Presentation Five: The Stages of Legal Reasoning:

Presentation Five: The Stages of Legal Reasoning:

Presentation Five: The Stages of Legal Reasoning: Formalism, Analogy, and Realism Wilson R. Huhn 2013 Tonights Presentation, and How It Fits The theory of The Five Types of Legal Argument that was described in Presentations One through

Four is intensely practical for both the study and the practice of law. The theories on Formalism, Analogy and Realism as set forth in Presentation Five are of intellectual interest a glimpse into the deep structure of legal reasoning. 2 There Are Three Types of Legal Reasoning 1. Formalism

2. Analogy 3. Realism 3 Why Are There Three Types of Legal Reasoning? The three types of legal reasoning satisfy the different requirements for a system of law.

4 Three Requirements for Any System of Law The law must be logical in order to appeal to reason The law must be consistent in order to satisfy our sense of fairness The law must reflect morality in order to command our obedience

5 How the Three Types of Legal Reasoning Satisfy the Requirements for a System of Law Formalism promotes objectivity and certainty in the law Analogy promotes consistency and coherence in the law Realism promotes flexibility and fairness in the law

6 I. THE USE AND LIMITS OF FORMALISM (DEDUCTIVE LOGIC) IN LEGAL ANALYSIS 7 Formalism Formalism is the application of a rule

according to its terms to the facts of a case. 8 Formalistic Reasoning Is Deductive Logic Law aspires to be logical in form, and clear rules lend themselves to logical application.

9 What Formalists Believe Formalists consider law to consist of rules the blackletter law. They believe that legal reasoning should be purely logical. They believe that there are right answers in the law. 10

Cesare Beccaria and the Legal Syllogism In every criminal case, a judge should come to a perfect syllogism: the major premise should be the general law; the minor premise, the act which does or does not conform to the law;

and the conclusion, acquittal or condemnation. Cesare Beccaria (1738-1794) 11 Structure of Legal Rules All legal rules take this form: If certain facts are true, then a certain legal result applies.

EXAMPLE: If a person purposefully and without justification or excuse causes the death of another human being, then the person is guilty of murder. 12 What is a Syllogism? A syllogism is an argument of deductive logic. A syllogism has four parts:

Question Minor Premise Major Premise Conclusion Example of a Syllogism Question: Is Socrates mortal? Minor Premise: Socrates is a human being.

Major Premise: All human beings are mortal. Conclusion: Socrates is mortal. The Brief of a Case Is a Syllogism The four parts of a brief correspond precisely to the four parts of a syllogism: Issue .. Question Facts .. Minor Premise Law . Major Premise Holding ... Holding

The Brief of a Case Is an Argument of Deductive Logic The brief of a case is an argument of deductive logic stated in categorical form a syllogism. 16 The Case of the Burglar and the Sleeping Homeowner

If a burglar breaks into a home, sees the homeowner sleeping on the couch, and shoots the homeowner dead. If apprehended, we would no doubt charge the burglar guilty of murder. Murder is defined as the act of purposefully causing the death of another human being without justification or excuse. 17 Syllogism for the Burglar Case

Issue: Is the defendant guilty of murder? Facts: The defendant is a burglar who intentionally killed a sleeping homeowner to reduce the risk of being caught. Law: Any person who purposefully and without justification or excuse causes the death of another human being is guilty of murder. Holding: The defendant is guilty of murder. 18 The Battered Spouse Case

A woman was horribly abused by her husband for many years. One night he came home drunk, waving a gun and threatening to killer her. He then fell asleep on the couch. She picked up the gun and she shot him dead as he slept. 19 Syllogism for the Battered Spouse Case

Issue: Is the defendant guilty of murder? Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: Any person who purposefully and without justification or excuse causes the death of another human being is guilty of murder. 20 Holding: ?

Questioning Premises In any logical syllogism, you may attack the major premise or the minor premise. In this case, the facts (the minor premise) are not disputed. The law, however, is not clear. Two Ways to Attack the Major Premise of a Legal Syllogism Questions of validity Is the major premise a correct statement of

the law? Questions of ambiguity Assuming that the statement of the law is correct, are the terms contained in the rule clear or are they ambiguous? Questions of Validity Is this a correct statement of the law?: A person who purposefully and without justification or excuses causes the death of

another person is guilty of murder. Questions of Ambiguity What do the terms purposefully, justification, and excuse mean in the context of this case? Purposefullness Issue: Did the defendant act purposefully? Facts: The defendant is a woman who had

been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: ? Holding: ? 25 Justification Issue: Did the defendant act in selfdefense? Facts: The defendant is a woman who had

been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: ? Holding: ? 26 Excuse Issue: Was the defendant legally insane when she killed her husband?

Facts: The defendant is a woman who had been horribly abused by her husband for many years. Shortly after he credibly threatened to kill her, she shot him dead as he slept on the couch. Law: ? Holding: ? 27 The Reasoning in Judicial Opinions Consists of Chains of Logical

Syllogisms Example: Marbury v. Madison Syllogisms Puzzle Place the following legal syllogisms from Marbury v. Madison in logical order. Syllogism 1 Issue: Does the Supreme Court have original jurisdiction to issue a writ of mandamus to the Secretary of State? Fact: Section 13 of the Judiciary Act is not valid.

Law: The Supreme Court may exercise jurisdiction to issue a writ of mandamus to the Secretary of State only if Section 13 of the Judiciary Act is valid. Holding: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. 30 Syllogism 2 Issue: Is Section 13 of the Judiciary Act valid? Fact: Section 13 of the Judiciary Act is in conflict with the Constitution.

Law: Statutes that are in conflict with the Constitution are not valid. Holding: Section 13 of the Judiciary Act is not valid. 31 Syllogism 3 Issue: Are statutes that are in conflict with the Constitution valid? Fact: The framers intended for any statute in conflict with the constitution to be invalid. Law: The constitution is to be interpreted according to the

intent of the framers. Holding: Statutes that are in conflict with the Constitution are not valid. 32 Syllogism 4 Issue: Is Section 13 of the Judiciary Act in conflict with the Constitution? Fact: Section 13 of the Judiciary Act grants the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States, but Article III, Section 2, Clause 2 of the Constitution prohibits Congress from granting the Supreme Court original jurisdiction to issue writs of

mandamus to officers of the United States. Law: If one law permits what another law forbids, the laws are in conflict. Holding: Section 13 of the Judiciary Act of the Constitution is in conflict with the Constitution. 33 Syllogism 5 Issue: Does the Supreme Court have jurisdiction over this case? Fact: This is a case involving the Supreme Court's exercise

of original jurisdiction to issue a writ of mandamus to the Secretary of State. Law: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. Holding: The Supreme Court lacks jurisdiction over this case. 34 Syllogism 6 Issue: Does Article III, Section 2, Clause 2 of the Constitution prohibit Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States?

Fact: Unless Article III, Section 2, Clause 2 of the Constitution is interpreted as prohibiting Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States, the second sentence of Clause 2 would be rendered meaningless. Law: The Constitution may not be interpreted in such a way as to render any portion of it meaningless. Holding: Article III, Section 2, Clause 2 of the Constitution prohibits Congress from granting the Supreme Court original jurisdiction to issue writs of mandamus to officers of the United States. 35

Syllogism 7 Issue: Is the Constitution to be interpreted according to the intent of the Framers? Fact: The intent of the Framers in drafting the Constitution reflects the original will of the people. Law: The original will of the people determines the meaning of the Constitution. Holding: The Constitution is to be interpreted according to the intent of the Framers. 36

The Key to Solving the Puzzle The holding of a previous syllogism in the chain supplies the major or minor premise of the next syllogism in the chain. The Relation Among Syllogisms 4, 3 and 2 Syllogism Four: Syllogism Two

Holding: Section 13 of the Judiciary Act of the Constitution is in conflict with the Constitution. Issue: Is Section 13 of the Judiciary Act valid? Syllogism Three:

Holding: Statutes that are in conflict with the Constitution are not valid. Fact: Section 13 of the Judiciary Act is in conflict with the Constitution. Law: Statutes that are in conflict with the Constitution are not valid. Holding: Section 13 of the

Judiciary Act is not valid. 38 The Progression of Syllogisms from General to Specific Base 7 3 Specific

Premises6 4 2 1 5 Result F F

6H 4H L L F F F 2H 1H F F L L L 7H 3H L L 5H 40

The Final Syllogism Syllogism No. 5: Issue: Does the Supreme Court have jurisdiction over this case? Fact: This is a case involving the Supreme Court's exercise of original jurisdiction to issue a writ of mandamus to the Secretary of State. Law: The Supreme Court lacks original jurisdiction to issue a writ of mandamus to the Secretary of State. Holding: The Supreme Court lacks jurisdiction over this case.

41 The Initial Assumptions Syllogism 6 Law: The Constitution may not be interpreted in such a way as to render any portion of it meaningless. Syllogism 7: Law: The original will of the people determines the meaning of the Constitution. 42

But Law is Not Purely Logical In Marbury, Justice Marshall used a number of other arguments, including policy arguments, to support the conclusion that the Court had the power to declare laws unconstitutional. The Difference Between Easy Cases and Hard Cases Easy cases may be solved formalistically, deductively, by applying a clear rule of law to

unambiguous facts. (Burglar and sleeping homeowner case) Hard cases are cases where the validity or the meaning of the rule of law is in question. (Battered spouse case) Why Are There Hard Cases? It may not be clear what the rule of law applies. The applicable rule of law may be ambiguous. Different types of legal arguments may yield different answers as to what the law is

The resolution of the case may depend upon identifying the different values that are at stake and balancing these competing policy goals Legal Reasoning is Logical in Form, but Evaluative in Substance In form, the growth of the law is logical . On the other hand, in substance the growth of the law is in fact and at bottom the result of more or less

definitely understood views of public policy. Oliver Wendell Holmes Stage Theory of Legal Reasoning In hard cases, courts proceed from formalism, to analogy, to realism, in order to resolve the case. 47

II. FORMALISM, ANALOGY, AND REALISM IN LEGAL ANALYSIS 48 Analogy Analogy is the application of a rule to a case because the facts of the case are similar to the fact portion of the rule.

49 Edward Levi on Reasoning by Analogy The basic pattern of legal reasoning is reasoning by example. It is reasoning from case to case. It is a three-step process . 50

Levi The Three Steps of Legal Analogies The steps are these: similarity is seen between cases; next the rule of law inherent in the first case is announced; then the rule of law is made applicable to the second case. 51

Three Gestational Surrogacy Cases 1. In re Baby M (Formalism) 2. Johnson v. Calvert (Analogy) 3. Buzzanca v. Buzzanca (Realism) 52 1. The Baby M. Case

Facts: In this case, because Mrs. Stern was unable to conceive, Mr. Stern impregnated another woman, Mary Beth Whitehead, who had agreed to serve as a surrogate and to give up the child to the couple. After Mrs. Whitehead gave birth she changed her mind and attempted to keep the child, claiming that she was the childs mother under the law. 53

Formalist Analysis in Baby M. Issue: Is Mrs. Whitehead the lawful mother of the child? Facts: Mrs. Whitehead gave birth to the child. Law: A woman who gives birth to a child is the lawful mother of the child. Holding: Mrs. Whitehead is the lawful mother of the child. 54

2. Johnson v. Calvert Facts: A married couple, Mark and Crispina Calvert, could produce gametes but Mrs. Calvert could not carry a pregnancy. An embryo was created from their egg and sperm, and the couple entered into a contract with Mrs. Johnson and her husband for the embryo to be implanted into Mrs. Johnson and for her to carry the child to term and to give the child to the Calverts. Upon the birth of the child, Mrs. Johnson changed her mind, and sought to keep the child.

Issue: Who is the mother in the eyes of the law? 55 Formalism Based upon the rule that The woman who gives birth to a child is the lawful mother of the child, the formalist analysis would still find that Mrs. Johnson is the lawful mother of the child.

56 But If you find the formalist analysis unsatisfactory because the people who drafted the rule did not intend for it to apply to a case of gestational surrogacy, then you might look for other rules of law that you could apply by analogy 57

Reasoning by Analogy We could draw an analogy to the law of contract We could draw an analogy to adoption law. We could draw an analogy to constitutional law 58 Analogy to the Law of Contract Is the surrogacy contract more like a

contract for the sale of goods or a contract for the sale of services? If it is a sale of goods then the contract is invalid because babyselling is illegal. If it is a sale of services then it can be argued that the sale of pregnancy services is lawful. 59 Analogy to Adoption Law Is the arrangement between the surrogate and the

married couple more like a private adoption or more like foster parenthood? If it is more like an adoption then the arrangement is illegal, because the birth mother must be given a chance to refuse to give up her child following birth If it is more like foster parenthood, then the childs real parents may demand the return of the child 60

Analogy to Constitutional Law Is the work of serving as a gestational surrogacy more like prostitution or slavery or is it simply a legitimate job? If it is more like prostitution or slavery (forms of exploitation) then the government can prohibit contracts regarding the practice. If it is a legitimate service, then women and couples should have the right to enter into these arrangements and they should be enforced. 61

Result in Johnson v. Calvert The court found that the surrogacy agreement was not a contract for the sale of a baby but rather was a contract for the sale of gestational services, and it enforced the agreement. 62 Realism

Realism is the development of a new rule of law by balancing all of the relevant interests and values that are at stake. 63 The Two-Part Structure of Policy Arguments Predictive statement of fact what consequences will flow from the particular interpretation of the law?

Evaluative judgment are those consequences consistent with the underlying purposes of the law? 64 3. Buzzanca v. Buzzanca Luanne and John Buzzanca were both infertile. They entered into agreements with an egg donor and a sperm donor and a gestational surrogate to have the donated embryo, genetically unrelated to either of them, implanted into a gestational surrogate. John filed for

divorce one month before the child (Jaycee) was born. In the divorce case, he claimed that he and Luanne were not Jaycee's legal parents, while Luanne contended that they were the legal parents. The surrogate who bore Jaycee delivered her to Luanne and made no claim of parentage. 65 Formalist Analysis in Buzzanca

The trial court used formalist analysis and yet made an unprecedented decision he ruled that Jaycee was born without legal parents. In finding that Luanne was not the lawful mother, the court stated: One, there's no genetic tie between Luanne and the child. Two, she is not the gestational mother. Three, she has not adopted the child. That, folks, to me, respectfully, is clear and convincing evidence that she's not the legal mother. 66

Analogical Reasoning in Buzzanca The appellate court reviewed several of the analogies that had been used in Johnson v. Calvert, but found that they were not applicable because there was no genetic relation between the wife and the child in this case. It did find an analogy that it thought appropriate because the husband had consented to the creation of the embryo, it found this case analogous to a

husbands consent to artificial insemination by donor (AID) of his wife, and ruled that John and Luanne were Jaycees lawful parents. 67 But If you find that none of the analogies to other cases is particularly persuasive, then you might find it necessary to develop a new rule of law

68 Realist Analysis Using realism, a court balances all of the relevant values and interests that are at stake in developing a new rule of law and arriving at a conclusion. 69 Values to Be Considered in

Developing a Parentage Rule for Gestational Surrogacy Cases Protecting the intentions of the parties to a contract or their consent to a procedure Guarding against the exploitation of womens bodies Establishing certainty in the law of parentage Preserving the opportunity for infertile couples to procreate Protecting the rights of birth mothers and genetic parents

Protecting the best interests of children Protecting the rights of women to work 70 How Were the Foregoing Values Discovered? In the course of searching for analogous cases cases that have similar facts or cases that involve a similar constellation of values we will identify the values that are at stake in the case at hand.

71 Progression from Formalism, to Analogy, to Realism Easy cases can be resolved formalistically, by the application of an existing rule according to its terms. In harder cases, where existing rules do not literally apply, an existing rule may be applied by analogy.

In the hardest cases, where no existing rules apply according to their terms or by analogy, a new rule must be developed. 72 Analogy is the Bridge Between Formalism and Realism In the easiest cases, courts use formalism applying rules according to their terms. In somewhat harder cases, courts use formalist analogies applying the rules of cases which are very

similar on the facts. In still harder cases, courts draw realist analogies to cases which have similar values and interests at stake applying the rules of those cases to the case to be decided. In the hardest cases of all, courts balance all of the relevant values and interests identified in the previous stage to develop a new rule to decide the case. 73 The Stages of Legal Reasoning

in Progressively Harder Cases Formalism Formalist Analogies Realist Analogies Realism 74 III. THE STAGES OF LEGAL REASONING IN THE EVOLUTION OF RULES AND STANDARDS

Rules Stop at red light. Rules are clear, but may be unfair. Rules are efficient in situations where facts of different cases are basically similar. Rules are difficult to create but easy to apply. Example: specific emissions limits for industries Rules are applied formalistically

Do the facts of the case match the fact portion of the rule? 76 Standards Proceed cautiously on yellow light Standards are fair, but may be ambiguous Standards are efficient where it is necessary to cover many different fact situations Standards are easy to create but difficult to apply

Example reasonable person standard in tort law Standards are applied realistically What are the facts, what are the underlying values and interests to be considered, and how are those values and interests involved in the case to be decided? 77 Evolution of a Rule into a Standard Rules evolve into standards as the courts recognize exceptions to a rule. As exceptions

accumulate, the courts may recognize an underlying policy that determines whether to recognize the exception to the rule. Eventually, it is easier to state the law in terms of the standard rather than in terms of the rule and its many exceptions. 78 Example of a Rule Turning into a Standard At common law, there developed numerous

exceptions to the rule against hearsay. In 1969, the Advisory Committee on Evidence recommended the following standard in place of the specific hearsay exceptions: A statement is not excluded by the hearsay rule if its nature and the special circumstances under which it was made offer assurances of accuracy. 79 Evolution of a Standard into a Rule

Standards evolve into rules as the courts acquire experience interpreting the standard. Factual similarities between the cases applying the standard may allow the law to be articulated in terms of a rule. 80 Example of Standard Evolving Into a Rule Law is, Persons may proceed at a

reasonable rate of speed. Judicial precedent may establish that 120 miles per hour is an unlawful rate of speed under any circumstances, leading to the adoption of a rule. 81 Another Example of a Standard Evolving Into a Rule Congress adopted the residual exception to the

rule against hearsay in Rule 807, admitting statements which have equivalent circumstantial guarantees of trustworthiness as the other hearsay exceptions and which are more probative of a material fact than any other evidence. As the courts interpret this standard, there may emerge factual similarities in cases where the residual exception is recognized, such as the admission of grand jury testimony in certain circumstances. At some point in time, it may be easier to express the law in terms of

rules rather than as a standard. 82 Analogy is the Bridge Between Formalism and Realism As rules evolve into standards, the courts draw realist analogies among all of the cases making exceptions to the rules. As standards evolve into rules, the courts draw formalist analogies among all of the cases applying the standards.

83 Realist Analogies and Formalist Analogies Help the Law to Evolve Cases creating exceptions to rules Standards Realist Analogies Cases interpreting standards Formalist Analogies

Rules 84 The Law Moves from Rules to Standards and Back Again

Doctrine of Laches Statutes of Limitation Discovery Rule, other tolling rules Statutes of Repose 85 Why Are There Three Stages of Legal Reasoning? Formalism promotes objectivity and certainty in the law

Analogy promotes consistency and coherence in the law Realism promotes flexibility and fairness in the law 86 Not Hierarchical Stages, But Stages of a Cycle Formalism Realism

Analogy 87 END 88

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