Notes On Legal Argument
Originally
Published October 16, 2009 Updated November 18, 2009
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 frequently updated.
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.
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"-
The Anti-Question Begging Principle of the Doctrine of Precedent-The Formal
Fallacies Versus Argumentum A Contrario-
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.
1.
Sacramento is north of San Diego. (True)
2.
Sacramento is north of Seattle. (False)
3.
Sacramento is north of San Diego and north of Seattle.
(False)
4.
Sacramento is north of San Diego or north of Seattle.
(True)
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.
Premise 1-
Sacramento is north of San Diego.
Premise 2-
Seattle is north of Sacramento.
Conclusion-
Seattle is north of San Diego.
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.
Back to top
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. Back to top 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. Back to Top 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].)
Back to Top 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: If P, then Q
P
Q 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: If P, then Q
Q
P 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: If it rains, then the river rises.
The river rises.
It rains. 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: If P, then Q
Not Q
Not P Denying The Antecedent takes this invalid form: If P, then Q
Not P
Not Q
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. The
discrepancies between the statements are insignificant.
The codefendant's statements may 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. P Q | If P, then Q | not P | not Q | T T | T | F | F | T F | F | F | T | F T | T | T | F | F F | T | T | T |
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. Back to top 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!
Back to top
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.) Back to top 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: 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. 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. Back to top
|