During the second semester of law school, many legal writing courses focus on transitioning from teaching law students objective legal analysis to teaching persuasive advocacy. Learning to craft arguments as an advocate involves learning to support a position (before a court or administrative agency or other decision-maker, to a client or opponent, etc.). Learning to support a position in turn involves learning to craft arguments in support of that position that are likely to convince the decision-maker. These arguments may emerge from a variety of sources and a welter of conflicting values.
Commentators have identified a number of types or currents of legal arguments most commonly used. Law students and attorneys must learn to recognize the different types of legal arguments and understand the strengths and weaknesses of each type of argument. Law students who are just learning about how to make legal arguments, even as they formulate individual legal arguments, often have trouble understanding what kinds of arguments they are making.
Wilson R. Huhn’s book The Five Types of Legal Argument (Carolina Academic Press 2d ed.) is very helpful in learning to identify what individual legal arguments are actually doing, by placing legal arguments into one of five major categories: 1) text, 2) intent, 3) precedent, 4) tradition, or 5) policy analysis. These five types of legal arguments can function as a checklist of the kinds of legal arguments that may legitimately be made to decision-makers because they are the types of arguments that lawyers and judges accept as legitimate.
Huhn explains that each type of legal argument arises from a different source of law; is based on a different set of evidence; and serves different values. Text arises from text of enacted law (constitutions, statutes, regulations, etc.); intent arises from what the text meant to enactors; precedent arises from the holdings or opinions of courts setting forth what the law is; tradition arises from the traditional ways members of the community have conducted themselves; and policy analysis arises from the underlying values and interests that the law is meant to serve. As discussed below, Huhn’s book goes into detail explaining each of these five types of legal argument.
Text: Many areas of U.S. law are governed by controlling legal texts such as the constitution, statutes, regulations, and/or court rules. Textual arguments are arguments that center around using methodologies for interpreting the language of these texts. There are three main methods of textual interpretation: plain meaning; canons of construction; and intra-textual arguments. The plain meaning rule relies on the definitions of particular words and phrases in the text to interpret the text. Canons of construction are rules of interpretation that draw inferences about the meaning of a rule from its textual or legal context. Finally, intratextual arguments use one portion of the legal text (document) to interpret another portion. To determine the meaning of a provision, intratextual arguments either look to the placement of a provision of a law within the organization of the document; or look to the use of similar/dissimilar terms in other parts of the document.
Intent — Another type of legal argument is based on the intent of the people who wrote the text– for example, the original intent of the Framers of the Constitution or the intent of legislators who drafted a statute. Evidence of intent may be drawn from: 1. text of the law itself, 2. previous versions of the text, 3. drafting history of the text, 4. official comments to the text, or 5. contemporary commentary.
Precedent – Another type of legal argument, the one most well-known to first-year law students, is argument based on judicial precedent. Making an argument based on judicial precedent includes analogizing or distinguishing your client’s case from the facts of precedent cases, and, in the case of arguing for a particular rule to be adopted, also includes examining what rules past courts have adopted on the issue, and why, and arguing which courts are correct and which are wrong based on how they interpreted the constitution, a statute, or important binding precedent such as a U.S. Supreme Court case.
Tradition – Another source of legal authority is the traditions of the American people. The Supreme Court has identified tradition as a principal test for determining our fundamental rights. Tradition is looked to in various areas of law, such as the law of commercial transactions, where courts consult industry customs and traditions. Similarly, social traditions play a role in the allocation of liability for tort.
Policy – A policy argument construes the law by inquiring into the underlying purposes of the law. It determines the meaning of the law based on the values the law is intended to serve. Policy arguments are different from the other four types because they are consequentialist in nature; that is, unlike the other four types of arguments, which look to the past in that they are appeals to authority, policy arguments look to the future by arguing that a certain interpretation of the law will bring about a certain state of affairs – and that this state is either desirable or unacceptable in the eyes of the law.
Understanding each of these types of arguments can help law students and young attorneys tasked with writing briefs in learning to formulate effective legal arguments.