Legal Argument

This section consists of notes on legal argument. The notes cover both some of the logical aspects of legal argument and some of the technical aspects of the doctrine of precedent. I decided to add this section after seeing that some of the search strings leading people to this website contained the term "legal argument," and realizing that, despite the name of my domain, I had no material on the subject of legal argument. This page will be updated from time to time. Note, however, that this page will be republished in fragmentary form. It will be republished while some of the notes are not finished. And some of the notes will be fragmentary even when finished.

A Philosophical Definition of "Legal Argument"-

The Difficulty American Judges Have with the Basic Concepts of the Doctrine of Precedent-

The Negative Influence of American Legal Realism?-

What is "Persuasive Authority"?-

When Persuasive Authority Does Not Have to Be Followed-

When Binding Authority Does Not Have to Be Followed-

When Dicta Should Be Followed-

Is There a Difference Between Holding and Ratio Decidendi? (A New Theory of Holding)-

The Meaning of "Necessary"-

Miscellaneous Principles of the Doctrine of Precedent-

Introduction to Three Difficult Fallacies in Legal Argument-

An Example of Creating Law by the Fallacy of Denying the Antecedent-

The Anti-Question Begging Principle of the Doctrine of Precedent-

The Formal Fallacies Versus Argumentum A Contrario-

Introduction to Analogical Argument and Legal Skepticism-

Waiver of Argument by Structure of Brief-

Admissions by Argument Content- (Updated November 11, 2009)

The Logical Structure of Legal Argument in a Brief-

The Ethics of Legal Argument-

A Philosophical Definition of "Legal Argument"-

Here is a philosophical definition of "legal argument": A legal argument is an argument about legal propositions. To make sense of this I will explain what an argument is and what a legal proposition is.

An argument is a set of propositions. One or more of the propositions in the set are called "premises." One proposition in the set is call "the conclusion." If the premises are true, then we have reasons for accepting the truth of the conclusion.

A proposition (but not a legal proposition) is something that represents the world in a certain way. Propositions represent the world truthfully or falsely. Propositions can be expressed by declarative sentences. Here are some examples.

The sentence "Sacramento is north of San Diego," expresses a proposition that represents the world being a certain way. The topic of metaphysical propositions is beyond the scope of the present discussion. For an easy introduction to the subject from a Platonist point of view see Michael Jubien, Contemporary Metaphysics (Blackwell: 1997).

Let us construct an argument from a set of propositions expressed by declarative sentences.

If the premises of this argument are true, then we have reasons for accepting the truth of the conclusion.

A legal proposition is a legal principle (See Danville Street Car Co. v. Watkins (1900) 97 Va. 713 [34 S.E. 884, 886); McDevitt v. Sullivan (1857) 8 Cal. 592, 594, or a legal rule (See Patterson v. Omaha & C.B. Railway & Bridge Co. (1894) 90 Iowa 247 [57 N.W. 880, 882]. An example of a legal proposition is expressed by California Vehicle Code section 22349 subdivision (a): "Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour."

Note that a legal proposition is neither true or false. That is because commands cannot be true or false. Consider this: "Keep off the grass." Since California Vehicle Code section 22356 subdivision (a) cannot be true, there is no proposition whose truth can give us a reason to accept this rule as true. Therefore, California Vehicle Code section 22356 subdivision (a) cannot be the conclusion of an argument. Because the rule on speeding cannot be true, it cannot serve as the premise of an argument.

While legal propositions cannot serve as the premises or conclusions of an argument, an argument can be constructed about legal propositions. And that is what a legal argument is. Here is an example. This example will be put in standard argument form. That means that the premises will appear above a horizontal line, and the conclusion will appear below the line. The notion of an argument in standard form becomes important when I later explain how to logically structure a legal argument in a brief. For now, let us look at a legal argument.

California Vehicle Code section 22356 subdivision (a) states that a person cannot drive on a highway at a speed greater than 65 miles per hour.

Mrs. Jones drove on a highway at a speed greater than 65 miles per hour to get her husband to the hospital emergency room.

Had Mrs. Jones not driven at a speed greater than 65 miles per hour, then her husband would have died because he would not have gotten to the hospital in time.

The California Legislature would not have intended that the statute limiting speed to 65 miles per hour result in a person's death in the case of a medical emergency.

Therefore, the California Legislature did not intend to limit the speed limit to 65 miles per hour in every situation.

The Difficulty American Judges Have with the Basic Concepts of the Doctrine of Precedent-

Legal systems following the Doctrine of Precedent, or the Doctrine of Stare Decisis, consider only part of a precedent case binding. That is, only part of a precedent case is deemed to be a rule that must be followed. Sometimes the binding part is called "the holding," and sometimes it is called the "ratio decidendi." In another part of these notes I consider the question of whether the holding and the ratio decidendi are the same thing. There I will argue that the ratio decidendi is, and should be, considered one form of a holding; that the concepts are different from one another. The part of a precedent that contains legal propositions not deemed binding is called "dicta." Interestingly, American appellate court opinions rarely get into an extended doctrinal discussion of the distinction between holding and dicta. More often they simply refer to the concept of dicta as a way to discount an argument that is being rejected by the court.

At times it seems as though American appellate courts deviate from the traditional English Doctrine of Precedent in so far as American courts understand the various concepts involved in the doctrine. It is not always easy to understand the basis for the deviation. Sometimes it appears as though the Doctrine of Precedent has evolved differently in the United States, and at other times it seems as though American judges simply don't have a thorough understanding of all of the concepts involved. In this note I will give examples of both kinds of deviation, and speculate as to why American judges sometimes appear not to understand the basic concepts.

I begin with an example that might show how American concepts have evolved differently from English concepts, though this example does not directly deal with the holding/dicta distinction. The opinion of Lord Bucknill in Korner v. Witkowitzer [1950] 2 K.B. 128, 150-151, [1950] 1 All. E.R. 558 (C.A. 1950) is interesting in that the report labels it a dissenting opinion, while in the United States it would be considered a concurring opinion. In the United States a dissent is an opinion that argues for a different result or decision. But Lord Bucknill was in the majority as far as the judgment was concerned. It’s just that he disagreed with the other judges about what the law was. An American report would classify Lord Denning as the dissenter because he voted to disallow the appeal, while the two other judges voted to allow it.

Some people, following Karl Llewellyn, say that all parts of an appellate court opinion other than the holding are dicta. But this not the traditional concept of dicta. Dicta are legal propositions. They are considered non-binding because they were not necessary to the decision in the precedent case. In another note I will examine the notion of "necessary." In the traditional view it cannot be the case that everything in an appellate court opinion, other than the holding, is dicta. That is because there is much in an appellate court opinion that does not consist of legal propositions. Consider for example the court's recitation of the facts. Consider also the court's recitation of the procedural history of the case. And we can include as non-dicta the court's recitation of the arguments made by the lower court, and the parties.

The following statement by Justice Antonin Scalia in Whren v. United States (1996) 517 U.S. 806, 816 does not comport with the traditional understanding of dicta because what he appears to refer to as a dictum is not a legal proposition.

In the other case claimed to contain supportive dicta, United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), in approving a search incident to an arrest for driving without a license, we noted that the arrest was “not a departure from established police department practice.” Id., at 221, n. 1, 94 S.Ct., at 470, n. 1. That was followed, however, by the statement that “[w]e leave for another day questions which would arise on facts different from these.” Ibid. This is not even a dictum that purports to provide an answer, but merely one that leaves the question open.

Does Justice Scalia make a mistake here, or has the American understanding of the concept of dicta evolved differently from the traditional English view? It is likely the American view that treats all statements, other than the holding, as dicta began as a result of the failure to understand the traditional concept.

I now consider an example of a clear mistake made by American judge in her understanding of the basic concepts of the Doctrine of Precedent. In People v. McKay (2002) 27 Cal.4th 601 [117 Cal.Rptr.2d 236, 41 P.3d 59] Justice Werdegar says, “The majority’s extensive analysis of the question is thus no more than obiter dictum.” (27 Cal.4th at p. 626, emphasis added.) Here the judge fails to understand the distinction between judicial dicta and obiter dicta. Obiter dicta are “by the way” statements. (Cross & Harris, Precedent in English Law (4th ed. 1991) 41.) Thus they are not entitled to serious consideration and can be safely ignored. (Scofield, Judicial Dicta Versus Obiter Dicta: An Examination of the Dicta That Has Great Authority, 25 Los Angeles Lawyer (Oct. 2002) 17.) But judicial dicta is entitled to greater weight since these are legal propositions resulting from a court’s comprehensive discussion of the issues. (Ibid.) Judicial dicta “should be followed in the absence of some cogent reason for departing therefrom.” (State v. Fahringer (Ariz. 1983) 666 P.2d 514, 515.)

I will speculate as to why American judges do not always fully understand the traditional concepts of the Doctrine of Precedent. One reason might be the importance in the United States of constitutional adjudication. There is much at stake in terms of people's lives, property, freedom, and wealth in the outcome of some cases interpreting the United States Constitution. It might be that judges have chosen not to follow strict principles of the Doctrine of Precedent, or the logical consequences of precedent, because a rigorous refinement of legal argument could lead to results the judges might fear. Thus it might be that the importance of constitutional adjudication leads to a legal culture that undervalues rigorous and refined legal argument. I also speculate that a rigorous and refined legal argument has not been valued because of the influence of Legal Realism. That topic deserves a separate note. I turn to it next.

The Negative Influence of American Legal Realism?

This note develops a point raised in the preceding note. In the preceding note I speculated on reasons why American judges sometimes appear to have a lack of understanding of the basic concepts of the Doctrine of Precedent. I speculate that American Legal Realism has had a negative impact on the development of a refined and rigorous legal argument. That is not to say, however, that Legal Realism has not also had a positive impact on the development of law in the United States. It helped change the law to accommodate commercial changes, and that includes the development of the Uniform Commercial Code. But I believe that Legal Realism has failed in ways that has harmed the quality of legal argument in American courts.

What Legal Realism has done to legal argument parallels what Descartes did to epistemology. Descartes made a powerful argument in support of epistemological skepticism. He then tried to overcome that skepticism through arguments based upon his introspection and arguments for the existence of God. The historical judgment is that he succeeded in the first enterprise, but failed in the second. Thus, contrary to his wishes, Descartes struck a blow for the skeptics. In a similar way the Legal Realists, in their desire for legal reform, launched an attack on Conceptualism. Their goal was to replace traditional legal thinking and argument with a reliance upon social science. According to Legal Realist Joseph Francis, "If it is true that the path of human progress is strewn with dead principles and dead concepts then I venture to suggest that the effort to find the ratio decidendi of a case will soon be viewed in the same light as a physiologist trying to locate the ‘soul’.” (Joseph F. Francis, “Three Cases on Possession—Some Further Observations” (1928) 14 St. Louis Law Review 11, 24.) But one does not see much social-science-informed legal reasoning today. Thus Legal Realism has struck a blow for skepticism about legal argument; as well as for rule-skepticism.

While Legal Realism has thus far failed in its goal, it is still trying to achieve it. Thus
The New Legal Realism movement is trying to incorporate social science into legal practice. Another example is shown by Richard Posner's law and economics movement. Many people, including me, have moral criticisms of the law and economics movement. But Richard Posner is historically important because of his effort to bring a social science into the law, and by so doing have Legal Realism reach its goal. My point is that a legal culture influenced by people like Joseph Francis and Herman Oliphant is not likely to give much value to the development of legal argument. And that in turn might help to explain how arguments using propositions about American law as premises end up with conclusions justifying torture.

What is "Persuasive Authority"?

The question, "What is Persuasive Authority?" is really two questions. The first question is how authoritative is persuasive authority? The second question is what are the sources of persuasive authority? With one possible exception, I have never seen an American case answer the first question. The answer to the first question is that persuasive authority is authority that has to be followed unless there is a cogent reason not to follow it. (Cross & Harris, Precedent in English Law (4th ed. 1991) p. 27.) The one American case that comes close to this is State v. Fahringer (Ariz. App. 1983) 666 P.2d 514. That case says that judicial dicta must be followed in the absence of a cogent reason for not doing so. (666 P.2d at p. 515.) And judicial dicta, as we will see in another note, is a form of persuasive authority.

Miscellaneous Principles of the Doctrine of Precedent

“Trial court decisions are not precedents binding on other courts under the principle of stare decisis.” (Harrott v. County of Kings (2001) 25 Cal.4th 1138, 1148 [108 Cal.Rptr.2d 445, 25 P.3d 649].)

Nothing in the grant of certiorari of a California Supreme Court case by the United States Supreme Court allows lower California courts to not follow the California Supreme Court precedent. (People v. Hammond (1994) 22 Cal.App.4th 1611,1626, fn. 12 [28 Cal.Rptr.2d 180].)

Introduction to Three Difficult Fallacies in Legal Argument

Many fallacies are committed in legal argument. Indeed it seems as if much legal argument consists of the deliberate commission of informal fallacies. With one exception, lawyers are good at discovering the informal fallacies committed by their opponents. That is because when lawyers are committed to their clients' causes, and familiar with the facts of their cases, they can easily see through their opponents' tricks, especially when it comes to fallacies of irrelevance. The one exception is the question begging fallacy. That fallacy, along with the formal fallacies of Denying The Antecedent, and Affirming The Consequent, often get by the lawyer.

The Question Begging Fallacy is really a set of fallacies as there are different ways in which to beg a question. For example circular reasoning is one form of question begging. Generally one commits the question begging fallacy when one assumes as true the very proposition that one has the burden to prove. I will give an example of the question begging fallacy when I discuss a contrario argument in the interpretation of statutes in a later note.

The difference between informal fallacies and formal fallacies is that one can discover a formal fallacy merely by looking at its form. That sounds easier than it is. It can take a lot of work to spot a formal fallacy. Informal fallacies are context dependent. That is, whether an informal fallacy is committed is a matter of studying the context in which the argument arises. And that can be very difficult. Depending upon how the context is viewed by different people, there can be an argument over whether an informal fallacy has been committed.

We'll first consider the form of Affirming the Consequent by comparing it to the form of Modus Ponens. Modus Ponens takes the form:

This is a deductively valid argument form. That means that if the premises ("If P, then Q,'" and "P") are true, then the conclusion ("Q") is necessarily true. Let's compare Modus Ponens to the form of Affirming The Consequent:

This is a deductively invalid argument form. That is because the truth of the premises does not necessarily make the conclusion true. Consider this example:

The truth of the premises does not guarantee the truth of the conclusion. It may be true that the river rises, but it may be false that it rains. Maybe the river rises because an upstream dam has broken sending more water into the river below. But that does not mean that it is raining when this happens.

Here is an-easy-to-understand example given by the Texas Court of Appeals: “The court says that reasonable doubt makes you hesitate to act; therefore, if you hesitate to act, you have a reasonable doubt. That is like saying, ‘Pneumonia makes you cough; therefore, if you cough, you have pneumonia. This is the logical fallacy called ‘affirming the consequent’.” (Culton v. State (Tex. App. 2002) 95 S.W.3d 401, 405.) For examples of other recent cases where appellate court judges point out the fallacy of affirming the consequent see Gilliam v. Nevada Power Co. (9th Cir. 2007) 488 F.3d 1189, 1197, fn. 7; In re Stewart Foods, Inc. (4th Cir. 1995) 64 F.3d 141, 145, fn. 3; City of Green Ridge v. Kreisel (Mo. App. 2000) 25 S.W.3d 559, 563-564.)

Now we'll consider Denying The Antecedent, and we will contrast it to the deductively valid argument form of Modus Tollens. Modus Tollens takes this form:

For examples of recent cases where appellate court judges point out the fallacy of denying the antecedent see e.g., Edwards v. Riverdale School Dist. (Or. App. 2008) 188 P.3d 317, 321; Agri Processor Co., Inc. v. N.L.R.B. (D.C. Cir. 2008) 514 F.3d 1, 6; Iams v. Daimler Chrysler Corp. (Ohio App. 2007) 883 N.E.2d 466, 478-479.

United States Supreme Court Justice Antonin Scalia is one of the most logically rigorous judges in American legal history. And while he is justly criticized by many, his critics could learn something about logical analysis from him. Judge Scalia is quite up on the subject of Denying The Antecedent, and we'll see another example in a later note. For now, I want to analyze one of his statements to get a better understanding of why Denying The Antecedent is a formal fallacy.

In Crawford v. Washington (2004) 541 U.S. 36 Justice Scalia countered an argument based upon Lee v. Illinois (1986) 476 U.S. 530. Scalia noted an argument in Lee about the admissibility of statements by criminal defendants and accomplices that are interlocked. Justice Scalia cited the following quotation from Lee as the holding in that case, "when the discrepancies between the statements are not insignificant, the codefendant's confession may not be admitted." (See Washington v. Crawford, supra, 541 U.S. at p. 58.) Next Scalia quoted the State of Washington's argument based upon Lee: "[t]he logical inference of this statement is that when the discrepancies between the statements are insignificant, then the codefendant's statement may be admitted." (See Washington v. Crawford, supra, 541 U.S. at pp. 58-59.) Washington's argument can be reconstructed as follows:

If the discrepancies between the statements are not insignificant, the codefendant's confession may not be admitted.

Justice Scalia gave the following response to this Denying The Antecedent, "But this is merely a possible inference, not an inevitable one, and we do not draw it here." (Id. at p. 59.)

The truth table for Denying The Antecedent illustrates the logical meaning of Justice Scalia's argument.

The third and fourth rows of the truth table show that Justice Scalia is correct. The third row shows that Washington's inference is "not an inevitable one" because it shows that the conclusion can be false when the premises are true. That is, the third row shows that Denying The Antecedent is not a deductively valid argument form. The fourth row shows that Washington's inference "is merely a possible inference" since it is at least possible that the conclusion is true when the premises are true.

We don't want to get too carried away with the notion of a deductively valid argument. A legal argument does not have to be deductively valid in order to be a good argument. Some arguments are good because they have inductive strength; the premises make the conclusion probably true. And some arguments are good if they give us good reasons for accepting the conclusion even if the conclusion is not necessarily true given the truth of the premises, and even if the conclusion is not probably true given the truth of the premises. We might have a good legal argument when we have good reasons for accepting the conclusion even though our premises do not make the conclusion necessarily true, and when we are not arguing about matters that are subject to probabilistic argumentation. In a later note I'll explain that some people think that Affirming The Consequent can be useful in some kinds of reasoning. I do not think that it has a role to play in law. In the later note I will argue that Denying The Antecedent and Affirming The Consequent also commit the informal fallacy of begging the question.

An Example of Creating Law by the Fallacy of Denying the Antecedent

The Formal Fallacies Versus Argumentum A Contrario-

An a contrario argument is an argument to the contrary. In an earlier note I explained Modus Tollens and Denying the Antecedent. Both are examples of a contrario argument. Here is Modus Tollens again:

If P, then Q
Not Q
Not P

Modus Tollens is an a contrario form because we can say that if P, then Q; then to the contrary if not Q, then not P. Here is Denying the Antecedent:

If P, then Q
Not P
Not Q

And Denying the Antecedent is an a contrario form because we can say that if P, then Q; then to the contrary if not P, then not Q.

There are other forms of a contrario argument. Thus the term “a contrario argument” is ambiguous.

There seems to be a psychological tendency to think in an a contrario manner. Such thinking seems natural, yet we know that Denying the Antecedent is a formal fallacy. Here is an example. We will use H.L.A. Hart’s famous hypothetical statute, “No cars are allowed in the park.” It seems natural to think that if something is not a car, then it is allowed in the park. This is (likely) Denying the Antecedent.

If a person brings a car into the park, then she violates the law.
The defendant did not bring a car into the park (because she brought a horse).
Therefore the defendant did not violate the law.

Another example, well known to European legal theorists, makes one hesitate to accept such reasoning. It’s the bear and the streetcar case. Suppose that there is a statute that reads: "No person shall take a dog onto a streetcar." Suppose further that a person is prosecuted for bringing a bear onto a streetcar. The defendant claims that she has not violated the law since the statute was meant to apply to persons bringing dogs onto streetcars, and not meant to apply to persons bringing bears onto streetcars.

The defense argument seems silly because whatever reasons there might be to keep dogs out of streetcars would a fortiori apply to bears. And yet this example is based on a real case. The case arose in Poland in the early part of the Twentieth Century. In the hall of a railroad station was a poster on which was printed the following regulation: "Entrance to the platform with dogs prohibited." A peasant arrived accompanied by a bear, and tried to get onto the platform. An employee of the railroad stopped the peasant and the bear from getting onto the platform. The peasant argued that the regulation prohibiting dogs from coming onto the platform did not apply to him since he had a bear and not a dog. (See Recasens-Siches, "The Logic of the Reasonable as Differentiated from the Logic of the Rational (Human Reason in the Making and the Interpretation of the Law," Essays in Jurisprudence in Honor of Roscoe Pound. ed. Ralph A Newman (Indianapolis: Bobbs-Merrill, 1962) 205-206.)

The use of a contrario in statutory interpretation has been much studied by continental European legal theorists.

Introduction to Analogical Argument and Legal Skepticism

The type of analogical reasoning that we are most concerned with in the law is not inductive. Nevertheless I wish to introduce the subject of analogical reasoning by way of inductive analogical reasoning. Some of the important issues in legal analogical reasoning also arise in inductive analogical reasoning. Because inductive analogical reasoning is the easiest to explain, it serves as a good introduction to the subject. In addition inductive analogical reasoning is sometimes used in law, and for that reason I need to explain how it works.

In an analogical inference, one or more things or states of affairs called "the source" are compared to another thing or state of affairs called "the target." Based upon the similarities between the source and the target, the target is inferred to have some additional properties that the source has. These additional properties are further similarities that the target and source are assumed to share. Consider the argument pattern for an analogical inference:

                  1. Hn & In & Bn
               2. Hm & Im
   Bm

Premise 1 tells us that the source is n, which has properties H, I and B. The target is m. Premise 2 tells us that m also has properties H and I. Because the source and target share H and I they are similar. This similarity provides (at least in part) the basis for the inference that m has property B. The conclusion of the argument states that the target has property B.

I invent the term "antecedent properties" which will refer to the properties which the target and source are initially judged to share. In the above argument pattern, H and I are the antecedent properties. I invent the term "consequent properties," which refers to the properties that are inferred to exist in the target. In the above argument pattern, B is a consequent property.

I will try to make the example even more easy to understand. Suppose that n and m are both bears. B is the property of being a member of the black bear-species. H is the property of having black fur, and I is the relational property of being able to climb a tree. Premise 1 in the argument pattern above states that n has black fur, is able to climb trees, and is a member of the black bear-species. Premise 2 states that m has black fur and can climb trees. Given these similarities with n, we infer that m is a member of the black bear species.

Rational analogical reasoning depends upon an hypothesis, idea or theory of the relevance of similarities and differences. For an analogical inference to be rational, one needs to have an idea of how or why the antecedent properties are related to the consequent properties. If we are going to infer that m has B because m has H and I, we need to think there is some connection between the properties such that H or I, or both H and I, give rise to B. (Another possibility is that there is some unknown property that gives rise to H, I, and B. Or, perhaps B gives rise to H and I.) When we look at n we think that there might be a connection between having black fur, being able to climb a tree, and being a member of the black bear-species. We know for example that adult grizzly bears cannot climb trees. We think that the same relationship between the properties might obtain in m also. From that, we conclude that m is a member of the black bear species. But, there might be other similarities between n and m that we think are irrelevant to the issue of whether they are members of the black bear species. For example, maybe both bears live in the same forest and took their last drink of water from the same stream. If we knew that there was a deer that shared these similarities; lived in the same forest and took its last drink from the same stream as n and m, we would not think that it is a member of the black bear species, or that it could climb a tree.

When I stated that we need some theoretical ground upon which to assume that the antecedent properties, H or L, give rise to the consequent property, B, I used the term "gives rise to" in an attempt to express the notion of relevance. The notion of relevance is usually described in terms of causation (Mary B. Hesse, Models and Analogies in Science (Notre Dame: UP, 1966) 79; Irving M. Copi and Carl Cohen, Introduction to Logic, 9th ed. (New York: Macmillan, 1994) 463.) or determination. (Julian S. Weitzenfeld, "Valid Reasoning by Analogy," Philosophy of Science 51 (1984) 142-43.) That is, the antecedent properties are assumed to somehow cause or determine the consequent properties. Or, as I indicated earlier, it might be the case that the consequent properties cause or determine all or part of the antecedent properties. Or, it might be the case that there are some unknown properties that cause or determine the antecedent and consequent properties so that when we find the antecedent properties we have a rational basis on which to conclude that the consequent properties will also be present.

Most philosophers today explain "inductive reasoning," or "inductive argument;" and "inductive strength," in terms of probability. An inductively "strong" argument would be one whose premises make the truth of the conclusion highly probable. So in inductive analogical reasoning, similarities between the target and the source are used to infer the probable existence of further similarities between the target and the source.

The above example of inductive analogy serves to illustrate the critical problem with analogical reasoning in law. In that example we needed an hypothesis or theory of relevance. We needed to have an idea of how or why the antecedent properties are related to the consequent properties. Why is the fact that two bears are similar because each can climb a tree more important than the fact that they are similar because they each took their last drink of water from the same stream? The problem of determining the criteria of relevance of similarities and differences can lead to political controversy when the analogical argument involves normative issues as it does in law and in ethics. To see this let's consider the problem that arises when analogical reasoning or argument is used as a logical method to fill gaps in a statute. This discussion will serve to introduce another notion that is of some importance in legal theory; the notion of rule skepticism.

Very often legal statutes are "indeterminate." For present purposes let us say that a statute or rule is indeterminate when it fails to yield a single uncontroversial resolution to a legal issue. Some legal skeptics claim that the law in general is indeterminate because it is constituted by so many conflicting and contradictory principles. A rule may be indeterminate for various reasons including the vagueness of legal predicates, and some social factors. Because of indeterminacy legal cases can arise wherein it is not clear precisely what the rule is, if any, that applies to the dispute. Moreover, in some such cases, the rule's indeterminacy means that the rule does not indicate how the dispute is to be settled. Such disputes are called "hard cases." In continental European legal theory the law is said to have "gaps" (A. Peczenik, "Analogia Legis. Analogy From Statutes in Continental Law," Legal Reasoning: Proceedings of the World Congress for Legal and Social Philosophy, ed. Hubert Hubien (Brussels: Bruylant, 1971) 330.) or "lacunae" in such situations. (Giuseppe Zaccaria, "Analogy as Legal Reasoning-- The Hermeneutic Foundation of the Analogical Procedure," Legal Knowledge and Analogy: Fragments of Legal Epistemology, Hermeneutics and Linguistics, ed. Patrick Nerhot (Dordrecht: Kluwer, 1991) 48-49.)

H.L.A. Hart gives the following example of an indeterminate statute. An ordinance prohibits vehicles from entering public parks. Because I will be referring to Hart's example throughout this discussion, let us call this ordinance "the no-vehicle ordinance," and make it more precise. The no-vehicle ordinance states: "No vehicles may be taken into a park." This ordinance is indeterminate because of the vagueness of the statutory predicate "vehicle." The ordinance is uncontroversially understood to pick out paradigm instances of vehicles such as cars, trucks and buses. However, it is not clear whether the ordinance includes things such as roller skates, bicycles, or a child's toy car. Thus the ordinance becomes problematic in cases where there are non-paradigmatic things that could arguably be classified as vehicles.

To the extent that the no-vehicle ordinance does not indicate whether roller skates, or bicycles or a child's toy car are vehicles, the statute has gaps. For example, suppose someone is charged with violating the no-vehicle ordinance because she entered a park on a skateboard. This presents a hard case because it is not clear whether or not the person riding the skateboard is guilty of violating the statute. In addition to hard cases that arise where some statute is indeterminate, there are hard cases that arise because of the absence of a directly applicable legal decision by appellate court judges. However, to simplify my analysis, I will limit attention to hard cases in the interpretation of statutes. A worry is that the decision, as to whether a skateboard is a vehicle, is made by a judge and not dictated by the rule. Maybe the judge will decide this case in a way that somehow furthers his own personal interests. One might reply that the gap in the law can be filled by the use of analogical reasoning. The reply is that analogical reasoning will tell whether or not a skateboard is so relevantly similar to a paradigm instance of a vehicle (say a car) that the skateboard should be considered a "vehicle" under the statute. If this is done without reference to the personal prejudices of the judge, then the gap is filled and the rule dictates the outcome after all. However rule skeptics do not believe that the gap in the rule can be filled this way.

For our purposes it will be useful to adopt H.L.A. Hart's characterization of rule skepticism; "rule skepticism" is the thesis that when judges decide hard cases "there is nothing which can be characterized as a rule which they observe." (H.L.A. Hart, The Concept of Law, ed. Penelope A. Bulloch and Joseph Raz, 2nd ed. (Oxford: Clarendon, 1994) 138.) Rule-skeptics claim that the decisions in hard cases are not required by rules, but that they are instead determined arbitrarily by one or more of the following: the personal moral and political values of the judges who decide the cases; the personal interests of, or the psychological makeup of, the judges deciding the cases. According to federal-appellate-court-judge and legal theorist Richard Posner, there are many legal questions that are impossible to answer by the methods of legal reasoning. (Richard A. Posner, "The Jurisprudence of Skepticism," Michigan Law Review 86 (1988): 828.) Consequently, according to Posner, the answers to these questions “depend on the policy judgments, political preferences, and ethical values of the judges, or (what is not clearly distinct) on dominant public opinion acting through the judges, rather than on legal reasoning regarded as something different from policy, or politics, or values, or public opinion.” (Posner 828.)

If we consider a couple of the dictionary definitions of the word "indeterminate," we can get a better understanding of how rule indeterminacy leads to rule skepticism. One definition of "indeterminate" is "not fixed beforehand: not known in advance." (Webster's Third New International Dictionary (1986) 1148.) For Cass Sunstein, a rule is something that specifies a legal outcome before a particular case arises. (Cass R. Sunstein, Legal Reasoning and Political Conflict (New York: Oxford UP, 1996) 20-1.) So if a statute is indeterminate as defined above, it doesn't seem that it can be a rule as defined by Sunstein. And indeed the skeptic argues that rules do not decide cases. Instead, says the skeptic, politically motivated judges do. Another definition of "indeterminate" is "not predetermined by some external force: not constrained." (Webster's Third New International Dictionary (1986) 1148.) The skeptic believes that if a statute is indeterminate, then there will be some cases in which there is little or nothing to constrain a judge's decision.

As we have seen, one might reply to the skeptic that many hard cases can be resolved by the use of analogical reasoning to interpret a statute. If so, then in such cases there is no question of the judge needing to use personal values or attributes. However, apart from rule-skepticism there is also a skepticism about analogical reasoning. The skeptic about analogical reasoning holds that analogy itself is "subjective" in that whether x is analogous to y is relative to the values or perceptions or beliefs of some person. If this is right the use of analogy in law exemplifies, and does not undermine, the rule-skeptic's worry. In interpreting the no-vehicle ordinance, what are the criteria of relevance of the similarities between a paradigm example of a vehicle and a skateboard? Can that criteria be supplied by legal sources, or is it inevitable that they be supplied by the interests or personal values of the judge with the power to decide the legal issue? The problem of locating the criteria of relevance contributes to skepticism about analogical reasoning.

Waiver of Argument by Structure of Brief

An argument not preceded by an appropriate heading is deemed waived. (Roe v. McDonalds’ Corp. (2005) 129 Cal.App.4th 1107, 1114 [29 Cal.Rptr.3d 127].) Be careful of arguments made in footnotes that are not under an appropriate heading. (See People v. Crosswhite (2002) 101 Cal.App.4th 494, 502, fn. 5 [124 Cal.Rptr.2d 301].)

If you make a constitutional claim in an argument heading but don’t develop the argument, then the claim is waived. (People v. Wilkinson (2004) 33 Cal.4th 821, 846, fn. 9 [16 Cal.Rptr.3d 420, 94 P.3d 551].)

Note- Researchers looking for similar cases in other jurisdictions can search in an "all-states" database in Westlaw with the following terms and connectors: (argument /s heading) /s waive!

Admissions by Argument Content

Factual stipulations in a trial brief may be treated as judicial admissions. (United States v. Davis (2003) 332 F.3d 1163, 1168.)

If incompetent testimony, such as hearsay, is not objected to, it may count as proof. (People v. Pierce (1979) 24 Cal.3d 199, 207, fn. 3 [155 Cal.Rptr. 657, 595 P.2d9].) And so factual assertions set out in a brief may be accepted by the court if not objected to. (People v. Miller (1987) 196 Cal.App.3d 307, 315, fn. 3 [241 Cal.Rptr. 767].) An uncontested factual claim by a party may be deemed true by the court. (Ghent v. Superior Court (1979) 90 Cal.App.3d 944, 951, 153 Cal.Rptr. 720.)

The Logical Structure of Legal Argument in a Brief

The topic of this note is a narrow one. I will explain the purely logical structure of a legal argument in a brief. There is so much omitted from this discussion that I feel a need to list some of what is missing. This is not a note about legal writing. In another part of this website I have the contact information for some legal writing instructors. And the present discussion completely ignores a major part of legal argument, rhetoric. I do not discuss the different types of briefs that contain legal argument. Different types of briefs are structured differently. An appellate brief for example will have a different structure from that of a notice of motion with legal argument in the form of a memorandum of points and authorities. Some briefs will have a statement of facts and some won't. Some will record the procedural history of a case and some won't. Here I simply explain the logical structure of a single argument as it appears in a brief.

Earlier I explained the idea of an argument in standard form. I gave this example:

The California Legislature would not have intended that the statute limiting speed to 65 miles per hour result in a person's death in the case of a medical emergency.

An argument in a legal brief is an upside down argument in standard form. The conclusion is put at the top, and the premises go below the conclusion.

When one sees a legal argument as an upside down argument in standard form one can begin to understand how argument headings are supposed to be drafted. Argument headings are to be drafted in declarative sentences because declarative sentences express propositions. And as we have seen earlier, a conclusion is one proposition in a set of other propositions. The other propositions are the premises of the argument. If we turn take the argument in standard form above, and turn it upside down in order write a brief, our argument heading might look something like this: "The California Legislature Did Not Intend To Limit The Speed Limit To Sixty-Five Miles Per Hour In Every Situation."

Here are some improperly drafted argument headings from briefs that I have had to counter in my work.

"No Showing of Prejudice by Association"

"No Prejudice of a Weak Case Being Tried With a Strong Case"

"Victim is Entitled to Restitution of Private Investigator’s Fees"

The problem with these headings is that they are not the conclusions of arguments. Instead they are mere topic headings. While looking for examples such as these I discovered briefs filed by opponents in which there were no argument headings whatsoever.

Here is a sample brief. Notice how the argument headings are drafted as the conclusions of arguments. The premises supporting the conclusion of each argument are found in the text below the heading. In an earlier note I explain that arguments can be waived by the improper drafting and use of headings.

Legal Research and Writing

Robert G. Scofield, Ph.D., Attorney at Law

Notes On Legal Argument

Originally Published October 16, 2009 April 18, 2011

When Persuasive Authority Does Not Have to Be Followed-

When Binding Authority Does Not Have to Be Followed-

When Dicta Should Be Followed-

Is There a Difference Between Holding and Ratio Decidendi? (A New Theory of Holding)-

The Meaning of "Necessary"-

An Example of Creating Law by the Fallacy of Denying the Antecedent-

The Anti-Question Begging Principle of the Doctrine of Precedent-

Admissions by Argument Content- (Updated November 11, 2009)

The Ethics of Legal Argument-

A Philosophical Definition of "Legal Argument"-

The Difficulty American Judges Have with the Basic Concepts of the Doctrine of Precedent-

The Negative Influence of American Legal Realism?

What is "Persuasive Authority"?

Miscellaneous Principles of the Doctrine of Precedent

Introduction to Three Difficult Fallacies in Legal Argument

P Q

If P, then Q

not P

not Q

An Example of Creating Law by the Fallacy of Denying the Antecedent

The Formal Fallacies Versus Argumentum A Contrario-

Introduction to Analogical Argument and Legal Skepticism

Waiver of Argument by Structure of Brief

Admissions by Argument Content

The Logical Structure of Legal Argument in a Brief