Announcements: n The Standard of Review assignment –If you find a new standard of review case include it on your outline. n Your source list and an outline of the argument section are due in class this Monday, Feb. 7. Point-headings will not be graded. n Again, include no more than 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 3 pages double-spaced and the source list to one page (single or double). n Review form for outline including roadmaps.

Writing the Argument Section of the Appellate Brief

Parts of a Syllogism n Major premise: Broad statement of general applicability. n Minor premise: Narrower statement of particular applicability. n Conclusion: Logical consequence of the major and minor premises.

Analytical Categories n 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. n This should help you come up with possible point and sub-point headings for your brief. Outlining the Argument

Legal Arguments as Syllogisms n Major premise = statement of law. n Minor premise = application of law to specific facts. n Conclusion = derives from premises.

Thus, to support your arguments, you also need to “ground” your premises. n Grounding = providing enough support for the premises to convince your audience that the premises are true.

How do you ground the Major Premise? n By citing to legal authorities n 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? n 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. n Ground the minor premise first with another deductive argument and eventually on facts in evidence (THE RECORD ON APPEAL).

Relationship to analogies, conductive or other arguments- n The other forms of argument help with legal reasoning- with the grounding. n For example, analogies in the form of comparisons with precedent cases can support a premise, but do not provide the answer (the “so what”?) n Have you discovered any kind of conductive arguments (factor analysis) might you use to support your appellate brief argument regarding effective accommodations?

Constructing Syllogisms n Gulf Sturgeon Example (handout)

n What is best conclusion for your client? That the ESA prohibits the pier

Convert this to a Syllogism n 1. n 2. n 3. Therefore, the ESA prohibits the pier. (Conclusion)

Construct the Major Premise What Does the ESA Prohibit? n 1. The ESA prohibits “takings.” (Rule) n 2. n 3. Therefore, the ESA prohibits the pier. (Conclusion)

Construct the Minor Premise n 1. The ESA prohibits “takings.” n 2. The pier would be a “taking.” n 3. Therefore, the ESA prohibits the pier.

Ground the Major Premise n 1. The ESA prohibits “takings”: 16 U.S.C. § 1538(a)(1). n 2. The pier would be a “taking.” n 3. Therefore, the ESA prohibits the pier.

You Can Also Ground a Minor Premise by Converting to a New Syllogism n 1. The ESA prohibits “takings”: 16 U.S.C. § 1538(a)(1). n 2. The pier would be a “taking.” n 3. Therefore, the ESA prohibits the pier. n 1. n 2. n 3. Therefore, the pier would be a “taking.”

Construct and Ground a Major Premise for the of New Syllogism. n 1. “Taking” means “harm” to an endangered species: 16 U.S.C. § 1532(19). n 2. n 3. Therefore, the pier would be a “taking.”

Construct the Minor Premise of Your New Syllogism n 1. “Taking” means “harm” to an endangered species: 16 U.S.C. § 1532(19). n 2. The pier would “harm” the Gulf Sturgeon, an endangered species. n 3. Therefore, the pier would be a “taking.”

Ground the Minor Premise by Converting to a New Syllogism n 1. “Taking” means “harm” to an endangered species: 16 U.S.C. § 1532(19). n 2. The pier would “harm” the Gulf Sturgeon, an endangered species. n 3. Therefore, the pier would be a “taking.” n 1. n 2. n 3. The pier would “harm” the Gulf Sturgeon, an endangered species.

Construct and Ground a Major Premise n 1. “Harm” means habitat modification effecting breeding. 50 C.F.R. § 17.3 n 2 n 3. The pier would “harm” the Sturgeon, an endangered species.

Construct and Ground a Minor Premise n 1. “Harm” means habitat modification effecting breeding. 50 C.F.R. § 17.3 n 2.The pier will modify the habitat enough to effect breeding. n 3. The pier will “harm” the Sturgeon, an endangered species.

Draft your own argument. n Create a syllogism for the sample brief. n The for 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.