Class 02/05/04 Announcements:
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The Standard of Review assignment
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Federalism
Using a case on point
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If you find new standard of review cases indicate which ones you
intend to use on your outline.
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Your source list and an outline of the argument section are due in
class this Monday, Feb. 9. Point-headings will not be graded.
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Again, include no more than 25-30 cases plus statutes on the
source list. Divide the sources according to the issues and include
FULL case citations. Limit the outline to no more than 2 ½ pages
double-spaced and the source list to one page (single or double).
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Research Tips On Westlaw/Lexis
Writing the Argument
Section of the Appellate Brief
Why care
about I.R.A.C.?
Four Ways Premises May Be
Connected To The Conclusion
Empirical Generalization/Inductive
Analogy
Accumulation of Factors/Deductive
The Deductive Entailment
The Deductive Entailment
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The deductive argument is the most complete
relationship of logical support.
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A deductive argument is valid because its
conclusion follows directly from its premises.
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The only way a deductive
argument can fail is if the
premises are untrue.
The most simple example of a
deductive argument is the syllogism.
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Classic Example:
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1. All men are mortal.
2. Socrates is a man.
3. Therefore, Socrates is mortal.
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Parts of a Syllogism
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Major premise: Broad statement of
general applicability.
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Minor premise: Narrower statement of
particular applicability.
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Conclusion:
Logical consequence of the
major and minor premises.
Legal Arguments as Syllogisms
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Major premise = statement of law.
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Minor premise = application of law to
specific facts.
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Conclusion = derives from premises.
So what are you really doing?
I.R.A.C.
Setting forth the law,
and then applying it to
the facts –
I is for Identifying the Issue
– This is an introduction
which briefs the reader on
the precise issue which
you are about to discuss.
– Typically, in the Appellate
Brief, you will do this with
your issues presented and
again with your point
headings and/or sub-point
headings (the form of
which we discussed).
R stands for Rule Identification.
This is like the Major Premise,
the first part of a deductive argument.
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You should inform the reader of the
pertinent law to the client’s situation.
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This rule section may include rule
sentences, case discussions or both.
R stands for Rule Identification
(The Major Premise)
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Use rule sentences to spell out for your
reader an outline or the relationships
between legal principles.
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However, where the facts of your case
and the precedent cases are a relevant
basis for comparison, draft a case
discussion in your rule section.
Using Rule Sentences
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Example:
It is the party seeking summary judgment
that bears the initial responsibility of informing
the court of the basis for the motion and for
demonstrating the absence of any dispute of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
Case Discussions Provide Relevant Facts:
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In Kass v. Kass, 696 N.E.2d 174 (N.Y. 1998) the
plaintiff sued for ownership of five pre-zygotes created
during the parties’ marriage. (allegation) Now divorced the
wife wanted them implanted, claiming it was her only
chance for genetic motherhood. The husband objected to
the burdens of unwanted fatherhood, claiming the wife had
previously agreed that in the event of divorce, the prezygotes would be donated for research. (facts) The court
held that the previous agreement regarding disposition
was controlling. Id. at 175. (holding)
A Stands for Application of the Rule
This is like the Minor Premise,
the second part of the deductive argument
– You should compare the facts in the appellate
record with the facts of the precedent cases;
– draw links between the law and facts;
– and make references to important words in a case
or statute.
– Finally, your application section should make
arguments which dispose of relevant counterarguments to your application of a rule of law.
C is for Conclusion:
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The form for the overall conclusion of an
appellate brief is different from the form of the
memo.
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Therefore, for the above-stated reasons,
Appellant respectfully requests that this Court
reverse the district court’s order denying
Appellant’s Motion to Transfer venue, or, in the
alternative, reverse the district court’s order
denying Appellant’s Motion for Summary
Judgment.
Using the syllogism
to outline your argument
in the appellate brief
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Using the deductive
argument in a appellate
brief gives the
appearance of the legal
certainty of your position.
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However, because only
the premises can be
challenged in a deductive
argument, you need to
provide support for the
premises.
Outlining the Argument
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Thinking about how to support or
“ground” your premises will help
you to identify the court’s
analytical categories or factors
important in making the legal
determination.
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This should help you come up
with possible point and sub-point
headings for your brief.
Analytical
Categories
Thus, to support your arguments, you
also need to “ground” your premises.
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Grounding = providing enough
support for the premises to
convince your audience that the
premises are true.
How do you ground
the Major Premise?
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By citing to legal authorities
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Demonstrate that mandatory authority
dictates a certain result; ground the major
premise in law. Cite either a . . .
– Higher court.
– Statute.
– Constitution.
How do you ground
the Minor Premise?
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Because a minor premise of a legal
syllogism applies a legal principle to the
facts of the case, the minor premise
always includes some sort of factual
assertion.
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Ground factual propositions in evidence
(THE RECORD ON APPEAL).
Relationship to analogies,
conductive or other arguments
The other forms of argument help with legal
reasoning- with the grounding.
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For example, analogies in the form
of comparisons with precedent
cases can support a premise,
but do not provide the answer
(the “so what”?)
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What kind of conductive arguments (factor analysis)
might you use to support your appellate brief
argument regarding the Motion to Dismiss?
Constructing Syllogisms
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Gulf Sturgeon Example (handout)
The Issue is whether the
ESA prohibits the Pier.
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What is best conclusion for your client?
That the ESA
prohibits the pier
Convert this to a Syllogism
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1.

2.
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3. Therefore, the ESA prohibits the pier.
(Conclusion)
Construct the Major Premise
What Does the ESA Prohibit?
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1. The ESA prohibits “takings.” (Rule)
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2.
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3. Therefore, the ESA prohibits the pier.
(Conclusion)
Construct the Minor Premise
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1. The ESA prohibits “takings.”
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2. The pier would be a “taking.”
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3. Therefore, the ESA prohibits the pier.
Ground the Major Premise
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1. The ESA prohibits “takings”: 16
U.S.C. § 1538(a)(1).
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2. The pier would be a “taking.”
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3. Therefore, the ESA prohibits the pier.
You Can Also Ground a Minor Premise by
Converting to a New Syllogism
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1. The ESA
prohibits “takings”:
16 U.S.C. §
1538(a)(1).
2. The pier would
be a “taking.”
3. Therefore, the
ESA prohibits the
pier.
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1.
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2.
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3. Therefore, the
pier would be a
“taking.”
Construct and Ground a Major
Premise for the of New Syllogism.
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1. “Taking” means
“harm” to an
endangered species:
16 U.S.C. § 1532(19).
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2.
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3. Therefore, the pier
would be a “taking.”
Construct the Minor Premise of
Your New Syllogism
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1. “Taking” means
“harm” to an
endangered species:
16 U.S.C. § 1532(19).
2. The pier would
“harm” the Gulf
Sturgeon, an
endangered species.
3. Therefore, the pier
would be a “taking.”
Ground the Minor Premise by
Converting to a New
Syllogism
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
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1. “Taking” means
“harm” to an
endangered species:
16 U.S.C. § 1532(19).
2. The pier would
“harm” the Gulf
Sturgeon, an
endangered species.
3. Therefore, the pier
would be a “taking.”
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1.
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2.
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3. The pier would
“harm” the Gulf
Sturgeon, an
endangered
species.
Construct and Ground
a Major Premise
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1. “Harm” means habitat
modification effecting
breeding. 50 C.F.R. §
17.3
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2
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3. The pier would “harm”
the Sturgeon, an
endangered species.
Construct and Ground
a Minor Premise
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
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1. “Harm” means habitat
modification effecting
breeding. 50 C.F.R. §
17.3
2.The pier will modify
the habitat enough to
effect breeding.
3. The pier will “harm”
the Sturgeon, an
endangered species.
Draft your own argument.

Create a
syllogism
representing
your position as
to the issues in
the Appellate
Brief.
Use I.R.A.C., a form of
Deductive Logic in Your Brief .
The End.