Legal Analysis

The Fundamental Skill

Second Edition

David S. Romantz
&
Kathleen Elliott Vinson

CAROLINA ACADEMIC PRESS

Durham, North Carolina
 Copyright © 2009
David S. Romantz and Kathleen Elliott Vinson
All Rights Reserved

Library of Congress Cataloging-in-Publication Data

Legal analysis : the fundamental skill / David S. Romantz &

Kathleen Elliott Vinson. -- 2nd ed.
p. cm.
Includes index.
ISBN 978-1-59460-279-5 (alk. paper)
1. Legal research--United States. 2. Law--United States--
Methodology. I. Vinson, Kathleen Elliott, 1969- II. Title.

KF240.R636 2009
340.072'073--dc22

2009019315

Carolina Academic Press

700 Kent Street
Durham, North Carolina 27701
Telephone (919) 489-7486
Fax (919) 493-5668
www.cap-press.com
Printed in the United States of America
 To my family, for their support, encouragement, and
patience.

KV

To my family, friends, colleagues, students, and especially to

LHH.

DSR
Acknowledgments

Chapter 1 - The Foundations of Legal Analysis

A. Statutes
B. Case Law
1. Common Law and Precedent
2. The Power of Precedent and Stare Decisis
C. Hierarchy of Courts
D. Jurisdiction
E. Types of Authority
Practice Exercises

Chapter 2 - Rules
A. Enacted Law
B. Case Law
1. Express Rules
2. Implied Rules
3. Rule Synthesis
C. Tests
1. Element Test
2. Balancing Test
3. Totality of the Circumstances Test
Practice Exercises

Chapter 3 - Inductive Analysis and Analogical

Reasoning
A. Analogical Reasoning
1. The Three Triggers: Jurisdiction--Legal Issue--
Facts
2. The Analogical Model
3. Critical Facts
4. Case Synthesis
B. Analogical Strategies
1. Narrow Analogy
 a. Part One--State the Point of the Analysis
b. Part Two--State the Narrow Fact
Comparison
c. Part Three--Apply the Court's Reasoning
d. Step Four--Conclude
2. Broad Analogy
Practice Exercises

Chapter 4 - Deductive Analysis & Rule-based

Reasoning
A. Deductive Reasoning--The Syllogism
1. The Model
2. Deductive Reasoning & Legal Argument
3. Identifying Flaws in a Syllogism
B. The Structure of a Deductive Argument Using
Rule-based Reasoning

a. Part One--State the Point of the Analysis or

Conclusion
b. Part Two--State the Rule
c. Part Three--Explain the Rule
d. Part Four--Apply Law to Facts
e. Part Five--Conclude
C. Deductive/Inductive Combination
Practice Exercises

Chapter 5 - Statutory Analysis

A. Statutory Construction
1. The Plain Meaning Rule
2. Construing Ambiguous Statutes
B. Tools of Statutory Construction
1. Maxims
a. In Pari Materia
b. Ejusdem Generis
c. Noscitur a Sociis
d. Avoid Surplusage
 e. Remedial Statutes
f. Expressio Unius est Exclusio Alterius
g. Presumption of Internal Consistency
h. Titles Are Not Controlling
i. Constitutional Questions
j. Lenity
2. Legislative History
3. Cases Construing Statutes
C. Statutory Interpretation and Deductive Argument
Practice Exercises

Chapter 6 - Policy-based Reasoning and Other

Considerations
A. Policy
1. Identifying Policy
a. Case Law
b. Statutes
B. Types of Policy Arguments
1. Judicial Administration Policy Arguments
2. Normative Arguments
3. Institutional Competence Arguments
4. Economic Arguments
5. Fairness and Justice Arguments
C. How to Use Policy
1. To Support a Legal Argument
2. To Analyze a Case of First Impression
3. To Limit the Scope of the Law
4. To Expand the Scope of the Law
D. Other Considerations
1. Judicial Conservatism
2. Credibility
Practice Exercises

Chapter 7 - The Legal Argument: CREAC

A. CREAC Explained
1. The C in CREAC
 2. The R in CREAC
3. The E in CREAC
4. The A in CREAC
5. The Final C in CREAC
B. The CREAC Argument: Inductive Analysis or
Analogical Reasoning
C. The CREAC Argument in a Multi-issue Problem
D. The CREAC Argument: Deductive Argument or
Rule-based Reasoning
1. The CREAC Argument: Rule-based Analysis
Using an Expressed and Unambiguous Rule
2. The CREAC Argument: Rule-based Analysis for
an Unexpressed Rule
3. The CREAC Argument: Rule-based Analysis
Using an Ambiguous or Vague Rule
E. Fourteen Tips When Using CREAC
1. Analyze One Issue at a Time
2. Conclude Only the Single Issue Analyzed
3. Offer All Rules Required to Analyze the Issue
4. Explain the Law before Applying the Law
5. In the "A" Section, Start with the Point of the
Argument
6. For Inductive-type Arguments That Compare
Facts:
a. State the Fact-to-Fact Analogy
b. Prove the Significance of the Analogy
7. For Deductive-type Arguments Consider the
Syllogism
8. Don't Be Conclusory
9. Don't Fight the Law or Your Client's Facts
10. Avoid the Stretch Argument
11. Remember the Alternative Argument
12. Anticipate and Analyze the Opponent's
Argument
13. Organize the Analysis around a Common
Theme
 14. Be Flexible
Practice Exercises

Conclusion

Glossary of Terms
 Acknowledgments
We are grateful to the following people who read and
commented on the various drafts of the manuscript: Joan
Malmud, Geraldine Griffin, Bridget Warner, Kathy Weiland,
Joseph McKinney, Lauren Siegel, and John Brittingham. Their
thoughtful comments and suggestions were invaluable. We
are deeply indebted to Linda Hayes, Administration
Secretary, the University of Memphis School of Law, for her
outstanding and tireless administrative support in the writing
and editing of this book. We are grateful to Suffolk University
Law School and the University of Memphis School of Law for
their generous financial support. We are indebted to our
students as well as our own former teachers. Finally, thanks
to Linda and Keith at Carolina Academic Press for their
support and infinite patience.
Chapter 1
The Foundations of Legal Analysis

OBJECTIVES

WHEN YOU FINISH THIS CHAPTER AND COMPLETE THE EXERCISES, YOU WILL BE ABLE TO

UNDERSTAND THE ROLE OF STATUTES

UNDERSTAND THE ROLE OF CASE LAW

UNDERSTAND THE RELATIONSHIP BETWEEN THE COMMON LAW, PRECEDENT, AND STARE DECISIS

DESCRIBE THE HIERARCHY OF COURT SYSTEMS

UNDERSTAND JURISDICTION

IDENTIFY DIFFERENT TYPES OF AUTHORITY

Lawyers serve as advocates for their clients. They are

hired to represent people, partnerships, corporations,
property, and estates on a wide variety of issues ranging
from the mundane to the complex. Lawyers are required to
analyze an ever-increasing body of law that includes cases,
statutes, ordinances, rules, and regulations and to apply that
law to an infinite variety of fact scenarios. But how do
lawyers craft meaningful legal arguments when the body of
law and facts are so large and ever-changing? How do
lawyers argue before a court with conviction? Can lawyers
anticipate how a court would likely rule in a given case? The
answers to these questions lie in an understanding of the
foundations of legal analysis.

This chapter introduces the foundations of legal analysis.

The foundations of legal analysis are the set of principles
that lawyers use to analyze the law, devise legal arguments,
and predict legal outcomes. Understanding these rules and
principles is a crucial step towards becoming an effective
advocate.

The foundations of legal analysis do not require attorneys

to know the law by heart. The body of jurisprudence is too
large and always changing. The rules and principles of legal
analysis, however, allow attorneys to fashion credible and
persuasive arguments on almost any legal issue. The key is
to understand how the lawmakers, typically courts and
legislatures, make and change the law.

This chapter introduces two important sources of law—

statutes and case law. It also discusses three seminal
principles of case-law analysis: (i) common law; (ii)
precedent; and (iii) stare decisis. In addition, this chapter
discusses the structure of court systems, basic principles of
jurisdiction, and the weight or significance of legal authority.
Together, these concepts form the foundation of American
jurisprudence. They serve as some of a lawyer’s most
powerful tools.
 A. Statutes
Statutes are one source of law that lawyers use to analyze
problems. Typically, students in their first year of law school
spend the majority of their time reading and analyzing
judicial opinions. As a result, they often fail to recognize the
importance of statutes. A statute is an act of a legislature
that, among other things, proscribes and governs conduct. It
is a formal written enactment of the legislative body.
Statutes are only one kind of enacted law. Other enacted law
includes ordinances, or municipal law, and regulations, or
law derived from administrative bodies.

Legislatures have the exclusive constitutional authority to

enact statutes. The federal legislature, the United States
Congress, enacts laws that affect every person or legal entity
across the country. In addition, each state has its own
legislature with authority to enact laws that regulate conduct
within that state’s borders. Congress and the various state
legislatures are independent, separate lawmaking bodies.
Most legislatures are bicameral. They consist of two
chambers, a Senate and a House of Representatives or
Assembly.

The process of enacting a federal statute involves several

stages. First, a legislator introduces a bill in his or her
chamber of the legislature. The bill is then referred to a
committee consisting of members from that chamber. A
committee can be either permanent, called a standing
committee, or temporary, called a special or ad hoc
committee. The legislature’s committee structure is
organized so that each committee considers only legislative
ideas of the same or similar subject matter. For example, the
House of Representatives’ Committee on Agriculture
considers bills that relate to farm policy and nutrition.
 Once a bill is assigned to a committee, the committee
reviews the bill and invites experts and other interested
parties to testify on the impact of that legislation. More
importantly, the committee debates each section of the
proposed law and amends, or marks up, the bill. After careful
consideration, the committee votes up or down on the bill. If
the bill wins support from a majority of committee members,
then the bill is reported out of committee to the full chamber.
If the bill fails to win a majority, then the bill is deemed
“dead in committee.” When a bill survives a committee vote,
the committee issues a report, including a revised version of
the bill. That report recommends whether the full chamber
should approve the bill. The full chamber then considers,
debates, amends, and finally votes on the bill. If the bill
passes in the originating chamber, it goes through a similar
process in the opposite chamber. When both chambers pass
an identical bill, the bill is then presented to the President. If
the President signs the bill, it becomes law. If the President
does not sign the bill within ten days, it still becomes law. If
the President vetoes the bill, the bill goes back to the
legislature. There, the veto may be overridden by a two-
thirds vote in each chamber. Barring a congressional
override, the bill could be re-drafted to incorporate the
President’s objections or shelved.

State legislatures largely echo the federal model. In every

state the governor must sign a bill into law and reserves the
right to veto an objectionable bill. Once enacted, each
statute becomes an independent source of law. Federal
statutes govern persons and entities throughout the United
States, while the reach of state statutes usually ends at the
state’s borders. Once enacted, a statute remains fixed unless
changed or abolished by the legislature or declared
unconstitutional by a court of competent jurisdiction. While
courts can and do interpret the meaning and application of a
statute’s terms, they cannot amend its language.
 B. Case Law
Another source of law is case law. Case law is law derived
from the opinions of courts. Case law consists of both the
common law and judicial decisions that interpret statutes
and other enacted law.

Courts make law in at least three ways.

First, a court may fashion a general legal doctrine or

principle if it is required to resolve a case but no binding law
exists to determine the matter. That new legal doctrine or
principal is enforceable only within that court’s geographic
reach. By adopting or creating a new legal doctrine, a court
creates binding law absent any legislative debate or vote.
But, a court can create new law only in the absence of
enacted law because enacted law trumps case law. For
example, if neither the United States Congress nor a state
legislature has enacted a law to protect victims of negligent
infliction of emotional distress, a court may create a legal
doctrine that recognizes the harm and provides a remedy to
victims.

Second, a court also makes law by deciding cases that

interpret existing legal doctrines. A court makes new law
with each case it decides because each case comes before
the court with a unique set of facts. When the court applies
the law to a new set of facts, a new precedent is born that
adds to the growing body of case law. An opinion that
incorporates a new fact to an existing legal doctrine creates
new law for the purpose of deciding future cases that include
the same or materially similar facts.

Suppose a court decided that a plaintiff could recover for a

defendant’s negligent infliction of emotional distress. In that
case, a defendant was liable to a mother when he
accidentally shot and killed her young child in plain view of
her mother. The court in that case limited its holding to allow
only parents to recover, reasoning that the defendant knew
or should have known that his negligent acts would harm a
parent witnessing the shooting of her child. In a later
decision, the court allowed a foster parent to recover under a
similar set of facts. From that point forward, potential
plaintiffs included all parents and foster parents. In a
subsequent case, the court held that siblings were also
included in the pool of potential plaintiffs. Each case added
to or modified that state’s case law by expanding the class of
plaintiffs who could sue under a negligent infliction of
emotional distress theory.

Third, courts make law by interpreting ambiguous or vague

language in enacted law, such as statutes, ordinances, or
administrative regulations. Sometimes, a legislature or other
rule-making body will enact a law with terms that have more
than one meaning or with terms whose meaning depends on
context. Before a court can apply that law to the facts before
it, it must construe the indefinite terms. The court’s
interpretation of ambiguous terms in enacted law determines
how a later court should apply that law to similar cases in
future disputes. Suppose a court interpreted a state statute
regarding recycling. The relevant statute states that “all
newsprint shall be collected and recycled.” The issue before
the court was whether magazines are considered newsprint.
The court concluded that magazines were not newsprint for
the purposes of the statute. In that case, the court added to
the body of case law by construing an ambiguous term in a
legislative enactment. That opinion now has the force of law
on all similar cases.

______________________

Courts do not render decisions in a vacuum. Instead,

courts abide by an important set of concepts to aid in their
resolution of cases. Among these concepts are the common
law, precedent, and stare decisis. In contrast to legislatively
enacted statutory law, the common law consists of the rules
and legal principles derived from judicial decisions rendered
in the absence of enacted law. A precedent is any judicial
decision or opinion that serves as an example of how a
subsequent court can resolve a similar question of law under
a similar set of facts. Finally, stare decisis is a time-honored
maxim that requires courts to follow precedent when
deciding similar cases.
1. Common Law and Precedent
Generally, the common law is case law rendered in the
absence of enacted law. Under federal and state
constitutions, only the legislature is empowered to make law.
As such, courts can make law only to fill a void left by the
legislature. The common law is derived from the body of
judicial opinions.

A precedent is a judicial opinion that illustrates the

application of legal rules and doctrines to the facts of a
specific case. A precedent, if it examines a common-law rule,
becomes part of the common law. Thus, a case can be both a
precedent and part of the common law. Some precedents,
however, interpret enacted law and not common-law
principles. While these cases are not part of the common
law, they are still precedents because they illustrate the
application of a statute to a set of facts.

Generally, a judicial opinion resolves only the facts and

issues raised in the action. That same opinion, however,
becomes an authoritative source of law for future cases.
Courts, when deciding issues, will look to those opinions for
guidance. Each new decision, then, follows logically from the
existing body of precedents. Each new decision becomes
part of the larger body of case law and takes on precedential
weight.

2. The Power of Precedent and Stare Decisis

The famous Latin maxim, stare decisis et quieta non

movere, translates into “those things which have been so
often adjudged ought to rest in peace.” Stare decisis is the
controlling doctrine governing the ability of judges to make
law. Stare decisis is a principle that requires courts to follow
precedent when deciding similar cases. It gives prior judicial
decisions the force of law. These decisions are binding on
some courts hearing later analogous cases. Courts ordinarily
adhere to this doctrine and will only depart from stare decisis
when absolutely necessary to avoid an injustice, to protect
the general welfare, or to change the law to reflect
contemporary values.

Stare decisis is a key maxim in American jurisprudence

because it promotes stability, predictability, and fairness in
the application of law. It promotes fairness because a court
will treat parties with similar claims and facts in the same
way. It also allows a lawyer to predict legal outcomes by
analyzing prior decisions that resolve the same legal issue
on the same or similar facts. If a lawyer can find controlling
authority, or precedent, that speaks to her client’s case, then
she can anticipate how a court will likely rule in the matter.
Stare decisis ensures stability in the law because courts are
required to follow prior decisions instead of rendering
decisions in a vacuum.

The power of stare decisis is directly related to the notion

of judicial error. Generally, a party who was aggrieved by a
court’s mistake on a matter of law, fact, or procedure has a
right to appeal that legal, factual, or procedural ruling to a
higher court. If the higher court agrees with the complaining
party, then the higher court may correct the error and
reverse the original court’s determination. A court that
violates stare decisis by failing to apply a controlling
precedent may be reversed on appeal. Hence, a court
typically will honor stare decisis or risk a higher court
reversing its holding or ruling on appeal.

Stare decisis and precedent are related, but different,

concepts. Stare decisis requires courts to follow prior
decisions when determining the outcome of like cases.
Precedent is the prior decision itself.
 For example, in Palsgraf v. Long Island Railroad, 162 N.E.
99 (N.Y. 1928), a railway company’s conductor pushed a
passenger carrying a package of fireworks. The conductor
did not know the package contained fireworks. The package
fell. As a result, the fireworks exploded, causing a
shockwave, which knocked down heavy scales located at the
other end of the train platform. The scales struck the
plaintiff, causing injury. The plaintiff sued to recover for her
damages. The New York Court of Appeals, the court of last
resort in New York, held that there is no duty, hence no
liability, to an unforeseen victim of negligence. The court
held that the defendant could not have foreseen injuring the
plaintiff, and was, therefore, not liable.

By itself, the Palsgraf opinion decided the outcome of one

case. The holding is legally binding only on the parties in the
lawsuit. The court’s reasoning, however, and the legal rules
employed to determine the outcome of that case, are
binding on everyone within that court’s jurisdiction. Under
the doctrine of stare decisis, Palsgraf became a precedent.
After Palsgraf, New York courts were required to look to that
case to decide any lawsuit that raised the same legal issue
with the same or similar facts. Why? Stare decisis et quieta
non movere—once properly decided, a legal issue should not
be decided again. If a later trial court chooses to ignore
Palsgraf and hold that a defendant is liable to an unforeseen
plaintiff, then a higher court could reverse the trial court to
correct the mistake. As such, the Palsgraf opinion became a
predictable and reliable basis to assess liability in future like
cases.

Imagine a system without stare decisis or precedent. If

judges decided each case without regard to prior cases,
litigants would indeed be at the mercy of the court. Judges
would have the power to reach conclusions without the aid of
a sustainable, predictable body of law. Litigants would have
no reliable basis to determine whether a particular act had
any culpable consequence. Without stare decisis and
precedent, the ability of lawyers to predict a legal result
would be nearly impossible. And without stare decisis and
precedent, a lawyer’s ability to argue cases before a tribunal
would be difficult, if not impossible. The stabilizing impact of
precedent and stare decisis is integral to the foundations of
legal analysis.
 C. Hierarchy of Courts
The authoritative weight, or value, of a particular
precedent depends on which court within the hierarchy of
courts rendered the opinion. A hierarchy represents the
different levels of courts within a jurisdiction. The federal
court system and the court systems of most states consist of
three levels: a trial court, an intermediate court of appeals,
and a court of last resort. A court is bound by a decision of a
higher court within its line of appeal. A decision rendered by
a court of last resort, the highest court of appeals within a
jurisdiction, is binding on all other courts within that same
jurisdiction. A decision by an intermediate appellate court is
binding on a trial court when the highest court of appeals is
silent or has not conclusively decided an issue.

Under our system of federalism, each state and the federal

system is an independent, autonomous, and sovereign
judicial system with one important exception—the United
States Supreme Court. An opinion of the United States
Supreme Court interpreting federal law is binding on every
court in the United States, both federal and state, because it
is the highest court in the land deciding a question of federal
law. A decision rendered by a state’s highest court of
appeals, however, is usually the last word on most state
issues.

Consider the following scenarios:

An Arizona trial court is bound by decisions of

Arizona’s highest court of appeals; Arizona’s
intermediate court of appeals, when the state’s
highest court of appeals is silent on an issue; and the
United States Supreme Court interpreting federal
law.
The Connecticut trial court is bound by Connecticut’s
highest court of appeals; the Connecticut
intermediate court of appeals, when the state’s
highest court of appeals is silent; and the United
States Supreme Court interpreting federal law.
A federal trial court considering a federal issue is
bound by the United States Circuit Court of Appeals
for the circuit in which the federal trial court is
located and the United States Supreme Court.
 D. Jurisdiction
Stare decisis requires courts to look to previous decisions,
or precedent, for authoritative guidance in resolving legal
disputes. Not all courts, however, are bound by every
authoritative precedent. Jurisdiction is an important limit on
the precedential impact of a particular decision.

Jurisdiction limits the ability of a court to exercise its

authority. Jurisdiction restricts the power of a court to resolve
legal issues in two ways. First, jurisdiction limits courts
geographically. Second, jurisdiction limits courts by the
subject matter they are allowed to consider. Geographic
jurisdiction limits the power of a court to a particular
territory. These limitations are drawn, for example, along
municipal boundaries, county lines, or state borders. Subject
matter jurisdiction limits the types of actions a court is
authorized to hear. For example, a federal bankruptcy trial
court does not have jurisdiction, and, therefore, cannot
consider a state criminal action.

Jurisdiction limits the reach of precedent because it

controls which judicial decisions, or precedents, a particular
court is obliged to follow. Generally, state courts are bound
only by controlling opinions derived from courts that are
located within the same jurisdiction, as well as opinions
derived from the United States Supreme Court when it
renders a decision on federal law. For example, a trial court
in Massachusetts is not bound by the opinions of the
Supreme Court of Tennessee. A trial court in Massachusetts
is bound by the Supreme Judicial Court of Massachusetts
because that trial court is within the geographical jurisdiction
of Massachusetts’ court of last resort. The courts in both
Massachusetts and Tennessee, however, are bound by
opinions of the United States Supreme Court when it opines
on federal law.

Courts may, but are not required to, follow precedent of

other jurisdictions. Suppose the court of last resort in Alaska
rendered a decision holding bar owners liable for injuries
caused by their inebriated patrons. Subsequently, a case
with similar facts alleging the same legal issue is heard by a
trial court in Tennessee. The court of last resort in Tennessee
has not decided the issue. The Tennessee trial court
considering the issue must decide the matter and render a
decision that will have precedential value for that
jurisdiction. Under stare decisis, that decision would be
binding in Tennessee until the Tennessee Supreme Court
changes, reverses, or overrules the decision. The court in
Tennessee could look to the Alaska court’s decision for
guidance, but Tennessee’s court is not bound to follow that
court’s holding. The court, however, may be persuaded by
the logic and reasoning of the Alaska court’s decision and
adopt all or part of that court’s opinion. Alaska’s decision,
while not binding on Tennessee, may be persuasive.

Consider these other examples. Is the trial court of West

Virginia considering a state issue bound by the court of last
resort in Texas? No, because they are different jurisdictions.
Is the court of last resort in New Jersey considering a state
issue bound by the court of last resort in California? No, they
are also in different jurisdictions. Is the court of last resort in
New Hampshire considering a state issue bound by the
United States Court of Appeals for the First Circuit, the
federal circuit court of appeals that has jurisdiction over the
federal trial court of New Hampshire? No, a state court is not
bound by a federal court of appeals. Does the United States
Supreme Court interpreting the United States Constitution
trump all other state and federal courts? Yes, because all
courts, both state and federal, are bound by the United
States Constitution and the United States Supreme Court is
the final arbiter of federal constitutional matters.

State courts may hear questions of both state law and

federal law. A state court may consider federal law when the
litigants raise a federal issue in addition to a state issue.
State courts may also decide suits that raise issues of law
from other states. These determinations are never binding
on the other state’s judiciary or the federal court because
the deciding court sits in a different jurisdiction.

Federal courts may decide cases that raise federal or state

issues. Federal issues arise under federal case law, federal
statutes, federal regulations, treaties, or the United States
Constitution. A federal district court, the trial court of the
federal judiciary, has jurisdiction to hear state issues when
the dispute is between citizens of different states and the
amount of the claim exceeds $75,000.

In some situations, a federal court is bound by a state

court’s ruling. Suppose a federal court is asked to resolve a
state issue. The federal court would defer to the state court’s
determination of the issue and not decide the issue on its
own. This deference recognizes that state courts are better
positioned to resolve state matters.

In other situations, a case is brought before a federal court

that raises a state issue, but no precedent exists from that
state’s courts to guide the federal court’s opinion. Perhaps
the case is one of first impression or has not been
conclusively decided by the state court. In these situations,
the federal court either stands in the shoes of that state’s
court of last resort and decides the matter by interpreting
state law, or certifies the issue to the state’s highest court of
appeals.
 Certification, a procedure allowed only by authority of
state law, allows a federal court to refer a state issue
originally brought in federal court to that state’s court of last
resort. The state court may then conclusively decide the
matter. The federal court is bound by the state court’s
determination of the state issue. The federal decision
ultimately reached is authority for the federal court, but is
not binding authority for state cases, even if a subsequent
state case involves identical facts under the same law as the
prior federal case. Why? The federal court and state court
are independent judiciaries. Federal decisions on state law
do not override decisions of a state’s court of last resort.
Analogous federal decisions may have persuasive impact on
the state court, but are not binding.
 E. Types of Authority
An authority refers to any cited source courts and
attorneys use to oppose or support a legal proposition.
Several different types of authority exist, such as cases,
statutes, regulations, law review articles, legal
encyclopedias, and legal newspapers. An authority can refer
to either a source that is binding on a court or a source that
merely persuades the court to rule in a particular way.
Generally, courts and lawyers divide authorities into two
groups: primary authority and secondary authority.

Primary authority is any source of law. Examples of primary

authority include case law, statutes, or constitutions. Sources
other than the law are secondary authority. Secondary
authority is any source that comments on or editorializes
about the law. Law reviews, legal treatises, newspapers, and
legal encyclopedias are all examples of secondary authority.

The type of authority determines whether a source must

be followed, or whether it merely serves to guide the court.
Secondary authority is never binding on a court; it is only
persuasive. Remember, it is not the law.

Primary authority, however, can be either binding or

persuasive authority. Primary binding authority is any source
of law that a court must follow. Primary binding authority
includes any statute, regulation, constitution, or ordinance
enacted in the jurisdiction, or case law rendered by the
court-of-last resort in the jurisdiction. For example, a
California trial court considering a state issue is bound by
case law rendered by the California Supreme Court,
California statutes, and the California Constitution. Primary
authority from other jurisdictions is merely persuasive.
 Primary persuasive authority is law that is not binding on a
court. Primary persuasive authority can include statutes and
case law from other jurisdictions. For example, a California
court may look to a Nevada case for guidance, but that
decision is not binding on the California court, it is only
persuasive.

Persuasive authority includes primary persuasive authority,

law that is not binding on a court and all secondary authority.
Not all persuasive authority, however, has equal weight.
Some sources are more compelling than others. Primary
persuasive authority is generally more persuasive than
secondary authority because primary authority is the law as
opposed to a comment or opinion on the law. Even
persuasive material derived from the same or similar source
can have different persuasive value. For example, an article
written by the seminal authority on property law would likely
be more convincing to a judge than an article written by a
lesser known scholar or a student. Keep in mind this simple
rule—the more legally authoritative the source, the more
persuasive the authority.

Consider the following sources used to support an

argument before a state trial court:

An article from a legal newspaper;

An article from a prestigious law review;
An opinion from a federal court of appeals;
An opinion from the court of last resort in another
state.

All of the authorities are persuasive authorities and not

binding. Of the sources listed above, an opinion from the
court of last resort of another state would likely rank as
“most persuasive,” followed closely by an opinion from a
federal court of appeals. The state court’s opinion was
rendered by the court of last resort in that jurisdiction, not an
intermediate appellate court. A federal court of appeals
opinion and an opinion rendered by the highest court of
another jurisdiction are more authoritative than the other
sources and more persuasive because they are law. Opinions
from any court usually outrank authority derived from
articles or books that merely comment on the law. The law
review ranks third, followed by the legal newspaper. The law
review article, a scholarly commentary on the law, is more
authoritative than an article merely reporting on the law.

The persuasive weight of an opinion rendered by another

jurisdiction sometimes depends on how that court reached
its decision. Was the persuasive opinion a unanimous
decision of the court? A split decision? A court sitting en
banc? Was a dissenting or concurring opinion included? Are
you citing to that part of an opinion that bears directly on the
relevant issues in dispute, or are you citing to dicta, the part
of the opinion that was not necessary to the court’s holding?

Suppose you are researching a legal issue and find three

cases from another state’s court of last resort that support
your legal position. One decision consists of an opinion that
includes a concurring opinion joined by two justices, and the
proposition of law you need is found in the concurring
opinion. The second decision is a unanimous opinion of the
court. The third opinion consists of a majority opinion and a
dissenting opinion filed by one judge, but the proposition of
law you need is found in the dissenting opinion. How would
you rank the persuasive weight of these authorities?

The unanimous opinion would likely rank as “most

persuasive” because it represents the agreement of the
entire bench on the resolution of the issue. The weight of the
other two opinions is less clear. Their persuasive weight
depends on the nature of the case decided and the language
of the opinions filed. With that said, the concurring opinion
would likely rank as “more persuasive” than the dissenting
opinion because the concurrence agreed with the majority’s
holding albeit for different reasons. The dissenting opinion in
the third case would likely rank as “least persuasive”
because a dissent does not represent the law and is akin to
secondary authority.

Some measure of experience is required before an

attorney or student is able to accurately identify and weigh
the various authorities. Sometimes the difference between
authorities is quite subtle. Distinguishing between
persuasive and binding sources and the relative weight of
persuasive sources, however, is only one part of legal
analysis. The challenge lies in crafting a meaningful way to
incorporate the authority into cogent, persuasive, and well-
reasoned analysis.
 Practice Exercises
Complete the following exercises to reinforce your
understanding of this chapter.

1. What are two sources of law in the American legal

system?
2. Discuss the purposes behind stare decisis.
3. Consider the following questions about the court
systems:
a. What are the three levels of courts that exist in the
hierarchy of the federal court system?

b. What are the three levels of courts that exist in the

hierarchy of most state court systems?

4. Answer the following questions about jurisdiction:

a. How do courts determine what law binds them?

b. Why must lawyers consider a court’s jurisdiction?

5. Can a court amend or change language in a statute?

Why or why not?
6. Explain three ways courts make law.
7. A legislator has proposed a bill that prohibits physician-
assisted suicide.
a. What stages must this bill go through before it can be
passed into law?

b. If enacted into law, can a court amend its language?

 8. You are arguing a state issue before a New Mexico trial
court. Which of the following cases are binding on that
court?
a. Decision from the court of last resort in Texas

b. Decision from the court of last resort in New Mexico

c. Decision from the federal circuit court of appeals in

New Mexico

9. Identify whether the following sources are primary or

secondary authority:
a. Statute

b. Case

c. Legal newspaper article

d. Legal encyclopedia article

e. Dicta from a United States Supreme Court opinion

10. You are arguing a case before a North Dakota trial court.
Rank the persuasive weight of the following sources:
a. Law review article written by a law professor

b. Legal newspaper article

c. Decision from the court of last resort in New Jersey

d. Dissenting opinion from the court of last resort in

Indiana
Chapter 2
Rules

OBJECTIVES

WHEN YOU FINISH READING THIS CHAPTER AND COMPLETE THE EXERCISES, YOU WILL BE ABLE TO

IDENTIFY EXPRESSED RULES IN CASES

IDENTIFY IMPLIED RULES IN CASES

UNDERSTAND RULE SYNTHESIS

DISTINGUISH BETWEEN LEGAL TESTS

A rule is a legal principle established by an authoritative

body that proscribes or governs conduct. Rules include law
enacted by legislative bodies such as statutes, treaties,
ordinances, regulations, and constitutions. Rules also include
law derived from judicial opinions, when courts render a
common-law ruling or interpret enacted law. Both enacted
law and case law form the body of law in American
jurisprudence.

When a lawyer first analyzes a client’s case, she typically

applies a rule or rules of law to a set of facts presented by a
client. Through this analysis, the lawyer attempts to predict
how a court or tribunal would likely rule in the matter, and
then, based on that objective analysis, decide how best to
proceed. The rules, and how they apply to a client’s case,
often determine whether a case has merit or not. Identifying
the applicable law or rule, however, can be challenging.
Rules come in a variety of guises. Some rules are enacted by
a legislature, others are rendered by a court, and still others
are promulgated by an administrative or regulatory agency.
Some rules, like statutes, are readily apparent. Other rules,
like some judicial rules, are not so obvious.
 A. Enacted Law
Enacted laws are rules established by an authoritative act
of a legislative body. Both state and federal constitutions
govern how the legislative branch makes law. The enactment
of a law typically requires both bicameralism and
presentment. Bicameralism requires both chambers of a
legislature to pass the same bill. In the federal legislative
model, for example, both the House of Representatives and
the Senate must each pass an identical bill. The presentment
requirement commands the legislature to present the bill to
the chief executive for his or her approval or veto. If both
constitutional requirements are satisfied and the chief
executive approves the law, then the bill becomes law.

The resulting law or statute is binding on all legal entities

within the jurisdictional reach of the legislature. A state
statute governs within the state’s borders, and a federal
statute governs the nation. If both a state statute and a
federal statute cover the same subject matter, the federal
statute may preempt the state statute if the subject matter
is of national, as opposed to local, importance. Once
enacted, the language of a statute is immutable; it can be
amended only through another act of a legislature. Courts,
then, are constitutionally prohibited from changing or
amending statutory text—courts cannot “legislate from the
bench.” Courts, however, can and do interpret statutory
language, particularly when the language in a statute is
ambiguous or vague, and the court must construe the
language in order to resolve a legal dispute.

Another form of enacted law is regulatory or administrative

law. Both state and federal legislatures enact statutes that
create administrative or regulatory agencies. These statutes
define the goals and purposes of the agency and may
authorize the agency to promulgate rules or regulations to
effectuate the purposes of the statutory grant. As such,
some state and federal agencies act as quasi-legislatures
and promulgate regulations that carry the same force as
legislatively enacted law. For example, in 1970 the federal
Occupational Safety and Health Act authorized the creation
of the Occupational Safety and Health Administration (OSHA)
to prevent work-related injuries or death. OSHA promulgates
and enforces rules on workplace health and safety that
almost all employers in the United States must obey.

All enacted laws share two common and important

characteristics. First, enacted law is promulgated only by an
authorized legislative body. Courts and other judicial
tribunals cannot enact law. Second, enacted law is
immutable. Once properly enacted, a court cannot change or
alter an enacted law. And while the United States Supreme
Court is entitled to exercise judicial review—the power to
strike down laws that violate the Constitution—the Court
cannot amend statutory language by fiat. Both state and
federal courts, however, may interpret or construe
ambiguous or vague language in a statute or regulation to
resolve a legal dispute. A court’s interpretation of an
ambiguous word or phrase in a statute or regulation is not
enacted law, but it is law nonetheless—case law.
 B. Case Law

A published case is an important source of rules. A case is

a judicial proceeding between parties. A published case is a
written statement by a court explaining how it reached its
decision, which is published in a case reporter. While courts
do not adhere to a set format when drafting opinions, a
judicial opinion typically consists of seven component parts:
the procedural history of the case, the factual circumstances
surrounding the case, the issue(s) in contest, the holding of
the court, the rules employed by the court to decide the
matter, the court’s reasons to support its holding, and the
court’s disposition of the case.

The procedural history of a case traces the treatment of

the case as it worked its way through the court system. The
facts consist of all the legally significant events or things that
relate to the ultimate resolution of the matter before the
court. The issue is the legal question(s) that the court is
asked to resolve. The holding answers the question(s)
presented to the court. The rules are the principles of law
employed or adopted to resolve the issue. The reasoning
explains how the court reached its decision. Finally, the
disposition is the ultimate settlement of the matter.
 Rules in cases can be either express or implied. An
expressed rule is clear and manifest in the body of the
opinion. An implied rule is not articulated in the body of the
opinion.

1. Express Rules

In some opinions, the court clearly expresses the relevant

rules. Perhaps the issue raised in the opinion involved
enacted law or a settled common-law principle. The court
may also expressly articulate a rule that resolves ambiguous
language in a statute or a rule that alters or informs an
existing common-law principle. While not necessarily flagged
as “rules” within the narrative of the opinion, expressed rules
will describe a principle of law employed or adopted by the
court to resolve the legal issue. Because expressed rules are
clear and manifest in the body of the opinion, they generally
are obvious and easy to identify. For example, consider the
following opinion:

The issue before us today is whether the city police

entrapped the defendant, John Hooks, into
committing the crime charged. On October 6, 2007,
an undercover officer from City Police Department
approached the defendant on Main Street and
offered to purchase a quantity of cocaine
hydrochloride. According to the trial transcript, the
undercover officer found the defendant waiting
outside a local bar. The officer approached the
defendant and said, “I’m interested in purchasing
powder cocaine. Can you help me?” The defendant
immediately reached into his coat pocket and
produced a clear plastic bag containing a white
powder. The defendant then said, “OK. Two thousand
dollars.” The officer handed the defendant twenty
$100 bills and accepted the plastic bag in exchange
for the cash. The officer then placed the defendant
under arrest for the possession and sale of a
 controlled substance in violation of state laws
18.4.1(b) and 18.4.2(c)(1). At trial, the defendant
asked the trial court judge to instruct the jury on the
defense of entrapment. The trial judge refused the
instruction, ruling that the evidence presented at
trial failed to show that the police officer induced the
defendant to commit the crime. The jury returned a
guilty verdict, and the trial court judge sentenced the
defendant to eighteen months in the state
penitentiary.
The trial court judge correctly declined to instruct
the jury on the entrapment defense. State Statute
14.3.4 allows a defendant to argue that police
entrapped him into committing the crime or crimes
charged in an indictment. State Code 14.3.4 (2005).
The statute states, in relevant part, “if a state actor
induces another to commit a crime that he was not
predisposed to commit, the defendant may aver the
absolute defense of criminal entrapment.” Id. This
court, in State v. Elliott, explained that “police must
do more than merely solicit a defendant to commit a
crime to allow a defendant to raise the entrapment
defense.” State v. Elliott, 45 State 456, 462 (1998).
In this case, the undercover officer merely requested
that the defendant help him to procure cocaine. This
lone request is insufficient to support the entrapment
defense. We affirm the decision of the trial court.

In this case, the court relied on both enacted law and case
law in its opinion. First, the court described the relevant state
statute on the defense of entrapment. The court then cited
to an earlier precedent, the Elliott case, that announced a
rule to determine when a state actor induces another to
commit a crime. Both rules were apparent from the opinion
and are thus expressed rules. The difficulty, however, lies in
identifying rules of law that are not expressed clearly in an
opinion.

2. Implied Rules
Unlike expressed rules, implied rules are unspoken or
unexpressed principles of law employed by a court to resolve
a legal issue. These rules are embedded within the body of
the opinion but are not articulated. Enacted laws or laws
established by an authoritative act of a legislative body
rarely are unexpressed. Similarly, established common-law
doctrines usually are fully expressed in an opinion.
Sometimes, however, a court neglects to articulate a rule
that is important to the resolution of a case. Perhaps the
court did not consider the rule important enough to warrant
full expression. Whatever the reason, an unexpressed rule
can have the same authoritative weight as an expressed
rule. Therefore, lawyers must learn to extract these rules
from an opinion.

Identifying unexpressed rules in an opinion requires some

measure of intellectual flexibility and creativity. Because the
rule is implied and not expressed, lawyers must extrapolate
the missing legal principle from the expressed parts of an
opinion. For example, suppose you are invited to a friend’s
house for dinner. As you approach the front door to her
house, you observe six pairs of shoes lined up to the side of
the front door. When your friend opens the door to invite you
inside, you observe that the host and the other invited
guests are not wearing shoes. You quickly surmise that shoes
are not allowed inside the house. The “no shoes” rule is an
unexpressed rule that you were able to induce from the
surrounding circumstances. The same type of intellectual
analysis is required to extrapolate unexpressed rules from
judicial opinions. Consider the following case:
 The defendant, Jane Michaels, appeals her
conviction in the state trial court for the possession
of a controlled substance in violation of state law
18.4.1(b). The defendant argues that the trial court
erred when it refused to instruct the jury on the
defense of entrapment. On August 18, 2007, an
undercover police officer posing as a drug dealer
approached the defendant outside of the Quickie
Food Mart on Main Street. The officer brandished his
revolver, waived it in her face, and asked the
defendant if she wanted to purchase marijuana. At
trial, the officer testified that he was “in character”
and brandished his gun to establish street credibility
with the defendant. The defendant purchased a
quantity of marijuana from the officer and was
arrested. At trial, the defendant requested a jury
instruction on the defense of entrapment, but the
trial court denied that request. The jury returned a
verdict of guilty, and the trial court judge sentenced
the defendant to one month in the county
correctional facility.
The trial court judge erred when she declined to
instruct the jury on the entrapment defense. State
Statute 14.3.4 allows a defendant to argue that
police entrapped her into committing the crime or
crimes charged in an indictment. State Code 14.3.4
(2005). The statute states, in relevant part, “if a
state actor induces another to commit a crime that
he was not predisposed to commit, the defendant
may aver the absolute defense of criminal
entrapment. The burden is on the defendant to prove
that the state actor did induce the crime.” Id. This
court, in State v. Elliott, explained that “police must
do more than merely solicit a defendant to commit a
crime to allow a defendant to raise the entrapment
 defense.” State v. Elliott, 45 State 456, 462 (1998).
In this case, the undercover officer brandished his
weapon when he asked the defendant to purchase
drugs. But for the gun, the defendant may not have
committed the crime. Therefore, the trial court
should have allowed the jury to consider whether the
officer entrapped the defendant. We reverse the
decision of the trial court and remand for further
proceedings consistent with this opinion.

In this case, like the previous case, the court relied on an

expressed statute and an expressed case rule in its opinion.
But, the court also relied on an unexpressed rule of law to
reach its conclusion. The issue before the court involved the
construction of the term “induces” in the state statute.
According to the statute and the Elliott case, if a defendant
satisfies his burden of proof to show that the police induced
him to commit the crime, the defendant may properly raise
the entrapment defense. The court in this case was asked to
resolve whether the defendant met her burden. The court
concluded that she had. But how? What unexpressed rule of
law did the court apply to the facts of the case to determine
that the police officer may have induced the crime? Like the
“no shoes” rule, the trick is to think through the expressed
portions of the opinion and extrapolate a rule of law that
fleshes out the court’s holding. Consider the following
unexpressed rules derived from the opinion:

Rule 1: A police officer who brandishes a gun as he

requests another to commit a crime has induced the
crime for the purpose of an entrapment defense.
Rule 2: A state actor who uses coercion to persuade
another to commit a crime has induced the crime for
the purpose of an entrapment defense.
 Rule 3: A police officer who threatens another with
death or serious bodily harm to persuade another to
commit a crime has induced the crime for the
purpose of an entrapment defense.

All three rules fairly express the court’s implied intent to

determine how a state actor unlawfully induces another to
commit a crime. The first rule narrowly tracks the facts of the
case. This rule, however, may be too narrowly focused on
the facts. A rule is a general legal principle that a court can
apply in future cases to resolve the issues presented.
Because the first rule is tailored to fit the facts of one case,
its applicability to future cases is questionable. The rule
could be applied only to future cases where a police officer
brandishes a gun as he requests another to commit a crime.

The second rule is broader than the first but perhaps too
broad. It merely requires a state actor to coerce another to
commit a crime. Should this rule apply, all a defendant would
need to prove is some measure of police coercion, no matter
how slight, to raise the entrapment defense. This rule would
likely broaden entrapment beyond its intended scope. The
rule also fails to consider a key portion of the case where the
court opined that “[b]ut for the gun, the defendant may not
have committed the crime.” While the court failed to explain
the significance of the gun, it is fair to extrapolate that the
court believed that the threat of a gun could coerce a
defendant into committing a crime.

The third rule strikes a balance between rules one and two
by focusing on the significance of the gun without too
narrowly focusing on the facts of the case. Under rule three,
a police officer who threatens another with death or serious
harm to commit a crime induces the crime. This rule fairly
gauges the implied meaning of the court without broadening
the scope of entrapment beyond its intended limit. The rule
can also be applied to later analogous cases because it is not
too factually limited in scope. Because the rule focuses on
the implied significance of the brandished weapon and not
the weapon itself, it could serve as a useful unexpressed rule
of law.

To ensure that the rule is credible and fairly represents the

meaning of the court, lawyers test the rule in other prior
analogous cases. Here, lawyers apply the unexpressed rule
to similar prior cases and determine whether the rule could
serve as the unexpressed statement of law from the body of
cases on point in a jurisdiction. In our example, a lawyer
would apply rule three to all like previous cases on
entrapment in her jurisdiction. If the rule works in analogous
cases because it fairly represents the unexpressed meaning
of the opinions, then the rule is credible and could be applied
to resolve future cases.

Unexpressed rules share two important characteristics.

First, they are never enacted. A court will almost always fully
express enacted law in an opinion. Second, unexpressed
rules are mutable. Because these rules describe the
unexpressed legal significance of a court’s holding, lawyers
are free to extrapolate the language the court could have
expressed had it chosen to fully express the rule. So long as
the rule fairly expresses the court’s implied meaning and so
long as a lawyer cites to the originating opinion(s) to
establish the authority and credibility of the rule, a lawyer
can use the implied rule to the same extent as an expressed
rule.

3. Rule Synthesis
As we have seen, some opinions reach a conclusion
without expressly articulating a rule of law. In other
instances, courts express a rule but not fully. In still other
cases, a court will express a piece of a rule but other
opinions are needed to complete the legal thought. Rule
synthesis is a process that describes a complete expressed
or unexpressed rule from its component parts. Using rule
synthesis, lawyers synthesize a rule of law that incorporates
the rules of several cases.

Synthesizing a rule requires extrapolating expressed or

unexpressed rules from the various cases and constructing a
single legal expression that covers the area. Similar to a
single unexpressed rule, identifying a synthesized rule
requires some measure of intellectual flexibility and
creativity. The idea is to build a holistic rule from its
component parts or cases. Consider the following cases:

Case 1: The defendant spray-painted an obscene

message on a public sidewalk. Held: The defendant
is not guilty of felony mischief. Felony mischief
requires a defendant to destroy private not public
property.
Case 2: The defendant destroyed his neighbor’s
mailbox after his neighbor blocked his driveway.
Held: The defendant is guilty of felony mischief.
Case 3: The defendant accidentally destroyed his
neighbor’s rose bush when the defendant installed a
pool in his backyard. Held: The defendant is not
guilty of felony mischief.
Case 4: The defendant intentionally ran over his
mother-in-law’s lawn statue, after she refused to loan
him money. Held: The defendant is guilty of felony
mischief.
Case 5: After learning that his neighbor flirted with
his wife, the defendant threw a rock at his window. It
 missed. Held: The defendant is not guilty of felony
mischief.
Case 6: The defendant had a fight with her
roommate. She thought she destroyed her
roommate’s stereo, but it actually belonged to her.
Held: The defendant is not guilty of felony mischief.

Each of these six cases deals with the crime of felony

mischief. But, only Case 1 offers expressed rules. Case 1
explains that a defendant must (1) destroy (2) private but
not public property. To fully express the crime of felony
mischief, we must synthesize the full rule from the remaining
cases. In Case 2, the defendant destroyed private property
and therefore satisfies the rules expressed in Case 1. But,
Case 2 also suggests that the defendant must act with ill will
or malice, because the opinion included the fact that the
defendant acted after the neighbor blocked his driveway.
Case 3 adds credence to our “malice” rule because that
court refused to convict a defendant who unintentionally
destroyed his neighbor’s rosebush. Case 4 appears to
corroborate the “malice” rule in Case 2 because that opinion
suggests that the defendant destroyed his mother-in-law’s
statue after she refused to loan him money. Case 5 suggests
that a defendant must actually destroy property—a failed
attempt is not felony mischief. Finally, Case 6 further refines
the unexpressed rule in Case 5 and suggests that a
defendant must actually destroy property that belongs to
another. By analyzing each separate opinion, we can
construct a full rule from both its expressed and unexpressed
parts. Taken together, a defendant commits felony mischief
when he destroys with malice the private property of
another.

Then, to test the rule’s credibility, a lawyer would apply the

synthesized rule to each of the separate opinions she used
to construct the rule as well as to any other case on point. If
the synthesized rule works in analogous cases, then it fairly
represents the holistic legal thought of the court. Without
synthesizing the full legal expression from all the applicable
authority, a lawyer would not fully understand the
sometimes unexpressed parameters of a legal doctrine—a
serious error.
 C. Tests
A court will sometimes refer to a legal rule or principle as a
“test.” A test is an inquiry that determines whether a party
has satisfied her burden of proof to support or defend
against a cause-of-action or criminal charge. Rules are
framed in several different types of tests, including the
element test, the balancing test, and the totality of the
circumstances test. Some tests include various parts or sub-
parts, such as elements or factors. Elements are separate
requirements of a test that a party must satisfy to meet her
burden of proof. Factors, in contrast, are considerations that
guide the court. Every factor need not weigh in favor of a
party, so long as some factors do weigh in favor of a party.

1. Element Test
One type of test, the element test, is an inquiry that
requires the court to consider several parts or subparts of a
rule in order to satisfy the whole. Courts sometimes refer to
these parts as elements. A party must satisfy each element
to meet her burden of proof. For example, to commit the
crime of burglary, the prosecution must prove that a
defendant broke and entered a dwelling at night with the
intent to commit a felony therein. This element test has four
sub-parts or elements. A defendant must (1) break and enter
(2) a dwelling (3) at night (4) with the intent to commit a
felony therein. A court can only convict the defendant if the
prosecution meets its burden on all four parts.

2. Balancing Test
A balancing test is another type of legal inquiry. A
balancing test consists of several factors that a court will
weigh to reach its conclusion. In a balancing test, a court will
balance several considerations, looking at the quality or
quantity of evidence supporting each. A very strong showing
of one factor may lessen the importance of the other
factor(s). Consider the following example:

Suppose a criminal defendant claimed the government

violated her right to a speedy trial under the Sixth
Amendment of the United States Constitution. When
considering this claim, a federal trial court will balance four
factors: (1) the length of the delay, (2) the reason for the
delay, (3) the defendant’s assertion of her right to a speedy
trial, and (4) the prejudice that the defendant suffers due to
the delay. The court must weigh all of these factors to
determine the outcome of the case. But a stronger showing
on one or more of the factors could outweigh a weaker
showing on the other factors.

3. Totality of the Circumstances Test

A totality of the circumstances test is another legal inquiry
that courts use to determine the outcome of cases. Unlike an
element test or a balancing test that have a set number of
sub-parts, a totality of the circumstances test requires the
court to consider all of the relevant circumstances of a
particular case and not any one circumstance. Unlike the
balancing test and the element test, which provide a specific
framework for the analysis, the totality of the circumstances
test loosely frames the analysis by indicating the scope of
the court’s consideration.

Consider the following totality of the circumstances test:

A law states that criminal defendants’ confessions are

admissible only if they are voluntary and not coerced. To
determine whether a defendant’s confession is voluntary,
courts apply a totality of the circumstances test. The court
considers the totality of all the circumstances surrounding
the confession, not merely one isolated component. For
instance, the court may consider circumstances regarding
the confession, such as the mental state of the defendant
when he confessed, the demeanor of the officers, or whether
the defendant was denied food, sleep, or counsel. Thus, the
analysis is broadly framed by including all the circumstances
surrounding the confession.
 Practice Exercises
Complete the following exercises to reinforce your
understanding of this chapter.

1. How do attorneys identify rules in cases?

2. How does a rule frame legal analysis?
3. Answer the following questions:
a. Name one type of legal test.

b. Explain the test you have identified in part (a).

4. What is the difference between an element and a factor?

5. Identify the rule in the following opinion.
Naomi owned several acres of land. She prided herself
on her beautiful gardens. Periodically, intruders would
enter her property and ruin her gardens. Naomi decided
to take action in order to protect her property. She built
an electrified fence around her land. One night, Ariel
attempted to enter Naomi’s land. He tried to climb over
the electric fence and suffered a severe electric shock.
Ariel was hospitalized for his injuries and may die. He is
now suing Naomi for battery. This court must decide
whether Naomi has a defense to the battery claim.

Held: Naomi is liable for battery. Naomi did not use

reasonable force in this case to protect her property.
Ariel’s invasion of property did not threaten harm to any
person, yet Naomi used excessive force causing serious
bodily harm or death. Naomi’s use of force to defend her
property was inappropriate.

6. Identify the rule of law in the following opinion.

 On his sixteenth birthday, John agreed to sell his
bicycle to Ms. Lupo for one hundred dollars. Two weeks
later, John decided to keep his bicycle and would not sell
it to Ms. Lupo. Ms. Lupo sued. We hold that John did not
breach the contract. Children eighteen years or younger
cannot be held responsible for any contract they enter
into. They are too young to appreciate the magnitude of
a contractual promise.

7. Synthesize a rule for trespass from the following cases.

Case 1: The defendant entered the plaintiff’s land. The
defendant did not know the plaintiff owned the land.
Held: The defendant is liable for trespass.

Case 2: The defendant was pushed onto the plaintiff’s

land. Held: The defendant is not liable for trespass.

Case 3: The plaintiff invited defendant to enter her land.

Held: The defendant is not liable for trespass.

8. Synthesize a rule for the crime of conspiracy from the

following cases:
Case 1: The defendant and Todd agreed to commit a
crime on the following evening. Held: The defendant
entered into a conspiracy.

Case 2: The defendant agreed to help Shelly commit a

crime on the following evening, but the defendant
thought Shelly was joking. Held: The defendant did not
enter into a conspiracy.

Case 3: Daniel agreed to help Paul commit a crime on

the following evening. Paul was an undercover police
officer who never intended to complete the crime. Held:
Paul did not enter into a conspiracy.
 9. Suppose a law exists that requires courts to consider
several factors when determining the amount and
duration of alimony. These factors include:
• the standard of living of the parties during the
marriage;

• earning potential of the spouses;

• contributions of spouses during marriage;

• length of marriage;

• income and assets of each spouse; and

• age and health of spouses.

You represent a client in a divorce action who is

seeking alimony from her husband. A number of months
before the divorce action, she discovered her husband’s
infidelity. She and her husband have been married for
twenty years. Your client is fifty-five years old. Her
husband is fifty-three years old and a college-educated
accountant. Your client was a homemaker and never
worked outside the home. The couple enjoyed a middle-
class lifestyle. Your client has a high-school education.
You seek to persuade the court to award your client
alimony.

Using the law articulated above, how would a lawyer

organize and frame an analysis of whether a court will
award her client alimony?

10. Consider the following problem:

Your client has a fatal disease that is highly contagious
and was warned about the different ways this disease
can be transmitted. One way the disease could be
 transmitted is when bodily fluids of the infected person
mix with bodily fluids of another. The more your client
struggled with his illness, the more bitter he became. He
felt that he was a good person and it was unfair that he
should be struck with a fatal disease. He vowed that he
would not die quietly and that somehow he would get
revenge. One day, your client was walking down the
street. A man pushed your client aside and continued
walking. Your client became angry and confronted the
man. They began to fight. Your client bit the man’s hand.
As a result, your client transmitted his fatal disease to
the man. The man subsequently died.

Your client has been charged with murder. Murder is

defined as the unlawful killing of a person with malice
aforethought. Malice aforethought can be shown by
demonstrating: (1) a specific intent to kill, (2) a specific
intent to cause grievous bodily injury, or (3) in
circumstances known to the defendant, a reasonable
person would have known there was a substantial
likelihood that death would result. Explain how you would
frame the analysis of your client’s case.

11. The test used to establish undue influence consists of

three elements: (1) the existence of influence, (2) the
exertion of influence that resulted in corrupting the mind
of the deceased, and (3) the provisions at issue in a will
would not have been drafted but for the influence. The
plaintiff’s brother inherited the bulk of their mother’s
estate through her will. The plaintiff claims her brother
unduly influenced their mother.
How will the test for undue influence frame your
analysis of this legal problem?
Chapter 3
Inductive Analysis and Analogical Reasoning

OBJECTIVES

WHEN YOU FINISH READING THIS CHAPTER AND COMPLETE THE EXERCISES, YOU WILL BE ABLE TO

UNDERSTAND ANALOGICAL REASONING

IDENTIFY CRITICAL FACTS

UNDERSTAND CASE SYNTHESIS

UNDERSTAND THE STRUCTURE OF AN ANALOGICAL ARGUMENT

APPLY NARROW ANALOGIES

APPLY BROAD ANALOGIES

The unique way a lawyer analyzes legal problems has

developed over many years in many courts. While seemingly
combative and argumentative, legal argument requires
careful analysis of a client’s case and the controlling
authority. Measured reason, creativity, and dispassionate
logic are far more important than courtroom drama or a
“smoking gun.”

This chapter discusses one form of analysis—inductive

analysis or analogical reasoning. Inductive analysis allows a
lawyer to induce a conclusion by establishing a legal analogy
between the key facts in the controlling cases and the facts
in the client’s case. Also called reasoning by analogy,
inductive analysis focuses on the material facts of the
controlling case law. Generally, reasoning by analogy
includes two types of analyses: the narrow analogy and the
broad analogy. Narrow analogies focus on direct fact
comparisons between the controlling authority and the
client’s case. Broad analogies focus on the common
significance of the material facts in a variety of cases and
how they compare to the facts in a client’s case. The nature
of the action, the complexity of the issues involved, the
number of controlling cases, and the facts all help to
determine which analogical strategy is best suited to a
particular case.
 A. Analogical Reasoning
Analogical analysis focuses on fact analogies. An analogy
is an inference that if two or more facts or characteristics are
similar in one respect, then they will be similar in other
respects. A legal analogy is an inference that if the
determinative facts in the controlling authority are similar to
the determinative facts in the client’s case, then the holdings
or legal conclusions ought to be similar.

Analogy: a logical inference that if two or more things are

similar in some respects, they will be similar in other
respects.

Legal Analogy: a logical inference that if two or more cases

in the same jurisdiction are similar with respect to facts and
legal issues, they will be similar with respect to their
holdings.

Analogical analysis is grounded in the fundamental

principles discussed in chapter 1. Chapter 1 explored
precedent and stare decisis. Under stare decisis, once a
court decides how a legal principle ought to be applied to a
set of facts in a particular case, that resolution or holding
ought to be repeated in subsequent like cases. Hence, a
court must look to prior cases when deciding cases before it.
A legal analogy contends that if the key facts found in a
precedent and the key facts in your case are similar, and the
legal issues addressed in both are the same, then the court
should rule similarly in both cases or risk violating stare
decisis. In cases where the facts of a controlling case and
your case are not readily comparable or are dissimilar, the
analogy contends that the court is not required to adhere to
stare decisis and need not rule similarly in both cases.
 While a court is free to ignore controlling authority and
disregard stare decisis, a party aggrieved by the court’s
failure to apply controlling authority could appeal to a higher
court to challenge the lower court’s ruling. All jurisdictions
have a court of appeals charged with correcting errors made
by lower courts. An appellate court has jurisdiction to
consider whether a lower court failed to apply the correct law
in a case before it. If an appellate court decides that the
lower court failed to apply the controlling precedent and the
appellate court finds no good reason to change the law, then
the appellate court could “correct the error” and reverse the
lower court’s ruling. As such, courts are inclined to follow
precedent and will disregard precedent only if they have
very good reasons to support the change.

1. The Three Triggers: Jurisdiction—Legal Issue

—Facts
In order for a court to honor stare decisis, a lawyer must
establish three criteria. First, a lawyer must demonstrate that
the court is bound to follow a prior decision because the
court sits in the same jurisdiction, or line of appeal, as the
court that decided the earlier case. A party can proceed up
the line of appeal so long as the higher court has jurisdiction
to hear the case. As you recall, a court is only bound to
follow precedent decided by a court in the line of appeal.
Otherwise, the case is not controlling but is merely
persuasive. A lawyer demonstrates that a case is controlling
when she cites to that authority. A case citation includes
information about the court that decided the earlier case. For
example, if a lawyer tries a case in an Ohio state trial court,
and she cites to an opinion from the Supreme Court of Ohio,
Smith v. Johnson, 134 N.E.2d 234, 243 (Ohio 1996), she is
purporting to establish the Smith case as controlling
authority on the trial court.
 Second, a lawyer must demonstrate that the legal issue
decided in the earlier case is the same legal issue raised in
the case-at-bar. Stare decisis applies only when the legal
issue in both the precedent and case-at-bar are identical. If
the legal issue decided in the earlier case is similar to but
not the same as the issue raised in the case-at-bar, then the
prior case is merely persuasive and not controlling. For
example, suppose a lawsuit asks a Tennessee trial court to
construe the term “part-time employee” in a state
unemployment compensation statute. The lawyer cites to a
Tennessee Supreme Court opinion that defined the exact
term, but in the context of a state income tax statute, not in
the context of the state unemployment compensation
statute. That case, then, would not trigger stare decisis
because the legal issue is not the same as the issue raised in
the case-at-bar. The case is persuasive but not controlling.

Third, a lawyer must demonstrate that the facts in the

case-at-bar are the same or similar to the facts in the
controlling authority. Here, the determinative facts in the
controlling authority must be legally analogous to the
determinative facts in the case-at-bar. Facts are legally
analogous if they share a common trait, characteristic, or
quality. For example, if a lawyer finds a case in Tennessee
that analyzes when a full-time employee qualifies for state
unemployment compensation, that case could not be
controlling because the determinative facts are different. The
determinative fact in the case-at-bar is that the employee
was part-time, not full-time. The prior case could serve as
valuable persuasive authority, but a Tennessee court is not
bound to follow it because the critical facts are not
analogous.

2. The Analogical Model

 If all three triggers are met, then a lawyer employs an
analogy to argue that a prior case is or is not controlling. To
establish that a case is controlling, the lawyer argues that
the case was decided in the same jurisdiction, raised the
same legal issue, and shares the same or similar facts as the
case-at-bar. Stated above, an analogy is an inference that if
two or more things are similar in one respect, they will be
similar in other respects. A legal analogy is an inference that
if controlling case law and the case-at-bar share the same or
similar facts on the same legal issue and are located in the
same jurisdiction, the court hearing the present case ought
to hold similarly as the controlling case law. The hearing
court ought to hold in the same way as the earlier court or
risk violating stare decisis. Conversely, a lawyer could argue
that a prior case is not controlling because one of the three
triggers is absent and thus the court is not bound by stare
decisis.

Consider the following example. In order to constitute

common-law battery, a defendant must unlawfully touch a
plaintiff. Suppose the senior partner of your firm asked you
to determine whether a defendant committed a battery
against your client when the defendant hit your client with
his umbrella, causing injury. After a careful review of the
applicable case law in your jurisdiction, you discover one
case that is “on-point” or dispositive of your legal issue, the
Cane case. In that case, the court ruled in favor of the
plaintiff and held that when the defendant hit the plaintiff
with a cane, she “touched” the plaintiff for the purposes of
common-law battery. The Cane court reasoned that the
defendant was liable even though the defendant never
touched the plaintiff with her person, but with an
instrumentality that was within her control.

The Cane case is relevant because that court considered

common-law battery, the same issue raised in your case.
The court held in favor of the plaintiff, a result you want. In
addition, the reasoning of the Cane opinion is applicable to
your facts. That court reasoned that a cane was an
instrumentality within the control of the defendant. The cane
satisfied the touching requirement of common-law battery,
although the defendant never touched the plaintiff with her
person. Your case also involves an instrumentality, and not a
direct touching, so the Cane opinion is applicable to your
case.

Also, the facts of your case lend themselves to a

reasonable fact analogy. An analogy is appropriate in this
scenario because the reasoning of the precedent is
applicable to your issue, and the facts are readily
comparable. A cane and an umbrella share meaningful and
significant attributes. Both objects are an extension of the
bearer’s arm and within his direct control. If you can
persuade the court that the reasoning of Cane is applicable
to your case, and the facts in the Cane case are similar to
the facts in your case, then under stare decisis, that court
should rule in your favor because the two cases are legally
analogous.

Bear in mind that a precedent is a double-edged sword.

Both a plaintiff and a defendant can use the same case,
employ an analogy, and reach dramatically different
conclusions. If the precedent’s holding is favorable to a
client’s legal position, then the lawyer aims to draw a
positive analogy between the facts in the precedent and the
facts in the case-at-bar. Conversely, if the holding harms a
client’s position, then the lawyer attempts to draw a
distinction between the facts in the precedent and the facts
in the case-at-bar. Both sides try to persuade the court that
their position is more persuasive and better supported by the
case law. The lawyer who presents the more significant
comparison likely prevails. For example, the defendant could
use the Cane case to argue that an umbrella and a cane are
not similar enough to trigger stare decisis. The defendant
could argue that because the facts are not analogous, the
court is not bound to apply stare decisis.

Legal analogies are useful when the facts of the controlling

authority, or the significance of those facts, are comparable
to the case-at-bar. A lawyer makes these determinations on
a case-by-case basis. Successful analogies, however, depend
on two fundamental skills: (1) accurately identifying the
critical facts of the controlling authority and the case-at-bar;
and (2) correctly synthesizing the facts of the cases.

3. Critical Facts
Critical facts are facts from the controlling precedent that a
court found important when it resolved a legal dispute.
Generally, most trials involve the application of law to a set
of facts, and courts apply the law only to the particular facts
before it. A dispute is resolved when the court determines
that a particular result is required under the law and facts of
the case. A lawyer must carefully read cases to identify the
facts that the court needed to reach its final determination of
the matter. Those determinative facts or some characteristic
of those facts can be used to draw a legal analogy between
the controlling case law and a client’s case.

To identify critical facts, a lawyer examines the reasoning

of the controlling cases. The reasoning explains the legal
basis of the court’s decision. In most instances, a lawyer
cannot correctly identify the key facts without first
understanding how the facts relate to the ultimate
disposition of the case. The reasoning of the case determines
which facts are significant and important. Some facts in the
precedent, although seemingly important to the deciding
court, may not be critical facts if they are not germane to the
court’s reasoning.

Consider the following facts:

Daughter Mother Aunt

Suppose a prior court considered whether the words

daughter and mother belonged in the same category and
held that both words did fit in the same category. But what
was the court’s reasoning? Did the court classify the words
together because of the number of syllables in each word, or
perhaps because the words represent the same gender, or
because of some other consideration?

Another court subsequently was asked to determine

whether the word aunt belonged in the same category as
mother and daughter. If the prior court based its reasoning
on the number of syllables in a word, then the word aunt
would not belong in the category. Based on the reasoning of
the prior court, the critical fact in this scenario could be that
a word is multi-syllabic. Unlike the words daughter and
mother, which consist of two syllables, aunt consists of only
one syllable and would not belong in the same category.

If the prior court, however, reasoned that only words that

represent the same gender belong in the category, then the
word aunt would belong. The word aunt would be consistent
with the court’s reasoning. Based on this reasoning, the
critical fact in this scenario is that the words represent the
female gender. Like the words daughter and mother, which
represent females, the word aunt also represents females
and belongs in the category.

The example above illustrates the importance of

identifying the court’s reasoning in order to identify the
critical facts. Although the words mother, daughter, and aunt
could be categorized in at least two ways, by the number of
syllables or by gender, you cannot identify the critical facts
without first understanding the reasoning of the court. The
court’s reasoning determines which facts in a case are
critical or determinative.

Lawyers sometimes attempt to draw analogies to any

similar fact shared by both the precedent and the case-at-
bar. But stare decisis will apply only when a prior case is
legally analogous to the case-at-bar. A case is legally
analogous only when the critical facts or some characteristic
of the critical facts are similar. Drawing a fact comparison
using a non-critical fact by pointing to a random fact
similarity is not a persuasive analogy. Consider the following
arguments derived from the Cane case previously discussed
in this chapter:

Argument 1: Like the defendant in Cane, who

carried liability insurance, the defendant in the
present case also carried liability insurance.
Argument 2: Like the defendant in Cane, who
touched the plaintiff with her cane, the defendant in
the present case touched the plaintiff with his
umbrella.

The first argument is unpersuasive because it compares a

non-critical fact. Whether the defendant in Cane carried
liability insurance had no bearing on the ultimate disposition
of the case regarding whether the defendant committed a
battery. The second argument is persuasive because it does
compare the critical facts of the controlling authority to the
critical facts in the case-at-bar.

Some lawyers may be tempted to compare the holding or

conclusion of a case instead of comparing the critical facts.
This analysis is illogical. A legal analogy compares the facts
of a decided case to the facts of your case. stare decisis is
triggered when the facts are legally analogous. Hence, an
argument should not compare conclusions or holdings;
instead, it should compare facts that compel a holding.

Consider the following arguments derived from the Cane

case:

Argument 1: The Court will likely hold that the

defendant is liable because like the defendant in
Cane, who was liable when she touched the plaintiff
with her cane, the defendant in the present case
touched the plaintiff with his umbrella.
Argument 2: The Court will likely hold in favor of
the plaintiff because like the defendant in Cane who
was liable to the plaintiff, the defendant in the
present case is also liable to the plaintiff.

The second argument is unpersuasive. Instead of

comparing critical facts, it merely requests a particular
result. The lawyer is merely asking the court to find in favor
of the plaintiff because some other case also found in favor
of a plaintiff. The lawyer is not demonstrating any reason
why the court is required, under stare decisis, to follow the
precedent.

The first argument is persuasive. Here, the lawyer

identified the critical fact and compared it to the facts of her
case. The lawyer is arguing that the Cane holding must apply
because the key facts, a cane and an umbrella, are legally
analogous. Therefore, under stare decisis, the court should
find that the defendant is liable to the plaintiff.

Unlike the Cane example, cases rarely turn on one critical

fact derived from one case. Comprehensive analysis requires
an examination of all the critical facts in a case. Courts
usually weigh a variety of sometimes disparate facts when
reaching a decision. Some controlling authority may include
both favorable facts and unfavorable facts. In these
situations, the court may conclude that one fact or a group
of facts outweighs others. Careful and repeated readings of
the cases help a lawyer differentiate highly determinative
facts from less determinative facts in each case.

Moreover, the Cane example analyzed only one case.

Comprehensive legal analysis, however, rarely relies on one
precedent. Often a lawyer analyzes a number of cases,
analogizing to some while distinguishing others. One
technique that allows a lawyer to analyze several cases at
once is called case synthesis. Case synthesis permits a
lawyer to incorporate an entire body of law into a concise
and comprehensive analysis.

4. Case Synthesis
Case synthesis is related to rule synthesis previously
discussed in chapter 2. Both skills require an examination of
the body of case law that addresses a particular issue. Rule
synthesis blends several cases to form one holistic rule. Case
synthesis blends several cases to identify a common factual
denominator among the controlling authority that can serve
as the basis of an analogy.

For many legal issues, a lawyer finds numerous opinions

that are on-point or dispositive of a legal issue. While the
number of cases may seem overwhelming, case synthesis is
an effective tool that allows a lawyer to integrate a large
body of case law into one holistic analysis. To perform case
synthesis, a lawyer carefully reads the applicable opinions
that are needed to resolve a legal issue. The lawyer needs to
understand the critical facts, holdings, reasons, and any
rules articulated in the authority. Next, the lawyer studies the
critical facts to identify a common denominator or thread
among the various opinions that incorporates the holdings
and reasons of the various precedents. Finally, the lawyer
builds a legal analogy around that common factual thread.
When done properly, case synthesis allows an attorney to
organize the analysis around a common factual denominator
derived from the precedents, instead of organizing the
analysis around individual cases.

Case synthesis requires lawyers to extrapolate the

common significance among the critical facts of several
cases. The idea is to study the facts until some commonality
is identified. This commonality should be a characteristic
that is shared by the critical facts in the analogous cases.
The commonality must be germane to the reasons and
holdings of the precedents. The common denominator must
be legally significant and focus on the key factual quality
that the cases deemed important.

To discover the common factual denominator, a lawyer

analyzes the facts to find the first level of similarity between
the critical facts in the controlling cases and the case-at-bar.
Next, she lists the characteristics of the critical facts,
abstracting from the specific to the general. Each abstraction
should eliminate a specific trait without losing the legal
significance of the original fact. Consider the following
example:

As you recall, the senior partner of your firm asked you to

determine whether a defendant committed a battery against
your client when the defendant hit your client with his
umbrella, causing injury. Your research revealed the following
opinions:

Case 1: The defendant is liable for a common-law

battery. In this case, the defendant hit the plaintiff
with his wooden cane. When the defendant hit the
 plaintiff with a cane, she “touched” the plaintiff for
the purposes of a common-law battery. The
defendant is liable even though the defendant never
touched the plaintiff with her person, but rather with
an instrumentality that was within her control.
Case 2: The defendant is not liable for a common-
law battery. Here, the plaintiff tripped over the
defendant’s briefcase that the defendant had placed
next to him on the floor in a busy restaurant. The
plaintiff suffered a broken arm due to the fall. The
defendant is not liable because no part of the
defendant’s person was involved in the incident.
Case 3: The defendant is liable for a common-law
battery. In this case, the defendant threw a stone at
the plaintiff, causing injury. The defendant is liable
because the stone was under the defendant’s control
when he threw it toward the plaintiff.

To synthesize these cases, identify the common factual

denominator in the cases. The common denominator must
relate to the holdings and reasons in the authority. In the
above example, study the critical facts, the reasons
supporting the holdings, and the holdings to identify the
common denominator.

Critical Facts

Case 1: Cane→ Under control of the defendant→ Liability

Case 2: Briefcase→ Not under control of the defendant→ No

liability

Case 3: Stone→ Under control of defendant→ Liability

 Identify the common thread among these dissimilar critical
facts that relate to the reasons and holdings of the opinions.
Extrapolate the critical facts in the cases. Eliminate a specific
characteristic or trait until you reach a general characteristic
that is shared by the critical facts in all the cases without
losing the legal significance of the facts.

In the example above, some measure of intellectual

flexibility and creativity is required to discover the common
factual thread between the objects. The commonality
between Cases 1, 2, and 3 could be that a person commits a
common-law battery if he unlawfully touches a plaintiff with
an instrumentality under his control. This fact, then, can
become the basis of a legal analogy.
 Using case synthesis, you would employ a legal analogy
that compares the common factual significance of the critical
facts in the controlling cases to the critical fact in the case-
at-bar. You would likely argue that like those cases where the
defendants committed a battery when they touched another
with instruments under their control, the defendant in the
present case hit the plaintiff with his umbrella, an instrument
under his control.

Both case synthesis and rule synthesis purport to blend

the facts, reasons, and holdings of a variety of cases into one
holistic legal thought. Rule synthesis blends relevant cases
to develop a holistic rule of law that incorporates the facts,
reasons, and holdings of the applicable cases. Case
synthesis combines the facts of several cases to identify a
common factual thread that relates to the reasons and
holdings of the cases. Because the underlying mechanics of
case synthesis and rule synthesis are similar, a properly
identified common factual denominator often can be
expressed as a synthesized rule. For example, in the
hypothetical situation above, a lawyer could express the
common factual denominator as a synthesized rule of law: a
defendant who injures another with an instrumentality under
his control commits a common-law battery.
 B. Analogical Strategies
An analogy is a legal argument that infers a legal
conclusion based on a comparison of facts between the
controlling authorities and the case-at-bar. This section
focuses on two analogical strategies: the narrow analogy and
the broad analogy. A narrow analogy focuses on direct fact
comparisons between a precedent and the case-at-bar, while
broad analogies compare facts from the case-at-bar to a
synthesized common factual denominator derived from the
controlling cases.

1. Narrow Analogy
One analytical strategy, the narrow analogy, compares the
facts in your case directly to the facts of a controlling case.
Utilizing a narrow analogy, a lawyer seeks to persuade a
court to reach a particular holding because the controlling
case law has substantially similar facts to the facts present
in the case-at-bar. After the similarity is identified and the
reasoning of the precedent is applied to the facts of your
case, the argument concludes that the court should reach
the same holding as the prior case or risk violating stare
decisis. The lawyer constructs a logical paradigm that
suggests if the case-at-bar and the controlling case raise the
same legal issues and share the same or substantially similar
facts, then the hearing court ought to reach the same
holding as the prior case.

Alternatively, a lawyer also uses narrow analogies to

distinguish the facts of the case-at-bar from the precedent.
Here, the lawyer argues that the key facts of the precedent
are distinguishable from the case-at-bar. This argument
implies that the court is not obliged to follow stare decisis
because the facts are not analogous, thus the precedent
should have no bearing on the outcome of the case. Whether
drawing distinctions or similarities, narrow analogies
examine the critical facts of the controlling case law and
compare those facts with the facts of the case-at-bar.

When constructing an argument, the objective is to

persuade a court that the controlling authority is either
analogous to the case-at-bar or that the controlling authority
is factually dissimilar to the case-at-bar. A properly
structured argument ought to fully prove the legal analogy.
That argument typically requires four component parts: (1)
the point of the analysis; (2) the direct or narrow fact
comparison, (3) the application of the court’s reasoning, and
(4) a conclusion.

The Four-Part Argument: Narrow Analogy

Step One: State the point of the analysis

Step Two: State the narrow fact comparison

Step Three: Apply the court’s reasoning to your case

Step Four: Conclude

a. Part One—State the Point of the Analysis

The first step in formulating an argument is to state the
point of the argument. The point sentence of the argument is
similar to stating the topic sentence of a paragraph. The
point sentence introduces the reader to the topic or point of
the analysis. The sentence may also describe the general
reasons that support the argument’s conclusion. Consider
the following examples of point sentences derived from the
Cane example:
 Argument 1: The defendant did commit a common-
law battery because he harmed the plaintiff with an
instrumentality under his control.
Argument 2: The plaintiff will prevail.

Argument 2 is not a point sentence; it merely predicts the

outcome of a case. The sentence did not introduce the topic
of the analysis or identify the general reasons that support
the argument. The first argument, however, is a point
sentence. It identified the point of the argument—the
defendant committed a common-law battery—and the
general premise of the analysis—because he harmed the
plaintiff with an instrumentality under his control.

Most legal writing is deductive in nature. A lawyer begins a

written argument by first stating the point or conclusion
followed by the particulars necessary to support that
conclusion. The point statement offers a reference point or
context through which the reader can fully understand the
rest of the analysis. An argument without a point statement
weakens the persuasive impact of the argument.

b. Part Two—State the Narrow Fact Comparison

The second step in formulating an argument is to state the
direct fact comparison. Here, a lawyer builds the analogy by
describing how the critical facts in the case-at-bar compare
to the critical facts in the controlling precedent. The fact
comparison should be clear, precise, and significant. The
goal is to select a fact or facts that bear on the ultimate
disposition of the case. Selected facts should directly relate
to the reasoning of the court. When stating the narrow fact
comparison, point to specific facts rather than loose
generalizations or tenuous characterizations.
 Consider the following arguments derived from the Cane
example:

Argument 1: The defendant did commit a common-

law battery because he harmed the plaintiff with an
instrumentality under his control. Like the defendant
in Cane, who was liable when he harmed the
plaintiff, the defendant in the present case also
harmed the plaintiff.
Argument 2: The defendant did commit a common-
law battery because he harmed the plaintiff with an
instrumentality under his control. Like the defendant
in Cane, who was liable when he hit the plaintiff with
his cane, the defendant in the present case hit the
plaintiff with his umbrella.

The first argument is unpersuasive because the fact

comparison is unclear, imprecise, and not related to the
reasoning of the precedent. The Cane case considered
whether the defendant harmed another with an
instrumentality within his control. Merely arguing that both
defendants harmed the respective plaintiffs, without
specifying how, will not convince the court to follow the prior
decision. The analogy should instead focus on the
instrumentality of harm, rather than the harm itself.

The second argument is persuasive. It compares

instrumentalities within the control of the respective
defendants. It likens a cane to an umbrella. It compares the
critical fact of the case-at-bar to the critical fact in the
controlling case. The lawyer is building a legal analogy by
showing how the cases share key attributes.

c. Part Three—Apply the Court’s Reasoning

 The third step in a narrow analogy explains the reasoning
of the precedent and why the fact comparison is significant.
Merely pointing to a fact similarity or distinction by itself is
inadequate. To sufficiently argue a point of law, a lawyer
must not only persuade the court that the facts are
analogous, but also why that fact comparison is important to
the court. The lawyer must show how the fact comparison
connects to the prior court’s reasoning.

The reasoning used to support an argument can be either

explicitly or implicitly stated in an opinion. In some cases, a
court will expressly state the reasons that support its
holding. In other cases, however, lawyers must infer the
reasoning that supports a court’s holding. To make sure a
lawyer’s inference is credible or plausible the lawyer must
test it back on previous cases to see if it is consistent with
the rationale of those controlling cases.

Remember that a precedent is a double-edged sword. It

can be used either to draw an analogy or a distinction
depending on the lawyer’s legal position. The distinction or
analogy unfolds when lawyers demonstrate how the fact
comparison relates to the reasoning of the precedent.

Consider the following arguments derived from the Cane

example:

Argument 1: The defendant did commit a common-

law battery because he harmed the plaintiff with an
instrumentality under his control. Like the defendant
in Cane, who was liable when he hit the plaintiff with
his cane, the defendant in the present case hit the
plaintiff with his umbrella. The court will follow the
reasoning of the Cane court, that an instrumentality
within the direct control of a defendant can form the
basis of common-law battery if that instrumentality
is an extension of the bearer’s arm. An umbrella, like
 a cane, is also an extension of the bearer’s arm and
within his direct control.
Argument 2: The defendant did not commit a
common-law battery because he did not harm the
plaintiff with an instrumentality under his control.
Unlike the defendant in Cane, who was liable when
he hit the plaintiff with an object under his control—
his cane, the defendant in the present case did hit
the plaintiff but with an object not under his direct
control—an umbrella. The court will follow the
reasoning of the Cane court, that an instrumentality
within the direct control of a defendant can form the
basis of common-law battery if that instrumentality
is an extension of the bearer’s arm. While a cane is
within the direct control of the bearer and is an
extension of the bearer’s arm, an umbrella is neither.
An umbrella is susceptible to the forces of rain and
wind and is not a direct extension of the bearer’s
arm.

This example illustrates how to use the court’s reasoning

to support a legal analogy. It also demonstrates how the
same case can be used to support either party’s legal
position. A cane and an umbrella have both similar and
different properties and characteristics. The similarities and
differences, however, must relate to the reasoning of the
precedent. In Argument 1, the lawyer argues that the
precedent, the Cane case, ought to apply to the case-at-bar
because the facts are analogous. In Argument 2, however,
the lawyer argues that the Cane case does not apply
because the facts are not similar enough. The lawyer who
presents the more significant fact comparison that most
closely connects to the reasoning and facts of the prior case
should prevail.

d. Step Four—Conclude
 The fourth and final step of a narrow analogy completes
the argument. The conclusion typically reminds the reader of
the outcome of the issue or the general demand for relief.
The logical progression of the argument culminates with a
conclusion.

Review both the plaintiff’s and the defendant’s argument

in their entirety:

Argument 1: The defendant did commit a common-

law battery because he harmed the plaintiff with an
instrumentality under his control. Like the defendant
in Cane, who was liable when he hit the plaintiff with
his cane, the defendant in the present case hit the
plaintiff with his umbrella. The court will follow the
reasoning of the Cane court that an instrumentality
within the direct control of a defendant can form the
basis of common-law battery if that instrumentality
is an extension of the bearer’s arm. An umbrella, like
a cane, is also an extension of the bearer’s arm and
within his direct control. The court will hold that the
defendant is liable for a common-law battery.
Argument 2: The defendant did not commit a
common-law battery because he did not harm the
plaintiff with an instrumentality under his control.
Unlike the defendant in Cane, who was liable when
he hit the plaintiff with an object under his control—
his cane, the defendant in the present case did hit
the plaintiff but with an object not under this direct
control—an umbrella. The court will follow the
reasoning of the Cane court that an instrumentality
within the direct control of a defendant can form the
basis of common-law battery if that instrumentality
is an extension of the bearer’s arm. While a cane is
within the direct control of the bearer and is an
extension of the bearer’s arm, an umbrella is neither.
 An umbrella is susceptible to the forces of rain and
wind and is not a direct extension of the bearer’s
arm. The court will hold that the defendant is not
liable for a common-law battery.

The Cane case involved only one issue, one case, and the
application of only one critical fact. Legal analysis, however,
rarely relies on one argument derived from one precedent.
Typically, lawyers make arguments from a number of cases,
analogizing to some while distinguishing others. Narrow
analogies focus on direct fact comparisons between a
precedent and the case-at-bar. The analogy is supported by
the proposition that courts are bound to follow decisions that
have already decided the same legal issue under the same
or similar facts. Some cases, however, are not amenable to a
narrow analogy. These cases might require a broader
analytical strategy.

2. Broad Analogy
Although narrow analogies are effective in many cases, a
broader analogical strategy may be necessary to fully
analyze a legal issue. Narrow analogies examine specific
critical facts in a controlling case that are closely parallel to
the facts in the case-at-bar. This analytical approach requires
attorneys to draw narrow comparisons focused on material
facts. In contrast, a broad analogy draws general
comparisons between cases that relate to but are not
necessarily parallel to the critical facts. The crux of the broad
analogy is not the critical fact itself, but rather a common
denominator derived from the critical facts in the controlling
authorities. As previously discussed, case synthesis is the
process that identifies the common denominator among
various precedents. Broad analogies require some measure
of intellectual flexibility in order to devise persuasive
arguments that incorporate less obvious comparisons.
 Broad analogies are appropriate in at least two situations.
First, broad analogies are appropriate when the case-at-bar
raises unique or unusual facts. These cases may not have
the factual characteristics necessary for a narrow analogy
because facts of the cases may not be amenable to a direct
fact comparison. Second, broad analogies are appropriate
when the analysis requires the integration of a large body of
case law. A broad analogy allows a lawyer to compare his
case to the body of authority and not just a single precedent.
As such, a broader analytical approach is more
comprehensive and less repetitive than a more narrow
approach.

Like narrow analogies, broad analogies also require a close

examination of the courts’ reasoning. Merely identifying
some characteristic common to a critical fact in both the
controlling cases and the case-at-bar is not persuasive. The
comparison must relate to the underlying reasons of the
controlling cases.

The broad analogy compares the common characteristic of

the facts in the controlling cases to the facts in the case-at-
bar the same way the narrow analogy compares the specific
critical facts in a single case to the case-at-bar. The structure
of both narrow and broad analogies is similar: (1) state the
point of the analysis; (2) state the broad comparison, (3)
apply the court’s reasoning, and (4) conclude. These steps
are identical to the four-part argument used for the narrow
analogy, except part two focuses on a broad, as opposed to
a narrow, comparison.

The Four-Step Argument: Broad Analogy

Step One: State the point of the analysis

Step Two: State the broad comparison

Step Three: Apply the courts’ reasoning to your case

Step Four: Conclude

Consider the following example:

Your client, the plaintiff, dug a well on the

defendant’s property. The plaintiff claims he owns
the land through adverse possession. In this
jurisdiction, adverse possession is a legal doctrine
that awards ownership of property to a possessor
who openly, actually, exclusively, adversely,
notoriously, and continuously possesses the land of
another for twenty years. The only issue in your case
is whether your client can establish that he actually
used the property—one element of an adverse
possession.

You find the following opinions:

Case 1: The plaintiff has not shown adverse

possession of the defendant’s property because she
failed to satisfy the actual use element. Adverse
possessors must demonstrate actual use of the
property in order to establish ownership through
adverse possession. Actual use is demonstrated by
acts of dominion and control by the adverse
possessor. Here, the plaintiff placed a picnic table
and shade umbrella on the defendant’s property.
This use did not establish dominion and control
because the objects could be easily removed from
the property.

Case 2: The plaintiff has demonstrated ownership of

the property through adverse possession. Adverse
possession is established when an adverse possessor
 demonstrates dominion and control over the
contested property. The plaintiff built a three-story
brick house on an unused portion of defendant’s
property. This structure did show dominion and
control over defendant’s property.
Case 3: The plaintiff has established adverse
possession. The adverse possessor must show actual
use of the adversely possessed property. Actual use
is best shown by evidence of dominion and control
over the property. The plaintiff built an in-ground
swimming pool on the locus and placed numerous
beach chairs around the perimeter of the pool. While
the beach chairs are not evidence of dominion and
control, the in-ground pool is evidence of dominion
and control.

To analyze whether the plaintiff in your case satisfies the

actual use element of adverse possession, identify the
critical facts in the controlling authorities. In Case 1, the
critical facts include a picnic table and shade umbrella. In
Case 2, the critical fact is a three-story brick house. In Case
3, the critical facts are an in-ground swimming pool and
lounge chairs.

Next, identify the holdings and reasoning of the

authorities. The court held that the plaintiffs in Cases 2 and 3
satisfied the actual use element of adverse possession
because a house and an in-ground swimming pool
demonstrated dominion and control over another’s property.
The plaintiff in Case 1 failed to show actual use because a
picnic table and shade umbrella did not establish dominion
and control of the property.

Third, identify the common factual denominator between

all the critical facts of the controlling authority. That
commonality must relate to the holdings and reasoning of
the controlling cases. As you recall, a lawyer discerns the
commonality by extrapolating the common denominator
among the critical facts, paying close attention to the
significance the courts gave to those facts. Under the cases
described above, a brick house and an in-ground swimming
pool demonstrated dominion and control of the property. On
the other hand, a picnic table, a shade umbrella, and lounge
chairs did not exhibit dominion and control of the property.
What is the common characteristic shared among these
disparate facts? An in-ground swimming pool, and, by
analogy, a brick house, demonstrated dominion and control
because they are not easily removable from the locus. They
are not easily removable because they are permanent
improvements or changes to property. A shade umbrella,
lounge chairs, and a picnic table did not demonstrate
dominion and control because they are easily removable
from the locus. They are easily removable from the locus
because they are not permanent improvements to property.
The common factual denominator—the basis of a broad
analogy—is the permanent character of improvements made
to another’s property.

Using the four-part argument described above, consider

the following argument:

The plaintiff showed actual use because he made a

fixed improvement to the property. Like the plaintiffs
in the controlling case, the plaintiff in the present
case demonstrated the actual use of another’s real
property when he dug a well on the defendant’s
property, which is a permanent improvement on the
defendant’s land. The plaintiff has shown actual use
of the defendant’s property because the plaintiff’s
well is a permanent improvement that is not easily
removable from the locus. As such, the Court will
 rule that the plaintiff has satisfied actual use, an
element of adverse possession.

Even though a well, a swimming pool, lounge chairs, a

picnic table, a brick house, and a shade umbrella are not
readily comparable facts, finding a common characteristic
that is consistent with the court’s reasoning can be used to
devise effective legal arguments. In this example, a
permanent improvement to property was the common
characteristic shared by all the critical facts. A well,
swimming pool, and a brick house are all permanent
improvements to property. This characteristic also comports
with the reasoning articulated by the court. The court ruled
that dominion and control demonstrates actual use, one
element of adverse possession. The court reasoned that
improvements that are easily removable from the property
do not satisfy actual use. Permanent improvements are, by
definition, not easily removable and, thus, could satisfy the
actual use requirement.

Narrow analogies and broad analogies are similar

analytical strategies. Both use the court’s reasoning and
compare facts. The difference is the specificity of the facts
compared. A narrow analogy compares closely parallel facts,
while a broad analogy compares more general common
characteristics. Deciding which strategy to use depends on
the controlling cases, the specific issues raised, and the facts
in your case.

Understanding narrow and broad analogies is an important

step in developing the skills necessary to become an
effective advocate. These strategies are not mutually
exclusive. In fact, lawyers often incorporate variations of
both narrow and broad analogies in a single argument.
 Practice Exercises
Complete the following exercises to reinforce your
understanding of this chapter.

1. Define critical facts.

2. How do lawyers identify critical facts in a case?
3. How can both a plaintiff and a defendant use the same
precedent to support their arguments?
4. When is it appropriate to use narrow analogies?
5. When is it appropriate to use broad analogies?
6. Why is it important to compare a precedent to your
client’s case?
7. Consider the following opinion:
The defendant and his roommate got into an
argument. The defendant then lit a cigarette and used it
to burn his roommate’s arm by holding him down and
thrusting the cigarette into his arm eight times. Held:
The defendant is guilty of assault and battery with a
dangerous weapon.

An assault and battery with a dangerous weapon is a

criminal battery inflicted with an inherently dangerous
weapon, or an object used as a weapon in a dangerous
or potentially dangerous way. Some inherently
dangerous objects, such as a gun or knife, designed to
inflict serious bodily harm or death, are inherently
dangerous weapons. Other objects may still be
considered dangerous if they are used in a dangerous or
potentially dangerous manner. Considering the manner
that the lighted cigarette was handled and controlled by
 the defendant, and the violent circumstances of the
assault, we hold that the lighted cigarette was used as a
dangerous weapon. Therefore, the defendant is liable for
assault and battery with a dangerous weapon.

a. What are the critical facts of the opinion?

b. What is the reasoning of the court?

c. What is the holding of the court?

Your client is charged with assault and battery with a

dangerous weapon. Your client was looking for a parking
space in front of a store. She saw an empty parking
space, and signaled with her directional to indicate that
she was intending to pull into the space. Just before your
client pulled into the space, another driver cut in front of
your client with her car, and drove into the parking
space. Your client then got out of her car and began to
argue with the other driver. A scuffle ensued. Your client
poked the other driver’s eyes with her car keys.

d. Draft the defendant’s argument analyzing whether the

court should hold that car keys are not a dangerous
weapon.

e. Draft the prosecutor’s argument analyzing whether

the court should hold that car keys are a dangerous
weapon.

8. Consider the following:

Your client was charged with arson. You find one
precedent on point. That court articulated a four-part test
for arson. That test requires: 1) the intentional or
reckless disregard of an apparent risk, 2) burning, 3) of a
dwelling, 4) of another. The only element at issue was
whether the element of burning was satisfied. The facts
 of the precedent revealed that a defendant started a fire
that caused the charring of two walls in a building. The
court held that charring was sufficient to satisfy the
burning element. The court reasoned that some damage
to the structure caused by fire is required. The court
noted that substantial damage or destruction of the
structure is not required to commit arson.

In your client’s case, the only issue is whether the

burning element is satisfied. Your client threw a match
into a waste-paper basket. The basket smoldered. Even
though smoke blackened the walls in the building, the
walls were not charred. The heat from the fire activated
the fire sprinklers, which doused the fire.

a. Draft an argument analyzing why the burning element

of arson is not satisfied.

b. Draft an argument analyzing why the burning element

of arson is satisfied.

9. Consider the following:

You are prosecuting a defendant for receiving stolen
property. Your research reveals that the elements of
receiving stolen property are: (1) possession and control,
(2) of stolen property, (3) known to be stolen, (4) by
another, (5) with intent to permanently deprive the
owner of the property. Your research uncovers a
precedent concluding that even though the defendant
did not actually possess the stolen property, the
defendant still possessed stolen property when he
instructed another to place it in a location that the
defendant selected.

In your case, the defendant is charged with receiving

stolen property. The defendant used a telephone to fence
 stolen property. Fencing is when one arranges the sale of
stolen property to another. The defendant never
physically possessed the property. The only issue in your
case is whether the defendant possessed the property.

a. Draft the prosecutor’s argument analyzing why the

possession element is satisfied.

b. Draft the defendant’s argument analyzing why the

possession element is not satisfied.

10. Consider the following opinion:

Presenting the defendant with a diamond ring, the
plaintiff asked the defendant to marry him. She agreed.
The defendant later broke the engagement. We hold that
the plaintiff can reclaim the engagement ring. The
plaintiff should recover because the defendant broke the
engagement.

a. What are the critical facts of the opinion?

b. What is the reasoning of the court?

c. What is the holding of the court?

Your client, the plaintiff, was engaged to be married to

the defendant. The defendant later broke the
engagement with your client. The plaintiff wants to
recover the diamond stud earrings that he bought the
defendant a month before their intended wedding. He
bought her the earrings to wear on her wedding day.

d. Draft the plaintiff’s argument.

e. Can you predict how a defense attorney will

distinguish the precedent? Draft the defense attorney’s
argument.
11. Consider the following opinion:
The defendant was charged with involuntary
manslaughter. The defendant found a revolver in an alley
and brought it to work to show his friends. He did not
check to see if the revolver was loaded. In jest, he
pointed the revolver at a co-worker and pulled the
trigger. The gun fired and killed his co-worker. The
defendant is guilty of involuntary manslaughter. We
reason that the defendant is guilty because a death
resulted from the defendant’s wanton and reckless
conduct. A reasonable person standing in the shoes of
the defendant would recognize the risk to human life.

a. What are the critical facts of the opinion?

b. What is the reasoning of the court?

c. What is the holding of the opinion?

Your client, a building manager, has been charged with

involuntary manslaughter. A number of weeks ago, she
locked the fire exit in the building she manages, hoping
to prevent a rash of burglaries in the building. That night,
a fire broke out in the building. Many residents were
unable to escape because of the locked fire exit. One
resident died of smoke inhalation.

d. Which strategy, narrow or broad analogy, would be

most effective here?

e. Draft your client’s legal argument.

12. Case Synthesis Exercise

You are an Assistant District Attorney. The defendant is
charged with receiving stolen property. She is
challenging the police’s search and seizure of a
 handwritten note she posted on the front door of her
apartment. The note advertised the sale of a car and
listed the defendant’s name and phone number. The
defendant knew the car was stolen. The police seized the
note in order to prove that the defendant possessed the
stolen car, an element of the offense. The defendant
claims that the police violated her Fourth Amendment
right against unreasonable searches and seizures.

Your research revealed the following opinions:

Case A: The defendant cannot challenge the

government’s seizure of garbage that he discarded for
collection. Under the Fourth Amendment, the defendant
had no reasonable expectation of privacy with respect to
the garbage. To challenge a search and seizure under the
Fourth Amendment, a defendant must have a reasonable
expectation of privacy concerning the place searched or
the object seized.

Case B: Police dogs smelled the defendant’s luggage

in an airport and found drugs. The smell of the
defendant’s luggage in the public airport, however, did
not violate his Fourth Amendment right. The defendant
did not have a reasonable expectation of privacy
concerning the smell of his luggage, because anyone in
the airport could have smelled it.

In the above example, synthesize the critical facts to

identify the common denominator.
Chapter 4
Deductive Analysis & Rule-based Reasoning

OBJECTIVES

WHEN YOU FINISH READING THIS CHAPTER AND COMPLETING THE EXERCISES YOU WILL UNDERSTAND

DEDUCTIVE ARGUMENT

RULE-BASED REASONING

THE SYLLOGISM

THE STRUCTURE OF RULE-BASED ANALYSIS

This chapter explains how to employ deductive reasoning,

also called rule-based reasoning. Unlike inductive reasoning
or analogical reasoning, which structures an argument
around facts, deductive reasoning or rule-based reasoning,
structures an argument around a rule. Inductive analysis
focuses on facts and requires a lawyer to induce a conclusion
by establishing a legal analogy between case law and a
client’s facts. In contrast, deductive analysis requires a
lawyer to apply a set of facts to a stated legal premise, like a
statute or common-law rule. The application of fact to a rule
allows a lawyer to deduce a conclusion.
 A. Deductive Reasoning—The Syllogism

Major Premise: X is y All Men are mortal.

Minor Premise: and z is x Socrates is a man.

Conclusion: then, z is y. Therefore, Socrates is mortal.

The ancient Greek philosopher, Socrates, is credited with

developing or at least popularizing the syllogism and the
deductive reasoning model. Inductive reasoning discussed in
chapter 3 allows a lawyer to arrive at (or induce) a
conclusion from a series of prior events. For example, a
lawyer analyzes controlling authority (the prior events) to
conclude how a court would likely treat a case with the same
or similar facts. Deductive reasoning allows a lawyer to
deduce a conclusion from a stated proposition. Premised on
logic and mathematics, the classic model for deductive
analysis is called the syllogism.

A syllogism is a deductive or rule-based argument

containing two premises and a conclusion. From the
relationship of the two premises, you are able to infer or
deduce the third proposition, called the conclusion. The
syllogism is a powerful analytical tool. If the two premises
are “true” and the form of the argument is correct, then the
conclusion has to be true. The syllogism allows a lawyer to
determine the truth (or falsity) of a purported conclusion
with great accuracy. The key to mastering deductive
argument is to understand the syllogistic model and the
relationship between its component parts.

1. The Model
 The first premise in the syllogism is called the major
premise. Under the classic model, the major premise is
represented as “all men are mortal.” The major premise is
some broad statement that describes a quality, character,
property, or attribute that is true to all members of a class.
In the classic model, the class is “all men.” The attribute or
quality is that all men “are mortal.” A major premise can be
any statement that describes some quality, character,
property, or attribute of a group that shares some attribute.
For example, “all law students read judicial opinions.” Here,
the attribute or property that is true of the class of law
students is that they read judicial opinions. Consider the
following example: All persons in custody must be given a
Miranda warning. Here, the class is persons in custody. The
members of that class all share the same attribute—they
must be given a Miranda warning.

The second premise in the syllogism is called the minor

premise. Under the classic model, the minor premise is
written as “Socrates is a man.” The minor premise is some
characteristic of a member within the major premise. It is
usually expressed as a narrow statement that is purportedly
included within the major premise. For example, if a major
premise states that “all law students read judicial opinions”
then a minor premise could state that “Mary is a law
student.” Or, if our major premise states that “all persons in
custody must be given a Miranda warning” then a minor
premise could state that “John is in custody.” Both Mary and
John are members of the class described in the major
premises.

The third and final part of the model is called the

conclusion. Under the classic model, that statement is
written as “therefore, Socrates is mortal.” The conclusion is a
statement that follows logically from the application of the
minor premise to the major premise. In the syllogism, the
major and the minor premises will have one common term.
In the classic model, that term is “men” or “man.” The
common term serves as the nexus between both premises—
both the major and the minor premises are related by this
common term. Applying the minor premise “Socrates is a
man” to the major premise “All men are mortal” compels the
conclusion that “Socrates is mortal.” The conclusion, then, is
the logical extension of the syllogism.

Consider Mary in the example above. We know that “all

law students read judicial opinions.” We also know that
“Mary is a law student.” The term common to both the major
and minor premises is “law student.” That nexus allows us to
conclude that “Therefore, Mary reads judicial opinions.” In
the custody example, we know that “all persons in custody
must be given a Miranda warning” and that “John is in
custody.” By applying the minor premise to the major
premise, we can conclude that “Therefore, John must be
given a Miranda warning.” The nexus or common term in this
example is “in custody.”

The simple logic of deductive reasoning belies its strength.

If the form of the syllogism is correct and the major and
minor premises are true, then the conclusion deduced from
the premises also has to be true. If the premises are true,
then that “truth” is logically transferred to the conclusion. A
well-crafted and “truthful” syllogism is almost immune from
attack. If, on the other hand, the premises are not “true” or
their truthfulness is open to debate or argument, then the
deductive argument is weakened and vulnerable to attack. In
our “persons in custody” syllogism, we concluded that John
must be given a Miranda warning. Suppose the United States
Supreme Court concluded that not all persons in custody
must be given a Miranda warning, but only those persons
about to be interrogated. Had we built our argument around
the first major premise that included “all persons in
custody,” then someone could refute our conclusion by
attacking our major premise as “untruthful” or incorrect.
Nonetheless, deductive reasoning lies at the heart of most
legal argument.

2. Deductive Reasoning & Legal Argument

Deductive reasoning is also called rule-based reasoning
because the argument is structured around a rule—the major
premise. The major premise is a statement that describes
some quality, character, property, or attribute that is
common to a group or class. Similarly, a rule is a statement
that describes or governs conduct or action to a particular
group or class of persons or entities:

All men are mortal

All persons who break and enter a dwelling at night with
the intent to commit a felony therein are guilty of
burglary
All charitable organizations must register with the
Secretary of State
All children under sixteen years of age must enroll in
school

Because a rule behaves like a major premise, it readily

lends itself to deductive or rule-based reasoning. One type of
rule, a statute, is more closely associated with deductive
reasoning than a case rule because of one unique
characteristic of enacted law—it is immutable. A court
cannot change the language of a statute. As such, a statute
can serve as a very “truthful” major premise. And because
the strength of the syllogism depends on the strength of the
premises and a statute can serve a very “truthful” major
premise, statutory analysis is closely associated with
deductive reasoning.
 But what about case rules? A case rule looks like a major
premise and acts like a major premise, but lacks an
important quality common to statutes—case rules are
mutable. The common law is case law rendered in the
absence of enacted law. Because no statute exists to guide a
court in its resolution of a lawsuit, the court must create law
to resolve the issues before it. Unlike statutes, however, a
court can change the common law. In fact, a common-law
rule changes if only slightly every time a court considers a
new set of facts against an existing precedent. Because case
law is mutable, it may not serve as a very “truthful” major
premise. Consider the following deductive argument based
on the ruling in the Cane case:

Major Premise: A defendant who touches a plaintiff

with an instrumentality that is under his control has
committed a common-law battery.
Minor Premise: The defendant touched the plaintiff
with his umbrella.
Conclusion: Therefore, the defendant committed a
common-law battery.

The syllogism demonstrates that a case rule can be argued

deductively. All of the elements of the syllogism are present
—a major premise, a minor premise, and a conclusion. As
discussed above, a truthful minor premise applied to a
truthful major premise leads to a truthful conclusion. So,
assuming that the major premise is true, and that the
defendant did in fact touch the plaintiff with his umbrella,
you can correctly conclude that the defendant is guilty of a
common-law battery. But what if the major premise is not
true or not entirely true? What if other controlling precedents
modify or change the rule? What if the court decides to
change the rule for this case because of its unique facts?
 To attack or refute the Cane case argument, the defendant
would likely attack the major premise. Because case law is
mutable, the defendant could argue that the plaintiff’s
deductive argument is flawed because the major premise is
incorrect. Because the major premise is incorrect, the
conclusion—the defendant is guilty of a common-law battery
—is suspect. The defendant would likely research for a
precedent that challenges the plaintiff’s major premise. Or,
she could devise her own rule derived from the controlling
precedent and argue that the court ought to change or
modify the law. Consider the following example:

Major Premise: A defendant who unintentionally

touches a plaintiff with an instrumentality that is
under his control does not commit a common-law
battery.
Minor Premise: The defendant unintentionally
touched the plaintiff with his umbrella.
Conclusion: The defendant did not commit a
common-law battery.

Here, the defendant challenged the plaintiff’s conclusion

by attacking his major premise. The defendant is able to
employ a deductive argument structured around a different
major premise and conclude that she did not commit a
common-law battery. Because case law is mutable and can
change, a deductive argument structured around a case rule
is vulnerable. Because the “truthfulness” of the major
premise is suspect and open to debate, the deductive
argument is weakened. In the example above, the prevailing
party would likely be the party who is able to persuade a
court that her major premise or rule is the more attractive
legal principle. The party who persuades a court that her
major premise is better presents a stronger syllogism and
thus a more credible and persuasive argument.
 Statutory language, unlike the language in case rules,
cannot be changed by a court. Only a legislature can change
the language of law it enacts. As such, a statute can serve as
a stronger major premise. A deductive argument built around
a statute can present a very persuasive argument. Consider
the following deductive argument using a state statute:

Major Premise: A driver who exceeds sixty-five

miles-per-hour on any public way is fined $125.
Minor Premise: The defendant drove sixty-eight
miles-per-hour on State Road 4.
Conclusion: The defendant is fined $125.

Assuming the major and minor premises are true, the

conclusion is irrefutable. The defendant cannot advance an
argument, based on the statute, that he should not be fined.
Unlike a deductive argument structured around a case rule,
the defendant cannot attack the major premise or offer an
alternative or modified major premise to plead his case. The
permanent nature of enacted law allows a lawyer to craft a
deductive argument structured around a very truthful major
premise.

But not all enacted law qualifies as an immutable and

truthful major premise. Many statutes are enacted with
ambiguous or vague language. Before a court can apply a
statute to a set of facts, it must determine what the
legislature meant by the ambiguous word or phrase. A
court’s interpretation of ambiguous statutory language is a
rule—a case rule. Thus, while the statute itself is immutable,
the rule that defines an ambiguous word or phrase in a
statute is mutable. A court can change or modify its
interpretation of ambiguous statutory language.

A major premise in a deductive argument is weakened to

the extent that the statute serving as the major premise is
ambiguous or vague. As we have seen, the more truthful the
major premise, the stronger the deduced conclusion. A major
premise without ambiguity is a stronger major premise than
one full of ambiguous and vague language. A major premise
with ambiguity requires a lawyer to first resolve the
ambiguity in favor of her client. Ambiguity or vagueness
results from unclear statutory language. Once the ambiguity
is resolved, the lawyer can deduce a conclusion. Consider
the following example:

Major Premise: Any person who, during and in

relation to any crime of violence or drug trafficking
crime, uses or carries a firearm, shall, in addition to
the punishment provided for such crime be
sentenced to a term of imprisonment of not less than
five years. 18 U.S.C. § 924(c) (2006) (modified from
original).
Minor Premise: The defendant bartered a gun for
five kilograms of cocaine.

In this example, the conclusion cannot be determined

because the major premise is ambiguous. The statute does
not state whether a defendant who barters a gun for drugs
“uses” the gun in violation of the statute. The word “uses” is
ambiguous. It is unclear whether Congress intended a
defendant to fire or to engage a gun in the commission of a
crime, or whether Congress intended to include all uses of a
gun, including its use in trade. The ambiguity in the statute
weakens the major premise. To employ deductive reasoning,
a lawyer first must solidify the major premise by resolving
the ambiguity before she can deduce a conclusion. But
because a rule interpreting an ambiguity in a statute is a
case rule, the conclusion is vulnerable to a counter
argument. Consider the following example:

The Prosecution
 Major Premise: Any person who, during and in
relation to any crime of violence or drug trafficking
crime uses or carries a firearm, shall, in addition to
the punishment provided for such crime be
sentenced to a term of imprisonment of not less than
five years. 18 U.S.C. § 924(c)(2006) (modified from
original).
Resolved Ambiguity: Congress intended the word
“uses” to mean any use of a firearm including its use
in trade or barter.
Minor Premise: The defendant bartered a gun for
five kilograms of cocaine.
Conclusion: The defendant shall be sentenced to
prison under the statute.

The Defendant

Major Premise: Any person who, during and in

relation to any crime of violence or drug trafficking
crime uses or carries a firearm, shall, in addition to
the punishment provided for such crime be
sentenced to a term of imprisonment of not less than
five years. 18 U.S.C. § 924(c) (2006) (modified from
original).
Resolved Ambiguity: Congress intended the word
“uses” to mean engaging or firing a gun in the
commission of the crime.
Minor Premise: The defendant bartered a gun for
five kilograms of cocaine.
Conclusion: The defendant shall not be sentenced
to prison under the statute.

Both the government and the defendant resolved the

ambiguity by offering a definition that defines the term
“uses.” Each party advanced a definition that benefited his
or her legal position. Both parties then employed deductive
or rule-based reasoning and deduced a conclusion by
applying the minor premise—the facts—to the resolved
major premise—the statute. Because each argument rested
on the resolution of the ambiguity in the major premise, each
party is able to deduce a conclusion that favors his or her
position. Ultimately, the prevailing party is the one who
presents the more credible or “truthful” resolution of the
ambiguous term.

3. Identifying Flaws in a Syllogism

The syllogism is premised on logic and the relationship
between the major premise, minor premise, and the
conclusion. If a lawyer fails to structure correctly the
syllogism, the argument is flawed. A syllogism is flawed if
one of the premises is incomplete or implied. In some cases,
a syllogism is flawed because the major premise does not
fully explain, develop, or define the law. Without a fully
developed major premise, the argument fails. Consider the
following example:

Major premise: A shopkeeper may detain a patron

suspected of shoplifting for a reasonable period of
time.
Minor premise: The defendant detained the
plaintiff for ninety minutes.
Conclusion: The defendant detained the plaintiff for
a reasonable period of time.

Here, the syllogism fails to address an ambiguity raised in

the major premise because the major premise doesn’t define
the phrase “reasonable period of time.” Without a fully
developed major premise, this syllogism is flawed. Thus, the
argument is unpersuasive and lacks credibility.
 In other situations, a premise might be indirectly stated or
implied. While a syllogism with an implied premise is not
technically flawed, a well-developed syllogism expresses
fully both premises—the major premise and the minor
premise. For example:

Major premise: A person who reaches sixteen years

of age may apply for a driver’s license to drive a
vehicle in this state.
Conclusion: Sean may apply for a driver’s license.

Here, the syllogism lacks a minor premise—the fact that

Sean has reached sixteen years of age. The reader must
infer this fact from the major premise and the conclusion.
Each part of a well-developed syllogism, however, should be
fully expressed.
B. The Structure of a Deductive Argument Using
Rule-based Reasoning
Deductive argument—also called rule-based reasoning—
structures the analysis of a legal issue around a rule instead
of facts. While a legal analogy is supported by a logical
inference derived from the facts of cases, rule-based
reasoning focuses on a legal conclusion deduced from a
stated premise. The stated premise is a rule that when
applied to the facts of a case resolves the issue presented.
The stated premise can be an expressed rule found in a
case, an unexpressed rule derived from case law, or enacted
law.

A conclusion deduced from a stated premise tends to be

stronger than a conclusion inferred from a fact analogy. The
persuasive weight of a legal analogy depends on the
significance of the facts compared and how directly those
facts relate back to the court’s reasoning. Ultimately, a court
will judge the relative merits of the parties’ legal analogies
and rule accordingly. In rule-based reasoning, however, a
court can agree with a conclusion deduced from a rule
without having to weigh the significance of both plaintiff’s
and defendant’s fact analogies. If the court agrees with the
stated premise and how the facts apply to that premise, it
will rule accordingly.

In rule-based reasoning, the objective is to describe the

controlling law and then explain how the facts of a case,
when applied to the law, compel a conclusion. Like a legal
analogy, a properly structured rule-based argument ought to
fully prove the conclusion. That argument typically requires
five component parts: (1) the point of the analysis, (2) the
stated premise or rule, (3) the explanation of the rule (if
necessary), (4) the application of the rule to the facts, and
(5) the conclusion.

The Four-Part Argument: Rule-based Reasoning

Step One: State the point of the analysis or conclusion

Step Two: State the rule

Step Three: Explain the rule (if necessary)

Step Four: Apply the law to the facts

Step Five: Conclude

a. Part One—State the Point of the Analysis or

Conclusion
In all arguments, the first step is to state the point of the
argument or the conclusion. As you recall, the point sentence
introduces the reader to the topic or point of the analysis.
The sentence may also describe the general reasons that
support the argument’s conclusion. Consider the following
example derived from the adverse possession example in
chapter 3. In that example, the plaintiff dug a well on the
defendant’s property. The plaintiff claims he owns the land
through adverse possession. Adverse possession is a legal
doctrine that awards ownership of property to a possessor
who openly, actually, exclusively, adversely, notoriously, and
continuously possesses the land of another for a term of
years. The only issue in this case is whether the plaintiff can
establish that he actually used the property when he made a
permanent improvement to the contested land.

Argument: The plaintiff did actually use the

defendant’s property because he made a fixed
 improvement to the property.

b. Part Two—State the Rule

The second step in formulating a rule-based argument is to
state the rule. That rule can either be an expressed or an
unexpressed rule derived from the case law, or enacted law.
Suppose that after analyzing the relevant authority, you
identify an unexpressed rule that defines the “actual use”
element of adverse possession. That rule states that a party
actually uses another’s property when he makes a
permanent improvement to the property.

Argument: The plaintiff did actually use the

defendant’s property because he made a fixed
improvement to the property. To adversely
possess property, a party must actually use
another’s property. Hayes v. Usmani, 18 State
13, 17 (1998). A party who permanently
improves another’s property satisfies the
actual-use element of adverse possession.
Clark v. Kent, 30 State 24, 26 (2007); Romantz
v. Vinson, 23 State 234, 235 (2006).

c. Part Three—Explain the Rule

In rule-based reasoning, after you state the rule, you
should explain how you derived the rule unless the rule is
clear, controlling, and unequivocal. If the rule is clear and
unequivocal, the facts can be applied to the rule without
further explanation. In many cases, however, the rule is not
clear and requires explanation.

An important tenet of deductive or rule-based reasoning is

the strength of the major premise—or rule. If you derived
your rule from a judicial opinion or from a variety of opinions,
you may need to establish how you built your rule. If the rule
is derived from a piece of enacted law, like a statute or
regulation, you may need to explain any ambiguous or
vague provisions in the law. The purpose of explaining the
rule is to establish the credibility of the rule.

In some situations, you may be able to eliminate the

explanation of the rule. If the rule is a time-honored
common-law principle or a piece of unambiguous enacted
law, the rule may not require further explanation. For
example, suppose you are analyzing a municipal property
ordinance for a client who intends to build a home on a
vacant lot. The ordinance states that “a dwelling shall be
located at least twenty-five feet from the curb.” This rule
likely will not require any further explanation because it is
unambiguous and clear. If, however, the ordinance stated
that “a dwelling shall be located a reasonable distance from
the curb,” you would need to resolve the ambiguity in the
ordinance and offer a rule defining a “reasonable distance.”
Here, you would need to explain how you derived the rule.

In our adverse possession example, the rule defining

actual use was an unexpressed rule that you derived from
two controlling opinions. Because you synthesized a rule
from the authority, you would need to explain how you
arrived at the unexpressed rule.

Argument1: The plaintiff did actually use the

defendant’s property because he made a fixed
improvement to the property. To adversely possess
property, a party must actually use another’s
property. Hayes v. Usmani, 18 State 13, 17 (1998). A
party who permanently improves another’s property
satisfies the actual-use element of adverse
possession. Clark v. Kent, 30 State 24, 26 (2007);
Romantz v. Vinson, 23 State 234, 235 (2006). For
example, when a neighbor built a pool that
 encroached on his neighbor’s property, the
State Supreme Court held he had actually used
his neighbor’s property for the purpose of an
adverse possession claim. Romantz, 23 State
at 235. In contrast, when a neighbor used a
portion of her neighbor’s property to store
firewood, the Supreme Court held that the
plaintiff did not actually use the property and
held in favor of the defendant on the adverse
possession claim. Clark, 30 State at 26. Both
opinions examined the type of improvement
that an adverse possessor made to a
neighbor’s property and focused on whether
the improvement was permanent.

d. Part Four—Apply Law to Facts

Once the major premise—or rule—is described and
explained, the argument continues with the minor premise—
or facts. The idea is to state with specificity the facts that are
required under the rule to deduce a conclusion. The facts are
derived from the evidence offered at trial or from a trial
record.

Argument: The plaintiff did actually use the

defendant’s property because he made a fixed
improvement to the property. To adversely possess
property, a party must actually use another’s
property. Hayes v. Usmani, 18 State 13, 17 (1998). A
party who permanently improves another’s property
satisfies the actual-use element of adverse
possession. Clark v. Kent, 30 State 24, 26 (2007);
Romantz v. Vinson, 23 State 234, 235 (2006). For
example, when a neighbor built a pool that
encroached on his neighbor’s property, the court
held he had actually used his neighbor’s property for
 the purpose of an adverse possession claim.
Romantz, 23 State at 235. In contrast, when a
neighbor used a portion of her neighbor’s property to
store firewood, the court held that the plaintiff did
not actually use the property and held in favor of the
defendant on the adverse possession claim. Clark,
30 State at 26. Both opinions examined the type of
improvement that an adverse possessor made to a
neighbor’s property and focused on whether the
improvement was permanent. In the present case,
the plaintiff dug a well on the defendant’s
property. A well is a fixed and permanent
improvement to property because it is not
easily removable.

e. Part Five—Conclude
To complete a rule-based argument, the relevant facts
from the case are applied to the rule to deduce a conclusion.
This section demonstrates how the facts connect to the
stated legal principle. The idea is to explain how the rule
operates under the stated facts.

Argument: The plaintiff did actually possess the

defendant’s property because he made a fixed
improvement to the property. To adversely possess
property, a party must actually use another’s
property. Hayes v. Usmani, 18 State 13, 17 (1998). A
party who permanently improves another’s property
satisfies the actual-use test of adverse possession.
Clark v. Kent, 30 State 24, 26 (2007); Romantz v.
Vinson, 23 State 234, 235 (2006). For example, when
a neighbor built a pool that encroached on his
neighbor’s property, the court held he had actually
used his neighbor’s property for the purpose of an
adverse possession claim. Romantz, 23 State at 235.
 In contrast, when a neighbor used a portion of her
neighbor’s property to store firewood, the court held
that the plaintiff did not actually use the property
and held in favor of the defendant on the adverse
possession claim. Clark, 30 State at 26. Both
opinions examined the type of improvement that an
adverse possessor made to a neighbor’s property
and focused on whether the improvement was
permanent. In the present case, the plaintiff dug a
well on the defendant’s property. A well is a fixed and
permanent improvement to property because it is
not easily removable. Because the plaintiff made
a permanent improvement to the defendant’s
property, a court will likely hold that the
plaintiff did actually use the property for the
purposes of the adverse possession claim.

Deductive or rule-based reasoning allows a lawyer to

deduce a conclusion from a stated legal premise or rule.
Inductive or analogical analysis allows a lawyer to induce a
conclusion by drawing an analogy between the facts of the
client’s case and the facts in the controlling authority.
Deciding which analytical method to employ depends on a
host of factors, including the facts of a client’s case, the type
of applicable law, the persuasiveness of the analysis, and
some measure of experience and judgment. The more you
practice with both analytical models, the easier it will
become to decide which model to choose.
 C. Deductive/Inductive Combination
Sometimes a lawyer will employ both inductive and
deductive reasoning when analyzing an issue. A lawyer
might want to offer an inductive argument to exemplify the
deductive argument. Or, a lawyer might want to hedge her
bet by analyzing the issue using both analytical strategies.
To combine techniques, the relevant facts from a case are
applied to the rule to deduce a conclusion and the facts from
the precedent are compared to the facts of the client’s case
to induce a conclusion.

Consider the following example:

The plaintiff did actually use another’s property,

because he made a fixed improvement to the
property. To adversely possess property, a party
must actually use another’s property. A party who
permanently improves another’s property satisfies
the actual-use element of adverse possession. For
example, when a neighbor built a pool that
encroached on his neighbor’s property, the State
Supreme Court held he had actually used his
neighbor’s property for the purpose of an adverse
possession claim. Romantz v. Vinson, 23 State 234,
235 (2006). In contrast, when a neighbor used a
portion of her neighbor’s property to store firewood,
the court held that the plaintiff did not actually use
the property and held in favor of the defendant on
the adverse possession claim. Clark v. Kent, 30 State
24, 26 (2007). Both opinions examined the type of
improvement that an adverse possessor made to a
neighbor’s property and focused on whether the
improvement was permanent.
 Deductive Argument[In the present case, the
plaintiff dug a well on the defendant’s property.
Because a well is a permanent improvement to
property, the plaintiff actually used the defendant’s
land.]Inductive Argument [Like the pool in
Romantz, a well is a fixed and permanent
improvement to property and unlike the firewood in
Clark, the well is not easily removable. Thus, in the
present case the plaintiff did actually use another’s
property when he dug a well and therefore satisfies
the actual use element of adverse possession.]

In this analysis, both deductive and inductive analyses are

employed. Deciding when to use a single analytical strategy
or when to use both depends on the complexity of the case,
the issues presented, and some measure of professional
judgment.
 Practice Exercises
Complete the following exercises to reinforce your
understanding of this chapter.

1. What are the five component parts of a typical rule-

based argument?
2. Review the syllogism below and deduce a conclusion.
Main Premise: To enroll in kindergarten at a public
school in this state, a child must be five years old by
September 1 of that academic year.

Minor Premise: Emily was born on August 20 of that

academic year.

Conclusion: ?

3. Review the syllogism below and deduce a conclusion

Main Premise: To include pictures of a student on the
school’s website, the school must have written
permission from the child’s parent.

Minor Premise: Michael’s parent has given written

permission.

Conclusion: ?

4. Review the major premise in this deductive argument

and identify what is the ambiguity (if any) that needs to
be resolved.
Main Premise: Students may ride the school bus for
free if they live within a reasonable distance from school.
 5. Review the major premise in this deductive argument
and identify what is the ambiguity (if any) that needs to
be resolved.
Main Premise: A student must purchase all necessary
school supplies before the start of classes.

6. How is rule-based reasoning different from analogical

reasoning?
7. Identify why the following syllogism is flawed:
Major premise: A student with a disability must receive
a reasonable accommodation.

Minor premise: Charles has dyslexia.

Conclusion: Charles must receive reasonable

accommodation.

8. Identify why the following syllogism is flawed:

Major premise: Students will not be allowed outside for
recess in inclement weather. Inclement weather means
snow, rain, or temperatures below thirty degrees.

Conclusion: On December 15, students were not

allowed outside for recess.

9. When may it be unnecessary to explain the rule as one

of the component parts of a rule-based argument?

Footnotes
1. The rule can also be explained using parentheticals:

The plaintiff did actually use the defendant’s property, because he made a fixed improvement to the property. To adversely possess property, a
party must actually use another’s property. Hayes v. Usmani, 18 State 13, 17 (1998). A party who permanently improves another’s property
satisfies the actual-use element of adverse possession. See Clark v. Kent, 30 State 234, 26 (2007) (using portion of neighbor’s property to store
firewood does not constitute use of neighbor’s property); Romantz v. Vinson, 23 State 234, 235 (2006) (building a pool that encroached on
neighbor’s property constitutes use of her neighbor’s property).
Chapter 5
Statutory Analysis

OBJECTIVES

WHEN YOU FINISH READING THIS CHAPTER AND COMPLETING THE EXERCISES, YOU WILL UNDERSTAND

STATUTORY AMBIGUITY AND VAGUENESS

PLAIN MEANING DOCTRINE

CANONS OF STATUTORY INTERPRETATION

LEGISLATIVE HISTORY

STATUTORY ANALYSIS

This chapter discusses statutory analysis and the tools of

statutory construction. Chapter 4 discussed deductive or
rule-based reasoning. Under this analytical model, the
argument is structured around a stated premise or rule.
Employing a syllogism, a lawyer applies a client’s facts to a
rule or statute to deduce a conclusion. The argument’s
persuasiveness or credibility is premised in part on the
credibility or “truthfulness” of the major premise. The more
credible the major premise, the less vulnerable the argument
is to attack.

A judicial rule or enacted law can serve as a major premise

in a deductive argument. Judicial rules, however, are
mutable or changeable. As such, a deductive argument
based on a judicial rule is vulnerable to attack. An opponent
could attack the major premise—the judicial rule—and
devise her own argument by offering a different major
premise derived from the opinions. A deductive argument,
however, based on enacted law—such as a statute—is less
vulnerable. Enacted law is immutable and cannot be
changed. As such, a statute could serve as a credible or
“truthful” major premise in a deductive argument.

Sometimes, however, enacted law has ambiguous or

vague language that weakens the strength of the statute
and renders the deductive argument vulnerable. An
ambiguous term in a statute is a term that could have more
than one meaning. For example, suppose a statute purports
to regulate “banks.” The term “banks” has at least two
different meanings—a business that collects and loans
money or the side of a lake or river. A vague term in a
statute is a term that has no defined limits. For example, if a
statute purports to regulate the ownership of “pets,” it is
unclear what animals the legislature intended to include.
Most categorical terms, like “pets,” suffer from statutory
vagueness.

If statutory language is unclear, a court resolves the

ambiguous or vague language by crafting a rule that defines
the term. To argue deductively an ambiguous or vague
statute, a lawyer must first advance an argument that
“proves” or resolves the ambiguity in favor of her client’s
legal interests. Once the statutory language is no longer
unclear, a lawyer applies a set of facts to the major premise
—or resolved statute—to complete the deductive argument.

In order to resolve statutory ambiguity or vagueness, a

lawyer must understand the various tools of statutory
construction. When statutory language is ambiguous or
vague, courts endeavor to interpret that language consistent
with the legislature’s intent when it enacted the law. A court
will avoid construing a term based on its own preferences
and instead will examine what the legislature intended the
word or phrase to mean. Courts have developed several
rules or maxims to help it glean legislative intent. With the
exception of the plain meaning rule, these rules and maxims
are rebuttable presumptions—courts are not required to
follow any of them, but instead may pick and choose among
them. The idea is that a court will choose only those rules
and maxims that best determine legislative intent.
Consequently, to properly analyze a statute, a lawyer must
understand how a court will resolve an ambiguous or vague
term in statutory language.
 A. Statutory Construction

1. Plain Meaning Rule

2. Tools of Statutory Construction

1. The Plain Meaning Rule

Statutory construction begins by examining the text of a
statute itself. The first step in analyzing a statute is to
determine whether the language of the statute is ambiguous
or vague or both. When construing a statute, courts first look
to the plain meaning of the statutory language. Courts
presume that legislators use ordinary and everyday
language when they draft law. Under the plain meaning rule,
courts must give unambiguous language its obvious or
ordinary meaning.

The plain meaning doctrine, however, does not always

control. Courts recognize two exceptions to the plain
meaning doctrine. First, if a term has both an ordinary
meaning and a technical meaning, a court will favor the
technical meaning if the statute concerns a technical area or
if the legislature intended the technical meaning. Second, if
a court strictly interprets a statute according to its plain
meaning, but that interpretation would lead to an illogical
result or frustrate the legislature’s intent when it enacted the
statute, then the court may disregard the statute’s plain
meaning. Under this exception to the plain meaning rule, the
court assumes that a legislature would not have intended
the term to obstruct its purpose or lead to an absurd result.
This exception to the plain meaning rule prevents a literal
interpretation of a statutory ambiguity that ignores logic and
fairness.
 Consider the “gun for drugs” example in chapter 4. The
statute increases the penalty for a person who “uses or
carries a firearm” in the course of a drug trafficking crime. In
the hypothetical example, a defendant bartered a gun for
five kilograms of cocaine. The first step in analyzing a
statute is to determine whether the word “uses” has a plain
meaning. The verb “to use” means to employ, utilize, or put
into action or service. Using the plain meaning doctrine, the
prosecution in this case could argue that the defendant did
use the gun in the commission of a crime when he bartered
it for drugs. Based on the plain meaning of the language, the
prosecution would ask the court to conclude that the
defendant did violate the statute. But, the defendant could
argue that the plain meaning doctrine ought not to apply.
After reviewing the legislative record, the defendant could
contend that Congress’ purpose when it enacted the statute
was to decrease the violence that is often associated with
drug crimes. Because the plain meaning of the term “uses”
includes non-violent uses of a firearm such as its use in
trade, the prosecutor’s construction fails to advance the
legislature’s intent, and thus the plain meaning of the term
ought to be ignored. The defendant would argue that the
term “uses” is vague because its breadth is unclear on the
face of the statute. Then, the defendant would employ a tool
or tools of statutory construction to prove what the
legislature intended when it included the term “uses” in the
statute.

2. Construing Ambiguous Statutes

When drafting a law, legislators make every effort to
choose language that clearly conveys the statute’s meaning
and purpose. Still, statutory terms can be ambiguous or
vague. Consider the following statute: A student may not use
a weapon in school. This statute is vague. The word weapon
is an indefinite and categorical term. It is unclear whether
the legislature intended to prohibit guns, knives, scissors,
paperclips, or some other instrument. To resolve the
indefinite or unclear terms in a statute, a court will utilize
various tools to determine the legislature’s intent when it
enacted the law. These tools are often based on inferences
regarding how a legislature ought to behave or how
language is normally used. A lawyer uses these tools to
persuade a court to adopt a construction of the term that
advances a client’s position.
 B. Tools of Statutory Construction

1. Maxims

2. Legislative History

3. Cases Construing Statutes

1. Maxims
Courts can choose among several dozen maxims
(sometimes called canons) of statutory construction to help
it determine what a legislature intended when it enacted an
ambiguous or vague statute. A maxim is a widely accepted
or generally recognized guide or custom that a court may,
but is not required, to use. Each maxim is a rebuttable
presumption; it can be rebutted by another maxim that the
court believes better gleans the intent of a legislature. Often,
a court employs a number of maxims to resolve a statutory
ambiguity. Some critics contend, however, that the variety of
recognized maxims allows a court to pick and choose only
those maxims that corroborate the court’s preference when
it resolves statutory ambiguity or vagueness. Despite this,
the use of maxims remains popular. The following glossary
describes some of the more widely used maxims of statutory
construction.

a. In Pari Materia
In pari materia is a Latin phrase meaning “on like subject
matter.” Statutes that are in pari materia share the same
subject matter or legislative purpose. The maxim requires
courts to construe ambiguous language in a statute
consistently with other statutes on the same subject. This
maxim ensures harmony within the body of legislative law by
requiring coherence among similar provisions. Under this
maxim, a court could examine the whole statutory code in
order to maintain consistency within the code.

Suppose section 1 of a state statutory code that regulates

firearms defines the term “use” as “to engage or discharge a
firearm.” Another section of the code, section 15, prohibits a
person from “using” a firearm in the course of a felony. A
court is asked to construe the term “using” in section 15. A
court construing both statutes in pari materia would
incorporate the definition in section 1 to section 15 and limit
the term “using” to mean “engaging or discharging a
firearm.” The court would construe the two sections of the
state’s code consistently and in harmony with each other.

b. Ejusdem Generis
The maxim ejusdem generis is a Latin phrase meaning “of
the same kind.” When a general or categorical word follows
or precedes a list of specific examples, the general term
should be limited to include only things of the same type and
character as those specified in the list. This maxim limits the
breadth of vague and categorical language in a statute.
Suppose a statute prohibits the possession of “handguns,
rifles, knives, switchblades, and other weapons.” A court is
asked to consider whether a screwdriver is included within
the general catchall “other weapons.” Employing ejusdem
generis, the court would likely limit the construction of the
general term to mean only those things designed to cause
injury or death. All of the examples that precede the catchall
are designed to serve as weapons. A screwdriver is not
designed to serve as a weapon, so the court would likely
exclude it from the statute.

c. Noscitur a Sociis
 Noscitur a sociis is another Latin phrase that means “it is
known from its associates.” Similar to ejusdem generis, this
maxim allows a court to construe an ambiguous term by
looking at its neighboring terms for guidance. A court’s
application of this maxim prevents it from giving unintended
breadth to a statute’s reach. Suppose a statute prohibits a
person from “brandishing, firing, or using a firearm” in a
government building. A court is asked to consider whether a
person who merely possesses a firearm in a government
building is “using” the firearm in violation of the statute.
Under noscitur a sociis, the court would look to the terms
adjoining the ambiguous term and construe the ambiguous
term relative to its neighboring terms. A court would likely
limit the construction of the term “using” to exclude
possession since both brandishing and firing appear to
require a person to engage or employ the firearm and not
merely possess it.

d. Avoid Surplusage
This maxim presumes that every word in a statute is
meaningful and that a legislature would not enact law with
surplus or redundant terms. When construing an ambiguous
term, a court ought to avoid a construction that would render
a term redundant or immaterial. Suppose a statute prohibits
a person from “firing or engaging a firearm” in a public
building. A court is asked to consider whether an accidental
discharge of a firearm is prohibited under the statute. Using
this maxim, a court could conclude that the term “engaging”
requires an intentional act. A person must intend to engage
a gun. To avoid redundancy in the statute, the court could
construe the term “firing” to include an unintentional or
accidental act. Otherwise, the term “firing” would be
surplusage.

e. Remedial Statutes
 A remedial statute is a statute that cures a defect in the
law or fixes a pre-existing problem. Most civil rights
legislation and labor statutes are remedial in nature. The
remedial statutes canon asks courts to construe broadly an
ambiguous statute until the statute’s remedial purpose is
accomplished. Courts presume that when a legislature
enacts remedial legislation, it intends the statute to
effectuate its remedial goal. As such, courts ought to
interpret an ambiguous or vague term broadly until the
statute’s curative purpose is served. For example, suppose a
civil rights statute banned workplace discrimination in all
businesses that sell food and beverages. A court is asked to
consider whether an automobile service station with a small
food counter is included in the statute. Applying the remedial
statutes canon, a court could broadly construe the term
“businesses that sell food and beverages” to include the
service station in order to accomplish the statute’s purpose
of ending workplace discrimination.

f. Expressio Unius est Exclusio Alterius

This Latin phrase means “the expression of one excludes
the other.” When a statute includes an exclusive list of
terms, this canon prevents a court from adding any
additional terms. For example, suppose a statute prohibited
the sale of “cocaine, marijuana, LSD, mescaline, and
peyote.” A court is asked to consider whether heroin is
included in the statute. Applying this canon, a court would
presume that by not including heroin in the list, the
legislature intended to exclude it. A court, however, will not
apply this canon if the list is illustrative and not exclusive.
Suppose the statute above prohibited the sale of “cocaine,
marijuana, LSD, mescaline, peyote and other controlled
substances.” The legislature added the list to illustrate the
term “controlled substances.” Here, a court would apply
ejusdem generis and not expressio unius est exclusio
alterius.

g. Presumption of Internal Consistency

A court presumes that a legislature would not enact a
statute whose parts are inconsistent. So, a court will
interpret a statute to promote consistency. Suppose one
section of a statute prohibits a person from using a firearm in
the commission of a felony. Another section of the same
statute prohibits using a firearm as a weapon in a school
zone. A court is asked to consider whether the term “using a
firearm” in the first section includes a firearm’s use in trade
or barter during a drug transaction. Applying the canon of
internal consistency, a court would consider the other
section of the statute that limits “use of a firearm” to its use
as a weapon. To ensure the statute is internally consistent,
the court could rule that both sections of the statute should
limit the phrase “using a firearm” to “using a firearm as a
weapon.” As such, the statute does not prohibit using a
firearm in trade or barter.

h. Titles Are Not Controlling

Most statutes are enacted with titles that describe the
general focus or purpose of the statute. Every jurisdiction,
however, has laws that require statutes to include an
enactment clause. The enactment clause is a statement at
the beginning of a statute that certifies the statute as having
the hallmark of proper legislative authority. Everything below
the enactment clause is “law.” When construing an
ambiguous term in a statute, a court cannot rely on the
language in a title because titles are not controlling. A title is
not controlling because it precedes a statute’s enactment
clause. Suppose a statute is entitled, “An Act to Prohibit the
Possession and Use of a Firearm in a Public Building.” The
language of the statute prohibits a person from “using a
firearm” in a public building. A court is asked to consider
whether a person who possesses a firearm in a public
building violates the statute. Looking at the title, a court
could be inclined to conclude that the ambiguous term
“using” includes “possessing” because the title of the
statute uses that term. But, the language in the title cannot
control the construction of an ambiguous term in the body of
the statute. While not controlling, the court might instead
use the title as one piece of evidence of the legislature’s
intent when it enacted the law.

i. Constitutional Questions
This maxim, also called the Avoidance Canon, is used when
two interpretations of a statute are possible, but one of those
interpretations would call into question the statute’s
constitutionality. Under the old rule, a court was required to
“save” a statute by choosing a constitutional interpretation
when another interpretation would render the statute
unconstitutional and thereby void. Under the modern rule, a
court will avoid an interpretation of a statute that raises a
constitutional question but would not necessarily render the
statute unconstitutional. This maxim presumes that a
legislature would never enact an unconstitutional law or
even a law of questionable constitutionality. Suppose a new
criminal statute increases the prison sentence for a
defendant who “uses or possesses a gun” in the commission
of a drug-related felony. A court is asked to consider whether
the statute is a separate crime or merely a sentence
enhancement for a defendant already convicted of a drug
crime. Applying this maxim, a court would likely determine
that the statute is a new crime because the other
interpretation would likely raise serious questions under the
Sixth Amendment. So, the court would avoid the
constitutional questions altogether and adopt an
interpretation that passes constitutional muster.

j. Lenity
The rule of lenity requires a court to resolve an ambiguity
in a criminal statute in favor of the accused. Grounded in due
process and fair notice requirements, the rule makes certain
that a person knows the exact nature of a crime and its
penalty before he or she can be convicted of that crime. If a
criminal statute is ambiguous, a court should adopt a
“lenient” construction that benefits the defendant. Suppose
a criminal statute requires the following penalty:

(1) one year in a state penitentiary;

(2) $1000 fine;

(3) two years of probation.

A court is asked to consider whether the statute requires

all three penalties or whether a sentencing court may pick
among the three penalties. Applying the rule of lenity, a
court would likely adopt the more lenient construction that
allows a court to pick among the three penalties.

2. Legislative History
To resolve an ambiguity in statutory language, a court tries
to discover what the legislature intended when it enacted a
statute. Often, a court will look for evidence of intent in the
statute’s legislative history. Legislative history is the body of
documents and transcripts created by a legislature as a bill
works its way through the various stages of the enactment
process. The history includes the original bill, amendments,
reports, transcripts of debates, and other published records.
Among the various documents, a legislative committee
report is considered the most important piece of legislative
history. That report is generated by a committee charged
with initially reviewing and, if necessary, amending a bill.
The committee report analyzes each section of a bill,
discusses the purposes of the bill, and recommends whether
the bill ought to be considered by the full legislative
chamber. By reviewing the committee report and other
sources of legislative history, a court attempts to find the
reasons why the legislature enacted the law and why it used
particular language to effectuate the purpose of the law.

Consider the “guns for drugs” example. Here, a statute

prohibits a “person who, during and in relation to any crime
of violence or drug trafficking crime, uses or carries a
firearm.” A defendant was indicted under the statute when
he bartered a gun for drugs. A court is asked to consider
whether the term “uses” includes a trade or barter. To
effectuate the intent of the enacting legislature, the court
decides to review the statute’s legislative history. The
committee report states that the original language of the bill
used the phrase “brandishes, fires, or carries,” and that the
word “uses” replaced “brandishes, fires” because the
legislators intended to penalize any use of a gun. Based on
this history, the court could conclude that the term “uses”
includes using a gun in barter or trade. This construction
seems to better effectuate the intent of the legislators who
enacted the bill.

Some judges and other commentators, however, object to

a court’s use of legislative history to resolve an ambiguity in
statutory language. These people, called Textualists, argue
that a court should look only at the language of the statute
when construing an ambiguity because the enacted
language in a statute is the best source of legislative intent.
Moreover, these judges and commentators suspect that a
statute’s legislative history can be easily manipulated by
legislators and courts alike. According to Textualists, a
legislator could doctor the legislative history by strategically
planting evidence of intent in the body of historical
documents that runs counter to the majority’s intent. A court
could also misuse legislative history by fishing for evidence
in the legislative record that corroborates the judge’s own
preferences but does not necessarily speak to the general
intent of the legislature. A Textualist-minded jurist
considering the example above would ignore the committee
report and focus instead on the statute itself. Suppose
another part of the statute includes the phrase “uses a
firearm as a weapon.” The court would likely employ in pari
materia or noscitur a sociis—both textual canons—and
decide that the term “uses” ought to be construed with the
term “uses a firearm as a weapon.” The court could then
conclude that the legislature intended only to prosecute a
person who uses a firearm as a weapon and a not a person
who uses a firearm to barter for drugs.

Notwithstanding the Textualists’ objections, legislative

history is widely regarded as a reliable source of legislative
intent. Often, a reviewing court will cite to a statute’s
legislative history and one or more maxims of statutory
construction to resolve an ambiguous or vague term in a
statute. In the end, a court is bound to effectuate the intent
of a legislature and may use whatever tools of construction it
believes will best glean that intent.

3. Cases Construing Statutes

Another way to resolve a statutory ambiguity is to research
cases that interpret the ambiguous or vague language in a
statute. Stare decisis and precedent, principles discussed in
chapter 1, are also applicable to rules announced in cases
construing statutes. Once a court of last resort determines
the meaning of a statute, subsequent courts must follow that
interpretation. Pursuant to stare decisis, a court’s
interpretation becomes precedent that other courts within its
jurisdiction must follow. Although the legislature makes law
by enacting statutes, courts also make law by interpreting a
statute’s meaning.

When construing a statute, a court first will determine

whether the statutory language is ambiguous or vague. If
the court determines that the language is not ambiguous,
then it will apply the text’s plain or ordinary meaning. If the
court determines that the language is ambiguous, then it will
search for evidence of legislative intent to resolve the
ambiguity. That search may prompt a court to review the
statute’s legislative history, to apply one or more maxims of
statutory construction, or examine the text of the statute. If
a court of last resort construes a statutory term, then that
opinion controls unless the legislature decides to amend the
statutory language.
 C. Statutory Interpretation and Deductive
Argument
When statutory language is unclear, a court will construe
the ambiguous or vague statutory language before it will
apply the facts of the case to the statute to deduce a
conclusion. Similarly, when advancing a statutory argument
to a court, a lawyer will offer a rule that resolves ambiguous
or vague statutory language in her client’s favor. Once the
lawyer resolves the statutory ambiguity, she applies the
facts of the case to the resolved statute to deduce a
conclusion.

Chapter 4 described how deductive analysis structures a

legal argument around a rule. Because the argument starts
with a rule, deductive analysis is also called rule-based
reasoning. Most deductive arguments begin with a major
premise. A major premise is a general statement that
describes a quality, character, property, or attribute that is
true to all members of a class. It is a general guide for
conduct or action. Think “all men are mortal.” The strength
of a deductive argument lies with the accuracy or
“truthfulness” of the major premise.

Deductive reasoning is closely associated with statutory

analysis because the major premise—a statute—could serve
as a very truthful major premise. Enacted law, however, can
be unclear because of ambiguity or vagueness in the
statutory language. To argue persuasively under a statute, a
lawyer must first resolve the ambiguity. A lawyer resolves a
statutory ambiguity by employing one or more of the various
tools of statutory construction described in this chapter, such
as the plain language rule, maxims of statutory construction,
legislative history, or cases construing statutes. The point is
to establish the most accurate and credible major premise to
support a deductive argument.

Once the major premise is established, a minor premise is

applied to the major premise. The minor premise is some
element, characteristic, or member of the class represented
by the major premise. It is usually expressed as a narrow
statement that is purportedly included within the major
premise. In the legal context, it is the facts raised in a case.
Think “Socrates is a man.” The conclusion is the third and
final step in a deductive argument. The conclusion is a
statement that follows logically from the application of the
minor premise to the major premise. Think “therefore,
Socrates is mortal.” If both the major and minor premises are
“true,” then the conclusion also has to be true. Because a
deductive argument is premised on logic, a deduced
conclusion can be very persuasive. Consider the following
deductive argument:

Major Premise: No person shall possess handguns,

rifles, knives, switchblades, and other weapons in a
school zone.
Vague Term: other weapons
Resolved Term: Employing the canon ejusdem
generis, the vague term “weapons” is limited by the
preceding examples. A rifle, knife, and switchblade
are designed to serve as weapons. So, the term
“weapons” can only include devices designed to
serve as weapons.
Minor Premise: The defendant possessed a
screwdriver in a school zone and used it to threaten
a student.
Conclusion: The defendant did not violate the
statute because he did not possess a device
 designed to serve as a weapon in a school zone.

Statutory analysis involves many important skills. Lawyers

must understand the basic syllogism and understand how to
resolve ambiguous or vague terms in a statute using the
tools of statutory construction. Once the term is resolved,
lawyers must complete the argument by applying a set of
facts to the resolved statute. Mastering these skills are
important steps in understanding legal analysis—the
fundamental skill.
 Practice Exercises
Complete the following exercises to reinforce your
understanding of this chapter.

1. How is statutory analysis different from case law

analysis?
2. What is the difference between an ambiguous term in a
statute and a vague term in a statute?
3. Define the plain meaning doctrine.
4. What are three sources of legislative intent?
5. Define the maxim in pari materia.
6. Define the maxim ejusdem generis.
7. Define legislative history.
8. Name one source of legislative history that is helpful in
determining legislative intent.
9. A statute states: Defacing a library book is punishable by
a $500 fine. Your client was caught underlining, in pencil,
a word in a book she borrowed from her private school’s
library.
Identify the vague or ambiguous term in the statute.

10. A statute states: A burglary is a breaking and entering of

a dwelling, at nighttime, with the intent to commit a
felony therein. Your client broke a window and entered a
houseboat at dusk with the intent to commit a felony. He
has been charged with burglary.
Identify the vague or ambiguous term in the statute.
11. A statute regulates the sale of oranges, lemons, limes,
and other fruits. Employing ejusdem generis, could a
court conclude that apples are also regulated under the
statute? Could a court conclude that apples are not
regulated under the statute?
12. A statute regulates the sale of all fruits. Applying the
plain meaning doctrine, how would a court hold if it was
asked to consider whether a tomato is included in the
statute?
13. Statute A regulates the sale of all fruits. Statute B
includes tomatoes in a provision that regulates
vegetables. Reading the statutes in pari materia, would a
court include tomatoes in Statute A?
Chapter 6
Policy-based Reasoning and Other
Considerations

OBJECTIVES

WHEN YOU FINISH READING THIS CHAPTER AND COMPLETE THE EXERCISES YOU WILL BE ABLE TO

IDENTIFY POLICY

EXPLAIN THE ROLE OF POLICY

RECOGNIZE JUDICIAL CONSERVATISM

TEST FOR CREDIBILITY

How a lawyer analyzes a legal problem depends on a

variety of factors such as the facts of the case, the issues
involved, the law, and the legal objective. You are already
familiar with two modes of analysis: analogical reasoning
and rule-based reasoning. Analogical reasoning identifies the
determinative facts from a body of cases and then compares
those facts to your client’s case to induce a conclusion. Rule-
based reasoning structures the analysis around a rule and
then applies a client’s facts to the rule to deduce a
conclusion.

Beyond analogical or rule-based reasoning, legal analysis

may also involve policy-based reasoning. Policy is the
purpose behind the rule. Policy should be an important
consideration in ensuring a thorough analysis of a legal
issue. This chapter explores policy and examines policy-
based reasoning. This chapter also discusses two other
considerations—how to consider judicial conservatism in
your analysis and how to test your arguments for credibility.
A lawyer considers these concepts to ensure a
comprehensive and thorough analysis and helps prevent an
overly simplistic approach to the analysis of legal problems.
 A. Policy
Policy is the purpose behind the law; it is the reason why
courts or legislators make law. Policy reflects how the law
impacts society and how the law affects the well-being of the
community. Because all rules purport to benefit society,
policy tends to mirror the values of society. And because a
court is more prone to rule in favor of a legal position that
might promote the well-being of society and less prone to
rule in favor of a legal position that might harm society, a
lawyer should demonstrate to the court how policy supports
her legal position.

Consider the crime of criminal solicitation. Criminal

solicitation occurs when someone requests, encourages,
commands, or hires someone to commit a crime. When the
rule-maker—either a court or legislator—criminalized
solicitation, it intended to protect the public as well as punish
the malfeasant. First, it sought to protect the public from
crimes committed by solicited criminals. Second, it sought to
deter criminals from inducing innocent persons to commit
crimes. While the crime of solicitation prohibits specific acts
by an individual, the policy behind the law seeks to protect
society as a whole.

Policy exists in both case law and enacted law. In case law,
courts often weigh the underlying policy supporting a rule
when deciding cases. Due to the nature of precedent, each
judicial decision not only affects the parties in a lawsuit, but
also future potential litigants. A court recognizes that its
published decisions have a life well beyond the case-at-bar.
As such, a court’s decision should further the policy behind
the law involved in that case.

Legislators also carefully weigh policy considerations when

enacting statutes. They enact laws to further the values and
principles of their constituents. The idea for most statutes
begins when a legislator recognizes some ill to be cured or
some future harm to be avoided. The language enacted into
law is simply the means to cure the ill or prevent the harm.

1. Identifying Policy
a. Case Law
Policy in case law is generally identified by looking at the
reasons why the court reached its holding. If an opinion
expressly articulates policy, you will generally find it in that
part of the decision where the court justifies the outcome of
the case. Here, the court may explain how the decision
furthers the underlying purpose of the law or how the
purpose protects the community. If, however, a court’s
opinion does not refer to the underlying policy supporting its
decision, a review of prior cases that consider the issue may
reveal the purposes behind the rule. Consider the following
example:

Commonwealth v. Ramsey: The defendant was

charged with possession of illegal narcotics. He
raised police entrapment as a defense. The facts
reveal that an undercover police officer approached
the defendant, gave him a sum of money, and asked
him to purchase drugs on his behalf. The defendant
declined. After persistent requests by the undercover
officer, he finally agreed to purchase the drugs. The
undercover officer immediately arrested him.
Entrapment occurs when a government agent
encourages a defendant to commit a crime that he
otherwise would not have committed. Here, the
defendant is not guilty because but for the repeated
requests by the undercover police officer, the
defendant would not have committed the crime. The
entrapment defense exists to prevent police
 overreaching. Police officers should enforce the law
and not entice an otherwise law-abiding person to
commit a crime. Police officers should never plant
the seed of criminality in an innocent mind.

To identify policy in the above opinion, determine the

court’s reasoning. The court reasoned that the defendant
was not predisposed to commit the crime. Rather, he was
enticed by the police. Where the court discusses its
justification for its holding, it explains the policy underlying
entrapment. The entrapment defense protects society by
deterring police officers from abusing their power when they
instigate innocent members of society to commit crimes.

b. Statutes
Sometimes, a statute may expressly state the policy or
purpose underlying a law. The preamble or purposes clause
in a statute may state the reasons for enacting the law.
Other times, look at extrinsic sources of legislative intent.
One source of legislative intent, the legislative history of a
statute, can assist in determining the policy behind a statute.
The legislative history of a statute consists of the documents
and transcripts created as a bill advances through the
different stages of the legislative process. The purpose or
policy supporting the statute may have been debated at
some point in the enactment process.

Other evidence of legislative intent can be found in cases

that interpret a statute. When courts interpret statutes, they
strive to carry out the legislature’s intent when it enacted
the law. To identify policy underlying a statute, identify the
court’s reasoning in cases interpreting that statute.

In the prior example, a lawyer could have reviewed the

legislative history of the criminal entrapment statute. That
review may have uncovered evidence of what the legislature
intended when it enacted the crime. Or, the lawyer could
have researched for legislative purpose in cases interpreting
the statute. Evidence of legislative intent derived from a
statute’s history, however, is usually the most persuasive
evidence of intent.
 B. Types of Policy Arguments

1. Judicial Administration Policy Arguments

2. Normative Arguments

3. Institutional Competence Arguments

4. Economic Arguments

5. Fairness and Justice Arguments

After identifying the policy behind a rule, consider

including policy arguments to support a legal argument. Or,
if you are asking the court to adopt a new or modified rule,
use policy to demonstrate how that rule will impact society. A
legal argument analyzes the law by explaining the law and
applying it to the client’s case. A policy argument analyzes
the underlying purpose of the law, and demonstrates how
the relief sought from the court is consistent with or furthers
that purpose. Policy should be researched and analyzed in all
legal problems. In some cases, policy may be your strongest
argument.

Legal issues can involve competing policy interests, such

as privacy rights versus public safety or judicial efficiency
versus fundamental fairness. When analyzing a legal issue, a
court evaluates the competing policy arguments advanced
by both plaintiff and defendant. Courts weigh the policy
argument advanced by both parties and resolve competing
policy considerations in the best interests of society at large.
Therefore, it is important to anticipate your opponent’s
policy arguments.
 The most common categories of policy arguments include:
judicial administration arguments, normative arguments,
institutional competence arguments, economic arguments,
and fairness and justice arguments.

1. Judicial Administration Policy Arguments

Judicial administration policy arguments focus on the
importance of an efficient and fair judicial system. These
policy arguments tend to pit judicial efficiency against
fairness to the parties. For example, courts are sometimes
asked to consider the breadth of a rule or law. The party
seeking a narrow and limited rule might argue that the broad
rule would harm judicial efficiency by “opening the
floodgates of litigation” or suggest that the broad rule might
result in a “slippery slope” of endless liability. That party
could argue that the proposed rule is too broad and would
lead to inefficient use of court time and resources. The party
could also argue that the breadth of the rule creates new
liability or generates culpability that was never intended.

Courts recognize a difference between slightly extending

the law and starting down a slippery slope by opening up the
floodgates to litigation. A slippery slope is a court’s decision
that expands the law without articulating a clear limit. Courts
are reluctant to change the law, especially when that change
could result in endless lawsuits that clog the courts. Perhaps
Justice William Grimes of the New Hampshire Supreme Court
said it best when he warned that the court “let the genie out
of the bottle, and it would be impossible to stuff it back in.”
Corso v. Merrill, 406 A.2d 300, 309 (N.H. 1979) (Grimes, J.,
dissenting). Justice Grimes focused his policy concern on
judicial administration and used that policy to support a
more narrow and limited rule of law.
 Consider a state law that allows a family member to
recover for emotional distress when he or she witnesses a
defendant injure a close family member. Suppose a court is
asked to consider whether a plaintiff could recover under this
rule when she witnessed a defendant injure her cousin. The
court may reason that if it allowed a cousin to recover, a
slippery slope may result. If a cousin can recover, could a
best friend recover? What about a fiancé? Where would the
court draw the line? The plaintiff would likely request the
court to broaden the rule to include cousins. The defendant
would likely ask the court to narrow the rule to include
immediate family members and exclude cousins. To resolve
the dispute, the court would likely weigh the parties’
competing policy considerations. The court would likely
consider the need to compensate plaintiffs who suffer injury.
The court would weigh this idea against its concern for
judicial efficiency and the need to limit liability of the
defendants who could be liable to an endless number of
plaintiffs.

Judicial administration policy arguments focus on whether

a rule would frustrate the efficiency of the justice system
when balanced against the other considerations. If the harm
to the fair and efficient administration of justice outweighs
other policy concerns, a court could be persuaded to rule
accordingly.

2. Normative Arguments
Normative arguments focus on social utility, such as
security, public safety, or public health concerns. For
example, courts in some states have allowed police to search
an automobile incident to the arrest of the driver. Normally,
the police must have a warrant to search a car. The
normative policy supporting this exception to the warrant
requirement is the court’s concern that a driver may have
access to weapons that could endanger the police or
bystanders.

3. Institutional Competence Arguments

Institutional competence arguments focus on whether the
legislature or the courts are better suited to resolve a legal
issue. According to the constitution’s separation of powers,
the legislature creates the law and the courts apply it.
Sometimes, however, a court acts as a quasi-legislature
when it interprets statutes and other enacted law. Here, a
lawyer might argue that a statutory question should be
resolved by the legislature because the constitution gives
the legislature exclusive authority to enact law. For example,
suppose a state statute read “all employers must comply
with the state occupational safety commission regulations.”
The government sued a cosmetics wholesaler when it
refused to comply with the statute. The court was asked to
consider whether a wholesaler who contracted with
independent sales representatives was an “employer” and
required to obey the statute. The wholesaler could argue
that the legislature and not the court has the institutional
competence to resolve the statutory question.

4. Economic Arguments
Economic arguments focus on financial considerations,
such as the allocation of resources, competition, and cost-
benefit analyses. Here, the court considers whether the
benefits of the rule outweigh the costs of applying it. For
example, suppose a court was asked to create a common-
law rule that would require employers to pay every
terminated employee two weeks of severance pay. Here, the
lawyer for the employers would likely argue that the cost of
enforcing the rule would far outweigh any benefits to
terminated employees.
 Economic arguments also include “deep pocket” policy
that purports to spread liability among those best able to
pay. For example, under the doctrine of negligent
entrustment, a person is liable when he entrusts or loans a
dangerous article to another person and that person injures
a third party. Many cases of negligent entrustment involve a
parent loaning a child a car who then uses the car to injure a
third party. Under the deep pocket theory, the parent ought
to be liable for the injury—even though the parent did not
cause the injury—because a parent is more likely to carry
insurance and thus is better able to make a plaintiff whole.

5. Fairness and Justice Arguments

A court will consider fairness, justice, and equity in its
resolution of a case. Fairness and justice consider whether a
judicial disposition is impartial and honest with respect to all
parties. They also consider whether a disposition is free from
bias or favoritism. An argument ought to consider both the
merits of the case under the law and whether the client’s
relief is fair and just. While an argument that relies
exclusively on fairness or justice without arguing the merits
of the law might appeal to the court’s innate sense of fair
play, it will not give the court a legal basis to rule in your
favor. Fairness and justice should be used to bolster a legal
argument, not replace it.

After providing a solid legal foundation, an attorney may

remind the court of the competing fairness interests of both
parties in a case. That argument stresses that a decision
adverse to a client’s interest would be disproportionately
unfair compared to the effect on the opponent. While a
lawyer has latitude when making fairness arguments, she
should focus on the impact of a court’s decision on her
client. For example, suppose the defendant built a garage
that encroached five inches onto the property of his
neighbor, the plaintiff. The plaintiff had no plans to use that
part of her property. The plaintiff then discovered the
defendant’s encroachment. She asks the court to order the
defendant to tear down his garage. The garage would have
to be destroyed and built again on the defendant’s land.
After making his legal argument, the defendant could
emphasize fairness and argue that tearing down the garage
would be disproportionately unfair compared to the effect on
the plaintiff. The defendant could ask the court to reach an
outcome that would be fair to both parties, such as
compensating the plaintiff for the encroachment but not
requiring him to remove the garage. The legal argument and
fairness argument combined could help the defendant win
the case.
 C. How to Use Policy

Four Uses of Policy

1. to support a legal argument;

2. to analyze a case of first impression;

3. to limit the scope of the law; and,

4. to expand the scope of the law.

In addition to legal arguments, a lawyer should consider

making policy arguments to bolster a client’s legal position.
Policy-based reasoning may affect the court’s decision,
especially in cases involving a case of first impression or
when the lawyer seeks to expand or limit the law. To engage
in policy-based reasoning, a lawyer needs to identify the
policy underlying a rule and show how that policy is
consistent with or advances the lawyer’s legal position.

1. To Support a Legal Argument

When analyzing a legal issue, consider whether your
client’s desired outcome would further the rule’s underlying
purpose. Courts generally avoid outcomes that frustrate the
purpose or policy behind the law. Thus, a lawyer’s argument
should demonstrate that his client’s position is required
under the law and also furthers the policy underlying it.

For example, in some jurisdictions, the doctrine of adverse

possession requires a plaintiff to possess another’s property
openly, exclusively, actually, adversely, notoriously, and
continuously for a term of years. The policy behind this
doctrine is to give a property owner sufficient notice that her
ownership rights are at risk because another person is using
the owner’s land. Suppose the owner had five acres of
wooded land behind his summer house. A possessor claims
that he adversely possessed a small parcel of the owner’s
land for the statutory term of years, off and on. The owner
could make a persuasive legal argument that the possessor
did not satisfy all of the elements of adverse possession
because the possessor did not continuously possess the land
for the statutory term. The owner could bolster this legal
argument by contending that his position fits squarely within
the policy behind adverse possession. That policy is to
provide sufficient notice to property owners that another is
attempting to possess his property. The owner did not have
sufficient notice of the adverse possession because the
possessor did not continuously possess the property for the
statutory term. While the legal argument looks at the legal
standard and determines whether the owner can satisfy the
test, the policy argument considers whether the relief that
the owner requests furthers the underlying purpose of the
law.

2. To Analyze a Case of First Impression

While courts are reluctant to make new law, a case of first

impression may require the court to break new ground.
Policy will play an important role when the court considers a
case of first impression. A case of first impression is when a
court has not yet considered a legal issue or when a novel
set of facts is applied to an existing legal doctrine. In both
cases, no controlling precedent exists to guide the court.
Thus, a court will likely rely heavily on policy to resolve a
case of first impression.

In cases of first impression, lawyers use policy arguments

to persuade courts to adopt new law or take existing law in
new directions. They advocate how a new law or the
application of existing law to a novel set of facts would
advance important societal goals. Consider the following
example: A court is considering whether a plaintiff can sue a
father who entrusted his car to his teen-aged son. The son
negligently hit the plaintiff with his father’s car. The
jurisdiction had not yet recognized this type of extended
liability called negligent entrustment. The plaintiff’s lawyer
could argue as a matter of law that the father wrongfully
entrusted his car to his son because the father knew his son
was a dangerous driver. The lawyer also could argue, as a
matter of policy, that unless the father is liable to the
plaintiff, the plaintiff would not be able to collect damages
because the teenaged son has no assets or insurance.
Conversely, the defendant’s lawyer could argue that it is
unfair to hold the father liable for an injury caused by his
son. Recognizing the societal benefits and detriments of this
new cause-of-action, the court would decide the issue after
weighing the competing policy arguments.

3. To Limit the Scope of the Law

Policy can also be used to limit the reach of the law. A
lawyer uses policy to persuade courts to narrow the
application of a law by arguing that the policy supporting the
law is too broad and no longer reflects the values of society.
Here, a lawyer could ask the court to narrow the law, without
abolishing it.

Consider the following example: Some jurisdictions

recognize common-law marriage. Common-law marriage is a
doctrine that recognizes two people as married without
having satisfied the statutory requirements of marriage. One
policy supporting the doctrine is to allow surviving spouses
and children to inherit the deceased spouse’s estate. It also
furthers traditional family values by encouraging
cohabitating couples to marry. Suppose a same-sex couple
asks a court to recognize it as married under the common
law. Here, the opposing lawyer could argue that common-law
marriage between same-sex couples would frustrate the
purpose of the law to promote traditional family values. The
lawyer would use policy to argue that common-law marriage
ought to be narrowed to exclude same-sex couples.

4. To Expand the Scope of the Law

While policy can be used to limit the law, a lawyer also
uses policy to expand it. In some cases, an existing law may
fail to protect society because it is too narrow. In these
situations, attorneys use policy to persuade a court to
expand the law to reflect current conditions.

Consider the common-law marriage example. The lawyer

representing the same-sex couple could argue that the law
ought to be expanded to include same-sex couples because
the same-sex marriage protects the surviving spouse and
children to the same extent as a common-law marriage
between a man and a woman. Plus, the lawyer could suggest
that society’s view of traditional family values has expanded
to include same-sex couples.
 D. Other Considerations
In addition to policy, a lawyer should consider other
influences that may affect the outcome of a case. This
section discusses two factors that may impact a court’s
decision. First, it discusses how the conservative nature of a
court could influence its holding. Second, the section
discusses the importance of advancing credible arguments.
A lawyer should consider these concepts to ensure a
comprehensive analysis.

1. Judicial Conservatism
Courts are inherently conservative. While courts may
change the law, they are reluctant to do so. One reason is
because courts are bound to follow precedent, pursuant to
the doctrine of stare decisis. The doctrine prevents courts
from deciding cases in a vacuum and subtly pressures courts
to conform to existing law. When a court decides a question
of fact, law, or procedure, an appellate court is allowed to
review that decision and determine whether the court erred.
No court likes to have its decision reversed. This concern
contributes to the courts’ conservative nature. The more
closely a court follows the precedent, the less likely its
decision will get reversed on appeal. Consequently, some
courts are reluctant to render rulings that push the limits of
the law.

Judicial conservatism deters some courts from expressly

overruling prior opinions. Instead, they express disapproval
or criticism of a prior opinion or decline to endorse a prior
court’s holding without expressly overruling it. The court’s
disapproval is often subtly stated.

Understanding judicial conservatism helps lawyers craft

persuasive legal arguments and anticipate legal outcomes. A
lawyer should advance arguments that appeal to a court’s
conservative disposition. A lawyer uses the court’s inherent
conservatism by arguing that the client’s position fits
squarely within the existing law or only requires a slight
modification of the law. The court will better receive this type
of argument because it will not have to make new law and
risk reversal on appeal.

Suppose a law regarding non-compete agreements in an

employment contract allows employers to geographically
restrict where their former employees can work. Employers,
however, may only restrict former employees within
“reasonable geographic boundaries.” Courts have not
explicitly stated what is considered “reasonable” or set a
specific mile limit, but have consistently ruled that cases
with restrictions up to twenty miles are reasonable. Your
client, an employer, wants to hold its employees to a forty-
mile non-compete agreement. The client has asked her
lawyer to advise him whether this restriction is reasonable
under the law. The lawyer determines that while the court
has not defined what is “reasonable,” a court might be
reluctant to extend the reach of the covenant beyond twenty
miles. The lawyer advises the client to stay within the
twenty-mile restriction that the court has already approved.
The advice is likely sound because it anticipates the court’s
conservative nature and does not risk asking the court to
expand the law.

If a lawyer’s position requires the court to change the law,

she should try to persuade the court that the change is only
a small extension of the existing law. An extension of the
law, after all, is still a modification or change of the law.
Courts are hesitant to modify established rules, but could be
persuaded if the change of law is characterized as only a
slight extension. Referring to the example above, suppose
your client ignores his lawyer’s advice and holds his
employees to a twenty-five mile geographic restriction, and
the employees sue your client. A lawyer could argue that this
distance is reasonable. The lawyer may persuade the court
that a twenty-five mile restriction is only a slight expansion
of the twenty-mile geographic restriction allowed in prior
cases. If a lawyer has solid reasons to support this
modification of the law, the lawyer could prevail because this
slight extension of existing law is compatible with the court’s
conservative nature. Had the client sought to double the
allowable range through a forty-mile restriction, the
argument would have to be quite compelling to convince a
court to change the law despite its conservative nature.

2. Credibility
A lawyer should consider only credible arguments to
advance his client’s position. A lawyer should avoid
arguments that a court may perceive as implausible. But just
because an argument might not persuade a court does not
mean it lacks credibility.

To test for credibility, a lawyer must ensure that an

argument has a plausible basis in law and fact or a plausible
basis to change or modify the law. First, a lawyer should
determine whether the argument furthers or frustrates the
policy underlying the law. A legal argument that violates
public policy might lack credibility. Second, a lawyer must
develop sound judgment to determine whether an argument
lacks credibility. With experience, a lawyer develops an
innate ability to test if an argument is far-fetched or fails the
“smell test.” The idea is to put yourself in the shoes of the
court considering your argument and predict the court’s
reaction. Would the court nod its head approvingly or frown
in disgust? For example, how would a court react to an
argument that a fast food chain is responsible for the obesity
of its patrons? Or that a prisoner who is denied access to
video games is suffering cruel and unusual punishment?

A lawyer who advances silly, nonsensical, or ridiculous

arguments will lose credibility with the court, her client, and
opposing counsel. A lawyer must distinguish between a
novel and creative argument using the law, and improbable,
unrealistic arguments that have little hope of success
because they have no basis in law or policy or common
sense. Judging credibility comes with experience and
practice, but lawyers must use common sense and judgment
to decide which arguments are credible and which are not.
 Practice Exercises
Complete the following exercises to reinforce your
understanding of this chapter.

1. Define policy.
2. How do you identify policy in judicial opinions?
3. How do you identify policy in statutes?
4. List four uses of policy arguments.
5. How is society protected by the following requirements
for a statutory marriage?
a. Blood test for syphilis

b. Obtaining a marriage license

c. Waiting period between issuance of a license and the

marriage ceremony

d. Marriage ceremony attended by both the bride and

groom and officiated by an authorized official

6. A court is considering whether a town’s curfew for

minors violates the minors’ rights even if it protects
them and the public. Of the five types of policy
arguments discussed in this chapter, what type of policy
argument could the town make?
7. A state’s highest court recognized gay marriage in its
jurisdiction. Of the five types of policy arguments
discussed in this chapter, what type of policy argument
could those opposed to gay marriage make?
8. A customer went into a convenience store to buy milk. A
third party came into the store and while robbing the
 store, he shot the customer. Unbeknownst to the
customer, the store had been frequently robbed, and the
store owner could be found liable for negligent security.
Of the five types of policy arguments discussed in this
chapter, what type of policy argument could the victim
make?
9. Courts in this jurisdiction have recognized a bystander
may recover for negligent infliction of emotional distress.
One element the plaintiff must prove is that she was
“closely related” to the victim. The courts have defined
“closely related” as parents, siblings, grandparents, or
other relatives residing in the same residence.
A father witnessed the defendant shoot his daughter, the
victim. The father had left the victim’s mother when the
victim was an infant. The father was going to the victim’s
house for the first time in ten years when he witnessed
the shooting. The father now seeks to recover for the
defendant’s negligent infliction of emotional distress. Of
the five types of policy arguments discussed in this
chapter, what type of policy argument could the plaintiff-
father and the defendant-shooter make?

10. Define judicial conservatism.

11. Name one reason why courts generally are conservative.
12. When drafting an argument that requires the court to
expand the law, how can attorneys appeal to a court’s
conservative nature?
13. What does it mean when a court starts down a “slippery
slope”?
14. Why is an argument based both on law and fairness
stronger than an argument based on fairness alone?
15. A law legalized the use of marijuana for medicinal
purposes. Courts interpreting this law have consistently
 ruled that it applies only to victims of terminal illnesses.
A plaintiff has glaucoma, a non-fatal illness. The plaintiff
seeks to use marijuana for medicinal purposes.
Aware of the court’s conservative nature, draft an
argument that opposes an extension of the law.

16. Seller had a valid contract to deliver 100 widgets to

Buyer’s factory by 9:00 a.m. on January 8. Due to severe
traffic on January 8, Seller arrived at Buyer’s plant with
the widgets at 9:22 a.m. Buyer refused to accept the
widgets because Seller was late.
Draft a fairness argument that supports Seller’s position.

17. Ryan and Isabelle dated for two years before deciding to
buy a house together. They equally contributed to
purchase a house. Isabelle spent a lot of time carefully
decorating and renovating the house. She bought all the
furniture for the house with her own money. A year later,
Ryan and Isabelle broke up. Ryan and Isabelle both want
the house. Each wants the other person to move out.
The court must now resolve the issue.
Draft a fairness argument to present to the court on
behalf of Isabelle.
Chapter 7
The Legal Argument: CREAC

OBJECTIVES

WHEN YOU FINISH READING THIS CHAPTER AND COMPLETE THE EXERCISES PROVIDED, YOU WILL BE ABLE TO

UNDERSTAND HOW TO COMMUNICATE LEGAL ANALYSIS

UNDERSTAND THE ROLE AND FUNCTION OF CREAC, AN ORGANIZATIONAL PARADIGM DESIGNED TO EXPRESS LEGAL ANALYSIS IN WRITING

Legal analysis involves studying the law, synthesizing it in

a coherent and holistic manner, and then applying it to your
client’s case while anticipating counterarguments. After
analyzing a legal issue, lawyers communicate that analysis
in writing in a way that is easy and obvious for the reader to
understand. Good writing is a reflection of good analysis.
Effective legal writing is clear, concise, and precise.

Lawyers typically analyze issues either objectively or

persuasively. An objective analysis is unbiased and seeks to
educate the reader about a legal issue or seeks to predict
the likely legal outcome of an issue. A persuasive argument
is biased and seeks to persuade the reader—usually a court
or tribunal—about the merits of a client’s legal position.

Lawyers present these arguments in a number of formats.

An objective analysis is often written in an interoffice
memorandum. An interoffice memorandum is an internal
document that objectively summarizes the attorney’s
research and analysis regarding a client’s legal issue and
predicts an outcome. A persuasive argument is generally
written in a memorandum of law or brief. A memorandum of
law or brief is a persuasive document that an attorney
submits to a court or other tribunal in support of a client’s
legal position.

Many legal writers employ organizational paradigms to

clearly communicate their analysis in writing. These
paradigms serve as a guide or template when drafting legal
analyses. The paradigms include, but are not limited to:
IRAC, CREAC, and CRAC. In each of these paradigms, each
letter represents a specific component or building block of a
legal argument. For example, the letters in IRAC represent:
Issue, Rule(s), Application, and Conclusion. Although several
variations exist, each paradigm functions similarly and aims
to present the analysis of a legal issue clearly, concisely, and
precisely.

While organizational paradigms are useful to novice legal

writers, relying too heavily on paradigms without
understanding how each component part builds on the next
will weaken the sophistication of the written argument. Some
students may be tempted to oversimplify the written
expression of the analysis by treating the organizational
paradigm as a prescribed formula. Instead, the argument
ought to be viewed holistically. Once you understand how
the paradigm is built and the purpose of each component
part, you should be able to manipulate or even omit parts to
fit the needs of the client, the complexity of the legal issue,
the goals or needs of your legal problem, or the audience
reviewing the document.

This chapter will explain one organizational paradigm,

CREAC, and how it is used to express different forms of legal
analysis, including analogical reasoning and rule-based
reasoning. CREAC has five component parts, each building
on the other. Each letter in CREAC represents a specific
component part of the written expression of legal analysis:
Conclusion, Rule, Explanation of the law, Application of the
Law, and Conclusion. When drafted effectively, the parts
combine in a cohesive, logical, and comprehensive
expression of legal analysis. CREAC is a flexible paradigm
that can be manipulated or translated to fit many different
types of legal analyses or documents. The key is to
understand how each component part of CREAC fits together.
 A. CREAC Explained

C Conclusion

R Rule(s)

E Explanation of the law

A Application of the law

C Conclusion

The following example illustrates the use of CREAC to

analyze objectively a single issue using analogical or
inductive reasoning. The issue is whether your client
committed a trespass on the owner’s land. The goal of this
analysis is to predict whether your client’s case has merit.
Assume that you have already researched the applicable law
in the controlling jurisdiction and analyzed your case under
the law. Based on the nature of the case and the available
authority, you decide to employ analogical reasoning to
communicate your analysis.

Your Client’s Legal Problem

Your client, the defendant, was sued for trespass. She

suffers from seizures. While driving on a street that bordered
the owner’s land, your client had a seizure and lost control of
her car. The car careened onto the owner’s land, destroying
his prized rose bushes.

1. The C in CREAC
Employing CREAC, organize the analysis of your client’s
legal issue by first stating your ultimate (C) conclusion
regarding the particular issue discussed. This statement
should be drafted in affirmative and precise language. If
possible, include a brief statement of the reasoning that
supports your conclusion. The CREAC paradigm requires a
conclusion at the beginning of the argument because legal
readers, such as lawyers and judges, expect to see the
bottom line first. More importantly, legal readers can better
understand the analysis when they know the conclusion at
the outset. The conclusion provides the reader with the
context to understand the analysis.

The C in Your Client’s Case

The court will rule that the defendant did not

trespass on the owner’s land because she
unintentionally entered the land.

2. The R in CREAC
Next, state the (R) rule(s) governing the issue. As
discussed in chapter 2, rules are derived from case law or
enacted law. Case rules can be either expressed or implied
or synthesized from a variety of sources. For many legal
issues, a number of rules may be applicable to fully analyze
the client’s case. When drafting the rules section, first state
the general rule that governs the issue presented. A general
rule is the comprehensive legal principle that is needed to
resolve the issue. The general rule will provide the context of
how the issue analyzed relates to the larger legal picture. For
example, if a legal issue requires the analysis of three
elements, the general rule will explain where the element
analyzed fits within the larger issue. Then, if applicable, state
more refined rules that are required to describe fully the
general rule. In some situations, the general rule has terms
that must be defined, or component parts that require sub-
rules. State the rules in order of increasing levels of
specificity. The rules section ought to resemble an inverted
pyramid—the broadest rules at the top followed by
increasingly specific rules until you reach the narrowest
applicable rule. A well-drafted and complete R section will
fully and concisely state all the law required to analyze a
legal issue.

Rules frame the organization of the analysis. Rules drive

the analysis. As such, CREAC requires lawyers to identify the
rules after stating the conclusion. The reader now
understands the issue, your overall conclusion, and the law
or rules required to resolve the legal issue.

The R in Your Client’s Case

Trespass to land prohibits the physical invasion of

an unauthorized person onto another’s private
property. (General rule).1 An intention to trespass is
not required, only an intention to enter the land.
(Specific rule).

3. The E in CREAC
 Next, (E) explain the rules. This section of CREAC consists
of a holistic discussion that educates or persuades the
reader about how the precedent and other authoritative
sources construe, apply, or interpret the rules. The E section
explains the law and provides examples of how prior courts
have resolved the same or similar issues even when the
cases reach opposite results. This section could also include
enacted law or secondary authority such as law review
articles or legal treatises. The E section should reflect the full
spectrum of authority required to explain the law.

The E section should educate the reader about the law. It

may include a discussion of the critical facts in the relevant
cases, the courts’ holdings, and most importantly, the
courts’ reasoning. In some cases, an opinion will expressly
state the reasoning. In other cases, however, the student
must determine the court’s implicit reasoning by analyzing
the facts and holding of the relevant authority. The E section
should include all the reasons that a court used to support its
holding, including policy, to illustrate how a decision is
consistent with the purposes behind the law.

If your analysis is supported in whole or part by an

unexpressed or synthesized rule in the R section, the E
section should explain how you arrived at or discovered the
rule. Here, the E section would likely use cases or statutes to
illustrate the unexpressed or synthesized rule. Because a
court likely never articulated the rule, this section should
establish how you determined the rule and provide a basis
for a reader to judge its credibility.

The E section should not be a series of unconnected case

briefs. Instead, this section should be organized around
relevant themes or threads derived from the authority.
Relevant themes or threads result from the synthesis of the
applicable law. Think of this section as one holistic discussion
that uses cases and other sources to explain or exemplify the
law as opposed to a series of disconnected but related case
annotations.

The purpose of the E section is to explain the relevant law.

As such, this section should follow the R section.

The E in Your Client’s Case

To determine a trespass, courts in Massachusetts

examine whether the defendant’s entry onto
another’s property was voluntary. For example, in
Samuels v. Philips, the Massachusetts Appeals Court
considered whether a defendant trespassed on
another’s property when the defendant entered the
plaintiff’s property by walking across an empty field.
The defendant thought he was on public property.
The court held that the defendant was liable for
trespass because a person’s intent to enter the land
of another, not the person’s intent to commit a
trespass, satisfies the prima facie tort of trespass.
The court reasoned that although the defendant did
not intend to commit a trespass, he did intend to do
the act which resulted in a trespass. In a later case,
the appeals court in Dunkin v. Ramy, considered
whether a defendant committed a trespass when he
was pushed onto the property of another. The court
held that the defendant was not liable because he
did not intend the act that resulted in the trespass. In
both cases, the court focused on the intent of the
trespasser and examined how and not why the
defendant entered the property of another. Both
courts concluded that a defendant’s intent to enter
the land—not the intent to commit trespass—is
determinative.
4. The A in CREAC
After describing the rules in the R section and explaining
the rules in the E section, the A section applies the rules to
the facts of your client’s case. The rules stated in the R
section and the themes developed in your E section should
inform the A section. The R, E, and A sections should
address parallel points and share the same thematic thread;
the A section should follow logically from the R and E
sections.

RULES → EXPLAIN RULES → APPLY RULES TO FACTS

If you decide to employ analogical reasoning, the A section

could include the four analytical steps described in chapter
3. First, state the point of your analysis. This statement is
usually derived from the R and E sections and describes the
analytical theme of your analysis. Second, state the fact-to-
fact comparisons or distinctions between the determinative
facts in your client’s case and the determinative facts in the
relevant case law. Under the inductive or analogical model,
you must state how the facts of your client’s case compare
to the controlling (or persuasive) authorities. Under the
inductive model, the similarities or distinctions between the
facts of the cases will determine whether a court must follow
the precedent. Third, explain the significance of the analogy.
Simply describing the fact comparisons without explaining
why that comparison is important is not legal analysis.
Instead, point to the reasoning of the relevant case law to
explain why your fact comparison determines the legal
outcome. Fourth, state the conclusion.

The Four-part Argument

Step One: State the point of the analysis

Step Two: State the fact comparison

Step Three: Apply the court’s reasoning

Step Four: Conclude

The E section and the A section are related but distinct

parts of the analysis. The A section should not simply repeat
the explanation of the law that you already discussed in the
E section. Instead, compare the facts in the controlling
authority first explained in the E section to the facts in your
client’s case. Explain the relationship between the facts of
your client’s case and the facts in the relevant authority—are
they similar or different? If the facts are similar, then stare
decisis applies and the outcome in your client’s case ought
to be similar to the outcomes of the relevant cases.
Remember, legal analysis is like long division; you must
show your work. Using the four-step approach will ensure a
structured and thorough analysis of the issue.

The A in Your Client’s Case

The defendant did not trespass because she

involuntarily entered the owner’s land. Like the
defendant in Dunkin, who was pushed onto the
property, the defendant in the present case
involuntarily entered the owner’s land when her
seizure caused her car to enter another’s property.
Unlike the defendant in Samuels, who intended to
enter the property, the defendant in the present case
involuntarily entered the owner’s land. A court will
most likely follow the reasoning of Dunkin and
Samuels, and similarly rule that the defendant’s
intent to do the act that resulted in the trespass and
not the intent to trespass is required. Although the
defendant knew she suffered from seizures and she
 intentionally drove her car, a court will likely focus on
whether the trespass itself was intentional. Thus, a
court will likely conclude that she is not liable
because she never intended the act that resulted in
the trespass.

5. The Final C in CREAC

The final Conclusion should concisely state the resolution
of the issue analyzed. This statement should be brief and
should never introduce new ideas. It reminds the reader of
the bottom line.

The Final C in Your Client’s Case

The defendant is not liable for trespass because

she did not intend the act that resulted in the
trespass. The defendant’s entrance onto the owner’s
land was caused by a seizure, an involuntary act.
 B. The CREAC Argument: Inductive Analysis or
Analogical Reasoning
Below, review the final written analysis of the client’s case
following the CREAC organizational paradigm using
analogical reasoning.2 Notice how each component of CREAC
builds upon the former. When combined, the entire analysis
represents a thorough and organized expression of the
writer’s analysis.

[C] The court will rule that the defendant did not trespass
on the owner’s land because she unintentionally entered the
land. [R] Trespass to land prohibits the physical invasion of
an unauthorized person onto another’s private property. An
intention to trespass is not required, only an intention to
enter the land.

[E] To determine a trespass, courts in Massachusetts

examine whether the defendant’s entry onto another’s
property was voluntary. For example, in Samuels v. Philips,
the Massachusetts Appeals Court considered whether a
defendant trespassed on another’s property when the
defendant entered the plaintiff’s property by walking across
an empty field. The defendant thought he was on public
property. The court held that the defendant was liable for
trespass because a person’s intent to enter the land of
another, not the person’s intent to commit a trespass,
satisfies the prima facie tort of trespass. The court reasoned
that although the defendant did not intend to commit a
trespass, he did intend to do the act which resulted in a
trespass. In a later case, the appeals court in Dunkin v.
Ramy, considered whether a defendant commits a trespass
when he is pushed onto the property of another. The court
held that the defendant was not liable because he did not
intend the act that resulted in the trespass. In both cases,
the court focused on the intent of the trespasser and
examined how and not why the defendant entered the
property of another. Both courts concluded that a
defendant’s intent to enter the land—not the intent to
commit trespass—is determinative.

[A] The defendant did not trespass because she

involuntarily entered the owner’s land. Like the defendant in
Dunkin, who was pushed onto the property, the defendant in
the present case involuntarily entered the owner’s land when
her seizure caused her car to enter another’s property. Unlike
the defendant in Samuels, who intended to enter the
property, the defendant in the present case involuntarily
entered the owner’s land. The court will most likely follow
the reasoning of Dunkin and Samuels, and similarly rule that
the defendant’s intent to do the act that resulted in the
trespass, and not the intent to trespass, is required. Although
the defendant knew she suffered from seizures and she
intentionally drove her car, the court will likely focus on
whether the act of driving onto the property was intentional.
Thus, the court will likely hold her not liable because she
never intended the act that resulted in the trespass. [C] The
defendant is not liable for trespass because she did not
intend the act that resulted in the trespass. The defendant’s
entrance onto the owner’s land was caused by a seizure, an
involuntary act.
 C. The CREAC Argument in a Multi-issue
Problem
The example above illustrates the analysis of a single legal
issue. CREAC, however, may also be used when a client’s
case involves more than one issue or when a single issue
involves subparts. If your client’s case requires the analysis
of a multi-issue problem, then give the reader a roadmap or
blueprint at the outset of the analysis in a holistic thesis
paragraph. This introductory paragraph should give the
reader the overall conclusion to the client’s case, the general
rule or rules required to analyze the case, and a brief
summary of your analysis. Then use CREAC to organize the
analysis of each issue or sub-issue.

For example, suppose your client would like you to

determine whether his neighbor has a claim of adverse
possession on a parcel of his land. The doctrine of adverse
possession requires a showing that a party openly,
continuously, exclusively, adversely, and notoriously
possessed the land of another for a period of years. The
issue may require the analysis of each element of adverse
possession and a determination of whether the neighbor
adversely possessed the property for the required time
period. So, the organization of the analysis may look like
this:

Thesis Paragraph

C: Overall conclusion

R: Rule of adverse possession

A: Brief summary of the analysis

CREAC 1: Was neighbor’s possession “open”?

 CREAC 2: Was neighbor’s possession “continuous”?

CREAC 3: Was neighbor’s possession “exclusive”?

CREAC 4: Was neighbor’s possession “adverse”?

CREAC 5: Was neighbor’s possession “notorious”?

CREAC 6: Was neighbor’s possession for the requisite

time period?

In this example, the thesis paragraph states the overall

conclusion—whether the neighbor did or did not adversely
possess your client’s property—sets the context of the
problem, and offers the reader a concise roadmap of the
issue. Then, each subpart of adverse possession is
separately CREACed. In each of the six CREACs, the
conclusion, rule, explanation, application, and conclusion are
limited to the issue under consideration. For example, in
CREAC 1 the analysis is limited only to whether neighbor’s
possession was “open.” While rules in this CREAC might state
that “open possession” is one element of adverse
possession, the analysis is focused on the resolution of this
one issue.
 D. The CREAC Argument: Deductive Argument
or Rule-based Reasoning
The example above demonstrates CREAC using analogical
reasoning. This section will illustrate CREAC using rule-based
reasoning. The first example below shows CREAC using
deductive or rule-based reasoning structured around an
expressed and unambiguous rule. The second example
illustrates rule-based reasoning structured around an
unexpressed rule. The third example illustrates rule-based
reasoning using an ambiguous rule.

If you decide to employ rule-based reasoning, the analysis

section should include the five analytical steps described in
chapter 4. First, state the point of your analysis. Second,
state the rule or rules applicable to the issue. Third, explain
the rule. In some situations, after stating a rule it may not be
necessary to explain the rule because the rule is clear, well-
established, and unambiguous. In other situations, you may
need to explain how you derived the rule—perhaps because
a court fails to express the rule in its opinion or because a
rule is synthesized from a variety of sources or because the
rule is ambiguous and needs clarification. Fourth, apply the
law to the facts. Fifth, state the conclusion.

The Five-part Argument: Rule-based Reasoning

Step One: State the point of the analysis

Step Two: State the rule

Step Three: Explain the rule (if necessary)

Step Four: Apply the law to the facts

Step Five: Conclude

 Recall from chapter 4 that when employing rule-based
reasoning, the analysis section is structured around the rule
itself and not fact comparisons. The idea is to apply the facts
from your client’s case to a stated proposition of law to
deduce a conclusion.

1. The CREAC Argument: Rule-based Analysis

Using an Expressed and Unambiguous Rule
In this example, the legal issue involves the application of
an unambiguous statute to a set of facts. Earlier in this
chapter, we noted that CREAC is a flexible paradigm and can
be manipulated to meet the needs of the analysis. In this
example, this analysis does not require an E section to
explain the rule because the rule is clearly expressed and
without ambiguity.3

Statute: A person under the age of eighteen is not

bound to a contract he enters.
The facts: Your client is seventeen years old and
entered a contract to buy a used car from his
neighbor. The neighbor sues your client for breach of
contract when your client fails to pay for the car.
[C] The client is not liable for breach of contract
because he is not bound by law to the contract. [R]
A person under the age of eighteen is not bound to a
contract that the person enters. [A] The client was
seventeen years old when he entered the contract to
purchase his neighbor’s used car. [C] The client is
not liable for the breach because he is too young to
be bound to the contract.

Here, the analysis requires the application of facts to a

stated legal proposition. The statute did not require an
explanation—or E section—because the statute is clear and
unequivocal. The writer could have chosen to include an E
section to explain the derivation of the statute or the
purpose of the law, but that explanation was not required to
resolve the legal issue. Note the deductive nature of the
analysis. The minor premise—the fact that the client is under
eighteen years old—is applied to the major premise—the
statute that voids contracts entered into by minors—to
deduce a conclusion.

2. The CREAC Argument: Rule-based Analysis

for an Unexpressed Rule
In some situations, the court may not have clearly
expressed a rule to resolve the case before it and no statute
exists that speaks to the issue. A lawyer may need to infer or
imply an unexpressed rule to resolve her client’s case. Here,
an E section is required to explain how the lawyer
extrapolated the rule from the relevant cases. The idea is to
establish the rule’s credibility and veracity. Once the rule is
explained, the lawyer simply applies the facts of the client’s
case to the rule to deduce a conclusion.

For example, assume that the state statutory code does

not have a law on the books that voids contracts entered
into by minors and no opinions expressly state a rule that
governs the legal issue. Instead, the lawyer discovers an
implied or unexpressed rule from the controlling cases. Here,
merely stating the rule is not enough because the lawyer will
need to show how she discovered the unexpressed rule from
the cases. Once the rule is explained, the lawyer then
applies the facts of the case to the rule to deduce a
conclusion. Consider the following analysis4:

Unexpressed Rule: A person under the age of

eighteen is not bound to a contract he enters.
The facts: Your client is seventeen years old and
entered a contract to buy a used car from his
neighbor. The neighbor sues your client for breach of
contract when your client fails to pay for the car.

[C] The court will conclude that the client is not

liable for breach of contract because he is not bound
by law to the contract. [R] A person under the age of
eighteen is not bound to a contract that he enters.
[E] In Smith v. Jones, the State Supreme Court
considered whether a fifteen-year-old girl was bound
to her contractual obligation to the plaintiff to walk
his dog. The court held that she was not bound to
the contract because her young age prevented her
from fully understanding the rights and obligations of
a contract. In a similar case, the Court of Appeals in
Somol v. Taverna considered whether an eighteen-
year-old boy breached his contract with the plaintiff
to mow his lawn. The court concluded that the
defendant was contractually bound to cut the
plaintiff’s lawn because he was mature enough to
understand the rights and obligations of a
contractual relationship. Both cases imply that
minors under age eighteen are unable to
comprehend the nature of a contract and thus are
not bound by them.
[A] In the present case, the client is not bound to the
contract he entered to purchase his neighbor’s car.
This jurisdiction voids contracts entered into by
minors under the age of eighteen, because they lack
the maturity necessary to understand fully the rights
and obligations of a contractual relationship. The
client was seventeen years old when he entered the
contract. [C] Thus, the client is too young to be
bound to the contract, and he is not liable for the
breach.
3. The CREAC Argument: Rule-based Analysis
Using an Ambiguous or Vague Rule
In some legal problems, a rule is expressed but it is
ambiguous or vague. Here, a lawyer would need to resolve
the ambiguity before she can reach a conclusion. As
discussed in chapter 5, enacted law is prone to ambiguous or
vague language. To analyze an ambiguous or vague
statutory provision, a lawyer must explain how the statutory
language is resolved. Here, the analysis would require an E
section to explain the rule. Once the statutory ambiguity is
resolved, the lawyer applies the client’s facts to the resolved
statute to deduce a conclusion.

Suppose your client, the defendant, was charged with

assault with a dangerous instrument. The prosecutor alleges
that the defendant used a concrete sidewalk as a dangerous
weapon when he smashed the victim’s head against the
sidewalk. The relevant state statute reads, “A person who
assaults another with a gun, knife, or other dangerous
instrument commits a class C felony.” The statute is vague
because it fails to define the categorical term “dangerous
instrument.” To analyze the issue, you must resolve the
vague language to determine whether a concrete sidewalk
qualifies as a dangerous instrument under the statute. In this
example, a court in the controlling jurisdiction has not
construed the statutory language. Consider the following
analysis using CREAC5:

[C] A court will likely determine that the defendant did not
commit an assault with a dangerous instrument because a
concrete sidewalk is not designed to inflict harm. [R] The
relevant state statute reads, “A person who assaults another
with a gun, knife, or other dangerous instrument commits a
class C felony.” The legislature, however, failed to define the
term “dangerous instrument.” Despite this, a court will likely
construe the term to include only instruments that are
designed to inflict harm.

[E] The meaning of the term “dangerous instruments” is

not plain because it is a broad categorical term that could
apply to almost any instrument. The legislative history of the
statute, however, reveals that the legislature intended to
include only objects that are designed to inflict harm or
injury. Senator Amy Polk, the sponsor and drafter of the
statute, stated during a Senate floor debate that “by passing
this bill we protect our constituents from any criminal who
uses a gun or a knife or anything else that was designed to
kill or maim.” Moreover, a court construing this statutory
language will likely employ ejusdem generis, a tool of
statutory construction that determines the breadth of a
categorical term. In this statute, the phrase “dangerous
instrument” is preceded by the terms “gun” and “knife.”
Because a gun and a knife are designed specifically to inflict
harm, a court would likely rule that the breadth of the term
“dangerous instruments” is limited by these specific
examples and conclude that the statute is limited
instruments that are designed to inflict harm.

[A] In the present case, the defendant did not use a

dangerous instrument during the assault. A concrete
sidewalk is not designed to inflict harm but rather is
designed to prevent harm by providing a stable and even
walking surface. [C] As such, a court will likely determine
that the defendant did not commit an assault with a
dangerous instrument.

The CREAC paradigm aids in the organization of legal

analysis. It can be used with analogical reasoning or rule-
based reasoning. The component parts of CREAC can and
should be manipulated to best suit the analysis. If you
understand the purpose behind each component part of
CREAC, you can vary the paradigm to suit a wide variety of
situations. Bear in mind that CREAC is simply an
organizational tool. The strength and credibility of the
analysis depends on the clarity of the written expression and
the depth and sophistication of the analysis—not on the
paradigm.
 E. Fourteen Tips When Using CREAC
When using CREAC to communicate legal analysis, keep
the following points in mind. These points address traps that
often ensnare law students.

1. Analyze One Issue at a Time

Each CREAC ought to focus on a single legal issue. Do not
analyze several issues at once. Focused analyses are easier
for readers to digest and comprehend. If you have a multiple
issue problem, then analyze each issue separately using
CREAC, and provide the reader with a thesis paragraph at
the outset of the analysis that ties the issue together and
shows the big picture.

2. Conclude Only the Single Issue Analyzed

The C in each CREAC should conclude only as to the single
issue analyzed. In some situations, an argument may consist
of an analysis of multiple parts, requiring multiple CREACs.
Each CREAC, however, ought to begin with a statement that
offers a conclusion for the narrow part, element, or factor
discussed and not the broader cause of action or legal
principle. The broader conclusion is offered in the thesis
paragraph at the outset of the analysis.

3. Offer All Rules Required to Analyze the Issue

In the R section of CREAC, offer all the rules required to
resolve the issue. The R section could include enacted law,
expressed rules, unexpressed or implied rules, and
synthesized rules. Be sure to structure this section beginning
with the broadest rule and then offer rules of increasing
specificity. Remember that definitions are rules.
4. Explain the Law before Applying the Law
Before applying the law to the facts of your case, explain
the law if needed. Then, you can refer to that law when
applying it to your client’s case. Discussing the law when you
are applying that law to your client’s facts can confuse and
overwhelm the reader. The reader first has to comprehend
the law before she can understand how that law applies to
your case. For example, when employing analogical
reasoning, describe the critical facts of the controlling cases
in the E section before comparing and/or contrasting those
facts to the critical facts in your client’s case in the A
section.

When drafting the E section, avoid a superficial

explanation of the law; instead, explain the law thoroughly.
Be sure to offer the key facts, reasoning, and holdings of the
relevant cases. Be sure to include all relevant authority and
not just authority that benefits your client’s positions. Deal
with negative authority. Do not ignore or omit it. Also, avoid
“brief stacking” by simply offering a series of case
annotations or briefs in the E section. Instead, explain the
law using the common themes or threads that you identified
in the authority. Synthesize similar cases and explain how
the law developed, changed, broadened, or narrowed over
time.

5. In the “A” Section, Start with the Point of the

Argument
In either analogical or rule-based reasoning, start the A
section by stating the point of the argument. Akin to a topic
sentence, this point statement orients the reader to the key
aspect of the analysis and how the law applies to the client.
6. For Inductive-type Arguments That Compare
Facts:
a. State the Fact-to-Fact Analogy
Whenever possible, refer to a determinative fact in the
precedent when comparing that fact to a fact in your client’s
case. Don’t merely mention the precedent without showing
which facts in the precedent are comparable to the facts in
your client’s case. Don’t make the reader refer back to an
explanation of a case to see how the facts in that case apply
to your client’s case. The reader should never have to work
to follow your analysis.

Ineffective: Like the defendant in Jones, our client

also has an alibi because he was home during the
alleged crime.
Effective: Like the defendant in Jones, who had an
alibi because he was in a movie theater during that
alleged crime, our client also has an alibi because he
was at home during the alleged crime.

b. Prove the Significance of the Analogy

After stating a fact analogy or distinction, explain why that
fact comparison is important. Simply pointing to a fact
comparison without explaining why the comparison is
important is not legal analysis. Instead, remind the reader
why the fact comparison suggests a legal result.

Ineffective: The defendant in the present case is

not guilty of the crime charged because he has a
credible alibi. Like the defendant in Jones, who
proved that he had an alibi because he was in a
movie theater during that crime, the defendant in
the present case also has an alibi because he was
 home during the crime. Therefore, the defendant is
not guilty.
Effective: The defendant in the present case is not
guilty of the crime charged because he has a
credible alibi. Like the defendant in Jones, who
proved that he had an alibi because he was in a
movie theater during that crime, the defendant in
the present case also has an alibi because he was
home during the crime. The court will follow the
reasoning of Jones and rule that defendants who
establish sufficient evidence of an alibi cannot be
found guilty of the crime. In the present case, the
defendant is not guilty because he establishes
credible evidence of an alibi.

7. For Deductive-type Arguments Consider the

Syllogism
A syllogism is a three-part argument that requires a major
premise, a minor premise, and a conclusion. The major
premise is the law. The minor premise is the facts in a
client’s case. The conclusion is the application of the law to
the facts. Instead of comparing facts, consider a deductive-
type argument by applying the client’s facts to the law to
deduce a conclusion.

Effective: A defendant who establishes a credible

alibi cannot be guilty of the crime charged. The
defendant in the present case proved that he was
home during the crime. The defendant is not guilty
of the crime charged because he has a credible alibi.

8. Don’t Be Conclusory
Instead of merely stating the legal conclusion, explain how
you reached that conclusion. Sometimes, after immersing
themselves in a legal problem, students lose perspective and
assume that the reader is already acquainted with the law
and analysis. To avoid this, explain each step of the analysis.
Don’t assume the reader will understand your argument
without a clear and logical development of the analysis. Like
giving someone directions to your house, explain each small
step so your reader won’t get lost.

9. Don’t Fight the Law or Your Client’s Facts

It is unethical to omit unfavorable authority or facts or
bend the law or distort facts to fit the conclusion you desire.
Instead, deal with the law and facts head-on and embrace
any ambiguity, inconsistency, negative authority, or
damaging facts.

10. Avoid the Stretch Argument

Legally tenuous or far-fetched arguments will likely fail and
undermine your credibility. Sound, logical, and credible
arguments are always more persuasive than unrealistic or
implausible arguments.

11. Remember the Alternative Argument

Cover all your bases. Consider including an alternative
argument to your argument-in-chief. Offering more than one
legal route to prevail increases a lawyer’s chances of
success. If a court does not agree or is not persuaded by one
argument, it could still be persuaded by an alternative
argument.

12. Anticipate and Analyze the Opponent’s

Argument
Don’t ignore opposing arguments. Ignoring them won’t
make them go away. Deal with the weaknesses in your case
directly. In objective legal writing, the opponent’s position
might be the winning position. In persuasive legal writing,
address the other side’s likely arguments by refuting them or
explaining why they lack merit. Deal with any weaknesses in
your case by anticipating counterarguments.

13. Organize the Analysis around a Common

Theme
A well-drafted CREAC will have a common theme or thread.
Each component part of the paradigm will reinforce that
theme. The first C will introduce the theme; the R and the E
sections will state, explain, and illustrate the theme; and the
A section will analyze arguments under that same theme. A
thematic argument reinforces the key point or points in
every part of CREAC. A CREAC that lacks a common theme
will appear fractured and disconnected.

14. Be Flexible
Think about the purpose behind each component part of
CREAC. Once you develop a fluid understanding of CREAC,
you will be able to apply it in different contexts and in a
variety of ways. CREAC is a starting point and should be
adapted to meet the simplicity or complexity of each legal
problem. For example, you may not need an E section if the
rule is clear and unequivocal. In other situations, you may
not need an A section if the point of the analysis is to
determine what law applies or what law a court should adopt
—not to apply a set of facts to the law. Think of CREAC as a
flexible and mutable paradigm instead of a rigid formula.
 Practice Exercises
Complete the following exercises to reinforce your
understanding of this chapter.

1. What are some differences and similarities between

CREAC and IRAC?
2. When would a writer vary the component parts of
CREAC?
3. Answer the following questions:
a. What do the letters of CREAC represent?

b. What is the purpose of the E?

c. What is the purpose of the A?

4. Why is it important to state the conclusion first in an

argument?
5. The following sentences are from an argument.
Unscramble the sentences and put them in a logical
order following CREAC.
a. Voluntary manslaughter is the unlawful killing of
another without malice, but with adequate provocation.
Utopia Gen. Law § 52 (2007).

b. Like the defendant in State v. Z, who was adequately

provoked when he found his wife in bed with another,
the defendant in the present case was also adequately
provoked when he was cut off by a speeding motorist on
a crowded highway. In the heat of passion, with no time
to reflect on the consequences of his actions, the
defendant in the present case, like the defendant in
State v. Z, committed voluntary manslaughter. In the
 present case, the defendant, after being cut off by a
speeding motorist, pulled a hand gun from his glove
compartment, and shot the speeding driver.

c. The defendant in the present case is guilty of

voluntary manslaughter because he killed another in the
heat of passion.

d. The present court will follow the reasoning of the court

in State v. Z, where the court reasoned that killings that
result from adequate provocation, or in the heat of
passion, are voluntary manslaughters. The court will find
that the defendant committed voluntary manslaughter.

e. Adequate provocation depends on whether a

defendant was reasonably provoked to kill another. For
example, in State v. Z, the defendant found his wife in
bed with another. Consumed with rage, the defendant
grabbed a shotgun and killed the victim. The court in
State v. Z held that the defendant was guilty of voluntary
manslaughter because he killed another in the heat of
passion. The court in State v. Z reasoned that the
defendant committed voluntary manslaughter because
he was reasonably provoked and reacted without time to
reflect on his actions.
1. Citations omitted throughout this example.

2. Citations omitted in this example.

3. Citations omitted in this example.

4. Citations omitted in this example.

5. Citations omitted in this example.

 Conclusion
Legal analysis is a skill, unique to the legal profession. A
well-analyzed legal issue is the result of careful thinking,
critical reading, and experience. Mastering legal analysis is
attainable by understanding the basic principles discussed in
this book. By providing an introduction and foundation to
legal analysis, we hope this book helps you understand legal
analysis—the fundamental skill.
 Glossary of Terms
Ambiguous term. A term in a statute that has more than
one meaning.

Analogical analysis. A strategy of legal analysis that

compares facts in cases or the characteristic of facts in cases
to the facts of a client’s case.

Analogy. An inference that if two or more facts or

characteristics are similar in one respect, they will be similar
in other respects.

Appellate court. A court that reviews errors of law, fact, or

procedure made in a prior court’s determination of the same
case.

Attorney. A person admitted in a jurisdiction to practice law.

Authority. Any legal source used by courts and attorneys to

oppose or support a legal proposition.

Avoid surplusage. A maxim of statutory construction that

presumes that every word in a statute is meaningful and that
a legislature would not enact law with surplus or redundant
terms.

Balancing test. A legal test that consists of several factors

that courts weigh to reach a conclusion.

Bill. A draft of a proposed law introduced by a legislator.

Binding authority. Law that a court must follow.

Broad analogy. An analogy that draws general fact
comparisons that relate to but are not necessarily parallel to
the critical facts of the precedent.

Case. A judicial proceeding that determines a controversy

between two or more parties.

Case-at-bar. A cause of action currently before a court.

Case law. Law derived from the judiciary.

Case of first impression. A case that raises an issue not

yet resolved by the court, and thus no precedent exists.

Case synthesis. A process that combines several opinions

in order to identify a common denominator among the
precedents.

Certification. A procedure authorized by state law that

refers a state issue originally brought in federal court to that
state’s highest court of appeals.

Common law. The rules and legal principles derived from

judicial decisions, judgments, and decrees, rendered in the
absence of enacted law.

Concurring opinion. A separate opinion that agrees with

the result of the majority opinion but for different reasons.

Constitutional questions. A maxim of statutory

construction that requires a court to avoid an interpretation
of a statute that raises a constitutional question.

Court. A branch of government that interprets the law and

resolves legal disputes.

Court brief. A persuasive memorandum of law that

attorneys submit to a court in support of their client’s legal
position. (Do not confuse this with students’ case briefs).

CREAC. An organizational formula for legal writing that

represents: Conclusion, Rule(s), Explanation of the law,
Application of the law, and Conclusion.

Critical facts. Facts from the controlling precedent that a

court found dispositive when it resolved a legal dispute.

Decision. The judicial determination of a dispute.

Deductive reasoning. A strategy of legal analysis that

deduces a conclusion by applying facts to a stated legal
premise.

Dictum (dicta). The part of a court’s opinion that does not

relate to the resolution of the case.

Disposition. The component of an opinion that resolves a

legal matter.

Dissenting opinion. A separate opinion that disagrees with

the majority’s holding.

Distinction. A contrast between the critical facts of a

precedent and the facts in a case-at-bar.

Economic arguments. A policy argument that focuses on

financial considerations, such as the allocation of judicial
resources.

Ejusdem generis. (“Of the same kind.”) A maxim of

statutory construction that requires courts to construe a
general word in a statute that follows a list of specific words
to include only things of the same type specified in the list.

Element. A component part of a legal test that must be

satisfied or met.
Enacted law. Law derived from a legislature.

Expressed rule. A clearly expressed legal principle found in

a judicial opinion.

Expressio unius est exclusio alterius. (“The expression

of one excludes the other.”) When a statute includes a list of
terms, this maxim of statutory construction prevents a court
from adding any additional terms.

Extrapolation. A process of identifying a common

characteristic among several facts by abstracting more
general characteristics from specific traits.

Factor. A component part of a legal test that the court may

consider. Every factor need not weigh in favor of a party to
satisfy a test.

Facts. The events, circumstances, or objects stated in an

opinion that relate to the ultimate resolution of the matter.

Fairness. A court’s considerations of equity, impartiality,

and justness, when deciding legal issues.

Fairness and justice arguments. Type of policy argument

that considers whether a judicial disposition is impartial and
honest with respect to all parties and is free from bias or
favoritism. Hierarchy. Different levels of courts within a
jurisdiction.

Highest court of appeal. The highest level appellate court

within a jurisdiction.

Holding. The component of an opinion that resolves the

question(s) presented to the court.

Implied rule. A rule that is not articulated in the body of an

opinion.
Inductive reasoning. A strategy of analysis that allows a
lawyer to induce a conclusion by establishing a legal analogy
between the key facts in the controlling cases and the facts
in the client’s case.

In pari materia. (“On like subject matter.”) A maxim of

statutory construction that requires courts to read statutes
on the same subject matter consistently with each other.

Institutional competence arguments. Policy arguments

that focus on whether the legislature or the courts are better
suited to resolve a legal issue.

Intermediate court of appeals. An appellate court that

reviews errors of law from a trial court in jurisdictions that
have a three-level court hierarchy.

Interoffice memorandum. An internal legal document that

summarizes an attorney’s research and analysis and that
objectively predicts a court’s decision regarding specific legal
issues.

IRAC. An organizational formula for legal writing, that

represents: Issue, Rule(s), Application of the law, and
Conclusion.

Issue. The component of an opinion that presents the legal

question that the court is asked to resolve.

Judge. A person who presides over legal disputes and

decides controversies between parties.

Judgment. A court’s final determination of a dispute that

resolves the rights and liabilities of parties in a lawsuit.

Judicial administration policy arguments. Policy

arguments that focus on the importance of an efficient and
fair judicial system.

Judicial conservatism. A court’s inherent reluctance to

change the law.

Jurisdiction. The power of a court to decide a case or

controversy.

Law. Rules which govern persons and entities rights, duties,

obligations, and liabilities.

Lawyer. A person licensed to practice law.

Legal analogy. An inference that if the determinative facts

in the controlling authority are similar to the determinative
facts in the client’s case, then the holdings or legal
conclusions ought to be similar.

Legal analysis. Strategies lawyers employ to determine,

predict, or persuade legal outcomes of cases.

Legal test. A judicial inquiry that determines whether a rule

has been satisfied.

Legislative history. The paper trail of a bill as it works its

way through the different stages of the legislative process.

Legislative intent. The reasons behind the enactment of a

statute.

Legislature. The branch of government that enacts laws.

Lenity. A maxim of statutory construction that requires a

court to resolve an ambiguity in a criminal statute in favor of
the accused.

Major premise. The major premise is the first premise in a

syllogism and usually describes a quality, character,
property, or attribute that is true to all members of a class.

Minor premise. The minor premise is the second premise in

a syllogism that describes some characteristic of a member
of the class within the major premise.

Maxim of statutory construction. A generally recognized

guide or custom that a court may use to interpret statutory
ambiguity.

Memorandum of law. A document summarizing a lawyer’s

research and analysis.

Narrow analogy. An legal analogy that draws specific fact

comparisons between the case-at-bar and the precedent.

Normative arguments. Policy arguments that focus on

social utility, such as security, public safety, or public health
concerns.

Noscitur a sociis. (“It is known from its associates.”). A

maxim of statutory construction that requires a court to
construe an ambiguous term by looking at its neighboring
terms for guidance.

On point. A controlling case that is dispositive of the legal

issue in a client’s case.

Opinion. Written statement of a court explaining how it

reached its decision.

Persuasive authority. Law that a court is not bound to

follow, such as a case from another jurisdiction.

Persuasive brief. A formal written document submitted to

a court to convince it to resolve an issue in a particular way.
Plain meaning doctrine. A rule of statutory construction
that requires courts to use the ordinary and plain meaning of
terms found in a statute.

Point sentence. A topic sentence that introduces the point

of an analysis.

Policy. The purpose behind a law. The reason why a

legislature or courts made a law.

Precedent. A judicial decision or opinion that serves as an

example of how a subsequent court can resolve a similar
question of law under a similar set of facts.

Presumption of internal consistency. A maxim of

statutory construction that requires a court to interpret a
statute to promote consistency within the statute.

Prima facie case. A case that alleges sufficient evidence on

its face.

Primary authority. A source of authority that represents

the law.

Procedural history. The component of an opinion that

traces the case as it worked its way through the court
system.

Reasoning. The component of an opinion that explains how

the court reached its decision.

Remedial statutes canon. A maxim of statutory

construction that requires courts to construe broadly an
ambiguous statute until the statute’s remedial purpose is
accomplished.

Rule. A principle of law employed or adopted to resolve a

legal issue. A legal principle set by an authoritative body
prohibiting or requiring action or forbearance.

Rule-based reasoning. A mode of legal analysis that

requires a lawyer to apply a set of facts to a stated legal
premise, like a statute or common-law rule.

Rule synthesis. A process that blends relevant cases to

develop a holistic rule that incorporates the holdings of the
applicable cases.

Secondary authority. A source of authority that consists of

any relevant source, other than the law. It is persuasive,
never binding, on a court.

Slippery slope. A judicial determination that results in

unclear limits of liability, potentially increasing the number of
lawsuits.

Stare decisis. A principle that requires courts to follow

precedent when deciding similar cases.

Statute. An act of a legislature that, among other things,

proscribes and governs conduct. It is a formal written
enactment of a legislature.

Statutory construction. A judicial analysis that interprets

ambiguous or vague terms in statutes.

Syllogism. A logical model that has a major premise, a

minor premise, and a conclusion.

Titles are not controlling. A maxim of statutory

construction prevents courts from using a statute’s title to
resolve statutory ambiguity.

Totality of the circumstances test. A test that requires

the court to consider all of the circumstances relevant to the
case.
Trial court. A court where evidence is first introduced and
considered.

Vague term. A term in a statute that has no defined limits.

 Table of Contents
Acknowledgments
Chapter 1 - The Foundations of Legal Analysis
A. Statutes
B. Case Law
1. Common Law and Precedent
2. The Power of Precedent and Stare Decisis
C. Hierarchy of Courts
D. Jurisdiction
E. Types of Authority
Practice Exercises
Chapter 2 - Rules
A. Enacted Law
B. Case Law
1. Express Rules
2. Implied Rules
3. Rule Synthesis
C. Tests
1. Element Test
2. Balancing Test
3. Totality of the Circumstances Test
Practice Exercises
Chapter 3 - Inductive Analysis and Analogical Reasoning
A. Analogical Reasoning
1. The Three Triggers: Jurisdiction--Legal Issue--Facts
2. The Analogical Model
3. Critical Facts
4. Case Synthesis
B. Analogical Strategies
1. Narrow Analogy
a. Part One--State the Point of the Analysis
b. Part Two--State the Narrow Fact Comparison
c. Part Three--Apply the Court's Reasoning
d. Step Four--Conclude
2. Broad Analogy
Practice Exercises
Chapter 4 - Deductive Analysis & Rule-based Reasoning
A. Deductive Reasoning--The Syllogism
1. The Model
2. Deductive Reasoning & Legal Argument
3. Identifying Flaws in a Syllogism
B. The Structure of a Deductive Argument Using Rule-based
Reasoning
a. Part One--State the Point of the Analysis or Conclusion
b. Part Two--State the Rule
c. Part Three--Explain the Rule
d. Part Four--Apply Law to Facts
e. Part Five--Conclude
C. Deductive/Inductive Combination
Practice Exercises
Chapter 5 - Statutory Analysis
A. Statutory Construction
1. The Plain Meaning Rule
2. Construing Ambiguous Statutes
B. Tools of Statutory Construction
1. Maxims
a. In Pari Materia
b. Ejusdem Generis
c. Noscitur a Sociis
d. Avoid Surplusage
e. Remedial Statutes
f. Expressio Unius est Exclusio Alterius
g. Presumption of Internal Consistency
h. Titles Are Not Controlling
i. Constitutional Questions
j. Lenity
2. Legislative History
3. Cases Construing Statutes
C. Statutory Interpretation and Deductive Argument
Practice Exercises
Chapter 6 - Policy-based Reasoning and Other Considerations
A. Policy
1. Identifying Policy
a. Case Law
b. Statutes
B. Types of Policy Arguments
1. Judicial Administration Policy Arguments
2. Normative Arguments
3. Institutional Competence Arguments
4. Economic Arguments
5. Fairness and Justice Arguments
C. How to Use Policy
1. To Support a Legal Argument
2. To Analyze a Case of First Impression
3. To Limit the Scope of the Law
4. To Expand the Scope of the Law
D. Other Considerations
1. Judicial Conservatism
2. Credibility
Practice Exercises
Chapter 7 - The Legal Argument: CREAC
A. CREAC Explained
1. The C in CREAC
2. The R in CREAC
3. The E in CREAC
4. The A in CREAC
5. The Final C in CREAC
B. The CREAC Argument: Inductive Analysis or Analogical
Reasoning
C. The CREAC Argument in a Multi-issue Problem
D. The CREAC Argument: Deductive Argument or Rule-based
Reasoning
1. The CREAC Argument: Rule-based Analysis Using an
Expressed and Unambiguous Rule
2. The CREAC Argument: Rule-based Analysis for an
Unexpressed Rule
3. The CREAC Argument: Rule-based Analysis Using an
Ambiguous or Vague Rule
E. Fourteen Tips When Using CREAC
1. Analyze One Issue at a Time
2. Conclude Only the Single Issue Analyzed
3. Offer All Rules Required to Analyze the Issue
4. Explain the Law before Applying the Law
5. In the "A" Section, Start with the Point of the Argument
6. For Inductive-type Arguments That Compare Facts:
a. State the Fact-to-Fact Analogy
b. Prove the Significance of the Analogy
7. For Deductive-type Arguments Consider the Syllogism
8. Don't Be Conclusory
9. Don't Fight the Law or Your Client's Facts
10. Avoid the Stretch Argument
11. Remember the Alternative Argument
12. Anticipate and Analyze the Opponent's Argument
13. Organize the Analysis around a Common Theme
14. Be Flexible
Practice Exercises
Conclusion
Glossary of Terms