LOGIC_FOR_LAW_STUDENTS 3/30/2007 9:22 AM

LOGIC FOR LAW STUDENTS

How to Think Like a Lawyer

Ruggero J. Aldisert,* Stephen Clowney** and Jeremy D. Peterson***

Abstract
Law schools no longer teach logic. In the authors' view this is tragic, given that the fundamental
principles of logic continue to undergird the law and guide the thinking of judges. In an effort to
reverse the trend, this essay explains the core principles of logic and how they apply in the law
school classroom. The manuscript begins by examining the basics of the deductive syllogisms
and then turns to inductive generalizations and the uses and abuses of analogies. The authors
claim that students who master the basics of logic laid out in this article will be better lawyers
and will feel more comfortable when they find themselves presenting arguments to judges and
juries.

INTRODUCTION

Logic is the lifeblood of American law.1 In case after case, prosecutors,

defense counsel, civil attorneys and judges call upon the rules of logic to
structure their arguments. Law professors, for their part, demand that students

*
Senior U.S. Circuit Judge, Chief Judge Emeritus, U.S. Court of Appeals for the Third
Circuit, University of Pittsburgh, B.A., 1941, J.D., 1947. Judge Aldisert’s books include
ROAD TO THE ROBES: A FEDERAL JUDGE RECOLLECTS YOUNG YEARS & EARLY TIMES
(2005); WINNING ON APPEAL: BETTER BRIEFS AND ORAL ARGUMENT (2d ed. 2003); LOGIC
FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINKING (3d ed. 1997); THE JUDICIAL PROCESS:
TEXT, MATERIALS AND CASES (2d ed. 1996); OPINION WRITING (1990).
**
Law Clerk to Judge Aldisert, 2006-2007, Princeton, A.B., 2000, Yale Law School, J.D.,
2006.
***
Law Clerk to Judge Aldisert, 2006-2007, Swarthmore, B.A., 1999, Harvard Law School,
J.D., 2006.
1. Apologies here to Oliver Wendell Holmes. As Holmes put it, “[t]he life of the law has not
been logic, it has been experience.” Oliver Wendell Holmes, Jr., Common Law 1 (1881).
But see John H. Watson, M.D., A Case of Deduction, Or, Upon the First Meeting of
Sherlock Holmes and Oliver Wendell Holmes, Jr., 24 U. ARK. LITTLE ROCK L. REV. 855,
n.1 (2002) (arguing that the “overarching themes of Justice Holmes’s writings” are
comparable to the methods of deduction employed by Sherlock Holmes).

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defend their comments with coherent, identifiable logic. By now we are all
familiar with the great line spoken by Professor Kingsfield in The Paper
Chase: “You come in here with a head full of mush and you leave thinking like
a lawyer.” What is thinking like a lawyer? It means employing logic to
construct arguments.
Notwithstanding the emphasis on logical reasoning in the legal profession,
our law schools do not give students an orientation in the principles of logic.
Professor Jack L. Landau complained that, “the idea of teaching traditional
logic to law students does not seem to be very popular.”2 Indeed, Professor
Landau found that “[n]ot one current casebook on legal method, legal process,
or the like contains a chapter on logic.”3 In our view, this is tragic. The failure
to ground legal education in principles of logic does violence to the essence of
the law. Leaving students to distill the principles of logic on their own is like
asking them to design a rocket without teaching them the rules of physics.
Frustration reigns, and the resulting argument seems more mush-like than
lawyerly. In these pages we make a small attempt to right the ship by offering
a primer on the fundamentals of logical thinking.
Our goals are modest. At the risk of disappointing philosophers and
mathematicians, we will not probe the depths of formal logic.4 Neither will we
undertake to develop an abstract theory of legal thinking. This Article, rather,
attempts something new: We endeavor to explain, in broad strokes, the core
principles of logic and how they apply in the law school classroom. Our
modest claim is that a person familiar with the basics of logical thinking is
more likely to argue effectively than one who is not.5 We believe that students
who master the logical tenets laid out in the following pages will be better
lawyers, and will feel more comfortable when they find themselves caught in
the spotlight of a law professor on a Socratic binge.
Sifting through the dense jargon of logicians, we have identified a handful
of ideas that are particularly relevant to the world of legal thinking. First, all
prospective lawyers should make themselves intimately familiar with the
fundamentals of deductive reasoning. Deductive reasoning, as Aristotle taught
long ago, is based on the act of proving a conclusion by means of two other
propositions. Perhaps 90 percent of legal issues can be resolved by deduction,

2. Jack L. Landau, Logic for Lawyers, 13 PAC. L.J. 59, 60 (1981) citing BRAND & J. WHITE,
LEGAL WRITING: THE STRATEGY OF PERSUASION (1976).
3. Id.
4. A more comprehensive discussion, geared toward practicing lawyers, may be found in
Judge Aldisert’s Book LOGIC FOR LAWYERS: A GUIDE TO CLEAR LEGAL THINKING (1997).
5. We note that logical reasoning is particularly important at the appellate level where most
cases are decided on the merits of the briefs. See, e.g., Mary Massaron Ross, A Basis for
Legal Reasoning: Logic on Appeal, J. ASS’N LEGAL WRITING DIRECTORS 179, 182 (2006).

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so the importance of understanding this type of reasoning cannot be overstated.

Second, students should acquaint themselves with the principles of inductive
generalization. Inductive generalizations, used correctly, can help students
resuscitate causes that seem hopeless. Third, reasoning by analogy—another
form of inductive reasoning—is a powerful tool in a lawyer’s arsenal.
Analogies help lawyers and judges solve legal problems not controlled by
precedent and help law students deflect the nasty hypotheticals that are the
darlings of professors. Finally, we comment briefly on the limitations of logic.

I. IT’S ELEMENTARY: DEDUCTIVE REASONING & THE LAW

A. The Syllogism

Logic anchors the law. The law’s insistence on sound, explicit reasoning
keeps lawyers and judges from making arguments based on untethered,
unprincipled, and undisciplined hunches.6 Traditionally, logicians separate the
wider universe of logical reasoning into two general categories: inductive and
deductive. As we will see, both branches of logic play important roles in our
legal system. We begin with deductive reasoning because it is the driving force
behind most judicial opinions. Defined broadly, deduction is reasoning in
which a conclusion is compelled by known facts.7 For example, if we know
that Earth is bigger than Mars, and that Jupiter is bigger than Earth, then we
also know that Jupiter must be bigger than Mars. Or, imagine that you know
your dog becomes deathly ill every time he eats chocolate. Using deduction we
know that if Spike wolfs down a Snickers bar, a trip to the vet will be
necessary. From these examples, we can get an idea of the basic structure of
deductive arguments: If A and B are true, then C also must be true.
The specific form of deductive reasoning that you will find lurking below
the surface of most judicial opinions and briefs is the syllogism—a label
logicians attach to any argument in which a conclusion is inferred from two
premises. For example:

6. See JOHN DEWEY, HOW WE THINK 17 (1933). Dewey says that reasoned thought “converts
action that is merely appetitive, blind and impulsive into intelligent action. Id. S. Morris
Engel puts it this way: “The study of logic . . . helps us free ourselves from ignorant
thoughts and actions.” S. MORRIS ENGEL, WITH GOOD REASON: AN INTRODUCTION TO
INFORMAL FALLACIES 42 (1994).
7. See EDWARD P.J. CORBETT & ROBERT J. CONNORS, CLASSICAL RHETORIC FOR THE MODERN
STUDENT 32 (1999) (describing deductive reasoning as “an act of the mind in which, from
the relation of two propositions to each other, we infer, i.e., understand and affirm, a third
proposition”).

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All men are mortal.

Socrates is a man.
Therefore, Socrates is mortal.

According to the traditional jargon, the syllogism’s three parts are called
the major premise, the minor premise, and the conclusion. The major premise
states a broad and generally applicable truth. In this example, “All men are
mortal.” The minor premise states a specific and usually more narrowly
applicable fact: “Socrates is a man.” The conclusion then draws upon these
premises and offers a new insight that is known to be true based on the
premises: “Socrates is a mortal.”
Gottfried Leibniz expressed the significance of the syllogism three hundred
years ago, calling its invention “one of the most beautiful, and also one of the
most important, made by the human mind.”8 For all its power, the basic
principle of the syllogism is surprisingly straightforward: What is true of the
universal is true of the particular.9 If we know that all cars have wheels and
that a Toyota is a car, then a Toyota must have wheels. The axiom may be
stated this way: If we know every member of a class has a certain
characteristic, and that certain individuals are members of that class, then those
individuals must have that characteristic.10
It is no exaggeration to say that the syllogism lies at the heart of legal
writing.11 Consider these examples taken from watershed Supreme Court
opinions:

Marbury v. Madison12

The Judicial Department’s province and duty is to say what the law
is.
The Supreme Court is the Judicial Department.

8. NEW ESSAYS CONCERNING HUMAN UNDERSTANDING 559 (1916).

9. JOSEPH GERARD BRENNAN, A HANDBOOK OF LOGIC 64 (1957).
10. To be sure, there are other forms of deductive syllogism, but we have deliberately confined
our discussion to the “All men are mortal” type: the categorical deductive syllogism. Thus,
there is no mention of the Hypothetical Syllogism that includes an if-then statement, or the
Disjunctive Syllogism, in which one premise takes the form of a disjunctive proposition
(either-or), and the other premise and conclusion are categorical propositions that either
deny or affirm part of the disjunctive proposition. See LOGIC FOR LAWYERS, supra note 4, at
163-168 & 158-163 for help with these sorts of syllogisms.
11. See e.g., RICHARD POSNER, THE PROBLEMS OF JURISPRUDENCE 38-39 (1990) (describing the
strength of the syllogism in legal reasoning).
12. 1 Cranch 137 (1803).

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Therefore the province and duty of the Supreme Court is to say

what the law is.

Youngstown Sheet & Tube Co. v. Sawyer13

The President’s power to issue an order must stem from an act of

Congress or the Constitution.
Neither an act of Congress nor the Constitution gives the President
the power to issue the order.
Therefore the President does not have the power to issue the order.

Brown v. Board of Education14

Unequal educational facilities are not permitted under the

Constitution.
A separate educational facility for black children is inherently
unequal.
Therefore a separate educational facility for black children is not
permitted under the Constitution.

Griswold v. Connecticut15

A law is unconstitutional if it impacts the zone of privacy created

by Bill of Rights.
The law banning contraceptives impacts the zone of privacy created
by the Bill of Rights.
Therefore the law banning contraceptives is unconstitutional.

We urge all law students to get in the habit of thinking in syllogisms. When
briefing a case as you prepare a class assignment, the skeleton of the deductive
syllogism should always poke through in your description of the case’s
rationale. Young attorneys should probably tattoo this on the back of their
hands—or at least post it above their keyboards: Whenever possible, make the
arguments in your briefs and memos in the form of syllogisms. A clear, well-
constructed syllogism ensures each conclusion is well-supported with

13. 343 U.S. 579 (1952).

14. 349 U.S. 294 (1955).
15. 381 U.S. 479 (1965).

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evidence, and gives a judge recognizable guideposts to follow as he sherpas the

law along his desired footpath.16
But how, you might ask, does a new lawyer learn to construct valid
syllogisms? Some people come to this ability instinctively. Just as some
musicians naturally possess perfect pitch, some thinkers have logical instincts.
Luckily for the rest of us, the skill can be learned through patience and
practice. We start with the basics. To shape a legal issue in the form of a
syllogism, begin by stating the general rule of law or widely-known legal rule
that governs your case as your major premise. Then, in your next statement,
the minor premise, describe the key facts of the legal problem at hand. Finally,
draw your conclusion by examining how the major premise about the law
applies to the minor premise about the facts. Like this:

Major Premise: The Eighth Amendment prohibits cruel and unusual

punishment by a state.
Minor Premise: Executing a minor is cruel and unusual punishment by a
state.
Conclusion: Executing a minor is forbidden by the Eighth Amendment.17

Although this might look simple, constructing logically sound syllogisms

requires a lot of grunt work. You must thoroughly research the law’s nooks
and crannies before you can confidently state your major premise. And you
must become sufficiently knowledgeable about your case to reduce key facts to
a brief yet accurate synopsis.
If you find yourself having trouble organizing a brief or memo, try
shoehorning your argument into this generic model, which is based on the
argument made by prosecutors in nearly every criminal case:

Major premise: [Doing something] [violates the law.]

Minor premise: [The defendant] [did something.]
Conclusion: [The defendant] [violated the law.]

16. The foremost advocate of clear rules and formalism in American jurisprudence may be
Justice Antonin Scalia. See William Huhn, The Stages of Legal Reasoning: Formalism,
Analogy, and Realism, 48 VILL. L. REV. 305, 310 (2003). Justice Scalia argues that a
formalist approach to legal reasoning ensures predictability and fairness. Antonin Scalia,
The Rule of Law as the Law of Rules, 56 U. CHI. L. REV. 1175, 1182 (1989).
17. See Roper v. Simmons, 543 U.S. 551 (2005).

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The prosecutor’s model can serve as a useful template for most legal
problems. Using it will help you reduce your arguments to their most essential
parts.
In addition to providing a useful template, the above example reflects the
fact that the three parts of a syllogism—the two premises and conclusion—are
themselves built from three units. Logicians call these units “terms.” Two
terms appear in each statement: the “major term” in the major premise and
conclusion, the “minor term” in the minor premise and conclusion, and the
“middle term” in the major and minor premises but not in the conclusion.
Notice that the middle term covers a broad range of facts, and that, if the
conclusion is to be valid, the minor term must be a fact that is included within
the middle term. Although the jargon can get confusing, the basic idea isn’t
hard to grasp: Each statement in a syllogism must relate to the other two.

B. Finding Syllogisms in Legal Writing

But wait!—you might be thinking—this syllogism business is too simple:

opinions and memos are never so straightforward. Well, yes and no. The
syllogism is simple, and indeed it does undergird most legal arguments, but
sometimes you have to dig a bit below the surface to excavate syllogisms. The
fact that syllogisms aren’t immediately evident doesn’t mean that the writing is
sloppy, or that it doesn’t use syllogisms. But it does mean that you’ll have to
work a bit harder as a reader. One logician notes that “an argument’s basic
structure . . . may be obscured by an excess of verbiage . . . , But an argument’s
structure may also be obscured for us . . . because it is too sparse and has
missing components. Such arguments may appear sounder than they are
because we are unaware of important assumptions made by them . . . .”18
Consider this one-sentence argument penned by Justice Blackmun in his
Roe v. Wade opinion:
This right of privacy, whether it be founded in the Fourteenth
Amendment’s concept of personal liberty and restrictions upon state
action, as we feel it is, or, as the District Court determined, in the Ninth
Amendment’s reservation of rights to the people, is broad enough to
encompass a woman’s decision whether or not to terminate her
pregnancy.19

Implicit within Justice Blackmun’s statement is the following syllogism:

18. S. MORRIS ENGEL, WITH GOOD REASON: AN INTRODUCTION TO INFORMAL FALLACIES 20

(1994).
19. 410 U.S. 113, 153 (1973).

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Major Premise: The right of privacy is guaranteed by the Fourteenth or

Ninth Amendment.
Minor Premise: A woman’s decision to terminate her pregnancy is
protected by the right of privacy.
Conclusion: Therefore, a woman’s decision whether to terminate her
pregnancy is protected by the Fourteenth or Ninth Amendment.

The ideas are floating around in Judge Blackmun’s sentence, but it requires
some work on the reader’s part to parse them into two premises and a
conclusion.
Sometimes it’s more than a matter of rearranging sentences and rephrasing
statements to match up with the syllogistic form. Sometimes a legal writer
doesn’t mention all parts of the syllogism, leaving you to read between the
lines. Logicians are certainly aware that an argument can be founded on a
syllogism although not all parts of the syllogism are expressed. They even have
a name for such an argument: an enthymeme. Often, enthymemes are used for
efficiency’s sake. If a premise or conclusion is obvious, then writer can save
her precious words to make less obvious points. Even a kindergarten teacher
might find the full expression of a syllogism to be unnecessary: The teacher
could say, “Good girls get stars on their foreheads; Lisa is a good girl; Lisa
gets a star on her forehead”—but she’s more likely to say, “Lisa gets a star on
her forehead because she is a good girl.” In logic-speak, the teacher would be
omitting the major premise because it is generally understood that good girls
get stars on their foreheads.
Judges and lawyers write for more educated audiences—or so we hope—
and so as a law student you had better be ready for hosts of enthymemes.20 The
Third Circuit employed one in Jones & Laughlin Steel, Inc. v. Mon River
Towing, Inc.21 That decision was founded on the following syllogism:

Major Premise: Any federal procedural rule that conflicts with Rule 4 of
the Federal Rules of Civil Procedure is superceded by Rule 4.
Minor Premise: Section 2 of the Suits in Admiralty Act is a federal
procedural rule that conflicts with Rule 4 of the Federal Rule of Civil
Procedure.

20. The philosopher Ludwig Wittgenstein argued that the use of enthymemes is commonplace.
He noted, “The stove is smoking, so the chimney is out of order again. (And that is how the
conclusion is drawn! Not like this: The stove is smoking, and whenever the stove smokes
the chimney is out of order; and so . . .”).” LUDWIG WITTGENSTEIN, REMARKS ON THE
FOUNDATIONS OF MATHEMATICS 40 (5th ed. 2001).
21. 772 F.2d 62 (3d. Cir. 1985).

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Conclusion: Rule 4 supersedes Section 2 of the Suits in Admiralty Act.

In the text of the opinion, however, the court left out a key part of the
minor premise: it never stated that Section 2 of the Suits in Admiralty Act
actually conflicts with Rule 4 of the Rules of Civil Procedure. The court can
hardly be faulted for not explicitly stating the conflict. All parties involved
recognized the conflict, and the court avoided needless words by leaving the
conflict implicit. But an astute reader of the case should recognize that a bit of
work on her part is necessary in order to develop the enthymeme into a full-
fledged syllogism.
In addition to not handing the reader syllogisms on a platter, legal writers
also have the tendency to pile one syllogism on top of another. Not
surprisingly, logicians have a term for this, too, but for once it is a term that
makes sense and is easy to remember: a series of syllogisms in which the
conclusion of one syllogism supplies a premise of the next syllogism is known
as a polysyllogism. Typically, polysyllogisms are used because more than one
logical step is needed to reach the desired conclusion. Be on the lookout for
something like this as you pick apart a complex legal opinion:

All men are mortal.

Socrates is a man.
Therefore Socrates is mortal.

All mortals can die.

Socrates is mortal.
Therefore Socrates can die.

People who can die are not gods.

Socrates can die.
Therefore Socrates is not a god.

You have been warned: watch for enthymemes and polysyllogisms in

every opinion or legal memo or brief that you read, and be aware of them in
your own writing. Your arguments will be improved.

C. Watch Out!: Flawed Syllogisms

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A syllogism is a powerful tool because of its rigid inflexibility. If the

premises of a syllogism are properly constructed, the conclusion must follow.22
But beware of bogus arguments masquerading as syllogisms.23 For example,
consider the following:

Some men are tall.

Socrates is a man.
Therefore Socrates is tall.

It looks something like a syllogism, but you have no doubt spotted the
flaw: knowing that some men are tall isn’t enough for you to conclude that a
particular man is tall. He might fall into the group of other men about whom
we know nothing, and who might be tall, but who also might be short. This
type of non-syllogism got past the U.S. Supreme Court in the Dred Scott case,
in which the Court held that people of African descent, whether or not they
were slaves, could never be citizens of the United States. The dissenting
opinion noted that the Court’s ruling relied on a bad syllogism, simplified here:

Major Premise: At the time of the adoption of the Constitution, some

states considered members of the black race to be inferior and incapable of
citizenship and of suing in federal court.
Minor Premise: Dred Scott’s ancestors at the time of the Constitution
were members of the black race.
Conclusion: Therefore, Dred Scott’s ancestors were considered to be
inferior and incapable of citizenship and of suing in federal court.

Mistakes of this sort remain extremely common in legal writing. Certain

buzzwords, however, can help distinguish valid syllogisms from fallacious
ones. Alarm bells should sound immediately if you spot terms in the major
premise like “some,” “certain,” “a,” “one,” “this,” “that,” “sometimes,”
“many,” “occasionally,” “once,” or “somewhere.” Remember at all costs: the
principle behind the syllogism is that what’s true of the universal is true of the
specific. In deductive reasoning, you reason from the general to the particular.
Accordingly, if you’re unsure about the nature of the general, you can’t draw
proper conclusions about the particular.
Logical errors, unfortunately, are often tough to catch. Here is a different
one:

22. See DAVID KELLEY, THE ART OF REASONING 239 (1998).

23. For an extended discussion of flawed syllogisms, see LOGIC FOR LAWYERS, supra note 4, at
145-228.

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Major Premise: All superheroes have special powers.

Minor Premise: Superman has special powers.
Conclusion: Superman is a superhero.

Unless you’re an avid comic book reader, it might take a moment to spot
the misstep: Knowing that every superhero has special powers doesn’t allow
you to conclude that everyone with special powers is a superhero. Recall again
the golden rule of the syllogism: you can only draw a conclusion about the
particular (Superman, in this case) after you demonstrate that it’s part of the
universal class. Thus, a correct syllogism would look like this:

Major Premise: All superheroes have special powers. [General statement

about a class]
Minor Premise: Superman is a superhero. [Statement that an individual
belongs to the class]
Conclusion: Superman has special powers. [Conclusion that the individual
has properties common to other members of the class]

Remember this: just because two things share a common property does not
mean they also share a second property. Some other examples of this fallacy
may help: Business executives read the Wall Street Journal, and Ludwig is a
Journal reader, therefore Ludwig is a business executive—WRONG! All law
students are smart, and John is smart, therefore John is a law student—
WRONG AGAIN! You get the idea.
So far, we’ve considered only two logical fallacies. Logicians have many
more.24 Although we cannot provide an exhaustive list of fallacies, here is a
quick check you can run that often will uncover flaws in a deductive syllogism:
Logicians have come up with a series of letters to identify different types of
propositions: The letters “A” and “E” describe universal propositions—”A”
being affirmative and “E” negative. Meanwhile “I” and “O” describe particular
propositions—”I” being affirmative and “O” negative. The letters come from
two Latin words: Affirmo (I affirm) and Nego (I deny). Logicians would
describe the three propositions in our friendly “All men are mortal” syllogism
as AII. Now for the check: For the major premise to be valid, it must be either
“A” or “E.” You can’t make a major premise out of an “I” or “O.” The IAA

24. For a discussion of informal fallacies, also known as material fallacies, see S. MORRIS
ENGEL, WITH GOOD REASON: AN INTRODUCTION TO INFORMAL FALLACIES 89-245 (1994).
For a discussion of formal fallacies, see IRVING M COPI & CARL COHEN, INTRODUCTION TO
LOGIC 261-66 (1994).

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form, for example, is not a valid syllogism. And your minor premise and
conclusion must be either an “I” or an “O.” If your tentative syllogism doesn’t
meet these requirements, you’ll know something is wrong.
Certain logical errors crop up again and again, and so you should take
particular care to avoid them: Don’t cite inappropriate secondary authorities or
cases from outside jurisdictions; logicians consider that an appeal to
inappropriate authority.25 Don’t rely on attacks on your opponent’s character.26
Don’t rely on appeals to emotion.27 Don’t rely on fast talking or personal
charm to carry the day. A cool head coupled with rigorous legal research turns
a case in your favor, not rhetorical tricks.
It is critical to read every legal document you come across with care. Bad
reasoning can seem persuasive at first glance. Logical fallacies are especially
hard to spot in briefs, memos, and court opinions because of the dense writing
and complex fact patterns. Yet the effort is worthwhile. The ability to detect
and avoid logical missteps will improve your writing immensely, and develop
your ability to “think like a lawyer”—the skill that professors and partners so
admire.

II. INDUCTIVE REASONING: GENERALIZATIONS

Deductive reasoning and its adherence to the “Socrates is Mortal” type of

syllogism is the spine that holds our legal system together. Justice Cardozo
estimated that at lest nine tenths of appellate cases “could not, with the
semblance of reason, be decided in any way but one” because “the law and its
application alike are plain,” or “the rule of law is certain, and the application
alone doubtful.” After more than four decades on the bench, Judge Aldisert can
confirm that Justice Cardozo’s statement remains true today. In the language of
logic, this means that practicing lawyers spend most of their time worrying
about the minor premises of syllogisms: can the facts of the case be fit into the
territory governed by a particular rule?
In law school, however, you will be asked to concentrate on the ten percent
(or less) of cases that can’t be resolved so easily. In the classroom, knotty and
unsettled questions of law predominate. Where an issue of law is unsettled and
there is no binding precedent to supply a major premise for your syllogism,
deductive logic is of no use to you. By focusing on such cases, your professors

25. Id. at 219-24.

26. The fallacy of the personal attack, called an ad hominem in Latin, “diverts attention away
from the question being argued by focusing instead on those arguing it.” Id. at 198.
27. Id. at 209.

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will drag you kicking and screaming into the land of induction, the second
category of logic.
Inductive generalization is a form of logic in which big, general principles
are divined from observing the outcomes of many small events.28 In this form
of inductive logic, you reason from multiple particulars to the general. To see
how this works, suppose that you are asked to determine whether all men are
mortal—the premise of the first syllogism we discussed. If nobody hands you
the simple statement “all men are mortal” and you lack a way of deducing it,
you have to turn to inductive reasoning. You might use what you know about
particular men and their mortality, as follows:

Plato was a man and Plato was mortal.

Julius Caesar was a man and Julius Caesar was mortal.
George Washington was a man and George Washington was mortal.
John Marshall was a man and John Marshall was mortal.
Ronald Reagan is a man and Ronald Reagan is mortal.
Therefore, all men are mortal.

The principle underlying this way of thinking is that the world is

sufficiently regular to permit the discovery of general rules. If what happened
yesterday is likely to happen again today, we may use past experience to guide
our future conduct. The contrast with deductive reasoning is stark. Whereas
syllogisms are mechanical and exact—if the premises are true and properly
assembled, the conclusion must be true—inductive logic is not so absolute.29 It
does not produce conclusions guaranteed to be correct, no matter how many
examples scholars assemble. Thousands of great men may live and die each
year, but we will never know with absolute certainty whether every man is
mortal. Thus, inductive reasoning is a logic of probabilities and generalities,
not certainties. It yields workable rules, but not proven truths.
The absence of complete certainty, however, does not dilute the importance
of induction in the law. As we stated at the outset, we look to inductive
reasoning when our legal research fails to turn up a hefty, hearty precedent that
controls the case. When there is no clear statute—no governing authority—to
provide the major premise necessary for a syllogism, the law student must
build the major premise himself. To use Lord Diplock’s phrase, this requires

28. See JOHN H. HOLLAND, ET AL., INDUCTION: PROCESS OF INFERENCE, LEARNING, AND
DISCOVERY (1986). For an extended discussion on inductive inference in the law, see Dan
Hunter, No Wilderness of Single Instances: Inductive Inference in Law, 48 J. LEG. EDUC.
365-401 (1998).
29. For a discussion on the differences between inductive and deductive logic, see Copi, supra
note 24, at 57-61.

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him to draw upon “the cumulative experience of the judiciary”—the specific

holdings of other cases.30 Once he has assembled enough case law, he tries to
fashion a general rule that supports his position. You might ask, how does this
work in the real world? Let’s start with something mundane. Suppose a
professor asks you to determine what happens to the contents of a jointly-
leased safety deposit box if one of the leasees dies unexpectedly. Do all of the
contents pass to the survivor, or does the dead man’s estate claim his
possessions? The Oklahoma Supreme Court faced this question in Estate of
Stinchcomb.31 Finding that the state had no binding case law on point, the
court turned to inductive reasoning. Its research demonstrated that judges in
Illinois, Nevada, and Massachusetts had all ruled in favor of the dead man’s
estate. From these individual examples, the Oklahoma Supreme Court inferred
the general rule that “a joint lease in and of itself alone, does not create a joint
tenancy in the contents of the box.”32
Inductive generalizations, then, are easy enough to understand. You can get
in trouble using them, however. Most importantly, you must be careful to
assemble a sufficient number of examples before shaping a far-reaching rule,
or you will be guilty of the Fallacy of Hasty Generalization.33 In logic-speak,
this fallacy occurs when you construct a general rule from an inadequate
number of particulars.34 It is the bugaboo of inductive reasoning and often
surfaces in casebooks and in classroom discussions, as well as on TV talk-
shows and in newspaper editorials. Think about your overeager classmates
who rely on nothing more than their personal life experiences to justify
outlandish policy proposals. They’re often guilty of creating bogus general
rules from exceptional circumstances. Judges, lawyers, and law students all
must be careful not to anoint isolated instances with the chrism of generality.
The difficulty comes in knowing how many instances are sufficient to
make a generalization. Three? Ten? Forty thousand? This is where the art
comes in. As a rule of thumb, the more examples you find, the stronger your
argument becomes. In O’Conner v. Commonwealth Edison Co., a federal
judge in Illinois lambasted an expert witness for attempting to formulate a
universal medical rule based on his observation of only five patients:

Based on the five patients [Dr. Scheribel] has observed with cataracts
induced by radiation therapy, he developed his “binding universal rule”

30. Dorset Yacht Co. v. Home Office, 1970 APP. CAS. 1004, 1057-71 (Lord Diplock).
31. Estate of Stinchcomb, 674 P.2d 26 (Okla. 1983).
32. Id. at 30.
33. See, e.g., S. MORRIS ENGEL, WITH GOOD REASON: AN INTRODUCTION TO INFORMAL
FALLACIES 137-40 (1994). Hasty generalization is sometimes called converse accident.
34. WILLIAM L. REESE, DICTIONARY OF PHILOSOPHY AND RELIGION 168 (1980).

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that he applied to O’Conner, thus committing the logical fallacy known

as Converse Accident (hasty generalization). . . . It occurs when a
person erroneously creates a general rule from observing too few cases.
Dr. Scheribel has illogically created a “binding universal rule” based
upon insufficient data.

For example, observing the value of opiates when administered by a

physician to alleviate the pains of those who are seriously ill, one may
be led to propose that narcotics be made available to everyone. Or
considering the effect of alcohol only on those who indulge in it to
excess, one may conclude that all liquor is harmful and urge that its
sale and use should be forbidden by law. Such reasoning is erroneous . .
. .35

Don’t let yourself make the same mistake.

Raw numbers are not enough to give you a reliable generalization,
however. Consider this classic blunder: In 1936, Literary Digest magazine
conducted a massive polling effort to predict the outcome of the Presidential
election between Alf Landon and Franklin Roosevelt. The Digest polled well
over two million people, and the vast majority indicated they would vote for
Landon (keep in mind that modern news organizations base their polls on the
responses of 1,000 people). In the actual election, however, Roosevelt won 523
electoral votes and Landon received only eight. How did Literary Digest get it
so wrong when it had crafted its rule from a massive number of particular
examples? It seems the Digest focused its polling efforts on car owners—an
unrepresentative group of the American public in 1936.36 From this example it
should become clear that the strength of an inductive argument rests not only
on the number of examples you turn up to support your generalization, but also
on the representativeness of the sample size. Keep this in mind when your
opponent makes an argument based solely on the use of statistics, as is the case
in many antitrust, securities, and discrimination claims.

35. O’Conner v. Commonwealth Edison Co., 807 F. Supp. 1376, 1390-91 (C.D. Ill. 1992).
36. The Literary Digest had successfully predicted the winner of every presidential election
since 1916. In 1936, the Digest polled 2.4 million Americans and predicted that Alf Landon
would win roughly 57% of the vote. The Digest ran into trouble because it composed its
polling list from telephone books and vehicle registrations. In 1936, when only 40% of
households owned a telephone, these lists included only the wealthiest Americans. In the
past such data had provided accurate predictions because rich and poor voters tended to cast
similar votes. However, during the Great Depression economic class became a key indicator
of voting behavior. See DAVID L. FAIGMAN ET AL., MODERN SCIENTIFIC EVIDENCE: THE LAW
AND SCIENCE OF EXPERT TESTIMONY § 3-2.2.1 (1997).

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You will never completely escape the risks posed by the fallacy of hasty
generalization. We can never know with certainty that an inductive
generalization is true. The best that can be hoped for is that expert research and
keen attention to statistics will divine workable rules that are grounded in the
wisdom of human experience. If your professor demands absolute certainty of
you, you’ll have to explain to him that it cannot be achieved, at least not with
an inductive generalization. Notwithstanding its shortcomings, the inductive
generalization remains a vital tool because the ability to shape persuasive legal
arguments when no clear precedent exists is often what separates a star
attorney from your run-of-the-mill ambulance chaser.

III. ANALOGY37

Anyone who has struggled through a first-year torts course knows that
hypothetical questions play a central role in the law school classroom.
Professors invent elaborate factual scenarios and ask students to distill the
correct result from a handful of cases read the night before. Then they change
the situation slightly; does the answer change? Now alter a different
parameter—same result, or a different one? The imaginative fact patterns do
not end with law school38; judges, too, rely on outlandish hypotheticals to test
the validity of a lawyer’s argument. Yet, notwithstanding the importance of
hypothetical questions in legal thinking, the ability to manage them remains
poorly taught and rarely practiced. We believe that the careful use of
analogy—a form of inductive reasoning—can get you past a nasty
hypothetical.39 Analogy can help a budding lawyer advance untested legal
arguments in the classroom and the courtroom. We stress that mastering the

37. Nota Bene: Read this section on analogy and reread and reread it over and over again until
you understand it completely. Do this for two reasons: (a) Analogy lies at the heart of the
hypotheticals tossed your way by the professors. (b) In many cases the law is clear and the
sole question is application of the facts found by the fact finder to the law, and this requires
inductive reasoning by analogy.
38. Such Socratic dialogues remain alive and well in legal education. See Anthony Kronman,
The Socratic Method and the Development of the Moral Imagination, 31 U. TOL. L. REV.
647 (2000) (“The single most prominent feature of . . . American legal education is its
heavy reliance on the so-called case method of instruction. By the case method I mean two
things: first, the study of law through the medium of judicial opinions . . . and second, the
examination of these opinions in a spirit that has often, and aptly, been described as
‘Socratic.’”).
39. Although we find it appropriate to classify analogy as a form of inductive reasoning, not all
logicians agree. See, e.g., JOSEPH GERARD BRENNAN, A HANDBOOK OF LOGIC 154 (1957)
(“Current logicians . . . tend to regard all inductions as . . . inferences to generalizations
[rather than reasoning by analogy].”).

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LOGIC_FOR_LAW_STUDENTS 3/30/2007 9:22 AM

principles of analogy is not just another garden-variety lawyer’s skill. Rather, it

is one of the most crucial aspects of the study and practice of law.40
Unlike most concepts employed by logicians, the use of “analogy” is not
confined to the realms of higher mathematics and philosophy.41 Most law
students, and even most laypersons, are familiar with formal analogies of the
“Sun is to Day as Moon is to _____?” variety. The use of informal, off-the-cuff
analogies guides most of our own everyday decision-making. I own a Honda
Civic that doesn’t overheat so I conclude that my friend’s Honda Civic will
never overheat. My eyes don’t water when I cut an onion; I conclude that my
brother’s eyes won’t water. This type of reasoning has a simple structure: (1) A
has characteristic Y; (2) B has characteristic Y; (3) A also has characteristic Z;
(4) Because A and B both have Y, we conclude that B also shares
characteristic Z.42 At base, analogy is a process of drawing similarities
between things that appear different.
In the world of the law, analogies serve a very specific purpose. Attorneys
use them to compare new legal issues to firmly established precedents.43
Typically, this means that a current case is compared to an older one, and the
outcome of the new case is predicted on the basis of the other’s outcome.444
Edward Levi, the foremost American authority on the role of analogy in the
law, described analogical reasoning as a three step process: 1) establish
similarities between two cases, 2) announce the rule of law embedded in the
first case, and 3) apply the rule of law to the second case.45 This form of
reasoning is different from deductive logic or inductive generalization. Recall
that deduction requires us to reason from universal principles to smaller,
specific truths. And the process of generalization asks us to craft larger rules
from a number of specific examples. Analogy, in contrast, makes one-to-one

40. LLOYD L. WEINREB, THE USE OF ANALOGY IN LEGAL ARGUMENT (2005); LOGIC FOR
LAWYERS, supra note 4 at 96; but see Richard A. Posner, Reasoning by Analogy, 91
CORNELL L. REV. 761 (2006) (book review). Judge Posner argues that while analogy is
important in legal rhetoric as a mode of judicial expression it is “a surface phenomenon that
obscures the role of policy considerations in judicial opinions.” Id. at 765, 768.
41. Analogies also are commonly used to enliven descriptions. “The literary uses of analogy in
metaphor and simile are tremendously helpful to the writer who strives to create a vivid
picture in the reader’s mind.” IRVING M. COPI & KEITH BURGESS-JACKSON, INFORMAL
LOGIC 164 (1996).
42. Cass R. Sunstein, On Analogical Reasoning, 106 HARV. L. REV. 741, 743 (1993).
43. STEVEN J. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING 28 (1985); EDWARD
LEVI, AN INTRODUCTION TO LEGAL REASONING 9-15 (1949).
44. Dan Hunter, Reason is Too Large: Analogy and Precedent in Law, 50 EMORY L.J. 1197
(2001).
45. EDWARD LEVI, AN INTRODUCTION TO LEGAL REASONING 1-2 (1948).

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LOGIC_FOR_LAW_STUDENTS 3/30/2007 9:22 AM

comparisons that require no generalizations or reliance on universal rules.46 In

the language of logicians, analogy is a process of reasoning from the particular
to the particular.
An example might help to clarify the distinction. Imagine you are asked to
defend a client who received a citation for driving a scooter without a helmet.
After scouring Westlaw, you find there’s no controlling statute. There are,
however, two precedents that could influence the result. One opinion holds that
motorcyclists must wear helmets; the other case says that a helmet is not
required to operate a bicycle. Does either control the issue in your case?
Without a clear universal rule or past cases on point, deductive logic and
inductive generalizations are of little help. Instead, you must rely on the power
of analogy to convince a judge that helmet laws don’t apply. To defend your
client, you must suggest that driving a scooter is similar to riding a “fast
bicycle.” You might argue that small scooters can’t go faster than well-oiled
road bike. Thus, a scooter presents no more danger to its operator or other
drivers than a bicycle. You could also argue that scooters, like bikes, can’t be
driven on highways. The process of drawing these comparisons and explaining
why they are important is the heart of reasoning by analogy. The idea is to find
enough similarities between the new case and old precedent to convince a
judge that the outcomes must be the same.
A proper analogy should identify the respects in which the compared cases,
or fact scenarios, resemble one another and the respects in which they differ.
What matters is relevancy—whether the compared traits resemble, or differ
from, one another in relevant respects.47 A single apt comparison can be worth
more than a host of not-quite-right comparisons. You might be wondering how
to tell whether a comparison is a fruitful one or whether it’s not quite right.
Well, that is where art once again enters the picture. As John Stuart Mill
remarked: “Why is a single instance, in some cases, sufficient for a complete
induction, while in others myriads of concurring instances . . . go such a very
little way towards establishing an universal proposition? Whoever can answer
this question knows more of the philosophy of logic than the wisest of the
ancients, and has solved the problem of induction.”48 Notwithstanding the best
efforts of logicians, no one has devised a mathematical equation for

46. Dan Hunter, Teaching and Using Analogy in Law, J. ASS’N LEGAL WRITING DIRECTORS 151,
154 (2006).
47. STEVEN J. BURTON, AN INTRODUCTION TO LAW AND LEGAL REASONING 31 (1985). Burton
explains, “The judge in a law case . . . is not free to assign importance to the similarities or
differences between cases on any ground whatsoever. The judge’s duty is to decide that
question in accordance with the law. But it is most difficult to give a satisfactory account of
what it might mean in common law adjudication to decide in accordance with the law. This
is where the problem of [relevancy] arises.” Id.
48. JOHN STUART MILL, A SYSTEM OF LOGIC RATIOCINATION AND INDUCTIVE 206 (8th ed. 1916).

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determining whether an analogy is strong or weak. “It is a matter of judgment,

not mechanical application of a rule.”49 Thinking back to our scooter example,
your opponent will argue vigorously that a scooter resembles a motorcycle
because both have quick-starting, gas-powered engines that are beyond human
control. This comparison may strike the judge as more powerful than yours,
convincing him to rule against your client.
The Court of Appeals for the Third Circuit discussed all of these principles
in detail in an important class action antitrust case where the principal issue on
appeal was whether the holding in a case called Newton50 applied to the case at
bar:
For Appellants’ argument to prevail, therefore, they must demonstrate
that the facts in Newton are substantially similar to the facts in the case
at bar, what logicians call inductive reasoning by analogy, or reasoning
from one particular case to another. To draw an analogy between two
entities is to indicate one or more respects in which they are similar and
thus argue that the legal consequence attached to one set of particular
facts may apply to a different set of particular facts because of the
similarities in the two sets. Because a successful analogy is drawn by
demonstrating the resemblances or similarities in the facts, the degree
of similarity is always the crucial element. You may not conclude that
only a partial resemblance between two entities is equal to a substantial
or exact correspondence.

Logicians teach that one must always appraise an analogical argument

very carefully. Several criteria may be used: (1) the acceptability of the
analogy will vary proportionally with the number of circumstances that
have been analyzed; (2) the acceptability will depend upon the number
of positive resemblances (similarities) and negative resemblances
(dissimilarities); or (3) the acceptability will be influenced by the
relevance of the purported analogies.[Citing logicians]

For Appellants to draw a proper analogy, they had the burden in the
district court, as they do here of showing that the similarities in the
facts of the two cases outweigh the differences. They cannot do so, for
two significant reasons.

49. IRVING M. COPI & KEITH BURGESS-JACKSON, INFORMAL LOGIC 127 (1996).
50. Newton v. Merrill Lynch, 259 F.3d 154 (3d. Cir. 2001).

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. . . First, in Newton it was clear that not all members of the putative
class sustained injuries; here, all members sustained injuries because of
the artificially increased prices. Secondly, in Newton there were
hundreds of millions of stock transactions involved, thus making the
putative class extremely unmanageable; here, an astronomical number
of transactions is not present. [Thus, their argument fails.]51

Let’s turn to other examples of the process of analogy: Imagine you

discover that Able Automobile Company is liable for violating the antitrust
laws by requiring a tie-in purchase of a refrigerator manufactured by Mrs. Able
with the purchase of any Able car. It is not difficult to see by analogy that
liability also would follow from these facts: Baker Automobile Company
requires a tie-in purchase of a refrigerator manufactured by Mrs. Baker if you
want to buy a Baker Mustang.
But consider the following: State College had a championship basketball
team last year. Team members came from high schools A, B, C and D. State
College has recruited new players from high schools A, B, C and D for this
year’s team. Therefore, State College will have a championship basketball
team this year. Is the resemblance relevant? We must ask if the resemblance—
players from the same high schools—is meaningful. Does it help us get to the
conclusion we seek to draw? If one good player came from a particular school,
does that mean that another player is likely to be similarly good? Probably not,
unless the high school is extremely unusual and has only good basketball
players. More likely, what we have here is an analogy based on irrelevant
similarities, and such an analogy is of no use at all.52
As mentioned earlier, law professors love to test your ability to work with
analogies by inventing grueling hypotheticals. They do this for a few reasons.
First, as we’ve already discussed, the imagined fact patterns force you to
grapple with questions of law that aren’t amenable to syllogisms. Second, a
professor can easily and repeatedly change the facts of a hypo, allowing him to
ask questions of many students, and to probe the boundaries of a particular
legal issue. Finally, the fear of getting trapped in the tangle of a knotty
question encourages students to study the law with care and to absorb its
details. If you do find yourself in the Socratic spotlight, remember the basic
principles of analogy; they can be your lifeline. Begin by discussing the facts
of a similar case that you are familiar with, and then lay out particulars of the
hypothetical the professor has asked. Draw as many comparisons between the

51. In re Linerboard Antitrust Litig., 305 F.3d 145, 156-57 (3d Cir. 2002) (citations omitted).
52. The “fallacy of weak analogy” occurs when the compared objects bear little resemblance to
each other. IRVING M. COPI & KEITH BURGESS-JACKSON, INFORMAL LOGIC 126-27 (1996).

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two cases as you can. If the relevant similarities outweigh the relevant
differences, the outcomes of the cases should be the same. The more practice
you get working with analogies, the more adept you will become at articulating
why certain similarities or differences are relevant, and the better you will fare
when it’s your turn to face the music.

IV. LOGICAL LIMITS: WHEN THERE IS MORE TO THE STORY

We hope we have convinced you that logic is the lifeblood of the law, and
that understanding basic logical forms will assist you both in law school and in
your practice as a lawyer. We would be remiss, however, if we were to send
you out into the world without acknowledging that there is more to the law
than assembling logical expressions.53
Consider the following:

All federal judges are body builders.

Judge Aldisert is a federal judge.
Therefore, Judge Aldisert is a body builder.

What’s wrong with this statement? It’s a rock-solid syllogism, adhering to

the blueprint of logical validity expressed by the “Socrates” syllogism. Just the
same, Judge Aldisert does not spend much time pumping iron. You see the
problem, of course: the major premise is false. Not all federal judges are body
builders. In fact, we doubt any of them are. The point is an obvious one, but an
important one: make sure your premises are true. If you use an untrue premise
as a lawyer, it’s an invitation to the other side to pillory you. If you do so as a
judge, you may fashion a dangerous precedent. Consider the infamous Dred
Scott case. The crucial syllogism used by the majority was as follows:

Major Premise: At the time of the adoption of the Constitution, all states
considered members of the black race to be inferior and incapable of
citizenship and of suing in federal court.

53. We are aware of criticisms suggesting that logic has little place in legal reasoning. With the
rise legal realism, many observers feel that politics, not logic, drives the outcome of most
cases. See e.g., Derrick Bell, Who’s Afraid of Critical Race Theory?, U. ILL. L. REV. 893,
899-900 (1995). (arguing that the law is “not a formal mechanism for determining outcomes
in a neutral fashion—as traditional legal scholars maintain–but is rather a ramshackle ad hoc
affair whose ill-fitting joints are soldered together by suspect rhetorical gestures, leaps of
illogic, and special pleading tricked up as general rules all in a decidedly partisan agenda . .
. .”).

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LOGIC_FOR_LAW_STUDENTS 3/30/2007 9:22 AM

Minor Premise: Dred Scott’s ancestors at the time of the Constitution

were members of the black race.
Conclusion: Therefore, Dred Scott’s ancestors were considered to be
inferior and incapable of citizenship and of suing in federal court.

As discussed in Part I, the dissenting opinion pointed out that only some
state legislatures labeled blacks inferior at the time of the adoption of the
Constitution. Other states—namely New Hampshire, Massachusetts, New
York, New Jersey and North Carolina—maintained that all free-born
inhabitants, even though descended from African slaves, possessed the right of
franchise of electors on equal terms with other citizens. Once the “all” in the
majority’s major premise is replaced with “some,” the syllogism fails to hold
water.
Separately, logic is not the whole game. Even if your premises are true and
your logical statements constructed properly, it is crucial to recognize that
judges are motivated by more than the mandates of logic. As Judge Aldisert
has said, “[w]e judges come to our robes bearing the stigmata of our respective
experiences.”54 Judges have notions of how things should be—of what is
wrong and what is right—and often strive to do justice as much as to fulfill the
mandates of precedent. They have biases, too. In reading cases, writing briefs
and arguing before a court, you will be more effective if you flesh out the
logical bones of your arguments and attempt to appeal to the judge in other
ways as well.
But always bear in mind: An argument that is correctly reasoned may be
wrong, but an argument that is incorrectly reasoned can never be right. You
may find the discipline of parsing legalese into logical forms to be time-
consuming and arduous at first, but as you become more comfortable with
logic’s frameworks, you will find that the exercise helps you more efficiently
peel a case back to its essence. A solid footing in logic will help you feel more
secure when you find yourself in a complex doctrinal thicket. And while the
fundamentals of logic laid out in this article will not give you a magic carpet
on which you can float above the legal briar patch, we believe they will give
you a machete that will help you start hacking your way through the tangle.

54. United States v. Jannotti, 673 F.2d 579, 612 (3d Cir. 1982).

121
Critical Race Theory
An Introduction

Richard Delgado and

Jean Stefancic

Foreword by Angela Harris

a
NEW YORK UNIVERSITY PRESS
New York and London
NEW YORK UNIVERSITY PRESS
New York and London

© 2001 by New York University

All rights reserved

Library of Congress Cataloging-in-Publication Data

Delgado, Richard.
Critical race theory : an introduction / Richard Delgado and
Jean Stefancic.
p. cm. — (Critical America)
Includes bibliographical references and index.
ISBN 0-8147-1930-9 (cloth) — ISBN 0-8147-1931-7 (pbk.)
1. Race discrimination—Law and legislation—United States.
2. Critical legal studies—United States. 3. United States—Race
relations—Philosophy. I. Stefancic, Jean. II. Title. III. Series.
KF4755 .D454 2001
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New York University Press books are printed on acid-free paper,

and their binding materials are chosen for strength and durability.

Manufactured in the United States of America

10 9 8 7 6 5 4 3 2 1
Some men see things as they are and say, why;
I dream things that never were and say, why not.
—Robert F. Kennedy

In order to get beyond racism, we must first take

account of race.
There is no other way.
—Justice Harry Blackmun
 chapter i

Introduction

Think of events that can occur in an ordinary

day. A child raises her hand repeatedly in a fourth grade
class; the teacher either recognizes her or does not. A shop-
per hands a cashier a five dollar bill to pay for a small item;
the clerk either smiles, makes small talk, and deposits change
in the shopper’s hand or does not. A woman goes to a new
car lot ready to buy; salespeople stand about talking to each
other or all converge trying to help her. A jogger in a park
gives a brief acknowledgment to an approaching walker; the
walker returns the greeting or walks by silently.
You are a white person—the child, the shopper, the jogger.
The responses are all from white people and are all negative.
Are you annoyed? Do you, for even a moment, think that
maybe you are receiving this treatment because of your race?
Or might you think that all these people are having a bad
day? Next suppose that the responses are all from persons of
color. Are you thrown off guard? Angry? Depressed?
You are a person of color and these same things happen to
you and the actors are all white. What is the first thing that
comes to your mind? Do you immediately think that you
might be treated in these ways because you are not white? If

1
2 | Introduction

so, how do you feel? Angry? Downcast? Do you let it roll off
your back? And if the responses come from fellow persons of
color, then what do you think? Suppose the person of color
is from a group other than your own? Sometimes actions like
these are mere rudeness or indifference. The merchant is in a
hurry; the walker, lost in thought. But at other times, race
seems to play a part. When it does, social scientists call the
event a “microaggression,” by which they mean one of those
many sudden, stunning, or dispiriting transactions that mar
the days of women and folks of color. Like water dripping
on sandstone, they can be thought of as small acts of racism,
consciously or unconsciously perpetrated, welling up from
the assumptions about racial matters most of us absorb from
the cultural heritage in which we come of age in the United
States. These assumptions, in turn, continue to inform our
public civic institutions—government, schools, churches—
and our private, personal, and corporate lives.
Sometimes the acts are not micro at all. Imagine that the
woman or minority standing alone and ignored at the car
sales lot eventually attracts the attention of a salesperson.
They negotiate, and she buys a car. Later she learns that she
paid almost a thousand dollars more than what the average
white male pays for that same car. (See Ian Ayres, Fair Dri-
ving, 104 Harv. L. Rev. 817 [1991]).

A. What Is Critical Race Theory?

The critical race theory (CRT) movement is a collection of

activists and scholars interested in studying and transform-
ing the relationship among race, racism, and power. The
 Introduction | 3

movement considers many of the same issues that conven-

tional civil rights and ethnic studies discourses take up, but
places them in a broader perspective that includes econom-
ics, history, context, group- and self-interest, and even feel-
ings and the unconscious. Unlike traditional civil rights,
which embraces incrementalism and step-by-step progress,
critical race theory questions the very foundations of the lib-
eral order, including equality theory, legal reasoning, En-
lightenment rationalism, and neutral principles of constitu-
tional law.
Although CRT began as a movement in the law, it has
rapidly spread beyond that discipline. Today, many in the
field of education consider themselves critical race theorists
who use CRT’s ideas to understand issues of school disci-
pline and hierarchy, tracking, controversies over curriculum
and history, and IQ and achievement testing. Political scien-
tists ponder voting strategies coined by critical race theorists.
Ethnic studies courses often include a unit on critical race
theory, and American studies departments teach material on
critical white studies developed by CRT writers. Unlike some
academic disciplines, critical race theory contains an activist
dimension. It not only tries to understand our social situa-
tion, but to change it; it sets out not only to ascertain how
society organizes itself along racial lines and hierarchies, but
to transform it for the better.

B. Early Origins

Critical race theory sprang up in the mid-1970s, as a

number of lawyers, activists, and legal scholars across the
4 | Introduction

country realized, more or less simultaneously, that the heady

advances of the civil rights era of the 1960s had stalled and,
in many respects, were being rolled back. Realizing that new
theories and strategies were needed to combat the subtler
forms of racism that were gaining ground, early writers such
as Derrick Bell, Alan Freeman, and Richard Delgado (coau-
thor of this primer) put their minds to the task. They were
soon joined by others, and the group held its first conference
at a convent outside Madison, Wisconsin, in the summer of
1989. Further conferences and meetings took place. Some
were closed working sessions at which the group threshed
out internal problems and struggled to clarify central issues,
while others were public, multi-day affairs with panels, ple-
nary sessions, keynote speakers, and a broad representation
of students, activists, and scholars from a wide variety of
disciplines.

C. Relationship to Other Movements

As the reader will see, critical race theory builds on the in-
sights of two previous movements, critical legal studies and
radical feminism, to both of which it owes a large debt. It
also draws from certain European philosophers and theo-
rists, such as Antonio Gramsci and Jacques Derrida, as well
as from the American radical tradition exemplified by such
figures as Sojourner Truth, Frederick Douglass, W.E.B. Du
Bois, Cesar Chavez, Martin Luther King, Jr., and the Black
Power and Chicano movements of the sixties and early sev-
enties. From critical legal studies, the group borrowed the
 Introduction | 5

idea of legal indeterminacy—the idea that not every legal

case has one correct outcome. Instead, one can decide most
cases either way, by emphasizing one line of authority over
another, or interpreting one fact differently from the way
one’s adversary does. It also incorporated the critique of tri-
umphalist history, and the insight that favorable precedent,
like Brown v. Board of Education, tends to deteriorate over
time, cut back by narrow lower-court interpretation and ad-
ministrative foot dragging and delay. The group also built on
feminism’s insights into the relationship between power and
the construction of social roles, as well as the unseen, largely
invisible collection of patterns and habits that make up pa-
triarchy and other types of domination. From conventional
civil rights thought, the movement took a concern for re-
dressing historic wrongs, as well as the insistence that legal
and social theory have practical consequences. CRT also
shared with it a sympathetic understanding of notions of na-
tionalism and group empowerment.

D. Principal Figures

Derrick Bell, professor of law at New York University, is the

movement’s intellectual father figure. Still active today, Bell
teaches, writes occasional law review articles and memoir-
type books, delivers speeches, and keeps a number of case-
books current. The late Alan Freeman, who taught at the
State University of New York at Buffalo law school, wrote a
number of foundational articles, including a pathbreaking
piece that documented how the U.S. Supreme Court’s race
6 | Introduction

jurisprudence, even when seemingly liberal in thrust, never-

theless legitimized racism. Kimberlé Crenshaw, Angela Har-
ris, Charles Lawrence, Mari Matsuda, and Patricia Williams
are major figures, as well. Leading Asian scholars include
Neil Gotanda, Eric Yamamoto, and Matsuda. The top In-
dian critical scholar is Robert Williams; the best-known
Latinos/as, Richard Delgado, Kevin Johnson, Margaret
Montoya, Juan Perea, and Francisco Valdes. The reader will
find their ideas discussed frequently throughout this primer.

E. Spin-off Movements

Recently, critical race theory has splintered. Although the

new subgroups, which include an emerging Asian American
jurisprudence, a forceful Latino-critical (LatCrit) contingent,
and a feisty queer-crit interest group, continue to maintain
relatively good relations under the umbrella of critical race
theory, meeting together at periodic conferences and gather-
ings, each has developed its own body of literature and set of
priorities. For example, Latino and Asian scholars study im-
migration theory and policy, as well as language rights and
discrimination based on accent or national origin. A small
group of Indian scholars addresses indigenous people’s
rights, sovereignty, and land claims.

F. Basic Tenets of Critical Race Theory

What do critical race theorists believe? Probably not every

member would subscribe to every tenet set out in this book,
 Introduction | 7

but many would agree on the following propositions. First,

that racism is ordinary, not aberrational—“normal science,”
the usual way society does business, the common, everyday
experience of most people of color in this country. Second,
most would agree that our system of white-over-color ascen-
dancy serves important purposes, both psychic and material.
The first feature, ordinariness, means that racism is difficult
to cure or address. Color-blind, or “formal,” conceptions of
equality, expressed in rules that insist only on treatment that
is the same across the board, can thus remedy only the most
blatant forms of discrimination, such as mortgage redlining
or the refusal to hire a black Ph.D. rather than a white high
school dropout, that do stand out and attract our attention.
The second feature, sometimes called “interest convergence”
or material determinism, adds a further dimension. Because
racism advances the interests of both white elites (materially)
and working-class people (psychically), large segments of so-
ciety have little incentive to eradicate it. Consider, for exam-
ple, Derrick Bell’s shocking proposal (discussed in a later
chapter) that Brown v. Board of Education—considered a
great triumph of civil rights litigation—may have resulted
more from the self-interest of elite whites than a desire to
help blacks.
A third theme of critical race theory, the “social construc-
tion” thesis, holds that race and races are products of social
thought and relations. Not objective, inherent, or fixed, they
correspond to no biological or genetic reality; rather, races
are categories that society invents, manipulates, or retires
when convenient. People with common origins share certain
8 | Introduction

physical traits, of course, such as skin color, physique, and

hair texture. But these constitute only an extremely small
portion of their genetic endowment, are dwarfed by that
which we have in common, and have little or nothing to do
with distinctly human, higher-order traits, such as personal-
ity, intelligence, and moral behavior. That society frequently
chooses to ignore these scientific facts, creates races, and en-
dows them with pseudo-permanent characteristics is of great
interest to critical race theory.
Another, somewhat more recent, development concerns
differential racialization and its many consequences. Critical
writers in law, as well as social science, have drawn attention
to the ways the dominant society racializes different minor-
ity groups at different times, in response to shifting needs
such as the labor market. At one period, for example, soci-
ety may have had little use for blacks, but much need for
Mexican or Japanese agricultural workers. At another time,
the Japanese, including citizens of long standing, may have
been in intense disfavor and removed to war relocation
camps, while society cultivated other groups of color for jobs
in war industry or as cannon fodder on the front. Popular
images and stereotypes of various minority groups shift over
time, as well. In one era, a group of color may be depicted as
happy-go-lucky, simpleminded, and content to serve white
folks. A little later, when conditions change, that very same
group may appear in cartoons, movies, and other cultural
scripts as menacing, brutish, and out of control, requiring
close monitoring and repression.
Closely related to differential racialization—the idea that
each race has its own origins and ever evolving history—is
 Introduction | 9

the notion of intersectionality and anti-essentialism. No per-

son has a single, easily stated, unitary identity. A white fem-
inist may be Jewish, or working-class, or a single mother. An
African American activist may be gay or lesbian. A Latino
may be a Democrat, a Republican, or even a black—perhaps
because that person’s family hails from the Caribbean. An
Asian may be a recently arrived Hmong of rural background
and unfamiliar with mercantile life, or a fourth-generation
Chinese with a father who is a university professor and a
mother who operates a business. Everyone has potentially
conflicting, overlapping identities, loyalties, and allegiances.
A final element concerns the notion of a unique voice of
color. Coexisting in somewhat uneasy tension with anti-es-
sentialism, the voice-of-color thesis holds that because of
their different histories and experiences with oppression,
black, Indian, Asian, and Latino/a writers and thinkers may
be able to communicate to their white counterparts matters
that the whites are unlikely to know. Minority status, in
other words, brings with it a presumed competence to speak
about race and racism. The “legal storytelling” movement
urges black and brown writers to recount their experiences
with racism and the legal system and to apply their own
unique perspectives to assess law’s master narratives. This
topic, too, is taken up later in this book.

G. How Much Racism Is There in the World?

Many modern-day readers believe that racism is declining or

that class today is more important than race. And it is cer-
tainly true that lynching and other shocking expressions
10 | Introduction

of racism are less frequent than in the past. Moreover,

many Euro-Americans consider themselves to have black,
Latino/a, or Asian friends. Still, by every social indicator,
racism continues to blight the lives of people of color, in-
cluding holders of high-echelon jobs, even judges.

I concede that I am black. I do not apologize for that obvious

fact. I take rational pride in my heritage, just as most other
ethnics take pride in theirs. However, that one is black does
not mean . . . that he is anti-white. . . . As do most blacks, I
believe that the corridors of history in this country have been
lined with countless instances of racial injustice. . . .
Thus a threshold question which might be inferred from
defendants’ petition is: Since blacks (like most other thought-
ful Americans) are aware of the “sordid chapter in American
history” of racial injustice, shouldn’t black judges be disquali-
fied per se from adjudicating cases involving claims of racial
discrimination?
Federal Judge Leon Higginbotham, in refusing to disqualify himself from
hearing a case, Commonwealth v. Local Union 542, International Union
of Operating Engineers, 388 F. Supp. 155 (E.D. Pa. 1974).

Studies show that blacks and Latinos who seek loans,

apartments, or jobs are much more apt than similarly quali-
fied whites to be rejected, often for vague or spurious rea-
sons. The prison population is largely black and brown;
chief executive officers, surgeons, and university presidents
are almost all white. Poverty, however, has a black or brown
face: black families have, on the average, about one-tenth of
the assets of their white counterparts. They pay more for
many products and services, including cars. People of color
 Introduction | 11

lead shorter lives, receive worse medical care, complete

fewer years of school, and occupy more menial jobs than do
whites. A recent United Nations report showed that African
Americans in the United States would make up the twenty-
seventh ranked nation in the world on a combined index of
social well-being; Latinos would rank thirty-third. Why all
this is so and the relationship between racism and economic
oppression—between race and class—are topics of great in-
terest to critical race theory and covered later.

H. Organization of This Book

Critical Race Theory addresses, in simple, straightforward

language, these and additional themes characteristic of the
new critical race jurisprudence. Chapter 2 presents four large
themes in critical race theory—interest convergence or mate-
rial determinism, revisionist interpretations of history, the
critique of liberalism, and structural determinism.
Chapter 3 takes up storytelling, counterstorytelling, and
the narrative turn in general; chapter 4 addresses the twin
themes of intersectionality and anti-essentialism. It also con-
siders cultural nationalism and the opposite notion that mi-
norities should attempt to assimilate and blend into main-
stream society.
Does American racial thought contain an implicit black-
white binary, an unstated dichotomy in which society comes
divided into two groups, whites and blacks, so that nonblack
minority groups, such as Filipinos or Puerto Ricans, enter
into the equation only insofar as they are able to depict
12 | Introduction

themselves and their problems as like blacks? Chapter 5 ex-

plores this issue, as well as “critical white studies.” Social
scientists have long put minority groups under the lens, ex-
amining their culture, intelligence, motivation, family ar-
rangements, music, and much more. Recently scholars on
both sides of the color line have switched perspective and are
examining whites as a group. One topic that critical white
studies addresses is whether such a thing as white privilege
exists, and what its components are. Chapter 5 also looks at
the scholarship of other racial groups such as the LatCrits
and critical Asian writers.
As the reader might imagine, critical race theory has come
in for its share of criticism. Chapter 6 examines the main
challenges that writers from both the Left and Right have
leveled at this new approach to civil rights. It also includes
responses to those objections. Chapter 7 describes critical
race theory’s current situation. It also ponders a few rela-
tively recent issues on the movement’s agenda, including hate
speech, criminal justice, merit, affirmative action, poverty,
and globalization. A concluding chapter hazards some pre-
dictions on the country’s racial future and critical race the-
ory’s role in that future.
The reader will find in each chapter questions for discus-
sions and a short list of suggested readings. We include hy-
potheticals and classroom exercises where we think these
will promote understanding. We also excerpt passages from
judicial decisions illustrating the influence of critical race
theory. At the end we include an extensive glossary of terms,
including many that are not found in this book.
 Introduction | 13

questions and comments for chapter i

1. Is critical race theory pessimistic? Consider that it holds

that racism is ordinary, normal, and embedded in society,
and, moreover, that changes in relationships among the
races (which include both improvements and turns for the
worse) reflect the interest of dominant groups, rather than
idealism, altruism, or the rule of law.
Or is it optimistic, because it believes that race is a so-
cial construction? (As such, it should be subject to ready
change.)
And if CRT does have a dark side, what follows from
that? Is medicine pessimistic because it focuses on diseases
and traumas?
2. Most people of color believe that the world contains
much more racism than white folks do. What accounts for
this difference?
3. Is race or class more important in determining one’s life
chances?
14 | Introduction

suggested readings

Brooks, Roy L. & Mary Jo Newborn, Critical Race Theory

and Classical-Liberal Civil Rights Scholarship: A Distinc-
tion without a Difference, 82 Cal. L. Rev. 787 (1994).
Calmore, John O., Critical Race Theory, Archie Shepp, and
Fire Music: Securing an Authentic Intellectual Life in a
Multicultural World, 65 S. Cal. L. Rev. 2129 (1992).
Critical Race Theory: The Cutting Edge (Richard Delgado &
Jean Stefancic eds., 2d ed. 2000).
Critical Race Theory: The Key Writings That Formed the
Movement (Kimberlé Crenshaw, Neil Gotanda, Gary
Peller & Kendall Thomas eds., 1995).
Haney López, Ian F., The Social Construction of Race: Some
Observations on Illusion, Fabrication, and Choice, 29
Harv. C.R.-C.L. L. Rev. 1 (1994).
Harris, Angela P., Foreword: The Jurisprudence of Recon-
struction, 82 Cal. L. Rev. 741 (1994).
Hayman, Robert L., Jr., The Color of Tradition: Critical
Race Theory and Postmodern Constitutional Traditional-
ism, 30 Harv. C.R.-C.L. L. Rev. 57 (1995).
Omi, Michael & Howard Winant, Racial Formation in the
United States: From the 1960s to the 1990s (2d ed. 1994).
Race and Races: Cases and Resources for a Diverse America
(Juan Perea, Richard Delgado, Angela Harris, & Steph-
anie Wildman eds., 2000).
Special Issue on Critical Race Theory, 11 Int’l J. Qual. Stud.
Ed. 1 (1998).
Symposium: Critical Race Theory, 82 Cal. L. Rev. 741 (1994).
 McGeorge Law Review
Volume 13 | Issue 1 Article 6

1-1-1981

Logic for Lawyers*

Jack L. Landau
Northwestern School of Law of Lewis and Clark College

Follow this and additional works at: h6ps://scholarlycommons.paci5c.edu/mlr

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Jack L. Landau, Logic for Lawyers*, 13 Pac. L. J. 59 (1981).
Available at: h6ps://scholarlycommons.paci5c.edu/mlr/vol13/iss1/6

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