CLASS LECTURE #3 ARGUMENTS AND STRUCTURE FALL 2011 CLAY MCDONOUGH Critical Thinking and the Law PLE 350/AJU 350.

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CLASS LECTURE #3 ARGUMENTS AND STRUCTURE FALL 2011 CLAY MCDONOUGH Critical Thinking and the Law PLE 350/AJU 350

A little fun…very little Argument Argument  Terrible Oral Argument  Don’t EVER be “THAT GUY” Argument 

Legal Arguments LEGAL ARGUMENT – “Brief” Slideshow

Philosophical Definition of Legal Argument A legal argument is a set of propositions  One or more of the propositions in the set are called "premises.“  One proposition in the set is call "the conclusion.“  If the premises are true, then we have reasons for accepting the truth of the conclusion

Definition Continued A proposition (but not a legal proposition) is something that represents the world in a certain way. Propositions represent the world truthfully or falsely. Propositions can be expressed by declarative sentences. Here are some examples.  1. Sacramento is north of San Diego. (True)  2. Sacramento is north of Seattle. (False)  3. Sacramento is north of San Diego and north of Seattle. (False)  4. Sacramento is north of San Diego or north of Seattle. (True) The sentence "Sacramento is north of San Diego," expresses a proposition that represents the world being a certain way.

Definition Continued Following is an argument from a set of propositions expressed by declarative sentences:  Premise 1- Sacramento is north of San Diego.  Premise 2- Seattle is north of Sacramento.  Conclusion- Seattle is north of San Diego. If the premises of this argument are true, then we have reasons for accepting the truth of the conclusion.

Definition Continued A legal proposition is a legal principle (See Danville Street Car Co. v. Watkins (1900) 97 Va. 713 [34 S.E. 884, 886); McDevitt v. Sullivan (1857) 8 Cal. 592, 594, or a legal rule (See Patterson v. Omaha & C.B. Railway & Bridge Co. (1894) 90 Iowa 247 [57 N.W. 880, 882]. An example of a legal proposition is expressed by California Vehicle Code section subdivision (a):  "Except as provided in Section 22356, no person may drive a vehicle upon a highway at a speed greater than 65 miles per hour."

Smarter than me… A legal proposition is neither true or false.  That is because commands cannot be true or false.  Consider this: "Keep off the grass."  Since California Vehicle Code section subdivision (a) cannot be true, there is no proposition whose truth can give us a reason to accept this rule as true. Therefore, California Vehicle Code section subdivision (a) cannot be the conclusion of an argument. Because the rule on speeding cannot be true, it cannot serve as the premise of an argument. While legal propositions cannot serve as the premises or conclusions of an argument, an argument can be constructed about legal propositions. And that is what a legal argument is.

An Example California Vehicle Code section subdivision (a) states that a person cannot drive on a highway at a speed greater than 65 miles per hour. Mrs. Jones drove on a highway at a speed greater than 65 miles per hour to get her husband to the hospital emergency room. Had Mrs. Jones not driven at a speed greater than 65 miles per hour, then her husband would have died because he would not have gotten to the hospital in time. The California Legislature would not have intended that the statute limiting speed to 65 miles per hour result in a person's death in the case of a medical emergency. The California Legislature did not intend to limit the speed limit to 65 miles per hour in every situation.

An Example: California Vehicle Code section subdivision (a) states that a person cannot drive on a highway at a speed greater than 65 miles per hour.  PREMISE Mrs. Jones drove on a highway at a speed greater than 65 miles per hour to get her husband to the hospital emergency room.  PREMISE Had Mrs. Jones not driven at a speed greater than 65 miles per hour, then her husband would have died because he would not have gotten to the hospital in time.  PREMISE The California Legislature would not have intended that the statute limiting speed to 65 miles per hour result in a person's death in the case of a medical emergency.  PREMISE The California Legislature did not intend to limit the speed limit to 65 miles per hour in every situation.  CONCLUSION

A Good Legal Argument – Appellate Brief Good Argument