The Five Types of Legal Arguments
law.
Presentation Four: Identifying and Attacking Legal
Arguments
Wilson Huhn
Professor of Law, The University of Akron School of
Law
© 2013
Identifying the Types of Legal Arguments
People v. Gibbons, 215 Cal.App.3d 1204, 263
Cal.Rptr. 905 (4th Dist. 1989)
A. Famous Legal Arguments
1. John Marshall demonstrates how to attack
an argument based upon plain meaning by
proving that the word is ambiguous.
2. Marshall makes an intratextual argument by
comparing the word “necessary” in the
Necessary and Proper Clause with the words
“absolutely necessary” from Article I, Section
10.
3. Marshall makes an intertextual argument
comparing the language of the Constitution to
the language of the Articles of Confederation
to prove that the framers of the Constitution
intended to confer broader implied powers
upon the Congress.
4. Brandeis makes an intent argument
regarding the Framers’ views on Freedom of
Expression .
5. Holmes rejects text and intent in favor of
tradition in arguing that the nation’s
experience over a century should prevail on
the
6. Warren rejected the intent of the framers
of the 14th Amendment as a guide to decision
because their intent was unclear and because
conditions had changed so much that their
specific views regarding separate schools were
no longer relevant.
7. Warren cites both precedent and policy
arguments in favor of overruling the precedent
of Plessy v. Ferguson.
8. Burger makes a straightforward tradition
argument in favor of a law criminalizing
homosexual behavior.
9. Kennedy finds a number of ways to rebut
the tradition arguments regarding sodomy
laws. He says that these laws were never
enforced, that our traditions are changing, that
foreign countries have declared these laws to
be inconsistent with human rights and that
because of globalization our traditions must
come under closer scrutiny. At the end he
makes a policy argument for striking down this
10. In the Youngstown case, Black decided
against the President on textual grounds.
11. In the same case Frankfurter found no
tradition of allowing a President to exercise
this type of power.
12. Robert Jackson rejected text, intent,
tradition and precedent in this passage.
13. Instead, Jackson composed an intricate
policy argument, built upon what he regarded
as the purposes of the doctrine of Separation
of Powers.
14. Abraham Lincoln rebuts the intent
arguments of Roger Taney and Stephen
Douglas regarding the phrase “all men are
created equal.”
15. Kennedy, O’Connor, and Souter identify
the four factors to consider in deciding
whether to follow or overrule a case, when
they considered whether to reaffirm Roe.
16. John Harlan explains that “tradition is a
living thing,” and that there have always been
conflicting traditions.
17. John Paul Stevens rebutted President
Clinton’s policy argument, in effect saying that
it was no big deal to require a sitting President
to give a deposition in a civil case. How wrong
he was!
18. Blackmun’s casual reference to
constitutional text and his passionate policy
argument from Roe v. Wade.
19. Thurgood Marshall’s rebuttal policy
argument from Kras, finding a $50 filing fee to
be a very big deal indeed.
B. How to Attack Each Type of Argument
Intra-type attacks – Attacking an argument on its
own terms – contends that the argument does not
have strong basis in text, intent, precedent,
tradition, or policy.
Cross-type attacks – Attack an argument by
contending that there is a different type of
argument that is stronger.
Intra-type and Cross-Type Attacks
-There are 28 different intra-type attacks on legal
arguments, and two basic forms of cross-type
attacks.
Intra-type Attacks on Textual Arguments
A. Attacks on Arguments Based upon Plain
Meaning
1. The text is ambiguous
 2. The text has a different plain meaning
B. Attacks on the Canons of Construction
3. The canon of construction does not apply
4. A conflicting canon of construction applies
C. Attacks on Intratextual Arguments
5. There is a conflicting intratextual inference
drawn from the same text
6. There is a conflicting intratextual inference
drawn from different text
Intra-type Attacks on Intent Arguments
7. The intent of the drafters was different
from what the litigant says
8. The litigant’s evidence of the drafters’
intent is not sufficient
9. The drafters of the law did not anticipate
current events, so their intent is not relevant
10. The person whose intent was proven does
not count as a drafter, so it is irrelevant
Intra-type Attacks on Precedent
11. The court’s opinion was not holding but
rather obiter dictum
12. The opinion did not command a majority
of the court
13. The opinion was not issued by a
controlling authority
14. The case is distinguishable because of
dissimilar facts
15. The case is distinguishable for policy
reasons
16. There are two conflicting lines of authority
17. The case has been overruled
18. The case should be overruled
Intra-type Attacks on Tradition Arguments
19. No such tradition exists
20. There have been competing traditions
21. A new tradition is emerging
Attacks on Policy Arguments
22. The factual prediction is not accurate
23. The policy is not one of the purposes of
the law
24. The policy is not sufficiently strong
25. The policy is not served in this case
26. The policy is outweighed by a competing
policy
The Three Most Difficult Types of Attacks to
Master
14. The Case Is Distinguishable on the Facts
15. The Case is Distinguishable For Policy
Reasons
16. There Are Two Conflicting Lines of
Authority
Group Exercises
Please Discuss the Cases in your Group
Case 1
Davis v. Davis, 842 S.W.2d 588 (1992)
Are frozen embryos “children” or
“property”?
Case 2
Akron case
Is a gestational surrogate a mother giving
up her baby for adoption or is she a foster mother
to someone else’s child?
Case 3
Denver Area Educational
Telecommunications Consortium, Inc. v. F.C.C.,
527 U.S. 727 (1996)
Is a cable television operator more like a
newspaper publisher or more like a telephone
company in terms of its power to censor
programming?
Case 4
Turner Broadcasting Co. v. F.C.C., 520 U.S.
180 (1997)
Is a cable television operator more like a
newspaper publisher or more like a telephone
company for purposes of “must carry”
regulations?
Case 5
McPherson v. Buick Motor Co., 217 N.Y.
382 (1916)
Is an automobile more like a wagon or
more like scaffolding?
Benjamin Cardozo on the Difference Between
Factual Analogies and Policy Analogies
“Some judges seldom get beyond that process in
any case. Their notion of
their duty is to match the colors of the case at
hand against the colors of many sample cases
spread out upon their desk.
The sample nearest in shade supplies the
applicable rule.”
Choosing Between Competing Lines of Authority
John Dickinson, The Law Behind Law II
- Look to the comparative value of different
policies in choosing between analogies
- 29 Columbia Law Review 285 (1929)
Benjamin Nathan Cardozo
- “Conflicting principles were there in
competition for the mastery.” Riggs v.
Palmer, 115 N.Y. 506 (1889)
The Incommensurability Problem
 How can you evaluate the relative strength of
arguments of different types?
Two Kinds of Cross-type Attacks
- One kind of cross-type attack questions the
“legitimacy” of an opposing legal argument.
- Another kind of cross-type attack asserts that
while the opposing argument carries some weight,
a different type of legal argument is stronger.
Example of an Attack on the Legitimacy of a Legal
Argument
Robert Bork considered most types of legal
arguments to be “illegitimate.” For Bork, the only
“legitimate” type of legal argument was one that
was based on “original intent.”
Another Example of a Foundational Attack
Justice Antonin Scalia believes that the
only fundamental rights that Americans possess
are those that are “deeply rooted in tradition.” If a
right has not been traditionally recognized, then it
is not a constitutional right.
Cross-Type Attacks
-A cross-type attack on a legal argument concedes,
at least for the sake of argument, that the
opponent’s argument is legitimate, but asserts that
it is overcome by an argument of a different type.
Examples of Conflicts Between Different Types of
Arguments
Text v. Intent Rule of Evidence Inconsistent with
Official Comment
Text v. Policy Are there unenumerated
fundamental rights?
Precedent v. Policy Virtually any famous opinion
by Judge Cardozo
The Values Served by the Different Types of Legal
Arguments
Text – clarity and objectivity
Intent – will of the people
Precedent – consistency
Tradition – coherence
Policy – flexibility, goal-orientation, justice
Solution to the Incommensurability Problem
Evaluate which of the fundamental values of the
legal system is most compelling in the context of
the particular case – clarity, popular will,
consistency, coherence, or goal achievement
Writing Persuasive Arguments and Opinions
- Strengthen each argument within
its type
- Make arguments of different types
- Weave arguments together so
they support each other – a cable
not a chain
What sources of authority do you find to be most
persuasive?
Become aware of your own philosophy of
life, and understand how that affects your
interpretation of the law
Understanding Rules
The capacity to obey rules, to make and
apply rules, and to evaluate rules is acquired
progressively
The Stages of Cognitive and Moral Reasoning
Formalism, analogy, and realism are
acquired in stage fashion
Concrete Analogies and Abstract Analogies
The capacity to perform concrete
analogies is acquired before the ability to perform
abstract analogies
What Skills Are Necessary for Policy Analysis
Realistic analysis involves the capacity to
consider hypothetical questions, the capacity to
apply the concepts of conservation, reversibility
and reciprocity to rules and values, the capacity for
empathy, and the capacity to balance one set of
outcomes against another
Acknowledgements
-Artwork from Microsoft Clipart and www.clipart-
free.com
-Judge Portraits from:
http://www.portraitartist.com
-Portrait of Thurgood Marshall by Simmie Cox
http://www.multied.com
http://supreme.lp.findlaw.com/supreme_court/
http://whyjack.blogs.com/photos/judges
http://memory.loc.gov/ammem/index.html
-Picture of Alcohol obtained from National Heart,
Lung, and Blood Institute
-Permission Granted to Use Picture of River from
http://www.ambersoft.com/