2. Class 02/05/04 Announcements: n The Standard of Review assignment –Federalism –Using a case on point n If you find new standard of review cases indicate which ones you intend to use on your outline. n Your source list and an outline of the argument section are due in class this Monday, Feb. 9. Point-headings will not be graded. n 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). n Research Tips On Westlaw/Lexis

3. Why care about I.R.A.C.? Writing the Argument Section of the Appellate Brief

4. Empirical Generalization/Inductive Analogy Accumulation of Factors/Deductive The Deductive Entailment Four Ways Premises May Be Connected To The Conclusion

5. The Deductive Entailment n The deductive argument is the most complete relationship of logical support. n A deductive argument is valid because its conclusion follows directly from its premises. n The only way a deductive argument can fail is if the premises are untrue.

6. The most simple example of a deductive argument is the syllogism. n Classic Example: n 1. All men are mortal. n 2. Socrates is a man. n 3. Therefore, Socrates is mortal.

7. 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.

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

9. So what are you really doing? I.R.A.C. Setting forth the law, and then applying it to the facts –

10. 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).

11. R stands for Rule Identification. This is like the Major Premise, the first part of a deductive argument. n You should inform the reader of the pertinent law to the client’s situation. n This rule section may include rule sentences, case discussions or both.

12. R stands for Rule Identification (The Major Premise) n Use rule sentences to spell out for your reader an outline or the relationships between legal principles. n 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.

13. Using Rule Sentences n 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).

14. Case Discussions Provide Relevant Facts: n 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 pre- zygotes would be donated for research. (facts) The court held that the previous agreement regarding disposition was controlling. Id. at 175. (holding)

15. 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 counter- arguments to your application of a rule of law.

16. C is for Conclusion: n The form for the overall conclusion of an appellate brief is different from the form of the memo. n 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.

17. Using the syllogism to outline your argument in the appellate brief n Using the deductive argument in a appellate brief gives the appearance of the legal certainty of your position. n However, because only the premises can be challenged in a deductive argument, you need to provide support for the premises.

18. 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

19. 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.

20. 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.

21. 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 factual propositions in evidence (THE RECORD ON APPEAL).

22. 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 What kind of conductive arguments (factor analysis) might you use to support your appellate brief argument regarding the Motion to Dismiss?

23. Constructing Syllogisms n Gulf Sturgeon Example (handout)

24. The Issue is whether the ESA prohibits the Pier. n What is best conclusion for your client? That the ESA prohibits the pier

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

26. 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)

27. 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.

28. 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.

29. 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.”

30. 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.”

31. 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.”

32. 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.

33. 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.

34. 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.

35. Draft your own argument. n Create a syllogism representing your position as to the issues in the Appellate Brief.

36. Use I.R.A.C., a form of Deductive Logic in Your Brief. The End.