A Primer on Legal Reasoning

Michael Evan Gold holds a BA from the University of California at Berkeley and a JD from the Stanford Law School. He is presently Associate Professor of Labor Relations, Law, and History in the ILR School at Cornell University. He is the author of A Dialogue on Comparable Worth, An Introduction to Labor Law, and An Introduction to the Law of Employment Discrimination.

Introduction

1. Issues

I. Definitions

II. Creation of Issues

III. Resolution of Issues

A. Frame the Issue in the Dispute

B. Find the Facts That Pertain to the Issue

C. Identify and Interpret, or if Necessary Create, theAuthority That Governs the Issue

D. Apply Law to Fact (i.e. use the authority to determine the legal consequences of the facts of the dispute)

IV. Identifying Issues

A. Identifying Issues in Documents

The College Daily

When Is an Offer Accepted?

B. Identifying Issues in Facts

The Coconut Cases

V. Review

Sally's Case

The Case of the Research Papers

VI. References

2. Identifying the Governing Rule of Law

I. Definition of a Rule of Law

II. Identifying an Existing Rule of Law

Using Precedents

Identifying the Governing Rule of Law Using Authoritative Texts

Two Cases of Second Thoughts

Diallo's Case

Niner's Case

Packard Motor Car Company

III. Review

IV. References

3. Levels of Abstraction

I. Levels of Abstraction: The Basic Idea

II. The Definition of "Level of Abstraction"

A. Unrelated Issues and Levels of Abstraction

B. Related Issues and Levels of Abstraction

Ben and Gerrie's Case

III. Why the Level of Abstraction Matters

Guenevere v. Arthur

IV. Review

Mary's Case

Wimp v. Bully

The Spat

V. References

4. Deduction

I. In General

A. Syllogisms

B. Enthymemes

II. Categorical Syllogisms and Quasi Syllogisms

A. The Major and Minor Premises Are Affirmative

1. The Valid Form

2. The Fallacy of the Undistributed Middle

B. The Major Premise Is Affirmative and the Minor Premise Is Negative

1. The Valid Form

2. The Fallacy of the Illicit Major

III. Hypothetical Syllogisms

A. Modus Ponens

1. The Valid Form

2. The Fallacy of Denying the Antecedent

B. Modus Tollens

1. The Valid Form

2. The Fallacy of Affirming the Consequent

IV. The Soundness of Syllogisms

V. Moral Syllogisms and Legal Syllogisms

A. Moral Syllogisms

B. Legal Syllogisms

Willie Sutton's Case

VI. The Value of Syllogisms

VII. Review

5. Induction

I. Inductive Generalizations

A. The Nature of Induction

B. Probability of Conclusions

C. Analysis of Arguments in the Form of InductiveGeneralization

D. Some Errors Associated with Inductive Generalization

1. Hasty Generalization

2. Unrepresentative Sample

3. Vivid Counterexample

4. Argument Ad Hominem

5. Post Hoc Ergo Propter Hoc

6. Failure to Falsify Alternative Hypotheses

Excerpt from the Phaedo by Plato

II. Statistical Syllogisms

A. The Nature of a Statistical Syllogism

B. The Force of a Statistical Syllogism

C. Statistical Syllogisms in Ordinary Speech

III. Practical Syllogisms

IV. Review

V. References

6. Arguments in General

I. Definition of an Argument

II. Elements of an Argument

Should Use of Marijuana Be Legal?

Katzenjammer for Congress

III. Recognizing Arguments

IV. Incomplete Arguments

V. Issues, Arguments, and Rhetoric

VI. Review

7. Arguments Classified by Function

I. Arguments as to the Issue in a Case

Clinics v. Hospitals

II. Arguments as to the Facts

III. Arguments as to the Law

A. Arguments as to Which Authority Governs the Case

Here v. There

Round v. About

B. Arguments as to How to Interpret the Governing Authority

Scarpia v. Sky

Puss v. Boots

IV. Arguments Applying Law to Fact

Don Juan in Hell

V. Review

Jefferson Standard Broadcasting Company

VI. References

8. Arguments Based on Evidence

I. Varieties of Evidence

II. Uses of Evidence

9. Policy Arguments

I. The Nature of Policy Arguments

A. Normative Claims

1. Values

2. Varieties of Arguments about Values

3. Sources of Values

B. Assertions of Fact

1. Retrospective and Prospective Facts

2. Sources of Assertions of Fact

II. Uses of Policy Arguments

Lockouts

Employees or Independent Contractors?

III. Evaluating Policy Arguments

The Case of the Bargaining Order

IV. Review

V. References

10. Doctrinal Arguments

I. Varieties of Authority

A. Binding Authorities

B. Advisory Authorities

II. Uses of Authority

People v. Ledfoot

III. Varieties of Doctrinal Argument

IV. Review

Sure-Tan v. National Labor Relations Board

V. References

11. Analogies and Precedents: The Structure and Criteria for Evaluation of Legal Analogies

I. Analogies, Similes, and Metaphors

A. The Nature of Analogies

B. The Danger of Analogies

Aspasia

II. The Legal Analogy

A. Differences between an Ordinary Analogy and a Legal Analogy

B. The Structure of a Legal Analogy

The Captain's Analogy

C. Truncated Analogies

1. Failure to Demonstrate That the Facts of the Precedent Are Similar to the Facts of the Case at Bar

The Case of Illegal Questions

The "Phantom Analogy"

The Seat Belt Cases

2. Failure to Demonstrate That the Rationale

Church of the Holy Trinity v. United States

The Case of Gay Marriage

3. Legal Citations as Truncated Analogies

The Case of the Second Bite

D. The Uses of Analogies

1. Using an Analogy to Identify the Issue

Ford Motor Company v. National Labor Relations Board

Relations Board

2. Using an Analogy to Find the Facts

3. Using an Analogy to Identify and Interpret the Governing Rule of Law

The Taggers' Cases

4. Using an Analogy to Apply Law to Fact

Ford Motor Company v. National Labor Relations Board (continued)

E. Four Criteria for Evaluating Analogies

1. The Precedent Must Be Authoritative; If the Precedent Can Be Vitiated, the Analogy Fails

2. The Legally Significant Facts of the Precedent and the Case at Bar Must Be Analogous in the Important Ways; If the Case at Bar Can Be Distinguished from the Precedent (that is, if the legally significant facts of the case at bar and the precedentdiffer), the Analogy Fails

3. The Analogy Must Be Relevant to the Issue at Hand

4. No Other Analogy May Be More Convincing

Thomas the Mover

III. Review

The Fine Print Cases

References

12. Distinctions: Distinguishing Precedents, Disanalogies, and Precedents and Levels of Abstraction

The Musician's Case

I. The Elements of a Distinction

A. Difference(s) of Fact between the Precedent and the Case at Bar

B. The Importance of the Difference(s) of Fact

1. Some Differences Do Not Matter

Seth's Case: An Unsuccessful Distinction

2. Merely Identifying Difference(s) of Fact Does Not Distinguish a Precedent from a Case at Bar: The Importance of the Difference(s)of Fact Must Be Explained

A Brick and a Rose Petal

Daniela's Case: A Successful Distinction

Seymour's Case

C. The Conclusion

II. The Uses of Distinctions

III. Disanalogies

IV. Distinctions and Levels of Abstraction

V. Seymour's Case Expanded

Shady Sam v. Esme

Seymour v. Hard Luck Hank

VI. Review

The War between the Unions

The Case of the Supervisor's Questions

Young Tom's Case

The Fine Print Cases

13. Holding and Dictum

I. Definitions

II. Effect of a Holding

III. The Scope or Meaning of a Holding

Union Access to Company Property

IV. References

14. Reductios ad Absurdum

I. The Elements of a Reductio ad Absurdum

The Paradox of the Arrow

The Paradox of Achilles and the Tortoise

The Paradox of the Minimum Wage

II. The Criteria of a Sound Reductio ad Absurdum

III. Reductios ad Absurdum in Law

A. Reductios and Precedents

B. Reductios and Fact Finding

The Philosopher's Reductio

C. Reductios and Policy Arguments

IV. Review

V. References

15. Subjective and Objective Standards

I. Standards

II. Subjective Standards

III. Objective Standards

IV. Mixed Standards and Evidence

V. Subjective versus Objective Standards

The One-Year Misunderstanding

VI. Review

The House of Tantalus

16. Interpreting Statutes

I. Sources

A. Text of the Statute

B. Purpose of the Statute

C. Legislative History of the Statute

D. Scholarly Publications

E. Public Policy

Cannery Row

F. Administrative Interpretations

G. Precedent

II. Principles

A. The Principle of Meaningfulness

Duplex v. Deering

B. The Principle of Wholeness

1. Within One Statute

2. Between Statutes

III. The Effect of Precedents on the Meaning of Statutes

IV. References

17. Prima Facie Case, Affi rmative Defense, Burden of Proof

I. Prima Facie Case

A. The Basic Idea

B. Two Meanings of "Prima Facie Case"

Proving Battery

II. Defenses

A. Destruction of the Plaintiff's Prima Facie Case

B. Affirmative Defense

III. Burden of Proof

A. Burden of Persuasion

1. Who Carries the Burden of Persuasion?

2. How Heavy Is the Burden of Persuasion?

3. What Happens If a Party Fails to Carry the Burden of Persuasion?

B. Burden of Production

IV. Prima Facie Case + Affirmative Defense = Rule of Law

V. Review

Battery on a Barstool

The Two-Timer

VI. References

18. Application of Law to Fact

I. Application of Law to Fact Operates Issue by Issue

The Raid

II. Direct Application of Law to Fact

A. Direct Application of Law to Fact by Force of Logic

Caroline's Case

Tommy's Case

B. Direct Application of Law to Fact by Use of Judgment

The Coach

Adora's Case

Amanda's Case

Ben-El's Case

III. Application of Law to Fact Using Precedent

A. Application of Law to Fact Using Binding Precedents

The Honor Society Cases

Harry the Harrier

B. Application of Law to Fact Using Guiding Precedents

The Battle of the Sexes

IV. Review

Dipaboli's Case

V. References

19. A Model of Legal Argument

I. Neither a Quasi Syllogism nor a Statistical Syllogism Can Capture a Legal Argument

Shimul's Case

II. A Model of Legal Argument

A. Toulmin's Model

B. Our Revision of Toulmin's Model

1. Issues as to the Issue

Janus v. American Federation of State, County, and Municipal Employees

2. Issues of Fact

3. Issues of Law

4. Issues of Application of Law to Fact

III. The Value of the Model

IV. Review

V. References

Answers