September 29, 2005
This is the first section of a 3-part series. Be sure to read the November and December issues of Lorman Legal Update for the remainder of the article.
The training of lawyers is a training in logic. The process of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457 (1897) at 167 of The Essential Holmes (Richard A. Posner ed., 1992).
Logic has been central to legal education and thinking for many years. In the 1800s, when Christopher Columbus Langdell, dean of Harvard Law School, published the first modern casebook, the classical system “was premised on the view that law is complete, formal, and conceptually ordered system that satisfies the legal norms of objectivity and consistency.” Gary Minda, Postmodern Legal Movements: Law and Jurisprudence at Century’s End 1 (New York Univ Press 1995). The system was believed to be capable of “providing uniquely correct solutions or ‘right answers’ for every case brought for adjudication.” Id. at 13. It could “dictat[e] logically correct answers through the application of abstract principles derived from cases.” Id.
The Modern Attack on Formalism and Logic
But modernist thinking weakened acceptance for the Langdellian view of the law. Justice Holmes reflected this modern skepticism about the role of logic in his oft-quoted statement that “[t]he life of the law has not been logic: it has been experience.” Oliver Wendell Holmes, Jr., The Common Law 1 (1881). Holmes was not alone in rejecting the idea that logic controls the outcome of judicial decisions. With the advent of the legal realism, some believed that “a judge decided which way he wanted a decision to go and then produced an elegant chain of reasoning to lead to his predetermined conclusion....” J. G. Riddall, Jurisprudence 259 (2d ed. 1999). Lawyers increasingly asserted that “a judge (or an academic) ‘constructs the materials to reach a desired result, and that the result is based on some real interest in winning a certain class of cases, either because they are significant to maintaining economic or political control or because they help solidify a certain ideological story that is helpful to maintaining domination.’” Id. quoting Duncan Kennedy, The Structure of Blackstone’s Commentaries, 28 Buff L Rev. 209 (1979). Judge Jerome Frank, for example, took the position that even when the rules are clear, they do not control the outcome. Jerome Frank, Law and the Modern Mind (2d ed. 1963). Adherents of the legal process school of jurisprudence likewise viewed law as less a matter of logic than of policy. In the legal scholars’ view, decisions should be based not on the reasoned application of substantive theory but “on process values.” Minda, supra at 35; See also Henry M. Hart, Jr., & Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (tent. ed. 1958) (Eskridge W. & Frickey P. eds., Foundation Press 1994).
Lawyers increasingly articulated the view that “the conscious process of legal reasoning is not really what accounts for a judge’s decisions.” Daniel A. Farber & Suzanna Sherry, Beyond All Reason: The Radical Assault on Truth in American Law 35 (1997). One modern scholar, Derrick Bell, for example, wrote that 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 that wants to wrap itself in the mantle and majesty of the law.” Derrick Bell, Who’s Afraid of Critical Race Theory? 1995 U. Ill. L. Rev. 893, 899-900. Proponents of this view believe that “the legal system cannot be guided by rational thought; instead, its predictability derives from the unconscious mindsets of lawyers and judges.” Farber & Sherry, supra at 49. This trend to diminish logic as a basis of judicial decision making is justified on the basis of its indeterminate nature. Proponents insist that legal reasoning “does not provide concrete, real answers to particular legal or social problems.” David Kairys, Law and Politics, 52 Geo. Wash. L. Rev. 243, 244-247 (1984). Logic, they argue, leaves a range of choices.
Formalism is typically associated with “the logical, impersonal, objective, constrained character of legal reasoning.” Richard A. Posner, Judicial Opinion Writing: Judges’ Writing Styles (And Do They Matter?), 62 U. Chi. L. Rev. 1421, 1432 (1995). But an approach to legal reasoning that heavily emphasizes formal logic has been subject to attack as overly rigid and too abstract. Pragmatists advocate an approach by which the judge decides “the nonroutine case [by] ... trying to come up with the most reasonable result in the circumstances, with due regard for such systematic constraints on the freewheeling employment of ‘reason’ as the need to maintain continuity with previous decisions and respect the limitations that the language and discernible purposes of constitutional and statutory texts impose on the interpreter.” Id. at 1432-1433. As a result, rhetoric rather than logic has become a central tactic of persuasion.
Logic as an Advocacy Tool
Regardless of whether an appellate judge accepts logic as a determinant or adheres to a more pragmatic approach, as long as the rule of law requires like cases to be treated alike and judges to apply statutes and the constitution as written, logic remains an important part of any argument on appeal. And while the academic debates over jurisprudence have shifted from earlier times, advocates still need to employ persuasive tools that include both logic and rhetoric. Aristotle long ago taught that rhetoric was “an offshoot of logic, the science of human reasoning.” Edward P. J. Corbett & Robert J. Connors, Classical Rhetoric for the Modern 4 Student 32 (1999). And his comprehensive approach to persuasion remains a sound strategy for today. An advocate need not resolve the jurisprudential debates of scholars and judges over the grounds of judicial decision making in order to arrive at a persuasive strategy for arguing an appeal. But recognizing these debates has important ramifications.
Lawyers who believe that the unconscious mindset or the conscious evaluation of institutional strengths and policy considerations are determinants of judicial decisions will focus on rhetoric that tries to persuade the court on these terms. The belief that rhetorical tricks can help an advocate with a weak case prevail is not new. Cicero, for example, taught orators that if their cause was “discreditable,” they should use the “subtle” approach to achieve a favorable result “covertly, through dissimilation....” Cicero, Rhetorica Ad Herennium 13-21 (Harvard Univ. Press 1999). Aristotle, too, discussed the use of emotion in argument, explaining that “anger, pity, fear, and all other such and their opposites” could alter the judgments of listeners. Aristotle, The Art of Rhetoric 141 (Penguin Classics 1991). Aristotle distinguished appeals to emotion (pathos) from the other modes of persuasion including appeals to reason (logos) and appeals to personality or character (ethos). Corbett & Connors, supra at 32.
According to Aristotle, “[r]hetoric is the counterpart of dialectics” or logic. Aristotle, supra at 66. He explained that “all men engage in them both after a fashion.” Id. But he emphasized that “speakers ought not to distract the judge by driving him to anger, envy or compassion....” Id. at 67. An opponent who engages in such practices can best be defeated by an approach that precisely reveals the logic (and illogic) of the arguments presented. Naming the rhetorical strategy and explaining why it serves as a distractor reminds the court that the decision should be based upon the application of reasoned, neutral principles to arrive at the correct result.
Despite the modern view that formal logic rarely controls the outcome, it may be, and often is, a critical element in the decision making process. At the appellate level, reasoning remains a primary determinant of judicial decision making. Thus, logic is critical on appeal. As a result, appellate advocates must learn how to best frame their arguments in the classic style of logic. Advocates who seek to prevail must test the logic of their arguments. Advocates must also search out any weakness in the logic of their opponent’s argument. The ability to engage in such analytically precise and logical thinking is a hallmark of good advocacy. Like any skill, it requires practice and training. Study of books on rhetoric and logic is helpful. Aristotle, Cicero, and Quintillian all discussed logic and rhetoric in their writings—and what they had to say is surprisingly modern. Many newer books on logic and reasoning exist and also provide analytical tools for advocates when constructing or refuting a logical argument. Analysis of judicial opinions to lay bare the reasoning is also useful. Identifying the logical structure of an opponent’s argument and then searching for structural or factual flaws is important. But few law schools directly teach logic. And few appellate briefs directly discuss it.
Watch for Part 2 and Part 3 in future issues of Lorman Legal Update. This article was originally published in For the Defense.