April 14, 2007
article on arguments
Professor Scott Fruehwald at Hofstra University has written an article explaining how legal writing courses cover more of the basic types of legal argumentation than the average casebook law school course. You can download Legal Argument and Small-Scale Organization free-of-charge via SSRN. As Professor Fruehwald writes in his abstract:
"Legal argument and legal writing are inseparable. This paper first discusses the four types of legal argument -- 1) rule-based reasoning, 2) reasoning by analogy, 3) distinguishing precedent, and 4) policy-based reasoning, and it shows how reasoning by analogy has been overemphasized in first-year doctrinal courses. It then demonstrates how legal writing courses usually include all four types of legal reasoning. Finally, the paper presents a small-scale organizational paradigm that incorporates all four types of reasoning."
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I essentially made the same argument, but put it in terms, of making legal arguments regarding making legal arguments rather than just applying the legal constructs, like IRAC or a variation thereof, in my article, "Legal Writing Programs and Professiolism: Legal Writing Professors Can Join the Academic Club, 18 St. Thomas L. Rev. 711 (2006).
One of my collegues drew to my attention a post on this blog, dated Dec. 27, 2006, challenging my premise as being rather symplistic. The blogger writes: "If eliminating all the obstacles placed in the paths of legal writing professors were as easy as adding labels like "major premise" and "minor premise" to a few of the many modes of legal analyis, surely someone would have tried it by now." Other than somewhat misunderstanding my point, I would like to announce that I have tried it. See, "Constitutional Legitimacy and the Culture Wars: Rule of law or Dictatorship of A Shiftin Supreme Court Majority?, 39 Cumb. L. Rev. 205 (2005-2006). Whether I was successful, my point was to apply basic interpretive methods based on the syllogism to determine whether Supreme Cout decsions in the last century can withstand the scrutiny.
As an aside: I find out this week whether I get tenure, so we shall see.
Prof. Jim Boland
Regent U. School of Law
Virginia Beach, VA
Posted by: james boland | Apr 16, 2007 8:10:01 AM