Notes from The Five Types of Legal Argument, 2nd Ed. by Wilson Huhn, Durham, NC, Carolina Academic Press: 2008.
“…The law speaks to us with different voices, and the greatest challenge we face in studying the law is to recognize and understand each of the voices of the law, and to express ourselves with every voice.” (p. 3)
“…[T]he law is like a chorus singing the same tune.” (p. 4)
“Because law arises from several different sources, informed people of good will may legitimately differ as to what the law is in any particular case.” (p. 5)
“The life of the law has not been logic; it has been experience.” Oliver Wendell Holmes (p. 10)
“Law students are not expected to memorize all the rules of law, but are expected to learn how to persuasively argue for a favorable interpretation of the law or for a change in the law.” (p. 11) Memorizing the rules of law is only half of legal engagement.
The five types of legal argument:
1) Text; 2) Intent – what the text meant to the people who enacted it into law ; 3) Precedent – holdings or opinions of courts setting forth what the law is; 4) Traditions; 5)Policy – expression of the underlying ways in which members of the community have conducted themselves.
Method of Argument / Scope of EvidenceText / Constitution, statute, ordinance, or other legal document being interpreted
Intent / Contemporary references indicating what was in the minds of the people who created the constitution, statute, ordinance, or other writing.
Precedent / Statements of judges in formal legal opinions
Tradition / Historical evidence of our people’s beliefs and behavior patterns over decades or centuries
Policy / Judicial notice of any fact it finds relevant to determining the question of law.
What are our expectations of the law?
1) The law should be clear and easily understood.
2) The law should reflect the choices made by the people who wrote the law.
3) The law must be consistent.
4) The law must be stable and predictable, so we can rely on future action.
5) The law must be flexible enough to adapt to a changing society so that it may reflect contemporary notions of justice.
1. TEXT --
“In 1787, the Founders of our nation committed our Constitution to writing so that it might be considered binding law, making possible the creation of a government under law.” (p. 17)
“Under the Statute of Frauds and the Parol Evidence Rule, certain kinds of contracts and contractual terms must be in written form, and in general, to be effective, a will must be in writing.”
“The law of tort, contract, and property, for example, are primarily based upon the ‘common law.’ The common law is the law that is expressed in judicial opinions. It is the law that has accumulated over centuries in hundreds of thousands of cases decided by the courts.” (p. 18)
Administrative agencies regulate intricate social problems.
There are three methods of textual interpretation:
1) Plain meaning – The text is so clear that it does not require resort to any of the other methods of interpretation. The qualification is that the interpretation cannot lead to an absurd result.
I.e. – overwhelming meaning of the word “flood” in the Hurricane Katrina Case
2) Canons of Construction – These are rules of inference that draw meaning from the structure or context of the written rule.
i.e. – “…a court should treat statutory words as dross only when there is no alternative.”
Textual canons operate like rules of syntax in that they are used to infer the meaning of a rule from its textual structure or context.
Expression unius est exclusio alterius (“to say the one is to exclude the other”)
i.e. Chadha v. I.N.S. – whether the Constitution authorizes Congress to reserve to itself a “one-house legislative veto” over the decision of administrative agencies. Chief Justice Burger noted that the Constitution expressly gives one house of Congress unilateral power to act in only four circumstances: 1) the House of Representatives may initiate impeachments; 2) the Senate may try impeachments; 3) the Senate may confirm or reject nominees to federal office; and 4) the Senate may ratify or reject a treaty.
Substantive canons are interpretive principles that are derived from the legal effect of a rule.
i.e. – Remedial statutes are to be liberally construed.
The rule of lenity that criminal laws are to be strictly construed protects us against vague criminal statutes.
3) Intratextual arguments – use one portion of the legal text to interpret another portion.
Compare the words used in one part of the text with words used in another part; or deduce the meaning of portions of the text from their position within the organization of the text.
3. INTENT –
In constitutional law, this is original intent.
Justice Marshall explained why the intent of the framers should control the actions of the legislature: “That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected.” (p. 32)
The law of contracts looks to the intent of the parties and the law of wills looks to the intent of the testator.
A. Evidence of Intent
1) Evidence of Intent in the text itself –
i.e. – preamble to the Constitution
Or Section 1-102 of the Uniform Commercial Code provides: (1) This Act shall be liberally construed and applied to promote its underlying purposes and policies. Underlying purposes and policies of this Act are (a) to simplify, clarify, and modernize the law governing commercial transactions; (b) to permit the continued expansion of commercial practices through custom, usage, and agreement of the parties; (c) to make uniform the law among the various jurisdictions.
2) Previous Versions of the Text –
When the current version of a law differs from previous versions, the courts naturally infer that the drafters of the current law intended to change the law.
3) The History of the Text
In Village of Arlington Heights v. Metropolitan Housing Development Corp., the Supreme Court generally identified five sources of evidence that could be used to ascertain the intent behind a governmental decision:
a) The historical background of the decision;
b) The specific sequence of events leading up to the challenged decision;
c) Departures from the normal procedural sequence;
d) The legislative or administrative history…especially where there are contemporary statements by members of the decision-making body, minutes of its meetings, or reports; and
e) In some extraordinary instances the members might be called to the stand at trial to testify concerning the purposes of the official action…
Evidence of legislative history is usually ranked in the following order: 1) committee reports (including conference reports); 2) markup transcripts [transcripts of meeting where a bill is read and discussed]; 3)Committee debate and hearing transcripts; 4)Transcripts of “hot” (actual) floor debate.
4) Official Comments
Some codes come with Official Comments. i.e. – Official Comments to the Uniform Commercial Code and the Advisory Committee Notes to the Federal Rules of Evidence.
5) Contemporary Commentary
i.e. – The Federalist Papers or Law Review articles
3. PRECEDENT
Marbury v. Madison -- Justice Marshall – “It is emphatically the province and duty of the judicial department to say what the law is.
The principle of stare decisis (which literally means “to stand by things decided”) is what lends strength to precedent.
“The principles of stare decisis, however, applies only to the holding of the previous case. Judicial reasoning that is unnecessary to a decision (called obiter dictum) has no binding effect on later courts.” (p. 42)
The use of precedent is essentially reasoning by analogy: Edward Levi ‘s An Introduction to Legal Reasoning -- “The basis pattern of legal reasoning is reasoning by example. It is reasoning from case to case. It is a three-step process described by the doctrine of precedent in which a proposition descriptive of the first case is made into a rule of law and then applied to a next similar situation. The steps are these: similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case.” (p. 43)
The first step of analyzing the similarities and differences is often the most difficult.
4. TRADITION
i.e. – Tradition is the test for determining our fundamental rights. In Palko v. Connecticut, Justice Benjamin Cardozo described our constitutional rights as those which are “so rooted in the tradition and conscience of our people as to be ranked as fundamental.”
i.e. – “Chief Justice William Rehnquist refused to recognize a constitutional right to assisted suicide on similar grounds: ‘The question before the Court is…properly characterized as whether the ‘liberty’ specially protected by the Clause includes a right to commit suicide which itself includes a right to assistance in doing so. This asserted right has no place in our Nation’s traditions, given the country’s consistent, almost universal, and continuing rejection of the right, even for terminally ill, mentally competent adults.” (p. 46)
Also see the Uniform Commercial Code clause mentioned above.
“Our traditions establish ‘baselines,’ which are background assumptions that favor the status quo and place the burden of proof on any person who seeks to change the existing order. Similar to baselines are ‘cognitive schemas’ which are unexamined and often unspoken assumptions about human potential that purport to explain existing social relationships. Both baselines and cognitive schemas unconsciously affect how we view a legal problem.” (p. 49)
5. POLICY
“The distinctive feature of policy arguments is that they are consequentialist in nature….the core of a policy argument is that a certain interpretation of the law will bring about a certain state of affairs, and this state of affairs is either acceptable or unacceptable in the eyes of the law….[D]eriving rules from policy arguments, on the other hand, is inherently open-ended.” (p. 51)
“The meaning of the law is determined not by a literal definition of its terms, but by reference to the values that the law is intended to serve. “ (p. 53)
Legal realism grew out of the British school of utilitarianism and the American philosophy of pragmatism: Learned Hand, Oliver Wendell Holmes, Louis Brandeis, and Benjamin Cardozo. Also reformers of statutory law like Grant Gilmore and Karl Llewellyn.
Aristotle started by identifying the purposes of human existence, and inferred from these purposes the general principles of right conduct.
“I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.” Oliver Wendell Holmes (p. 59)
“General propositions do not decide concrete cases.” Holmes, p. 60 (Lochner dissent)
“A page of history is worth a volume of logic.” (p. 60)
“The final cause of law is the welfare of society…” Justice Cardozo (p. 62) A policy argument consists of a predictive statement and an evaluative judgment.
Brown v. Board of Education: enforced segregation of the races harms children, and “may affect their hearts and minds in a way unlikely ever to be undone.” (p. 64)
“A brief that sets forth substantial evidence of ‘legislative facts’ supporting a policy argument is called a ‘Brandeis brief’ after the brief that Louis Brandeis submitted to the United States Supreme Court in Muller v. Oregon. In Muller , Brandeis was defending the constitutionality of an Oregon statute establishing maximum hours of work for women. Brandeis submitted a brief summarizing over ninety reports and studies supporting the beneficial effect of maximum work hour legislation on working women and their families under the heading “The World’s Experience Upon Which the Legislation Limiting the Hours of Labor for Women is Based.”
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