Syllogism is a logical reasoning, consisting of a major premise, a minor premise and a conclusion. Every action at law to redress a wrong or enforce a right, if properly instituted, is a syllogism of which the major premise is the proposition of law involved, the minor premise is the proposition of fact, and the judgment the conclusion.
Syllogism derives from the Greek word syllogismos, meaning conclusion or inference. A simple syllogism definition is that it’s a form of deductive reasoning where you arrive at a specific conclusion by examining premises or ideas.
The legal syllogism was recognized by the eighteenth century reformer Cesare Beccaria, who expressly advocated that, in the area of criminal law, judges should follow syllogistic reasoning: “In every criminal case, a judge should come to a perfect syllogism: the major premise should be the general law; the minor premise, the act which does or does not conform to the law; and the conclusion, acquittal or condemnation.”
- DEDUCTIVE REASONING AND THE SYLLOGISM
In the United States, deductive reasoning provides the underlying organizational framework for most legal analysis. Analogical reasoning then supplements and supports the deductive framework. The classic expression of deductive reasoning, the syllogism, was first stated by the ancient Greek philosopher Aristotle and consists of three simple statements, as in the following:
1. All men are mortal.
2. Socrates is a man.
3. Therefore, Socrates is mortal.
Socrates was an ancient Greek philosopher who founded the tradition of teaching followers by asking them series of questions. He was forced by the elders of his city, Athens, to commit suicide because they believed he was corrupting the youth of the city. Nevertheless, his thinking and teaching style have become important both to the Western philosophical tradition and to American-style law school teaching. Socrates taught Plato, who in turn taught Aristotle, who wrote this famous syllogism.
The syllogism consists of
(1) A major premise,
(2) A minor premise containing a subgroup of the major premise, and
(3) A conclusion that must follow if points 1 and 2 are true. The syllogism is also known as the transitivity principle in mathematics, with which you maybe more familiar: (1) A = C, (2) B = A, (3) therefore B = C.
The syllogism is highly persuasive, partially because its logic is inexorable and partially because it is very easy to follow. For a syllogism to be valid, both premises must be true, and the terms used must match. For example, compare the first syllogism to this one:
1. All men are mortal.
2. Socrates is a cat.
3. Therefore, Socrates is mortal.
This syllogism fails for two reasons. First, the premise in point 2 is untrue, because Socrates was a man, not a cat. Second, the terms do not match (the first premise contains the term men, while the second makes no mention of that term and instead uses cat). As a result, whether man or cat, Socrates may still be mortal, but the syllogism has not proven him so. In a legal argument, the major premise is a legal rule, the minor premise applies the specific facts of the situation to the requirements of the rule, and the conclusion is the legal result, as in the following example:
1. Players of recreational sports who flagrantly violate the rules of the game and thereby cause injury to other players are liable for negligence.
2. Jerger, by slide-tackling, flagrantly violated his league’s soccer rules and caused injury to Lestina.
3. Therefore, Jerger is liable for negligence. However, unlike the Socrates example, the truth of the premises in a legal argument is not usually so straightforward and obvious. The attorney must demonstrate the truth of both premises, and must show that the terms match, if the deductive logic of her argument is to be convincing. The process of proving both premises and the resulting conclusion is called IRAC reasoning.
- IRAC AND CRAC REASONING
IRAC, and its variant CRAC, are acronyms widely used by U.S. attorneys and law schools to refer to a standard way of developing syllogistic arguments in both objective and persuasive documents. IRAC stands for Issue, Rule, Application, and Conclusion, in that order. The variation CRAC (pronounced see-rak) substitutes Conclusion for the Issue, so that the conclusion is stated twice. IRAC/CRAC analysis is used in law school exams, objective law-firm memos, persuasive documents filed with courts, and court opinions themselves. In other words, anytime you address a legal problem in a U.S. law school, you should be using IRAC or CRAC. Different legal writing instructors may prefer one or the other, and one or the other may be more appropriate in a given situation.
IRAC is for law school exams and objective legal memos, and CRAC for persuasive documents. Using IRAC analysis, when an attorney is called upon to address a legal question, he:
1. identifies the legal question or issue to be addressed,
2. States and explains the applicable legal rule (the first premise),
3. Applies that legal authority to the specific facts of his client’s situation (the second premise), and
4. Concludes by answering the question asked in step 1. The syllogistic core of IRAC analysis can be seen in the following pattern.
Given a particular situation and a stated legal Issue (IRAC) or Conclusion (CRAC), the attorney explains:
1. The first premise: the legal rule
2. The second premise: application of the rule to the specific facts of the particular situation
3. His conclusion
Looking at the preceding Lestina syllogism, the first premise is a statement of the general rule about liability in recreational sports cases; the second applies that rule to the particular facts of the case; the third statement concludes that because the requirements of the rule are fulfilled, the defendant is liable.
The syllogism example is fine as far as it goes, but would not be regarded as persuasive to an American attorney because it does not explain or prove either premise: The syllogism does not explain how the definition of negligence is derived, nor does it explain how each element of that definition applies to Jerger’s acts. IRAC analysis allows for expansion and proof of both the major and minor premises in a legal syllogism. The amount of expansion and proof needed varies, depending on the purpose of the proof and the complexity of the legal issue.
Exam answers to hypothetical questions are the simplest and most concise, usually consisting of a string of IRAC paragraphs. Each paragraph identifies a different issue, states the appropriate legal rule, explains with particularity how the rule applies to the facts of the hypothetical, and concludes, stating that one party or the other either is or is not likely to be liable. In contrast, interoffice law firm memos and persuasive documents may discuss only one or two issues, and have a whole section, called the “Discussion” section, devoted to IRAC analysis. In such documents, after the issue is identified, several paragraphs or pages may explain the applicable legal rule; then several paragraphs or pages explain how the rule applies to the specific situation, including arguments on both sides where applicable; and then the conclusion, stated in a final paragraph, explains which arguments are most persuasive.
Usually, after researching the law and locating the most relevant authorities, the attorney prewrites or sketches out the discussion section, working through the rule and application and reaching a conclusion. The analysis consists of five interrelated steps:
1. Identifying the legal issue and legal rule
2. Dissecting the components of the rule (deductive reasoning)
3. Analyzing how previous cases define or explain these components, in light of the facts in those cases (inductive reasoning)
4. Comparing the facts of the present case to the facts of the precedents to analyze whether each component or the rule has been met or established (analogy)
5. Concluding whether the rule applies
As mentioned earlier, common law reasoning incorporates deductive, inductive, and analogical reasoning. An attorney researching a problem may first identify the applicable legal rule from a statute, then collects cases interpreting various elements of that statute. In preparing his office memo, he then turns to IRAC organization, an expansion of syllogistic, deductive reasoning. Inductive reasoning is incorporated into the third step, when the attorney analyzes what the previous cases say about the statute. Analogical reasoning is incorporated into the fourth step when the attorney compares the facts of his case to the facts of previous cases to see if he can draw an analogy. If his case is like previous cases because the facts are similar, then the result should also be similar, under the principle of stare decisis. If the facts of his case are different in relevant ways from those of a previous case, then the attorney will distinguish his case from the previous one, reasoning that the result should be different. Although it may require some adjustment to master IRAC organization, the major difference in reasoning between civilian and U.S. common law legal reasoning is the use of analogy and focus on particular facts. The next section illustrates the steps in this IRAC analysis, explaining in greater detail how facts and analogies are developed. The final section of the chapter explains how this analysis is used in an interoffice memo.
- I: Identification of an Issue Learning how to spot and state a legal issue is a complex task.
A client generally enters the attorney’s office with either a specific legal question or a story of something that happened. In either instance, the client may believe that the question or problem is simple, but upon examination, the attorney may discover that it implicates a number of different areas of law, each of which must be carefully researched and analyzed before the client can be advised. In the context of a U.S. law school exam, professors look to see if a student is skilled at “issue spotting”: Can the student spot a practical example of a potential legal issue pertaining to one or more components of a legal rule that was taught in the course? Gaining skill at spotting issues on law school exams helps law students gain skill at identifying clients’ legal problems. In the context of legal research and writing and IRAC analysis, the associate attorney who is assigned the task of writing an in-house memo is usually given a legal question, and therefore may not need to identify the issue.
Some legal questions seem to be fairly straightforward. The area of law is identified, and the question relates to one small component of that area. However, even here the legal question can be phrased in a number of different ways, but only one or two phrasings may be productive for research, appropriate for the situation, or appropriate in a particular court, because different jurisdictions use different terms and even different rules. Thus, part of the attorney’s task is to phrase the issue as accurately and precisely as possible.
Generally, one begins with a tentative question and then changes that question as research and analysis develop. The question is eventually focused on one or more components of a legal rule. Formulating the issue requires that one identify and analyze the appropriate legal rule, then break it down into its components, and finally decide exactly how to phrase the question. Therefore, although issue is the first word in IRAC, as a practical matter an attorney must usually understand the applicable rule first, before refining her understanding of exactly how to phrase the client’s issue.
- R: Analysis of a Legal Rule
The rule component of IRAC analysis is the accurate statement and explanation of a legal rule or principle. In general, it consists of two steps. First, the rule is dissected to determine its component parts and how they relate to each other. Then, each component is analyzed using reference to appropriate authority. For example, in analyzing a statute, one considers not only the language of the statute itself but also how courts have interpreted various parts of that statute. In explaining how courts have interpreted statutes, common law reasoning often requires that the specific facts of the cases be discussed, as well as the courts’ reasoning, so that one can see what kinds of facts are likely to elicit what kinds of decisions. This reference to factual context is later developed into the analogical thinking that underlies the application portion of common law legal reasoning.
- Types of Legal Rules
The various parts of a rule can relate to each other in a few different ways: conjunctively, disjunctively, as exceptions, as factors, as balancing tests, and as totality-of the-circumstances tests. Each type is discussed in turn below.
- Elemental or Conjunctive Rules
Some rules are composed of several different elements, all of which must be present. These are called conjunctive (“and”) rules. Negligence is one such conjunctive rule: A person is liable for negligence if he had a duty to do something, he breached that duty, and the plaintiff was harmed and the defendant’s breach of that duty caused the plaintiff s harm.
In other words, negligence requires four elements: duty and breach and causation and damages. One variation of the conjunctive rule is termed a “prong” test. Usually there are at most two or three prongs. All of the requirements of all prongs must be met in order for the rule to apply, so these rules are in essence conjunctive.
For example, the Fourth Amendment of the U.S. Constitution requires a warrant before a suspect’s property can be searched for contraband. To secure a search warrant, police must submit an affidavit (a sworn, written statement) to a court showing probable cause to search. Sometimes the affidavit is based on information obtained from an unidentified informant. This kind of affidavit must satisfy a two-prong test to qualify as “probable cause” for the search. The first prong requires that the affidavit show the basis of the informant’s knowledge about the location of the contraband. The second prong requires that the affidavit include information that led the police to conclude that the informant was credible or reliable. Both prongs must be established; if either is missing, the probable cause standard has not been reached and a search warrant should not be issued.
- Disjunctive Rules
Rules can also be disjunctive (“or” rules) or can be a combination of conjunctive and disjunctive. For example, under the common law rules of negligence, a duty can be a duty either to do or not to do something. Turning from tort to criminal law, because of the strict requirements of the Constitution that crimes be clearly delineated by statute, most (if not all) criminal statutes are conjunctive or disjunctive rules. An example used later in this chapter focuses on the following statute: It is a separate crime, punishable by a term of imprisonment for up to five years, for a defendant to use or carry a firearm in connection with a drug-trafficking crime.4 What elements are required under this statute? Where is the disjunction?
Many rules have exceptions, and a correct statement of the rule requires that both the general rule and the exception(s) be stated. For example, if a witness lies to a grand jury, she can be convicted of the crime of perjury, except if she admits that she lied before her lie became generally known and the lie caused no harm to the proceeding.” Does this example consist solely of a rule and an exception, or is it itself a combination of rule types, like the previous example?
d. Factors and Balancing Tests
A number of rules are composed of flexible factors that must be present to a lesser or greater extent. For example, for a court to grant a motion to dismiss for forum поп conveniens, the moving party must establish
(1) That there is an adequate alternative forum, and
(2) That public- and private-interest factors favor dismissal.
Private interest factors include the “relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises and all other practical problems that make trial of a case easy, expeditious and inexpensive. Public-interest factors include “administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in an unrelated forum with jury duty. Notice that this factor test, like most, includes a nonexclusive list of factors: There may be other aspects of public or private interest like these that the trial court may consider as well. It was under this test that the United States District Court for the Southern District of New York made the controversial decision to dismiss the Bhopal-Union Carbide case in favor of trial in India.
A factors test differs from a conjunctive rule or prong rule in that it is not necessarily an exclusive list, and not all factors must be proven in order for the rule to apply. Thus, the forum поп conveniens rule quoted above says that the court can consider “all other practical problems” — i.e., any other issue that relates to making a trial easy, expeditious, and inexpensive. Like the factors test, a balancing test consists of several factors.
Instead of merely considering them, though, a court is required to balance them, weighing the quality or strength of the arguments for each. Thus, a balancing test weighs competing factors, rather than just establishing the existence or not of factors such as those listed in the forum поп conveniens test, and the factors listed are generally exclusive. Courts weigh not only the number of factors that support one party but also the strength of the argument that supports each factor balanced. However, if one factor weighs very strongly in favor of one party, even if the other factors weigh in favor of the opposing party, then the first party may still prevail. For example, four factors must be balanced when a criminal defendant claims a violation of the right to a speedy trial granted by the Sixth Amendment:
(1) The length of the delay,
(2) The reason for the delay,
(3) The defendant’s assertion of his right to a speedy trial, and
(4) Prejudice that the defendant suffered because of the delay.
All four factors must be weighed to determine the outcome of the case.
- Totality-of-the-Circumstances Rules
A totality-of-the-circumstances test is like the factors test, except that specific factors are not delineated. Furthermore, unlike a balancing test, which has a set number of considerations, a totality-of-the-circumstances test requires the court to consider all the circumstances of a case — a process that, on appeal, can mean an exhaustingly detailed review of all the evidence presented at trial. For example, it is unlawful for an employer to refuse to hire, to fire, or to discriminate against an employee on the basis of the employee’s race, color, religion, sex, or national origin.
One form of unlawful harassment under this statute is that of a hostile environment, in which an employee is consistently and severely abused on the basis of his or her race, sex, or ethnicity. A totality-of-the-circumstances test is used to determine what constitutes a hostile environment: To determine whether an environment is sufficiently hostile or abusive to be actionable, a court should look “at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” A reviewing court will go through the entire trial record, examining each and every instance of discriminatory conduct and its severity.
- Difficulties in Stating Common Law Rules
Not all cases state the applicable common law rule directly, completely, or accurately. Therefore, developing skill in dealing with common law demands that one learn to spot the best phrasing of the rule in a case; compare that phrasing to other, similar cases; and test the accuracy of any particular phrasing of the rule by comparing it to the result in other cases. Because of the nature of stare decisis, a case is built on the reasoning and language of those that came before, and thus newer cases generally state any given rule more accurately and more completely than do older cases. For example, Jones v. Smith discusses negligence in only one cryptic passage, stating: “There is no question that defendant Smith’s conduct was the cause in fact of the harm to plaintiff Jones. Smith was under a duty to play soccer in the ordinary fashion without unsportsmanlike conduct or wanton injury to his fellow players. This duty was breached by Smith, whose behavior was, according to the evidence, substandard and negligent.”
Although this paragraph touches on the elements of duty, breach, causation, and damages, it does not explain any of those concepts, nor does it discuss any other sports. It would be difficult to formulate a general rule about negligence in recreational sports from this one case, or even get a good understanding of the negligence standard and how it operates in various situations.
At the time the fictional Jones v. Smith case was allegedly decided (1976), there were very few recreational sports cases. In contrast, Lestina, a real case written almost 20 years later, in 1993, exhaustively discusses the negligence standard and how it should be used (in Wisconsin) in the context of recreational sports. It mentions and cites a number of different sports cases in a long footnote. When it comes to a statement of the applicable legal rule, Lestina defines negligence as a “failure to use that degree of care which should be exercised by a reasonable person under the circumstances.” This is a fairly standard, modern definition of negligence, and is quite comparable to the bon pere defamille standard used in French and other civilian jurisdictions to determine when someone is at fault and therefore liable for a tort. Furthermore, in the context of a recreational sport, Lestina states that “to determine whether a player’s conduct constitutes actionable negligence the fact finder should consider such material factors as the sport involved; the rules and regulations governing the sport; the generally accepted customs and practices of the sport; the risks inherent in the game and those that are outside the realm of anticipation.
Jones gave a rule limited to the facts of the soccer game at issue, but Lestina more directly states a rule applicable to many recreational sports — one that can be applied in other, similar cases. Thus, in addition to being of different types, rules can be stated in different manners. Technically speaking, the rule of a case is limited to the facts that caused the court to decide the way it did. Thus, a rule may be stated as narrowly as the holding of the case. Jones’s rule could be stated as it was in the case: A soccer player has a duty to play soccer in a sportsmanlike manner.
If he breaches that duty by tackling another player in a blatant violation of the rules and his breach causes serious damage to that other player, then he is liable for negligence. However, such narrow statements are of very little use when an attorney needs to predict what a court will do with a similar issue in a different case. Over time, courts look to series of cases and often reinterpret them to help decide new cases. These reinterpretations are often phrased as generalizations from earlier cases, and sometimes courts speculate on what they would have decided had they been given different facts. Jones v. Smith makes such a speculation when it mentions that the plaintiff might have assumed the risk of being slide-tackled or run into, but the fact was that he was not hit this way.
Technically these generalizations and speculations are dicta and not law, because they exceed the scope of the decision made by the court, but they are nevertheless very useful in predicting future cases because they express the court’s inclinations. Generalizations are often repeated in case after case, and therefore develop the force of law. Sometimes one can find a rule accurately stated in a later case or an authoritative treatise, but sometimes one has to synthesize a rule by combining cases. Different cases may elaborate on the nature or definition of different elements, as did Lestina, and it may be necessary to consider the facts, holdings, and rationales of several cases to construct an accurate rule.
- Inductive Reasoning: Incorporating Case Law into the Rule Analysis
In the context of a law firm memo or other professional-caliber legal document, getting a complete statement of the applicable rule and understanding its components and how they relate to each other is just the beginning of legal analysis. Because the law of each case is limited to the facts that led to the decision, the next step in being able to predict how a court will decide is to examine both the holdings and the material or operative facts of applicable case law and determine what types of fact patterns are needed for each element, factor, or balance. Material or operative facts are those facts that led a court to make a particular decision. The attorney considers which fact is related to which component of the rule, and analyzes the component in the light of the facts and how they led to the court’s decision. For example, the fact that Smith flagrantly violated the rules of soccer was material to the court’s decision. The court found that he had a duty to play by the rules, and that he breached that duty by going out of his way to run into Jones.
The fact that Jerger, the Lestina defendant, violated the rules of his soccer league by slidetackling was similarly material to the Wisconsin court’s decision for the same reason: The court found that he had a duty to play by his league’s rules and that he breached that duty when he slide-tackled Lestina. By synthesizing these two cases, one can develop a rule statement that encompasses both: Players in team sports have a duty to obey the rules of their sport or league. If they breach that duty by violating a rule, and the breach causes injury to another player, then they may be found negligent.
- Incorporating Policy Concerns
To fully understand the reasoning of a particular legal principle, the attorney should also consider the underlying policy concerns that led to the court’s decision, or that may have affected the court’s decision. Policy concerns are often mentioned in the body of an opinion, and become key issues in dissents. For example, in Jones, the dissent questioned the intentionality of Smith’s act. Had the court found the act intentional, the insurance company would not have had to pay for Jones’s injury. The dissent felt that it was obvious that the act was intentional and that the insurance company should not pay for it. The majority’s decision to regard the act as unintentional demonstrates both a concern for the injured party who was a “sympathetic” plaintiff, and a desire to distribute the cost of tort injuries through insurance. These cases demonstrate that policy concerns of tort law involve protecting weaker parties and distributing the cost of injuries; however, in sports law cases, courts are further concerned that holding players and their teams’ insurance companies liable will discourage recreational sports.
Thus, although the Lestina court held Jerger’s insurance company liable, another court might not have done so, because slide-tackling is acceptable in most leagues and not as egregious a violation of the rules. Furthermore, if you were representing a client who had slide-tackled another player in a soccer game, but
(1) The game was not in Wisconsin,
(2) Slide-tackles were ostensibly against the rules, but that rule had never been enforced, and
(3) Recreational sports clubs were having trouble paying insurance premiums, then you might acknowledge that Lestina is still good law, but predict that it is unlikely that the court would follow it in your case because the policy concerns underlying Lestina were not present here.
Knowing what policy concerns underlie a court’s decision helps a lawyer substantially in predicting what a court will do in another case. Fact-and-policy-focused legal reasoning is the essence of common law thinking, and is perhaps the most difficult to grasp at first because it forces you not only to read a case but also to dissect it and relate it back to the underlying legal rule. The two skills — analysis of the rule and consideration of how different factual situations are treated by the courts — are intertwined in common law thinking: One cannot completely understand a rule until one understands how it applies to a particular set of facts. Generally, in discussing case law in a rule section, one should include the facts, the holding, and the court’s reasoning or rationale. When handling a number of cases, it is often best to begin by charting them, so as to master the facts of each case and specify which elements of the rule each case addresses. A chart allows the attorney to see at a glance how the various cases compare.
Once the cases are charted, construction of the rule analysis is quite systematic. After stating the applicable rule and explaining any underlying policy considerations, address each component of that rule in turn, using facts, holdings, and reasoning from the cases to illustrate what kinds of facts will either establish or fail to establish that particular component. Generally, the only way to get a complete understanding of a legal principle is to consider both positive and negative fact patterns: cases in which the rule was held to apply, as well as cases in which the court held that the rule did not apply, and the reasons therefor.
- Considering Relative Weight of Authority
In explaining a rule in light of interpretive case law, one must also consider the relative weight of authority. Generally, when working on the rule section of an objective memo, it is best to consider and present mandatory authority first, because the impatient reader will want to know exactly what the court must follow first, before any discussion of what the court might follow. However, if the full statement of the applicable rule is made only in secondary authority, then the secondary authority should be presented first, with mandatory or persuasive authority then used to demonstrate how the rule operates in specific factual situations.
As you read court opinions, examine how their authors organize the discussion of prior authority. Generally a court discusses Supreme Court authority first, if there is any, then its own prior decisions, and then persuasive authority. Some authorities are more persuasive than others. For example, courts whose standing is as high as or higher than that of the deciding court are more persuasive than lower courts, but cases with extremely similar facts may be highly persuasive even though they come from a lower court. An example from a Restatement or prominent secondary authority may be more persuasive than mandatory authority from the same court, especially if the facts of the mandatory case are very dissimilar from those of your case.
- Application and Conclusion
Once each and every component of the rule has been thoroughly explained, the attorney then turns to the application portion of IRAC. For beginning U.S. law students and civilian-trained attorneys, this is the most difficult part of IRAC analysis. Civilian analysis often ends with identification of the applicable rule and a simple conclusion that it applies. In contrast, common law analysis begins with a statement of the rule and then an explanation of it, but the most important part is the explanation of how prior case law compares and then how the rule applies to the given facts. Nevertheless, if the rule section is thorough and well-explained, the application section will be relatively simple to construct. Address each element of the rule, and show how it is or is not established by the facts of the situation. It is at this point that analogy is particularly relevant. The facts of the cases discussed in the rule section are compared to the facts of the given situation, and the appropriate legal implications are linked back to each element of the rule. The effect of policy concerns is also considered.
Nevertheless, if the facts are substantially similar to the preceding case law, each element of the rule can be established through comparison to prior cases, and the same policy concerns apply, then the attorney can predict that a court will treat her client’s problem similarly. In contrast, if the client’s factual situation is entirely different from those in the case law, not all elements of the rule can be established, and policy implications do not follow, then the rule should not apply. This is termed “distinguishing the case on its facts,” and it is a very widely used premise for argument, providing another reason for considering both positive and negative cases in the rule analysis.
THE USE OF THE SYLLOGISM IN JUDICIAL REASONING
- The Case Brief as a Chain of Syllogisms
As noted at the beginning of this article, a case brief is in the form of a syllogism, an argument of deductive logic. But to characterize a brief as a single argument of deductive logic, a single syllogism, is misleading. In law school, law professors typically ask students to identify “the issue” or “the holding” of a case, implying that for every case there is only one issue and one holding. But on closer inspection it becomes apparent that this is not at all true; the reasoning of the court in any particular case is not a single argument of logic as the form of a brief would suggest, but many arguments or syllogisms.
A case brief is in fact a chain of logical arguments, proceeding from the root premises of the court to its final decision. As Judge Aldisert observed, “[o]ften a series of syllogisms are linked with conclusions of previous ones forming the premises of those which follow.” By using a “polysyllogistic” approach, one may trace the court’s reasoning from its underlying assumptions about the law to its ruling in the case before it. An ideal case to illustrate this point is Marbury v. Madison.” There are two reasons to turn to Marbury as a prime example of the use of syllogistic reasoning.
First, Marbury is the foundational case in constitutional law. In Marbury, the United States Supreme Court, speaking through Chief Justice John Marshall, articulated the principle of judicial review; i.e., the authority of the courts to interpret the Constitution and to declare statutes unconstitutional. Because this case established the foundation of the power of the courts to “say what the law is,” it is appropriate to examine the opinion of the Court in determining the foundation of judicial reasoning.
The second reason that Marbury is an ideal case to analyze syllogistically is because of Marshall’s spare, logical style. The legal historian Bernard Schwartz has celebrated Justice Marshall’s “rigorous pursuit of logical consequences” and “[t]he magisterial character of his opinions marching with measured cadence to their inevitable logical conclusion. Marshall achieves this effect by phrasing the issues of a case in terms of black and white, rather than shades of gray. Every hard choice is presented as an “either/or” proposition, not as a matter of degree. For example, in Marbury, Marshall argues
‘that it is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or that the legislature may alter the constitution by an ordinary act.
Between these alternatives there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act, contrary to the constitution, is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power, in its own nature, illimitable.
Marshall presents the question of the duty of the courts to review legislation in similar dichotomous fashion:
So, if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case, conformable to the law, disregarding the constitution; or conformable to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case…
By framing the issues as alternatives with “no middle ground,” Marshall makes it possible to arrive at a single right answer by means of deductive reasoning. Although Marshall makes policy arguments, he does not balance one principle or outcome against another. Marshall’s consequentialist analysis buttresses the conclusions he reaches syllogistically.
As noted above, one of Langdell’s greatest contributions to legal education was the practice of “briefing cases.” As the first step in briefing a case is to state the facts, I will begin with the facts of Marbury, which are familiar to every American lawyer. On the eve of leaving office, President John Adams attempted to appoint William Marbury as Justice of the Peace for the District of Columbia. The President signed the commission appointing Marbury, but the commission was not delivered to Marbury before Adams left office. The incoming President, Thomas Jefferson, instructed his Secretary of State, James Madison, not to deliver the commission to Marbury. Congress, in the Judiciary Act of 1789, had given the Supreme Court the power to issue writs of mandamus to any public official of the United States. Accordingly, Marbury sued Madison in the Supreme Court, asking the Court to issue a writ of mandamus ordering Madison to deliver the commission.”‘ The second step in briefing a case is to state the issue, which is the question of law that the court answers. But even a cursory examination of the Court’s opinion in Marbury reveals a large number of questions that the Court answered in addition to the issue of judicial review. A sampling of these other issues includes the following:
1. Does the Supreme Court have jurisdiction over this case?”
2. Does the Supreme Court have original jurisdiction to issue a writ of mandamus to the Secretary of State?’
3. Is Section 13 of the Judiciary Act a valid statute?”
4. Is Section 13 of the Judiciary Act in conflict with the Constitution?’
5. Does Article III, Section 2, Clause 2, of the Constitution authorize Congress to grant the Supreme Court original jurisdiction to issue writs of mandamus against public officers of the United States?”‘
6. Are statutes that are in conflict with the Constitution valid?
It is obvious that the foregoing issues are listed in inverse order of logical progression; for example, question 2 must be answered before question 1. A narrowed and simplified description of Marshall’s reasoning is diagrammed below. In this redacted version of his opinion, the logical relation among the various issues in the case becomes more apparent.
Issue: Does the Supreme Court have jurisdiction over this case?
Fact: This is a case involving the Supreme Court’s exercise of original jurisdiction to issue a writ of mandamus to the Secretary of State.
Law: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State.
Holding: The Supreme Court lacks jurisdiction over this case.
Issue: Does the Supreme Court have original jurisdiction to issue a writ of mandamus to the Secretary of State?
Fact: Section 13 of the Judiciary Act is not valid.
Law: The Supreme Court may exercise jurisdiction over to issue a writ of mandamus to the Secretary of State only if Section 13 of the Judiciary Act is valid.
Holding: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State.
Issue: Is Section 13 of the Judiciary Act valid?
Fact: Section 13 of the Judiciary Act is in conflict with the Constitution.
Law: Statutes that are in conflict with the Constitution are not valid.
Holding: Section 13 of the Judiciary Act is not valid.
Issue: Is Section 13 of the Judiciary Act in conflict with the Constitution?
Fact: Section 13 of the Judiciary Act provides that the Supreme Court has original jurisdiction to issue writs of mandamus to officers of the United States, while Article III, Section 2 of the Constitution does not authorize Congress to grant the Supreme Court original jurisdiction
Law: If one law permits what another law forbids, the laws are in conflict.
Holding: Section 13 of the Judiciary Act of the Constitution is in conflict with the Constitution.
Issue: Does Article III, Section 2, Clause 2 of the Constitution authorize Congress to grant the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United tates?
Fact: If Article III, Section 2, Clause 1 of the Constitution is interpreted as allowing Congress to grant the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States, then Clause 2 would be rendered meaningless.
Law: The Constitution may not be interpreted in such a way as to render any portion of it meaningless.
Holding: Article III, Section 2, Clause 2 of the Constitution does not authorize Congress to grant the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States.
Issue: Are statutes that are in conflict with the Constitution valid?
Fact: The Framers intended for any statute in conflict with the Constitution to be invalid.’32 Law: The Constitution is to be interpreted according to the intent of the Framers.
Holding: Statutes that are in conflict with the Constitution are not valid.
The individual syllogisms that make up the reasoning of a judicial opinion are connected in that the “holding” of the court in one syllogism supplies a “fact” (minor premise) or a “law” (major premise) for other syllogisms in the chain of reasoning. In the example above, the holding of syllogism 4 is the minor premise of syllogism 3, and the holding of syllogism 6 is the major premise of syllogism 3.
The Court’s reasoning proceeds from its root premises to the ultimate result, which is dictated by the last syllogism in the Court’s chain of reasoning. In this case, the Court’s holding in syllogism 1 that the Supreme Court lacked jurisdiction required it to dismiss Marbury’s petition for writ of mandamus. The foregoing analysis depicts Marshall’s reasoning in Marbury as a simple chain of syllogisms, building a conclusion deductively from its premises. This redacted model does not do justice to Marshall’s opinion.
Challenges to the Minor and Major Premises of a Legal Argument
The soundness of any syllogism may be challenged by attacking either the minor premise or the major premise. An attack on the minor premise of a legal syllogism tests whether the rule is applicable to the facts, while an attack on the major premise tests its validity. This pattern suggests a strategy for attacking legal arguments generally. For example, when the defendant in a tort case raises “economic efficiency” as a defense, one may challenge the applicability of the rule to the facts by asking, “Would it be economically efficient to hold the defendant liable in this case?” In addition, or in the alternative, one may challenge the validity of the rule by asking, “Is it true that economic efficiency is a goal of the law of tort?” Posing challenges to the major and minor premises of the legal syllogism eventually takes us back to the root premises of the legal arguments.
A CASE BRIEF
A case brief is not a single syllogism of deductive logic; rather, it consists of strands or chains of syllogisms- “polysyllogisms.” The polysyllogistic approach is a useful means for describing the underlying structure of a judicial opinion. This approach reveals that the base minor premises of legal arguments consist of items of evidence of what the law is, while the base major premises are the categories of legal arguments that may be legitimately made.
Furthermore, the syllogistic approach to briefing cases reveals that there are two types of hard cases: cases where a rule of law is ambiguous, and cases where the validity of a rule is in question. Questions of ambiguity arise when the minor premise of a proposition of law is challenged, while questions of validity arise when the major premise of a proposition of law is challenged. Hard cases are cases where two or more valid legal arguments lead to contradictory conclusions. It is now recognized, however, that the purpose of legal reasoning is not to prove to others the truth of a statement of fact, but is rather to persuade others about how the law ought to be interpreted and applied. Persuasive legal argumentation resembles not a chain of syllogisms, but a cable of mutually supportive arguments.
Although legal reasoning may logical in form, in substance it is evaluative. Accordingly, although syllogistic reasoning plays a central role in briefing judicial opinions, logic alone cannot describe hard cases. When we attempt to reduce a judicial opinion to an argument of deductive logic, the aspects of legal reasoning that are not deductive are exposed. A system of pure logic works only in easy cases, i.e. cases where the validity of the rule of law is unchallenged and the terms of rule are unambiguous. Hard cases are resolved by a complex balancing of intramodal and intermodal arguments, in which the court evaluates not only the strength of individual arguments, but also the relative weight of the values that support our legal system, as implicated in the particular case.
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