The Logical Lawyer Professor Martin Pritikin

Transcription

1 The Logical Lawyer Professor Martin Pritikin

2 Goals 1. Introduce Common Logical Structures and Approaches 2. Explain Fundamental Concepts that Underlie More Complex Legal Analysis 3. Demystify Thinking Like a Lawyer 4. Provide Tools for Success in Law School, on the Bar Exam, and in Practice

3 Overview I. Syllogisms II. III. IV. Syllogisms and Legal Logic: IRAC Syllogisms and Argument The Importance of Structure in Logic and Argument

4 I. Syllogisms

5 Syllogisms: The Heart of Logic Prof. Martin Pritikin Whittier Law

6 Syllogisms: The Heart of Logic Prof. Martin Pritikin Whittier Law

7 What is a Syllogism? Definition: A syllogism is a deductive form of formal logic that presents two premises that lead to a conclusion.

8 WHAT IN THE WORLD DOES THAT MEAN?! Prof. Martin Pritikin Whittier Law

9 What is a Syllogism? PREMISE + PREMISE = CONCLUSION

10 Syllogisms: A Basic Example PREMISE: All humans are mortal. PREMISE: The President is human. CONCLUSION: The President is mortal.

11 Syllogisms: A Basic Example PREMISE: All dogs are blue. PREMISE: Fido is a dog. CONCLUSION: Fido is blue.

12 II. Syllogisms and Legal Logic

13 What Do Lawyers Do? Lawyers serve clients. Lawyers (primarily) address legal questions or problems. In doing so, they: (1) predict likely outcomes; (2) suggest solutions; or (3) make arguments to achieve a desired outcome. In order to do this, they may: (a) apply rules to factual situations; (b) argue about what current rules mean; or (c) argue for changes to the rules.

14 What Do Lawyers Do? You can t answer a legal question or problem unless you know what the question/problem is. Thus, identifying the question or problem to be addressed is an important first step. You answer a legal question/problem by applying rules to factual situations to generate conclusions. Thus, identifying the rule(s) that (arguably) apply is an important next step. Once you have identified the rule, only then can you apply that rule to the facts to generate a conclusion.

15 IRAC : The Heart of Legal Logic I = Issue R = Rule A = Application (of rule to facts) C = Conclusion

16 There s No Magic to Legal Logic Prof. Martin Pritikin Whittier Law

17 Legal Logic Is Logic Question I = Issue R = Rule Premise Answer A = Application C = Conclusion Premise Conclusion

18 Syllogisms: IRAC in Action QUESTION: PREMISE: All dogs are blue. PREMISE: Fido is a dog. CONCLUSION: Fido is blue.

19 Syllogisms: IRAC in Action QUESTION: What Color is Fido? PREMISE: All dogs are blue. PREMISE: Fido is a dog. CONCLUSION: Fido is blue. Issue Rule Application Conclusion

20 IRAC: The Importance of the Question QUESTION: Is Fido a dog? PREMISE: All dogs are blue. PREMISE: Fido is a dog. CONCLUSION: Fido is blue. Issue Rule Application Conclusion You Have Assumed the Thing You Are Trying to Prove. This is Circular Logic.

21 Lawyers Look for Questions/Problems Prof. Martin Pritikin Whittier Law

22 Lawyers Are Strategic Readers Six children brought gifts to a birthday party. Adam wore a red shirt and brought a toy boat. Bob sat next to the child who brought a book. Claire wore a green shirt and sat next to Earl. Dina sat next to the child who wore a yellow shirt. Earl did not wear orange and brought a robot. Fred wore a purple shirt and sat between a girl and boy. The child who wore blue brought a toy sword. How many children had one-syllable names?

23 III. Syllogisms and Argument

24 QUESTION: PREMISE: PREMISE: Syllogisms and Argument Is Fido blue? All dogs are blue. Fido is a dog. CONCLUSION: Fido is blue. Let s say you wanted to dispute that Fido was blue. What could you do? 1) Dispute that all dogs are blue. 2) Dispute that Fido is a dog. 3) Expose a flaw in the logic. Issue Rule Application Conclusion

25 Syllogisms and Argument Is Fido blue? All dogs are blue. Fido is a dog. Fido is blue. Is A = C? All B = C A = B A = C A = Fido B = Dogs C = Blue

26 Syllogisms and Argument Let s say you wanted to dispute that Fido was blue. What could you do? 1) Dispute that all dogs are blue. 2) Dispute that Fido is a dog. 3) Expose a flaw in the logic. Which is the strongest approach? Disputing that all dogs are blue. HOW do you know that s stronger? Common sense / experience!

27 Syllogisms and Argument What if you re told to ASSUME that (1) all dogs are blue, and (2) Fido is a dog? To dispute the rule or fact would violate the parameters of the problem. READING TIP! Pay attention to whether you are being asked to assume something is true, or whether there is room to dispute it.

28 QUESTION: PREMISE: PREMISE: Syllogisms and Argument Is Fido a dog? All dogs are blue. Fido is blue. CONCLUSION: Fido is a dog. Let s say you wanted to dispute that Fido was a dog. What could you do? 1) Dispute that all dogs are blue. 2) Dispute that Fido is blue. 3) Expose a flaw in the logic. What is the strongest approach? Issue Rule Application Conclusion

29 Syllogisms and Argument Let s say you wanted to dispute that Fido was a dog. What could you do? 1) Dispute that all dogs are blue. 2) Dispute that Fido is blue. 3) Expose a flaw in the logic. What is the strongest approach? Expose a flaw in the logic: All dogs are blue, but not all blue things are dogs. HOW do you know that s the strongest? If the structure is invalid, the inputs to the structure are irrelevant.

30 Syllogisms and Argument Is Fido a dog? All dogs are blue. Fido is a blue. Fido is dog. Is A = B? All B = C A = C A = B A = Fido B = Dogs C = Blue All B = C All C = B

31 Syllogisms and Argument What might this look like in writing? Plaintiff argues that Fido is a dog because all dogs are blue, and Fido is blue. However, this conclusion does not follow. Even assuming that all dogs are blue, it is not the case that all blue things are dogs. Blueberries, blue whales, and bluebirds are just a few examples of blue things that are not dogs. Thus, proving that Fido is blue does not prove that he is a dog. Moreover, it is not the case that all dogs are blue. It is common knowledge that many dogs are white, gray, brown, black, or red. In fact, almost no dogs are blue. Thus, the fact that Fido is blue does not even suggest that he is a dog.

32 IV. The Importance of Structure in Logic and Argument

33 TAKEAWAY: Structure of Argument You need to think not only about WHAT points to make, but what ORDER to make them in. What is the RELATIONSHIP, if any, between the issues?

34 Syllogisms: The Importance of Order Are all dogs blue? Fido is blue. Fido is a dog. All dogs are blue. Issue Application Premise Conclusion Premise Rule Conclusion This syllogism contains all the right statements, but because it contains them in the wrong order, it makes no sense.

35 Syllogisms: The Importance of Order That is why we teach you IRAC. NOT IARC. NOT ICAR. NOT CARI. IRAC

36 Structure of Argument: Dependent and Independent Variables Prof. Martin Pritikin Whittier Law Some variables are independent of each other. It doesn t matter what order you discuss them in. But the order may matter for clarity. Some variables are dependent on other variables. You need to discuss the independent variable before discussing the dependent variable.

37 Independent Variables and Clarity Call of Question: Fluffy gives birth to live young and feeds them milk. All animals that give birth to live young and feed their young milk are mammals. Discuss whether fluffy is a mammal. Answer Is Fluffy A Mammal? Issue Rule Application All animals that give birth to live young and feed their young milk are mammals. Here, Fluffy feeds her young milk, and gives birth to them live. Therefore, Fluffy is a mammal. Conclusion

38 Independent Variables and Clarity Call of Question: Fluffy gives birth to live young and feeds them milk. All animals that (1) give birth to live young and (2) feed their young milk are mammals. Discuss whether fluffy is a mammal. Answer Is Fluffy A Mammal? Issue Rule Application All animals that give birth to live young and feed their young milk are mammals. Here, Fluffy feeds her young milk, and gives birth to them live. Therefore, Fluffy is a mammal. Conclusion

39 Independent Variables and Clarity Call of Question: Fluffy gives birth to live young and feeds them milk. All animals that (1) give birth to live young and (2) feed their young milk are mammals. Discuss whether fluffy is a mammal. Answer Is Fluffy A Mammal? Issue Rule Application All animals that give birth to live young and feed their young milk are mammals. Here, Fluffy feeds her young milk, and gives birth to them live. Therefore, Fluffy is a mammal. Conclusion

40 Independent Variables and Clarity Call of Question: Fluffy gives birth to live young and feeds them milk. All animals that (1) give birth to live young and (2) feed their young milk are mammals. Discuss whether fluffy is a mammal. Answer Is Fluffy A Mammal? Issue Rule Application All animals that give birth to live young and feed their young milk are mammals. Here, Fluffy gives birth to live young and feeds them milk. Therefore, Fluffy is a mammal. Conclusion

41 Independent Variables and Clarity Is Fluffy a mammal? All that birth live young and feed young milk are mammals. Fluffy feeds young milk. Fluffy births live young. Fluffy is a mammal. Is A = D? All B & C = D A = C and A = B A = D A = Fluffy B = Birth live young C = Feed young milk D = Mammals

42 Independent Variables and Clarity Is Fluffy a mammal? All that birth live young and feed young milk are mammals. Fluffy births live young. Fluffy feeds young milk. Fluffy is a mammal. Is A = D? All B & C = D A = B and A = C A = D A = Fluffy B = Birth live young C = Feed young milk D = Mammals

43 Dependent Variables and Nested Issues All dogs are blue. Fido is a dog. Fido is blue. All blue things are friendly. Fido is friendly. Premise Premise Conclusion

44 Dependent Variables and Nested Issues QUESTION: Is Fido friendly? All dogs are blue. Fido is a dog. Fido is blue. All blue things are friendly. Fido is friendly. The Issues are: 1) Is Fido friendly? 2) Is Fido blue? Premise Syllogism 1 Premise (Sub)conclusion / Premise Syllogism 2 Premise Conclusion

45 Dependent Variables and Nested Issues The Issues are: 1) Is Fido friendly? 2) Is Fido blue? Which Issues is Dependent on Which? Because all blue things are friendly, if we can determine that Fido is blue, we will know he is friendly which is what we are trying to prove. Thus, we first answer whether Fido is blue, then answer whether he is friendly. Friendliness is dependent on blueness.

46 Dependent Variables and Nested Issues However, since the ultimate issue is whether Fido is friendly, you might address that issue first (even though you answer it second: Is Fido Friendly? We know that all blue things are friendly. Therefore, in order to determine whether Fido is friendly, we must first determine whether he is blue. Rule Is Fido Blue? Main Issue Sub-Issue Rule Application All dogs are blue. Fido is a dog. Therefore, like all other dogs, Fido is blue. Sub-Conclusion Analysis Conclusion Since Fido is blue, he is necessarily friendly.

47 Discussing Issues Separately It is important that you IRAC each issue and subissue separately: IRA[--] GOOD (Sub)IRA(Sub)C (Sub)IRA(Sub)C (Sub)IRA(Sub)C Conclusion

48 Discussing Issues Separately It is important that you IRAC each issue and subissue separately: GOOD IRA[--] (Sub)IRA(Sub)C (Sub)IRA(Sub)C (Sub)IRA(Sub)C Conclusion BAD IRRRRAAAAC Whether each sub-issue gets its own subheading and/or separate paragraph depends on how much there is to say about each. Use your judgment.

49 The Logical Lawyer: Part II Professor Martin Pritikin

50 Overview I. Structure of Rule Statements II. III. IV. Challenging Rule Statements Application: Articulating How Facts Apply Implicit Premises V. Ambiguity VI. Making Reasonable Assumptions

51 I. Structure of Rule Statements

52 Rule Statements Prof. Martin Pritikin Whittier Law Rules are statements of general applicability that set definitions, prescribe conduct, and/or establish consequences for violation No parking. Vehicles towed at owner s expense. Legal rule statements may appear in statutes (legislative), ordinances (administrative), or court opinions (judicial) Rule statements do not always announce themselves as being rule statements Because legal analysis involves application of rules to fact, rule statements generally come before factual discussion

53 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law 1. Elements 2. Alternate Prongs Hard 3. Balancing Tests 4. Factors Soft

54 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Elements: One or more pieces of a rule all must be satisfied for the rule to apply. Example: For a will to be valid, the testator (the one making the will) must have capacity to make a will; the testator must have intent to make a will; and the will itself must meet statutory formalities.

55 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Elements: One or more pieces of a rule all must be satisfied for the rule to apply. Example: For a will to be valid, [1] the testator (the one making the will) must have capacity to make a will; [2] the testator must have intent to make a will; and [3] the will itself must meet statutory formalities. And = Conjunctive: all elements must be met Or = Disjunctive: any one element must be met

56 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Alternate Prongs: Any one of the pieces of a rule must be satisfied for the rule to apply. Example: The drafter of a will may not receive a gift under the will unless the drafter is related to the testator by blood or marriage, the testator receives independent attorney advice, or court approval is obtained.

57 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Alternate Prongs: Any one of the pieces of a rule must be satisfied for the rule to apply. Example: The drafter of a will may not receive a gift under the will unless [1] the drafter is related to the testator by blood or marriage, [2] the testator receives independent attorney advice, or [3] court approval is obtained.

58 Common Structures of Rule Statements Alternate Prongs: Any one of the pieces of a rule must be satisfied for the rule to apply. General Rule Exception(s) Example: The drafter of a will may not receive a gift under the will unless [1] the drafter is related to the testator by (a) blood or (b) marriage, [2] the testator receives independent attorney advice, or [3] court approval is obtained. Alternate prongs are a common structure in exceptions to general rules.

59 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Balancing Tests: The rule provides that two competing interests or concerns shall be weighed against each other to reach a result. Example: Relevant evidence shall be excluded if the probative value is outweighed by the prejudicial effect.

60 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Probative Value Prejudicial Effect

61 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Factors: A number of criteria are each weighed without any one being dispositive and an overall result is reached. Example: In determining whether a case is related to bankruptcy, a bankruptcy court shall consider (1) the nature of the case, (2) the effect on the debtor s assets, (3) the effect on creditors, and (4) the effect on the administration of the bankruptcy estate.

62 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Factors: A number of criteria are each weighed without any one being dispositive and an overall result is reached. Example: In determining whether a case is related to bankruptcy, a bankruptcy court shall consider (1) the nature of the case, (2) the effect on the debtor s assets, (3) the effect on creditors, and (4) the effect on the administration of the bankruptcy estate.

63 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Nature of Case Effect on Debtor Effect on Creditors Effect on Estate Result???

64 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Hybrids: Rule statements may contain more than one of the above structures, or other structures. Example: Eligibility for SSI benefits extends to anyone who is: aged (age 65 or older); blind; or disabled. And, who: has limited income; and has limited resources; and is a U.S. citizen or national, or in one of certain categories of aliens.

65 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Hybrids: Rule statements may contain more than one of the above structures, or other structures. Example: Eligibility for SSI benefits extends to anyone who is: aged (age 65 or older); blind; or disabled. And, who: has limited income; and has limited resources; and is a U.S. citizen or national, or in one of certain categories of aliens. Element #1 Element #2 Element #3 Element #4

66 Common Structures of Rule Statements Prof. Martin Pritikin Whittier Law Hybrids: Rule statements may contain more than one of the above structures, or other structures. Example: Eligibility for SSI benefits extends to anyone who is: (a) aged (age 65 or older) (b) blind; or Element #1 (c) disabled. And, who: has limited income; and Element #2 has limited resources; and Element #3 (a) is a U.S. citizen or (b) national, or (c) in one of certain categories of aliens. Element #4

67 II. Challenging Rule Statements

68 Argument: Challenging Rule Statements Prof. Martin Pritikin Whittier Law Rule: Only animals that (1) give birth to live young and (2) feed their young milk, are mammals. If any part of an absolute rule statement is disproven, then the statement is falsified Can you think of an animal that disproves the rule?

69 Argument: Challenging Rule Statements Prof. Martin Pritikin Whittier Law The Platypus (order Monotremata)

70 Argument: Challenging Rule Statements Prof. Martin Pritikin Whittier Law Rule: Only animals that (1) give birth to live young and (2) feed their young milk, are mammals. How can you amend the rule to solve the problem? Create an exception Except for monotremes, only animals that (1) give birth to live young and (2) feed their young milk, are mammals. Narrow the rule Only animals that feed their young milk, are mammals.

71 Argument: Challenging Rule Statements Prof. Martin Pritikin Whittier Law Compare: Most animals that (1) give birth to live young and (2) feed their young milk, are mammals. Finding a counter-example to a qualified rule statement does not disprove the rule

72 Argument: Challenging Rule Statements Prof. Martin Pritikin Whittier Law CAUTION: Where there is no rule on point, and the parties are arguing about what the rule should be, IRAC may have less applicability.

73 III. Application: Articulating How Facts Apply

74 Articulating How Facts Apply Often, the relevance of facts is not obvious as a matter of mathematical logic. You have to articulate HOW application of a rule to facts leads (arguably) to a given conclusion.

75 Articulating How Facts Apply Call of Question: Fluffy eats her own placenta, and starts feeding her young solid food at two years of age. Discuss whether Fluffy is a mammal.

76 Articulating How Facts Apply Answer Is Fluffy A Mammal? All animals that (1) give birth to live young and (2) feed their young milk are mammals. We must determine whether both of these features are present to determine whether fluffy is a mammal. Live Young Sub-Issue Main Issue Given that Fluffy eats her own placenta, she necessarily has a placenta. Only animals that give birth to live young (as opposed to those that lay eggs) have need for placentas. Thus, Fluffy must give birth to live young. Sub-Conclusion Feeding Young Milk Sub-Issue We are told that Fluffy begins feeding her young solid food at two years of age. This implies that prior to that, they are Fact Fact raised on liquid food, which is likely milk. Conclusion It is likely that Fluffy is a mammal. Rule Analysis Analysis Main Conclusion

77 Articulating How Facts Apply Answer Is Fluffy A Mammal? All animals that (1) give birth to live young and (2) feed their young milk are mammals. We must determine whether both of these features are present to determine whether fluffy is a mammal. Live Young Sub-Issue Main Issue Given that Fluffy eats her own placenta, she necessarily has a placenta. Only animals that give birth to live young (as opposed to those that lay eggs) have need for placentas. Thus, Fluffy must give birth to live young. Sub-Conclusion Feeding Young Milk Sub-Issue We are told that Fluffy begins feeding her young solid food at two years of age. This implies that prior to that, they are Fact Fact raised on liquid food, which is likely milk. Conclusion It is likely that Fluffy is a mammal. Rule Analysis Analysis Main Conclusion

78 Articulating How Facts Apply Answer Is Fluffy A Mammal? All animals that (1) give birth to live young and (2) feed their young milk are mammals. We must determine whether both of these features are present to determine whether fluffy is a mammal. Live Young Given that Fluffy eats her own placenta, she necessarily has a placenta. Only animals that give birth to live young (as opposed to those that lay eggs) have need for placentas. Thus, Fluffy must give birth to live young. Feeding Young Milk We are told that Fluffy begins feeding her young solid food at two years of age. This implies that prior to that, they are raised on liquid food, which is likely milk. Conclusion It is likely that Fluffy is a mammal. WHY? WHY??? WHY??

79 Articulating How Facts Apply It s IRAC, not IRFC. DON T be conclusory; you must state why DON T make your reader figure out the why DON T be afraid of stating the obvious why

80 IV. Implicit Premises

81 Implicit Premises Prof. Martin Pritikin Whittier Law Often, one or more premises are unstated. A father and son were in a car crash. The father tragically died, but the son was sent to hospital in an ambulance. When the son arrived, the surgeon said, Sorry, I can't operate on him, he's my son! What s the answer? The surgeon is the boy s mother. What implicit assumption creates the challenge? That the surgeon must be a male.

82 Implicit Premises: Causation v. Correlation Prof. Martin Pritikin Whittier Law Premise: 15% of population is African American. Premise: 30% of prison population is African American. Implicit Premise: Rates of incarceration are directly related to rates of criminality and no other factors. Conclusion: African Americans are twice as likely as other races to commit crimes.

83 Implicit Premises: Causation v. Correlation Prof. Martin Pritikin Whittier Law Premise: 15% of population is African American. Premise: 30% of prison population is African American. Implicit Premise: African Americans are more likely to be convicted and/or sentenced to prison upon conviction than other races. Conclusion: African Americans are no more likely than other races to commit crimes. At this point, there is no empirical evidence for either implicit premise (increased criminality or racism). How does one establish which argument is stronger?

84 Strengthening Arguments Prof. Martin Pritikin Whittier Law If there is no empirical evidence for an implicit premise, what should you do? 1) Develop empirical (factual) support for premise e.g., Conduct formal discovery; do research 2) Appeal to the decisionmaker s implicit premises e.g., Are they conservative/liberal? 3) Supply a new premise e.g., Rely on burden of proof: opponent has burden of showing that cause is/is not racism

85 V. Ambiguity

86 Ambiguity Prof. Martin Pritikin Whittier Law Posted Sign: No Vehicles in the Park Which of the following would be prohibited? A. A bicycle B. A car C. A stroller

87 Ambiguity Prof. Martin Pritikin Whittier Law Posted Sign: No Vehicles in the Park Which of the following would be prohibited? A. A bicycle B. A car C. A stroller Possible definitions (American Heritage Dictionary): 1) A device or structure for transporting persons or things. 2) A self-propelled conveyance that runs on tires. 3) A motor vehicle.

88 Ambiguity Prof. Martin Pritikin Whittier Law Posted Sign: No Vehicles in the Park Which of the following would be prohibited? A. A bicycle B. A car C. A stroller The policy underlying a rule may help you apply it. What policy(ies) underlies this rule? Allowing pedestrians to enjoy the park free from: 1) Noise 2) Danger 3) Pollution

89 Ambiguity Prof. Martin Pritikin Whittier Law The clearer a rule s application to a factual scenario, the less room there is to argue policy. Conversely, the more ambiguous its application, the more room there is to argue policy. Law students often fear ambiguity. They want the right answer. Look for potential ambiguity. Then embrace it. The world would have less of a need for lawyers without it.

90 VI. Making Reasonable Assumptions

91 Making Reasonable Assumptions Prof. Martin Pritikin Whittier Law Be willing to read between the lines and think outside the box. But don t lose your head; common sense is still king.

92 Making Reasonable Assumptions Prof. Martin Pritikin Whittier Law Rule: Rape is defined as sexual intercourse by force or threat of force without consent. Facts: In 1992, Vickie was jogging in the park when Dave jumped out of the bushes brandishing a knife, held her down, and had sexual intercourse with her. If Dave is prosecuted for rape, what is his best defense? Likely the statute of limitations. (Did you think the date was there for no reason?)

93 Making Reasonable Assumptions Prof. Martin Pritikin Whittier Law Rule: Rape is defined as sexual intercourse by force or threat of force without consent. Facts: In 1992, Vickie was jogging in the park when Dave jumped out of the bushes brandishing a knife, held her down, and had sexual intercourse with her. Are there other possible defenses? --Maybe Vicki had planned all this as part of some roleplaying game with her boyfriend, Dave --Maybe Vicki secretly hoped to be raped by a stranger. --Maybe Dave asked for and got consent prior to sex. While possible, is it reasonable to assume these?

94 Making Reasonable Assumptions Prof. Martin Pritikin Whittier Law An argument is more persuasive if it is credible The more reasonable the assumptions/inferences on which an argument is based, the more credible it will be It is not reasonable to invent facts not in the problem Common sense and context will help determine how reasonable an assumption/inference is Just because you are in law school, don t abandon your common sense!!!