, i.e., with what is posterior in the order of things, and lead back to what is prior. Mathematical proofs, for instance, are of the a priori kind; whereas the conclusions of experimental science are gained a posteriori. Why

  * Arguments from Characteristics 
    * _Ad verecundiam_ , To the venerability, 
    * _Argumentum ad hominem_ Argument against the man, 
    * _Argumentum ad cruneman_ \- Argument to the purse 
    * _argumentum ad lazarum_ ) - Argument to poverty 
    * _Argumentum ad populum_ \- Argument to the people, popularity 
  * Strategies and Fallacies 
    * _Argumentum ad logicam_ \- Argument to logic 
    * _Argumentum ad baculum_ \- Argument by the cane, threat 
    * _Argumentum ad consequentiam_ \- Argument to the consequences 
    * _Argumentum ad ignorantiam_ \- Fallacy, Argument from ignorance , that indicates that something must be true, because there is no proof to the contrary. 
    * _Argumentum ad novitatem_ \- Argument to novelty ,an idea is correct or better simply because it is more modern
    * _Argumentum petitio Principii_ \- Argument of asking for the beginning, Fallacy in which one person uses the conclusion as one of the premises to prove his conclusion. It is also called "begging the question", "circular argument" and "vicious circle". In Plato's Phaedo, Socrates incurs such fallacy trying to prove that the soul is immortal)
    * _Cum hoc ergo propter hoc_ \- With this, therefore because of this ,A fallacy that confuses cause and effect.

The false cause, or non causa pro causa, is a fallacy which consists in adducing a mere antecedent as though it were a cause, according to the old sophistical adage, post hoc ergo propter hoc, when there is no sort of nexus between them beyond that of temporal or some other sort of accidental sequence; e.g., the fall of the Roman Empire followed the establishment and spread of Christianity; therefore the foundation and spread of Christianity was the cause of the fall of ; therefore he left explosives in the Station. The fault in all these cases is easy to detect, and lies in nothing else but in basing the argument on the supposition that, if one thing follows another, the first must be the cause of the second, merely because it comes before it. Meteorologists tell us that people, who believe in the unvarying influence of the moon upon the weather, fall into this fallacy, when they attribute changes in the weather to the moon having entered upon a fresh phase; and that it is much the same thing to attribute exceptional cold to brilliant displays of the Aurora borealis.

  * Historical 
    * _Aliquid quo nihil maius cognitari posit_ \- Somthing which nothing greater can be conceived,Saint Anselm's argument of the existance of God 
    * _Condicio sine qua non_ \- Condition without which it could not be 
    * _Contra naturam_ \- Against nature _a contrario sensu_ contrary to reason 
    * _De nihilo nihil fit_ \- You cannot make anything out of nothing 
    * _Dubito ergo cogito, cogito ergo sum_ \- I doubt, therefore I think, therefore I am (Rene Descartes - _Philosophical_ term)
    * _Esse est percipi_ \- To be is to be perceived ,Principle developed by the Irish philosopher George Berkeley 
    * _Ex nihilo nihil fit_ \- Nothing comes from nothing , Saint Thomas Aquinas)
    * _Ex pede Herculem_ \- From Hercules' feet ,very little data is needed to understand who is making a statement)
    * _Gigni de nihilo nihil, in nihilum nil posse reverti_ \- Nothing is generated from nothing, nothing returns to nothing , Persius
    * _In esse_ \- In being ,Saint Thomas Aquinas - In existence - Before we are born we are in _In posse_ In potential. After we are born, we are _In esse_ )
    * _Memento vivere_ \- Remember that you are alive 
    * _Beatus ille quem vivere in locus amoenus et carpe diem_ \- Fortunate is the one who lives in a pleasant place and captures the day. , A mix of several famous phrases to describe a simple way of live: to be happy, without seeking more wealth than those who are around you
  * Modes 
    * _Natura duce, errare nullo pacto potest_ \- When nature guides us, there is no way to make a mistake , The goodness of nature 
    * _Modus ponendo ponens - Modus ponens_ \- Mode that affirms by affirming term - Way of logical deduction: the union of two premises such as "If it rains, we will go to the beach" and "It rains". By combining these two by _Modus Ponens_ , it can be concluded that: "We will go to the beach") 
    * _Modus ponendo tollens_ \- Mode which affirms by denying 
    * _Modus tollendo ponens_ \- Mode which denies by affirming 
    * _Modus tollendo tollens_ \- Mode which denies by denying 
  * Other 
    * a or ab: 'from'
    * ad: 'to' or 'toward'
    * de: 'from' or 'concerning'
    * De dicto: 'concerning what is said'.
    * De re: 'concerning the thing'.
    * De facto: 'concerning what is done': in accordance with the way things exist
    * De jure: 'concerning the law': in accordance with the law
    * Eo ipso: 'through or by the thing itself' (as opposed to through some consequent factor or action). 'The fact that one disagrees with a particular church doctrine does not eo ipso make one an unbeliever.'
    * _Ergo_ \- Therefore 
    * ex: 'from' or 'out of'
    * Ex vi terminorum: 'out of the force or sense of the words' or more loosely: 'in virtue of the meaning of the words'. 'We can be certain ex vi terminorum that any bachelors we encounter on our trip will be unmarried.'
    * in: 'in' or 'on'
    * In cauda venenum: 'the sting is in the tail'. Originally used to describe the scorpion, the phrase is sometimes used in connection with a text or speech that begins in a friendly way but ends with a stinging rejoinder
    * Ipso facto: 'By the very fact'.
    * Ad hoc: literally: 'to this thing: a proposed solution lacking in independent justification (e.g. 'Aristotle's view that nous is the kind of knowledge we have of the first principles seems entirely ad hoc.')
    * Causa sine qua non: tliterally: 'a cause without which not': an indispensable cause.
    * Causa sui: 'cause of itself'. Associated with the view proposed by Spinoza and others that the reason for God's existence lies in its essence (thus sometimes associated with the Ontological Argument).
    * Ceteris paribus: 'other things being equal': a phrase commonly used to consider the effects of a cause in isolation by assuming that other relevant conditions are absent (e.g. 'An increase in the price of oil will result, ceteris paribus, to people using their cars less often).
    * Conatus: 'force' or 'first start', term used by the Stoics and later philosophers in speaking of the innate tendency of things to exist or enhance themselves.
    * Contra: 'against'. To be distinguished from, Pace: 'by means of the peace of'; more loosely: 'with all due respect to', used to express polite disagreement with one who holds a competing view.
    * Deus ex machina: 'god from the machine'). it designates any attempt to resolve a problem by means of an unwarranted or un-natural contrivance.
    * Explanans/explanandum: In the plural: explanantia/explananda: 'the things explaining' and 'the things needing to be explained'.
    * Fiat justicia ruat caelum: 'Let there be justice though the sky should fall'.
    * Hypotheses non fingo: 'I do not feign (invent) hypotheses'. From the second edition of Newton's Principia.
    * Ignoratio elenchi: 'ignorance of a refutation): mistakenly believing that an argument that has proved an irrelevant point has proved the point at issue.
    * Ipse dixit: 'He himself said it',
    * Ipsissima verba: 'the very words' or 'the words themselves'.
    * Lex talionis: 'the law of retaliation'.
    * Mundus intelligibilis: 'the intelligible world', 
    * Mundus sensibilis: 'the sensible world', 'the world known through sense perception'. 
    * Mutatis mutandis: 'those things being changed which have to be changed' or more loosely: 'making the appropriate changes'.
    * Natura naturans: 'nature naturing': 'nature doing what nature does', associated with the philosophy of Spinoza.
    * Non sequitur: 'It does not follow'; used to characterize an inference as invalid.
    * Obiter dictum: an incidental or collateral statement.
    * Obscurum per obscurius: the error of attempting to explain the obscure by means of the even more obscure.
    * Per se: 'through or by itself'. 'Aristotle held that the essence of a thing is what that thing is in virtue of itself or per se.'
    * per: 'through' or 'by'
    * Petitio principii:: 'a request for the beginning', used to accuse a speaker of begging the question, i.e. assuming the truth of that which needed to be proved.
    * Post hoc ergo propter hoc: 'After this therefore because of this', used to accuse a speaker of inferring a causal connection simply on the basis of temporal precedence.
    * post: 'after
    * Prima facie: 'on its first appearance' or 'at first sight'. Often used in an ethical context (following Ross) to distinguish a duty from an absolute moral obligation.
    * pro: 'for' or 'in exchange for'
    * propter: 'because of'
    * Quale/qualia: 'of what sort or kind'); used to characterize either a property (such as redness) independently of the object that possesses it, or the contents of subjective experience (sometimes spoken of as 'raw feels').
    * Quid pro quo: t 'something in exchange for something'.
    * Quod erat demonstrandum (QED): 'that which was to be demonstrated'. Traditionally used to mark the conclusion of a mathematical or philosophical proof.
    * Salva veritate: literally 'with saved truth'. Two terms or statements can be interchanged salva veritate when one can replace the other without loss of truth value.
    * Solvitur ambulando: 'It is solved by walking'; more broadly: 'the problem is solved by a practical experiment'. Diogenes the Cynic is said to have introduced the idea of a refutatio ambulando in response to Zeno's arguments against motion. After Zeno had presented the argument against motion Diogenes got up from his seat and walked out of the room.
    * sub: 'under
    * Sui generis: 'of its own kind' or 'unique in its characteristics'. 
    * Summum bonum: t 'the supreme or highest good'. Ethical theorists since Plato and Aristotle have sought to identify the 'highest good' or ultimate aim of all human action.
    * Tabula rasa: 'an erased or blank tablet', a phrase used by Aristotle, Locke, and others in connection with the view that the human mind is wholly lacking in content prior to the onset of sense experience.
    * Tertium non datur: 'the third thing is not given' or 'there is no third option', often used in connection with the principle of the excluded middle; Tertium quid: 'a third thing', originally used in debates concerning the nature of Christ.
    * The phrases de dicto and de re are often used to mark a kind of ambiguity found in intensional statements (statements concerning what a person knows, believes, wants, etc.—also known as attributions in an opaque context). When we say that 'John believes that someone is out to get him' we might mean either that John believes that someone (unspecified) means to do him some harm (the de dicto interpretation) or that there is some particular person John believes is out to do him some harm (the de re interpretation).
    * Tu quoque: 'literally 'you also', used to accuse the speaker of acting inconsistently with his doctrine; a form of ad hominem argument.
    * Vade mecum: 'go with me', a handbook or manual. Compare 'Fodor's Guide to Mental Representation: the Intelligent Auntie's Vade-Mecum' (Mind, 1985).

see ref. for various glossary sources.

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###  Legal Argument IRAC - CRRACC [en1]

CRRACC is merely a method of outlining arguments as a sequence of sub-arguments, a heap or polysyllogism. The sub arguments employ the tools, informal and deductive, on the domain context, using type and cross type tactical persuasion. All of these methods have been summarized in this text.

_Macro-Structure_

  1. Caption 
  2. Question Presented 
  3. Brief Answer 
  4. Facts 
  5. Discussion 
  6. Final Conclusion

---  
_Macro Argument_

  * Start with the  Specific Facts 
  * then  Macro Elements 
  *  as a Dialogue, 
  *  crafting a Sequence of Sub Arguments

_Discussion - Intermediate Structure_

  1. Thesis - an overview of the relevant authorities and sub-arguments that lead to the final conclusion. 
  2. Sub-Issue 1. CRRACC 
  3. Sub-Issue 2 CRRACC ... 
  4. Final Sub-Issue N. CRRACC 
  5. Explication of The Chain of Sub-Issue ( Sub-Argument ) conclusions. 
  6. Final Conclusion to Discussion Segment.

_Intermediate Argument_

  *  Thesis bringing together: Rules, Precedent ,  Authority
  * including  Canons of Statutory Interpretation 
  * with specific attention to  Argumentative Checkpoints 
  *  Type and Cross Type Argumentation

_Sub-Argument CRRACC_

  1. C Brief initial CONCLUSION statement 
  2. R RULES Law and Precedent 
  3. R REASONING in depth holdings 
  4. A Analysis -applying the facts to the Rules 
  5. C Resolve COUNTER arguments 
  6. C Restatement of sub issue conclusion

_Micro ( Sub-Argument )_ \- Every argument is a process from Data to Claim via

  *  a Warrant with Backing . The Warrant bridges the data to the claim using a link of  Implication . or from an informal 
  *  Argumentation Schemes  ,  Enthymeme,  or formal reasoning from  From Proposition . 
  * This may include  Disjunctive  reasoning, argument from  Categorical Propositions  and from Premises  using a Syllogism.

A note on legal writing and formulation:

#### Drafting Tip: Start at the End and Work Backward

Draft proposed conclusions and findings in the follow­ ing order:

  * (1) Jurisdictional and general conclusions 
  * (2) Ultimate conclusions for each issue 
  * (3) Subrule conclusions for each issue 
  * (4) Application conclusions for each subrule 
  * (5) Jurisdictional, procedural, and background findings 
  * (6) Ultimate findings for each issue 
  * (7) Evidentiary findings for each issue

Drafting proposed findings and conclusions is a recursive process: the writer must revisit portions drafted earlier to revise for clarity and persuasion. One of the last steps should be to double-check the organization, making sure that the findings and conclusions are logically arranged and grouped under topical issue headings. The findings of fact should be in the following order:

  * (1) Jurisdictional finding 
  * (2) Procedural findings 
  * (3) Background findings 
  * (4) Evidentiary findings on the first issue 
  * (5) Ultimate finding(s) on the first issue 
  * (6) Repeat steps 4 and 5 for each additional issue

The conclusions of law should be in the following order,

  * (1) Jurisdictional conclusion 
  * (2) General conclusions 
  * (3) Subrule conclusions for first issue 
  * (4) Application conclusions for first-issue subrules 
  * (5) Ultimate conclusion for first issue 
  * (6) Repeat steps 3 through 5 for each additional issue 
  * (7) Summarizing ultimate conclusion

Howeel, Deconstructing CRRACC, see ref.

In practice lawyers rarely follow a strict CRRACCC formulation but deviate in various ways:

####  Deviations from CRRACC

These deviations frequently involved including the facts of the case in a place other than, or in addition to, a separate rule-application section. This was true of briefs written on both the custody issue and the expectation of privacy issues. Three trends in particular emerged:

  * (1) including facts before rule or rule explanation;

Facts are followed by the rule, rule explanation, and rule application.78 In King, the rule statement regarding expectation of privacy immediately follows the standard of review.79 However, the rule statement and rule explanation are separated by facts ...Finally, the Appellee in Nourse v. Commonwealth begins the argument on the expectation of privacy issue with more than five pages of facts before turning to the rule, rule explanation, and rule application parts of the argument.82 What is clear from these examples is the central place of facts in the arguments these attorneys made on fact-intensive issues, a centrality that most organizational paradigms fail to convey.

  * (2)including the rule in a separate section, and starting subsequent sections with a discussion of facts;

Similarly, the appellant's brief in another U.S. Supreme Court case, Thompson v. Keohane, states the rule regarding custody as part of a related but separate issue;86 the analysis of whether the petitioner was in custody for Miranda purposes is set forth in a different section and begins and ends with facts, with references to the rules interspersed in the facts.

One reason for this focus on facts rather than on the rule may be that the questions at issue both for the custody and expectation of privacy issues are fact-intensive inquiries. Thus, it is not surprising that much of the analysis of this question would be a discussion of the facts of the case, even to the extent that discussion of the facts both precede and follow the statement of the rule. Beyond that, however, it may be that the attorneys who began sections with facts rather than rules did so because the rules did not favor their clients. It may also be that the attorneys were responding to judges' advice to "[l]et the facts do the talking. Make your presentation people-oriented."88 By reminding the reader first about the facts, the writer is reminding the reader why she is reading the brief in the first place — to resolve a dispute involving real people.

  * (3) interspersing rule explanation and rule application. An examination of each trend follows.

The appellant's brief in United States v. Bassignani similarly intersperses facts and rule explanation.101 The overall rule for custody, including the factors, is included in a separate section with the heading "The Legal Standard for Custody."102 The individual factors are not explained in this separate section.103 Instead, each factor is analyzed in a subsection headed, "The District Court Erred in Concluding Defendant Was in Custody by Neglecting to Consider Numerous Relevant Facts, Placing Undue Weight on the Kim Factors, and Failing to Adequately Consider the Totality of the Circumstances."104 The analysis of each factor is dominated by the facts, interspersed with rule explanation...

This [ preceding ] is followed by two pages of rule explanation: a discussion of Ninth Circuit precedent and the facts and reasoning from a Third Circuit case.106 Similarly, a brief filed in the Kentucky Supreme Court includes a short definition of custodial interrogation before turning to rule application. That application is interspersed with rule explanation that includes brief discussions of five cases that were not part of earlier rule explanation

The appellant's brief for United States v. Wallace also mixes rule explanation and application, but in a different way. Here, the rule on custody is stated first, followed by rule explanation that includes citations to numerous cases, including United States v. Axsom. This discussion of Axsom is interspersed with rule application. In other words, rather than set forth the complete rule explanation first, followed by application that includes analogies to the already-stated facts in Axsom, the writer includes the analogies in the initial discussion of the Axsom facts,

Diane B. Kraft, _CREAC in the Real World_ ,see ref.

### References [en1]

###   Back to contents 
Back  contents

###  Notes

###   walton argumentation

Douglas N. Walton papers  and  books

  1. Douglas N. Walton, Argumentation Schemes for Presumptive Reasoning, 1Lawrence Erlbaum, 1996.  book 
  2. Douglas N. Walton, _The Speech Act of Presumption_ Pragmatics and Cognition , Vol. 1, (1993)  pdf
  3. David M. Godden and Douglas N. Walton, _A Theory of Presumption for Everyday Argumentation_ Pragmatics & Cognition, 15:2.(2007)  pdf
  4. Douglas N. Walton, _A Pragmatic Model of Legal Disputation_ Notre Dame Law Review, Vol. 73.(1998)  pdf
  5. Douglas N. Walton and Fabrizio Macagno, and Chris Reed, Argumentation Schemes,  Cambridge , (2008) 
  6. David M. Godden and Douglas N. Walton, _Argument from Expert Opinion as Legal Evidence_ : Critical Questions and Admissibility Criteria of Expert Testimony in the American Legal System , Ratio Juris, 19.(2006)  pdf
  7. Pierce on  Abduction,  Stanford Encyclopedia of Philosophy. last accessed (la) 2016.

###   cicero stasis

  1. Malcolm Heath, _The Substructure of Stasis-theory from Hermagoras to Hermogenes_ , The Classical Quarterly 44 (1), Classical Association,  Cambridge  ,1994 
  2. A. Theodorakakou, _What is at Issue in Argumentation? Judgment in the_  Hellenistic Doctrine of Krinomenon , Argumentation, Volume 19, Issue 2, pp 239-250, (2005) 
  3. Kay Ware,  Annotated Bibliography  , Rhetoric Seminar, 2006, summarizing: George A. Kennedy, Aristotle's On Rhetoric: A Theory of Civic Discourse. NY: Oxford U Press, (1991) see also BYU  Rhetoric  Notes, Stasis Theory, C. Bulloch.

  4. Cicero in, Jean Goodwin, Chapter Seven: _The stasis System_  Legal Communication  , Iowa State, 2006. 
  5.  Cicero  , _De Inventione_ from F. Macagno and D. Walton _Dichotomies and Oppositions in Legal Argumentation_ ,op.cit.  pdf
  6. Stasis, rhetoric, byu, online  la 2016.

Back  contents

###   toulmin

  1. Bart Verheij, _The Toulmin Argument Model in Artificial Intelligence_ , Argumentation in Artificial Intelligence, Springer  , (2009) 
  2. Robert C. Pinto, _Reasons, Warrants and Premisses_ ( June 1, 2005). OSSA Conference Archive. Paper 44. pdf
  3. Robert C. Pinto. _Evaluating Inferences: the Nature and Role of Warrants_ , Informal Logic Vol. 26, No. 3 (2006): pdf
  4. Kurt M. Saunders, _Law as Rhetoric, Rhetoric as Argument_ 44 J. Leg. Educ. 566 (1994) pdf
  5. David Hitchcock and Bart Verheij (Eds.), _Arguing on the Toulmin Model_ : New Essays in Argument Analysis and Evaluation,  springer  ,(2006) also Hitchcock, _Good Reasoning on the Toulmin Model_ , Argumentation Volume 19, Issue 3 (2005) pdf
  6. David Hitchcock, (1998). _Does the traditional treatment of enthymemes rest on a mistake?_ Argumentation 12: 15-37. (1998) pdf
  7. Fabrizio Macagno , _Argument Diagramming in Logic ,Law, and AI_ , Knowledge Engineering Rev,V. 22:1,  Cambridge , 2007 &  also

###   schemes and enthymemes

  1. Douglas Walton, _Abductive, Presumptive and Plausible Arguments_ Informal Logic, Vol. 21, (2001)  pdf
  2. David M. Golden, Douglas Walton, _Argument from Expert Opinion as Legal Evidence: Critical Questions and Admissibility Criteria of Expert Testimony in the American Legal System_ , Ratio Juris, 19, (2006)  pdf 
  3. Walton, _Argumentation schemes_ , cited  above

Back  contents

###   aristotle

  1. Aristotle, Rhetoric , Book II - Chapter 22-23, A hypertextual resource compiled by  Lee Honeycutt 
  2. David Hitchcock, _Does the Traditional Treatment of Enthymemes Rest on a Mistake?_ , supra.toulmin. 
  3. Aristotle's Rhetoric,  The Brevity of the Enthymeme  , Stanford Encyclopedia of Philosophy 
  4. David Hitchcock, _Aristotle's theory of argument evaluation_ , in Constantine Boudouris and John Poulakis (eds.), Greek Philosophy of Communication, vol. 1 (Athens: International Center for Greek Philosophy and Culture, 2002), 73-91 accessed pdf McMaster University] [ pdf 
  5. Elements of Logic, Cardinal Mercier (1912), 58  online,  Univ. of Notre Dame

Back  contents

###   arguing from implications,  and  propositions

  1. _Propositional Logic_ , Internet  Encyclopedia o Philosophy (IEP). 
  2. B. Rosdatter, Introduction to  Logic  , Univ. Kentucky. 
  3. PW:  conditional, Sequents, Modus Ponendo Ponens,  ProofWiki.org  from Irving M. Copi: Symbolic Logic. 
  4. Robert H. Kasriel: _Undergraduate Topology_ (1971) in Semantics of Biconditional operator, Necessary and Sufficient,  ProofWiki  .org see also  XOR , and Logical  bi-conditional 
  5. Propositions, Stanford  Encyclopedia  of Philosophy,2012 
  6. _Symbolic Logic_ ,  Philosophy Notes  , Dept. of Computer Science, Kent State University. 
  7.  David M. Godden  and Douglas Walton, _Denying the Antecedent as a Legitimate Argumentative Strategy : A Dialectical Model_ , Informal Logic, 24, 2004, 219-243. 
  8. The Simpson Trial Transcripts,  walraven.org 
  9. F. Macagno and D. Walton, _Dichotomies and Oppositions in Legal Argumentation_ , Ratio Juris, 23, 2010, 229-257 uncorrected preprint posted]. Published Version (Wiley) [pdf
  10. Logical Consequence,  IEP , see also, A Priori and A Posteriori , Internet Ency. of Philosopy.

Back  contents

###   arguing from categories, premises

  1. Law and Syllogism: An Essay on  Crimes and Punishments , Cesare Bonesana di Beccaria, 1764; 
  2. Aristotle's  Logic , Stanford Encyclopedia of Philosophy; 
  3. The Use and Limits of  Syllogistic Reasoning  in Briefing Cases, Wilson Huhn, Santa Clara Law Review, 42.3, 2002. 
  4. Grammar of a Syllogism, Glossary of linguistic terms, Institute of Linguistics,  sill.org 
  5. W. W. Ming, Butte College,  ILogic

###   Propositions  ,  Distribution  ,  Forms  ,  Syllogism

  1. Categorical Propositions and Immediate Inferences,  mcc  and notes from Cop's  logic , categorical  logic
  2. Quantity, Quality, and Distribution  of Standard Form  Categorical Propositions, and The Logic of  Categories 
  3. T. Edward Damer, Attacking  Faulty Reasoning  , (2008). Cengage Learning 
  4. Irving M.; Cohen, Carl (2009). Introduction to  Logic . Prentice Hall.

###   validity and fallacies

  1. Mark McIntire, Santa Barbara City College, The  15 Valid Syllogistic  Form Reason Argue Refute, and Table of all  syllogisms , syllogism wiki, referencing:Jan Łukasiewicz, Aristotle's Syllogistic from the Standpoint of Modern Formal Logic. New York: Garland ,1987 
  2. Fallacy of Undistributed Middle, ProofWiki (PW), philosophylander.edu (PLE), the  (FF) fallacy files. 
  3. The fallacy of the Illicit Major/ Minor  PLE , (Distributed Term of Conclusion of Valid Categ. Syll. is Distrib. in Premise) , FF, and  PW 
  4. E.J. Lemmon, Beginning  Logic  , Hackett, 1978. 
  5. Fallacy of Two Exclusive Prmises  PLE  ,  PW , Affirmative Conclusion from a Negative Premiss  WW, Negative Conclusion from Affirmative Premisses  FF 
  6. Syllogistic Logic  Aristotle  , Internet Ency. Philo., 
  7. Aristotelian  Metatheoretical  Results, Aristotle's  Logic  Stanford Ency. Philo. 
  8. Wilson Ray Huhn, Use and Limits of Syllogistic Reasoning in Briefing Cases   and The Stages of Legal Reasoning: Formalism, Analogy, and Realism  UAkron

Back  contents

###   rules and precedent

  1. Joseph W. Mead. _Stare Decisis in the Inferior Courts of the United States_ Nevada Law Journal 12.3 (2012). doc 
  2. Frederick Schauer,  Thinking Like a Lawyer  : A New Introduction to Legal Reasoning Harvard University Press, 2012. 
  3. A1: Larry Alexander and Emily Sherwin,  Demystifying  Legal Reasoning Cambridge University Pres,2008. 
  4. Richard M. Re, _The Due Process Exclusionary Rule_ , 127 Harv L Rev 1885 (2014)  pdf 
  5. IRAC/CRRACC Format,  Legal Writing  Center, CUNY School of Law, 
  6. Arthur L. Goodhart, _Determining the Ratio Decidendi of a Case_ , Yale Law Journal, Vol. 40, No. 2 (Dec., 1930), pp. 161-183Published  pdf
  7. P: Precedent and Analogy in Legal Reasoning,  Stanford  Encyclopedia of Philosophy, plato.stanford.edu, see also P2:  Law and Ideology. 
  8. Richard M. Re,  Narrowing Precedent  in the Supreme Court, 114 Colum. L. Rev. 1861 (2014)

###   Authority

  1. .Mandatory vs. Persuasive Cases, Writing Center, Georgetown GULC, 2004.  pdf
  2. Imposing Mandatory Prospective Rules of Statutory Interpretation Larry Alexander and Saikrishna Prakash, U San Diego Public Law Research Paper No. 42  pdf 
  3. Authority and Authorities, Frederick Schauer Virginia Law Review Vol. 94, No. 8 (Dec., 2008), pp. 1931-1961  pdf
  4. The Court Structure of Texas, Sept. 1, 2014  pdf

###   Analogy

  1. P: Precedent and Analogy in Legal Reasoning,  Stanford  Encyclopedia of Philosophy, plato.stanford.edu, 
  2. Common Law and American Constitutional Interpretation, Carnegie Reports,  nceer.org 
  3. Grant Lamond _Analogical Reasoning in the Common Law_ Oxford Jounral of Legal Studies, (2014) pdf
  4. Cass R. Sunstein, _On Analogical Reasoning_ Commentary, Harvard Law Review, V 106.(1993) 
  5. A3: Larry Alexander  Bad Beginnings , 145 U. Pa. L. Rev. 57 (1996).

###   common law

  1. John Horty, Constraint and Freedom in the Common Law, Philosophers' Imprint 15 (25) (2015),  pdf 
  2. A1 Alexander supra. 
  3. Schauer supra 
  4. abduction stanford supra. 
  5. Adam Rigoni (2014). COMMON-LAW JUDICIAL REASONING AND ANALOGY. Legal Theory, 20.  pdf
  6. _US Courts  for the 9th District.Online Civil Jury Instructions _, and

###   Realism, Interpretation, Opinion

  1. Schauer, thinking. supra 
  2. Law and Ideology., P2: Stanford Ency. Philosophy,  online 
  3. Alexander, demystifying, supra. 
  4. Frederick Schauer and Edward H. Levi, An Introduction to  Legal Reasoning , University Of Chicago Press, 2013 
  5. Lawrence Alexander,  Legal Rules  and Legal Reasoning (Collected Essays in Law), Ashgate Pub Ltd (2000).

###   Specificity, Presumptions, Review and Burdens

  1. schauer, thinking, supra. 
  2. Do Cases Make Bad Law? Frederick Schauer, February  2005  , working paper, University of Virginia School of Law,  pdf 
  3. Green, Michael Steven, Dworkin's Fallacy, Or What the Philosophy of Language Can't Teach Us About the Law. Virginia Law Review, Vol. 89, pp. 1897-1952, 2003  pdf 
  4. A1 Alexander, demystifying, supra. 
  5. Evidentiary Standards and Burdens of Proof, Justia,  online
  6. Appelate Standards of Review,US Courts Ninth Circuit,  2012 
  7. _Legal Dictionary, presumption_  dict. 
  8. Manual of Model Civil Jury Instructions US Courts for the 9th Circuit. online

Back  contents

###   Types ,checkpoints  &  Tools  ,  canons

  1. Wilson R. Huhn , The  Five Types  of Legal Argument, Carolina Academic Press, 2007. 
  2. DEDUCTION, LEGAL REASONING, AND THERULEOFLAW, Torben Spaak, review of RHETORIC AND THE RULE OF LAW. A THEORY OF LEGAL REASONING. By Neil MacCormick. pdf
  3. Finkelstein, Claire Oakes, _When the Rule Swallows the Exception_ , Faculty Scholarship. Paper 1007. (2000) pdf 
  4. George W. Kuney Mastering  Legal Analysis  and Drafting, Carolina Academic Press, 2009. 
  5. Joel P. Trachman, The Tools of Argument.  CreateSpace , 2013 
  6. Ward Farnsworth,  The Legal Analyst  : A Toolkit for Thinking about the Law University of Chicago Press,2015 
  7. Bryan Garner and Antonin Scalia,  Making Your Case  : The Art of Persuading Judges, Thomson West, 2008. 
  8. Diane B. Kraft, CREAC in the Real World, Cleveland Law review 
  9. IRAC/CRRACC Format, Cuny  school of law 
  10. Gerald Lebovits , Cracking the Code to Writing Legal Arguments: From IRAC to CRARC to  Combinations in Between New York State Bar Association Journal, Vol. 82, No. 6, July/August 2010 
  11. Larry Howell Deconstructing CRAC: Teaching Proposed Findings of Fact and Conclusions of Law in a First-Year Legal-Writing Program  Montana Law , 2012 
  12. Quintin Johnstone, _An Evaluation of the Rules of Statutory Interpretation_ (1954). Faculty Scholarship Series.  pdf

Back  contents

###   Canons

  1. Stephen Durden, Textualist Canons: Cabining Rules or Predilective Tools (2010). Campbell Law Review, Vol. 33, No. 115, 2010. Available at SSRN  pdf 
  2. Judge Russell E. Carparelli citing : William N. Eskridge and Philip P. Frickey, THE REHNQUIST COURT'S CANONS OF STATUTORY CONSTRUCTION, from the Appendix to _Foreword: Law As Equilibrium_ , , 108 Harv. L. Rev. 26, November, 1994; 2005, pdf
  3. -Interbranch Summit: A Statute's Journey through the Branches, Judge Russell Carparelli, Colorado Court of Appeals.  Video 
  4. A GUIDE TO READING, INTERPRETING AND APPLYING STATUTES, K. Clark, M. Connolly, Georgetown Writing Center, April 2006,  pdf
  5. , William D. Popkin, _An 'Internal' Critique of Justice Scalia's Theory of Statutory Interpretation_ (1992). Articles by Maurer Faculty.  Indiana.edu  ;  pdf

###   Latin

  1. Laurence Johnstone, A Short Introduction to the Study of Logic , Longmans, Green, 1887; ebbok
  2. Philosophical Latin Phrases; Latin and Greek for Philosophers, Lesher, 2010. pdf also at  List of Latin phrases

###  Back  contents 
Back  contents

###  tools

####  functions

##### Informal  Schemes

  * _Argument From Sign_

Bob is biting his nails. Therefore, Bob is worried about something.

  * _Argument From Example_

Bob is an example of someone biting his nails. Bob has told us he is nervous ( and we believe this is typical of people biting their nails). John is observed to be biting his nails. Therefore, John is probably also nervous.

  * _Argument from Verbal Classification_

Your point of view is heresy, Therefore, your point of view is wrong.

  * _Argument from Commitment_

Your point of view is a particular heresy, this heresy believes so and so, therefore you believe so and so.

  * _Argument from Expert Opinion_

The Cardinal, an expert in theology, has described your beliefs as heresy. Therefore you are a heretic for holding such beliefs.

  * _Argument from Evidence to a Hypothesis_

1. If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is fuel in the tank. Therefore it is probable that the generator is running

2. If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is No fuel in the tank. Therefore the generator is not running

  * _Argument from Correlation to Cause_

Heresy is known to be correlated with rebellion, therefore heresy causes rebellion.

  * _Argument from Cause to Effect_

Generally if heresy occurs, then rebellion might occur. In this case, we know you will most likely become a heretic. Therefore you will likely become a rebel.

  * _Argument from Consequences_

In general we know those who embrace heresy slip into rebellion with resulting bad consequences. Therefore you should not embrace heresy.

  * _Argument from Analogy_

In general we can see that Bob and John are similar in so many respects. And yet we know Bob is a secret heretic. Therefore it is likely that John is also a secret heretic.

  * _Ethotic Argument ( from Ethos )_

In general a person of good moral character, then we should weight his contentions with greater merit. The Cardinal is a man of good moral character. Therefrom we should accept his warnings on heresy with great weight.

  * _Argument from Established Rule_

The established rule is that all judges must punish the heretic with banishment. John is a heretic. Therefore the judges must punish him with banishment.

  * _Exception-from Established Rule Argument from a Precedent_

John the heretic must be punished with banishment. But there is a precedent where a repentant heretic was not banished. Therefore the rule of banishment should not be implemented when there are mitigating circumstances.

---

##### rhetorical  enthymemes

  *  qualitative opposites

If war is the cause of our present troubles, peace is what we need to put things right again.

  *  essence of terms

"What is the supernatural? Surely it is either a god or the work of a god. Well, any one who believes that the work of a god exists, cannot help also believing that gods exist."

  *  _a fortiori_

thus it may be argued that if even the gods are not omniscient, certainly human beings are not

  *  division and exclusion

All men do wrong from one of three motives, A, B, or C: in my case A and B are out of the question, and even the accusers do not allege C.

  *  inconsistency and alternatives

He says I am litigious, and yet he cannot prove that I have been engaged in a single lawsuit

Elea asked Xenophanes if they should or should not sacrificeto Leucothea and mourn for her, he advised them not to mourn for her if they thought her a goddess, and not to sacrifice to her if they thought her a mortal woman.

  *  consequences

education leads both to unpopularity, which is bad, and to wisdom, which is good. Hence you either argue, "It is therefore not well to be educated, since it is not well to be unpopular":

  *  disproving the cause ,   Arguing From Evidence to a Hypothesis

e.g. If the generator is running, then we will observe that fuel is in the tank. In this instance, we know there is No fuel in the tank. Therefore the generator is not running; (the cause is not present)

  *  spurious enthymeme

colocation of irrelevant premises: we have shown this, this, and this to be true, so therefore we have also proven that to be true.

  *  _Post hoc ergo propter hoc_

the policy of Demosthenes was the cause of all the mischief, "for after it the war occurred."

  *  omitted premise

John is a Heretic, so John is deserving of banishment. (missing premise, all heretics deserve banishment)

##### By  implication

  *  sequent  material implication _p ⇒ q _
    * _q_ is  necessary  for _p_
    * _p_ is  sufficient  for _q_
  * _p ⇔ q_ : _p_ is  necessary AND sufficient  for _q_
  * _p_ is  exclusive-or XOR to  _q_ written p ⊕ q \- either p or q is true, and that both p and q cannot be true at the same time. 
  * tables of  truth 
  * conditional  disjunction  _p ⇒ q_ is logically equivalent to: _¬p ∨ q_
  * the  contrapositive  of implication _¬q_ ⇒ _¬p_ _p ⇒ q_ is logically equivalent to: _¬q ⇒ ¬p_
  * Inverse (denying the antecedent fallacy) _¬p_ ⇒ _¬q_
  * Converse (affirming the consequent fallacy) _q_ ⇒ _p_
  * Negation - denying the material implication _¬ ( p_ ⇒ _q )_

---

 tables of truth

 _schema_ : direction of implications

#####  propositional  deductions

  *  MPP  Modus ponendo ponens - mode that by affirming, affirms. _p_ ⇒ _q_ , _p_ ; ⊢ _q_
    * Fallacy of  Affirming the consequent  _p_ ⇒ _q_ , _q_ ; ⊬ _p_
  *  MTT  Modus tollendo tollens - mode that by denying, denies. _p_ ⇒ _q_ , ¬ _q_ ; ⊢ ¬ _p_
    * Fallacy of  Denying the antecedent  _p_ ⇒ _q_ , ¬ _p_ ; ⊬ ¬ _q_
  *  MPT  Modus ponendo tollens- mode that by affirming, denies. ¬ ( _p_ ∧ _q_ ) , _p_ ; ⊢ ¬ _q_
  *  MTP  Modus Tollendo Ponens - mode that by denying, affirms. ( Disjunctive Syllogism ) ¬ ( _p_ ∧ _q_ ) , ¬ _p_ ; ⊢ _q_
  *  Reasoning From Oppositions

---

#####  categorical  deductions  and  premises

  * _Inclusion_ Universal-Affirmative  Mood BARBARA AAA-1  If ' All _M_ is _P_ ' , and ' All _S_ is _M_ ' , then ⊢ ' All _S_ is _P_ ' . 
  * _Exclusion:_ Universal-Negative  Mood CELARENT EAE-1  If ' No _M_ is _P_ ' , and ' All _S_ is _M_ ' , then ⊢ ' No _S_ is _P_ ' . 
  * _Relative Complement:_ Particular-Negative  Mood FERIO EIO-1  If ' No _M_ is _P_ ' , and ' Some _S_ is _M_ ' , then ⊢ ' Some _S_ is NOT _P_ ' . 
  * _Intersection:_ Particular-Affirmative  Mood DARII AII-1 If ' All _M_ is _P_ ' , and ' Some _S_ is _M_ ' , then ⊢ ' Some _S_ is _P_ ' .

###  Domain and Range

#####  Arguing by  Tools

  *  argument as sequence
  *  Data, Warrant-Bridge, Claim
  *  Informal schemes 
  *  Rhetorical Enthymemes 
  *  Arguing from Implication 
  *  Arguing From Proposition 
  *  Fom Category 
  *  From Premises 
  *  Inconclusive Premises

---

#####  contextual  issues

  *  Rules, Precedent
  *  Authority 
  *  Analogy 
  *  Common Law 
  *  Realism, Canons, Opinions 
  *  Specificity, Facts, Burden of Proof 
  *  Law and the Syllogism

#####  types and cross-type  tactics

  *  Types of Legal Argument 
  *  Type Text 
  *  Type Intent 
  *  Type Precedent 
  *  Some Canons of Statutory Interpretation 
  *  CRRACC 
  *  Legal Analysis Checkpoints

##### back to table of contents

references: end notes 
Back  contents

## JailHouse Logic

###  _Pro Se_ Notes in legal reasoning and argument

###  Preface

This text is a _Pro Se_ ( Latin, "for himself" ) self-study guide in applied logic for legal and policy argument. It consists of abbreviated summaries, supplementary explications, and of compiled excerpts of studies by classical and contemporary scholars. The hope is to provide a broad survey with some analytic depth to supplement popular texts that tend to skip over many of the formal treatments. Also the intent is to introduce readers to contemporary philosophical issues in legal reasoning with references provided for later investigation, eliminating the need for students to gather all the sources individually, saving time. Supplementary schematic graphics may also be helpful in self study.

compiled by: JustNotesTM _April. 2019_

All sources, excerpted or transformed  commentary  ,can be found in external links to mainly public domain material in the  end notes  section. All source copy rights are reserved to the original cited authors-journals with any errors in the additional supplementary diagrams and explanations being the sole responsibility of this text. Please contact editor at legal-prose .net for any corrections or questions. Copyright © 2019 JustNotes. All rights reserved.

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